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Title 33—
For this volume, Cheryl E. Sirofchuck was Chief Editor. The Code of Federal Regulations publication program is under the direction of Michael L. White, assisted by Ann Worley.
(This book contains part 200 to End)
For research and development, laboratory research and development and tests, work for others regulations, see 32 CFR part 555.
CE =
Other regulations issued by the Department of the Army appear in Title 32, Chapter V; Title 33, Chapter II; and Title 36, Chapter III, of the Code of Federal Regulations.
33 U.S.C. 701n.
This part prescribes administrative policies, guidance, and operating procedures for natural disaster preparedness, response, and recovery activities of the United States Army Corps of Engineers.
Section 5 of the Flood Control Act of 1941, as amended, (33 U.S.C. 701n) (69 Stat. 186), commonly and hereinafter referred to as Public Law 84-99, authorizes an emergency fund to be expended at the discretion of the Chief of Engineers for: preparation for natural disasters; flood fighting and rescue operations; repair or restoration of flood control works threatened, damaged, or destroyed by flood, or nonstructural alternatives thereto; emergency protection of federally authorized hurricane or shore protection projects which are threatened, when such protection is warranted to protect against imminent and substantial loss to life and property; and repair and restoration of federally authorized hurricane or shore protection projects damaged or destroyed by wind, wave, or water of other than ordinary nature. The law includes provision of emergency supplies of clean water when a contaminated source threatens the public health and welfare of a locality, and activities necessary to protect life and improved property from a threat resulting from a major flood or coastal
Corps assistance provided under authority of Public Law 84-99 is intended to be supplemental to State and local efforts. The principal assistance programs and activities of the Corps are described in this section.
(a)
(b)
(c)
(d)
(e)
(f)
Non-Federal interests, which include State, county and local governments; federally recognized Indian Tribes; and Alaska Native Corporations, are required to make full use of their own resources before Federal assistance can be furnished. The National Guard, as part of the State's resources when it is under State control, must be fully utilized as part of the non-Federal response. Non-Federal responsibilities include the following:
(a)
(1) Operation and maintenance of flood control works;
(2) Procurement and stockpiling of sandbags, pumps, and/or other materials or equipment that might be needed during flood situations;
(3) Training personnel to operate, maintain, and patrol projects during crisis situations, and preparation of plans to address emergency situations;
(4) Taking those actions necessary for flood control works to gain and maintain an Active status in the Corps Rehabilitation and Inspection Program (RIP), as detailed in subpart D of this part; and,
(5) Responsible regulation, management, and use of floodplain areas.
(b)
(c)
(d)
(e)
(f)
(g)
The following definitions are applicable throughout this part:
Requests for Public Law 84-99 assistance on tribal lands held in trust by the United States, or on lands of the Alaska Natives, may be submitted to the Corps directly by the affected federally recognized Indian Tribe or Alaska Native Corporation, or through the appropriate regional representative of the Bureau of Indian Affairs, or through the Governor of the State.
Disaster preparedness is a basic tenet of State and local responsibility. Assistance provided under authority of Public Law 84-99 is intended to be supplemental to the maximum efforts of State and local interests. Assistance under Public Law 84-99 will not be provided when non-Federal interests have made insufficient efforts to address the situation for which assistance is requested. Assistance under Public Law 84-99 will not be provided when a request for such assistance is based entirely on a lack of fiscal resources with which to address the situation. Non-Federal interests' responsibilities are addressed in detail as follows:
(a)
(b)
(c)
(d)
Emergency operations under Public Law 84-99 apply to Flood Response and Post Flood Response activities. Flood Response activities include flood fighting, rescue operations, and protection of Corps-constructed hurricane/shore protection projects. Post Flood Response activities include certain limited activities intended to prevent imminent loss of life or significant public
(a)
(b)
Prior to, during, or immediately following flood or coastal storm activity, emergency operations may be undertaken to supplement State and local activities. Corps assistance is limited to the preservation of life and property,
(a)
(1) Corps assistance may include operational control of flood response activities, if requested by the responsible tribal, State, or local official. However, legal responsibility always remains with the tribal, State, and local officials.
(2) Corps assistance will be terminated when the flood waters recede below bankfull, absent a short term threat (e.g., a significant storm front expected to arrive within a day or two) likely to cause additional flooding.
(3) Removal of ice jams is a local responsibility. Corps technical advice and assistance, as well as assistance with flood fight operations, can be provided to supplement State and local efforts. The Corps will not perform ice jam blasting operations for local interests.
(b)
(c)
(2) Equipment that is lent will be returned to the Corps immediately after the flood operation ceases, in a fully maintained condition, or with funds to pay for such maintenance. The Corps may waive the non-Federal interest's responsibility to pay for or perform maintenance if a Stafford Act Presidential emergency or disaster declaration has already been made for the affected locality, and the waiver is considered feasible and reasonable.
(3) Expendable supplies that are lent, such as sandbags, will be replaced in kind, or paid for by local interests. The Corps may waive the local interest's replacement/payment if a Stafford Act Presidential disaster declaration has been made for the affected locality, and the waiver is considered feasible and reasonable. All unused expendable supplies will be returned to the Corps when the operation is terminated.
(a)
(1) Flood control projects.
(2) Federally authorized and constructed hurricane/shore protection projects.
(b)
(c)
(d)
(a)
(1) Corps involvement with any non-Federal flood control work normally begins when the sponsor requests an IEI. The Corps will conduct an IEI to determine if the flood control work meets minimum engineering and maintenance standards and is capable of providing the intended degree of flood protection. An Acceptable or Minimally Acceptable rating (see § 203.48) on the IEI is required to allow the project to gain an Active status in the RIP.
(2) CEI's are conducted periodically to ensure that projects Active in the RIP continue to meet Corps standards, and to determine if the sponsor's maintenance program is adequate. A rating of Acceptable or Minimally Acceptable (see § 203.48) on a CEI is required in order to retain an Active status in the RIP.
(b)
(1) Non-Federal sponsors will be informed that an IEI rating of Unacceptable will cause the flood control work to remain in an Inactive status, and ineligible for Rehabilitation Assistance.
(2) Non-Federal sponsors will be informed that a CEI rating of Unacceptable will cause the flood control work to be placed in an Inactive status, and ineligible for Rehabilitation Assistance.
(3) Non-Federal sponsors will be informed that maintenance deficiencies found during CEI's may negatively impact on eligibility of future Rehabilitation Assistance, and the degree of local cost-sharing participation in any proposed work. Follow-up inspections can be made by the Corps to monitor progress in correcting deficiencies when warranted.
(a)
(b)
(a)
(b)
(c)
(d)
(e)
Rehabilitation of Federal flood control projects will be identical to rehabilitation of non-Federal projects (§ 203.44), except for those conditions contained in subpart G of this part concerning cooperation agreements, when the original PCA for the Federal project is sufficient. Additional requirements for Hurricane/Shore Protection Projects are covered in § 203.49.
(a)
(b)
(c)
(d)
Modifications necessary to preserve the structural integrity of existing non-Federal projects may be constructed at additional Federal and non-Federal expense in conjunction with approved rehabilitation work. The additional Federal cost will be limited to not more than one-third of the estimated Federal construction cost of rehabilitation to preflood level of protection, or $100,000, whichever is less. The modification work must be economically justified. Non-Federal interests are required to contribute a minimum of 25% of the total construction costs of the modification, LERRD's, and any additional funds necessary to support the remaining cost of the modification beyond what the Corps can provide. Engineering and design costs will be at Corps cost.
(a)
(b)
(a)
(b)
(c)
(d)
(2)
(3)
(4)
(e)
(f)
(a)
(b)
(2) To be eligible for Rehabilitation Assistance, HSPP's must be:
(i) A completed element of a Federally authorized project; or,
(ii) A portion of a Federally authorized project constructed by non-Federal interests when approval of such construction was obtained from the Commander, Headquarters, U.S. Army Corps of Engineers (HQUSACE), or his designated representative; or,
(iii) A portion of a Federally authorized project constructed by non-Federal interests and designated by an Act of Congress as a Federal project; and
(3) Rehabilitation Assistance for sacrificial features will be limited to that necessary to reduce the immediate threat to life and property, or restoration to pre-storm conditions, whichever is less.
(4) To be eligible for rehabilitation, the sacrificial features of an HSPP must be substantially eroded by wind, wave, or water action of an other than ordinary nature. The determination of whether a storm qualifies as extraordinary will be made by the Director of Civil Works, and may be delegated to the Chief, Operations Division, Directorate of Civil Works.
(5) Rehabilitation will not be provided for uncompleted HSPP's. An HSPP (or separable portion thereof) is considered completed when transferred to the non-Federal sponsor for operation and maintenance.
(6)
(i) The cost of the construction effort to effect repair of the HSPP or separable element thereof (exclusive of dredge mobilization and demobilization costs) exceeds $1 million and is greater than two percent of the original construction cost (expressed in current day dollars) of the HSPP or separable element thereof; or,
(ii) The cost of the construction effort to effect repair of the HSPP or separable element thereof (exclusive of dredge mobilization and demobilization costs) exceeds $6 million; or,
(iii) More than one-third of the planned or historically placed sand for renourishment efforts for the HSPP (or separable element thereof) is lost.
(c)
(d)
(a)
(b)
(2) A sponsor is required for implementation of an NSAP. The NSAP sponsor must be either a non-Federal sponsor as defined in § 203.15, or another Federal agency. The NSAP sponsor must demonstrate that it has the legal authority and financial capability to provide for the required items of local cooperation.
(3) The Corps shall not be responsible for the operation, maintenance, or management of any NSAP implemented in accordance with this section.
(4) The Corps may, in its sole discretion, reject any request for an NSA that would:
(i) Lead to significantly increased flood protection expenses or flood fighting expenses for public agencies, flood control works sponsors, public utilities, or the Federal Government; or,
(ii) Threaten or have a significant adverse impact on the integrity, stability, or level of protection of adjacent or nearby flood control works; or,
(iii) Lead to increased risk of loss of life or property during flood events.
(5) The principal purposes of an NSAP are for:
(i) Floodplain restoration;
(ii) Provision or restoration of floodways; and,
Habitat restoration is recognized as being a significant benefit that can be achieved with an NSAP, and may be a significant component of an NSAP, but is not considered to be a principal purpose under PL 84-99 authority.
(iii) Reduction of future flood damages and associated flood control works repair costs.
(c)
(d)
(2) Provide, or arrange for and obtain, all funding required to implement the NSAP in excess of the limitation established in paragraph (c) of this section.
(3) Accept the transfer of ownership of any lands or interests in lands acquired by the Corps and determined by the Corps to be necessary to implement the NSAP.
(e)
(f)
(2) If not also the NSAP sponsor, the flood control work project sponsor must:
(i) Divest itself of responsibility to operate and maintain the flood control work involved in the NSAP; and
(ii) Provide to the NSAP sponsor such lands or interests in lands as it may have which the Corps determines are necessary to implement the NSAP.
(g)
(2) Removal of structures, including manufactured homes, for salvage and/or reuse purposes.
(3) Demolition and removal of structures, including utility connections and related items.
(4) Debris removal and debris reduction.
(5) Removal, protection, and/or relocation of highways, roads, utilities, cemeteries, and railroads.
(6) Construction to promote, enhance, control, or modify water flows into, out of, through, or around the nonstructural project area.
(7) Nonstructural habitat restoration, to include select planting of native and desirable plant species, native species nesting site enhancements, etc.
(8) Total or partial removal or razing of existing reaches of levee, to include removal of bank protection features and/or riprap.
(9) Protection/floodproofing of essential structures and facilities.
(10) Supervision, administrative, and contract administration costs of other expenses allowed in this subparagraph.
(h)
(i)
(j)
(k)
(l)
(2) The CA requirements of subpart G of this part are not applicable to NSAP's.
(3)
(i) Provide without cost to the United States all borrow sites and dredged or excavated material disposal areas necessary for the project;
(ii) Hold and save the United States free from damages due to the project, except for damages due to the fault or negligence of the United States or its contractor; and
(iii) Maintain and operate the project after completion in a manner satisfactory to the Chief of Engineers.
(4)
(5)
(6)
(7)
(8)
(9)
(10) The CA must include a statement of legal restrictions placed on formerly protected lands that would preclude future use and/or development of such lands in a fashion incompatible with the purposes of the NSAP.
(m)
(2) For the acquisition of LERRD's, Corps funding may be combined with the funding of other Federal agencies, absent specific statutory language or principle prohibiting such combinations, under the terms of the MOA with other Federal agencies.
(a)
(b)
(2)
(c)
(a)
(b)
(2) Eligibility for assistance will be based on one or more of the following factors:
(i) The maximum contaminant level
(ii) The water supply has been identified as a source of illness by a tribal, State, or Federal public health official. The specific contaminant does not have to be identified.
(iii) An emergency (e.g., a flood or chemical spill) has occurred that has resulted in either: one or more contaminants entering the source on a sufficient scale to endanger health; or, the emergency has made inoperable the equipment necessary to remove known contaminants.
(iv) The presence of a contaminant is indicated on the basis of other information available.
(3) Corps assistance will be directed toward the provision of the minimum amount of water required to maintain the health and welfare requirements of the affected population. The quantity of water and the means of distribution will be at the discretion of the responsible Corps official, who will consider the needs of the individual situation, the needs of the affected community, and the cost effectiveness of providing water by various methods.
(4) If a locality has multiple sources of water, assistance will be furnished only to the extent that the remaining sources, with reasonable conservation measures, cannot provide adequate supplies of drinking water.
(5) Loss of water supply is not a basis for assistance under this authority.
(6) Water will not be furnished for commercial processes, except as incidental to the use of existing distribution systems. This does not prohibit the furnishing of water for drinking by employees and on-site customers. Water for preparing retail meals and similar personal needs may be provided to the extent it would be furnished to individuals.
(7) The permanent restoration of a safe supply of drinking water is the responsibility of local interests.
(8) Corps assistance is limited to 30 days, and requires the local interests to provide assurances of cooperation in a CA. (
(9) State, tribal, and local governments must make full use of their own resources, including National Guard capabilities.
(c)
(1) Describe the local and State efforts undertaken. Verify that all reasonably available resources have been committed.
(2) Identify the specific needs of the State, and the required Corps assistance.
(3) Identify additional commitments to be accomplished by the State.
(4) Identify the project sponsor(s).
(d)
(a)
(b)
(2) Before Corps assistance is considered under this authority, the applicability of other Federal assistance authorities must be evaluated. If these programs cannot provide the needed assistance, then maximum coordination should be made with appropriate agencies in implementing Corps assistance.
(c)
(1) A description of local and State efforts undertaken. A verification that all available resources have been committed, to include National Guard assets.
(2) Identification of the specific needs of the State, and the required Corps assistance.
(3) Identification of the additional commitments to be accomplished by the State.
(4) Identification of the project sponsor(s).
(d)
(2)
(3)
(4)
(5)
(6)
(i) The cost of the Chief of Engineers to construct a well in accordance with these regulations, exclusive of:
(A) The cost of transporting equipment used in the construction of wells, and
(B) The cost of investigation and report preparation to determine the suitability to construct a well, or,
(ii) The cost to a private business of constructing such a well.
(7)
(e)
(i) It is in response to a written request by a farmer, rancher, or political subdivision for construction of a well under Public Law 84-99.
(ii) The applicant is located within an area that the Secretary of the Army has determined to be drought-distressed.
(iii) The Secretary of the Army has made a determination that:
(A) The applicant, as a result of the drought, has an inadequate supply of water.
(B) An adequate supply of water can be made available to the applicant through the construction of a well.
(C) As a result of the drought, a private business could not construct the well within a reasonable time.
(iv) The applicant has secured the necessary funding for well construction from commercial or other sources, or has entered into a contract to pay to the United States the reasonable cost of such construction with interest over a period of years, not to exceed 30, as the Secretary of the Army deems appropriate.
(v) The applicant has obtained all necessary Federal, State and local permits.
(2) The financing of the cost of construction of a well by the Corps under this authority should be secured by the project applicant.
(3) The project applicant will provide the necessary assurances of local cooperation by signing a Cooperation Agreement (subpart G of this part) prior to the start of Corps work under this authority.
(4) Equipment owned by the United States will be utilized to the maximum extent possible in exercising the authority to drill wells, but can only be used when commercial firms cannot provide comparable service within the time needed to prevent the applicant from suffering significantly increased hardships from the effects of an inadequate water supply.
(f)
(i) It is in response to a written request by a political subdivision for transportation of water.
(ii) The applicant is located within an area that the Secretary of the Army has determined to be drought-distressed.
(iii) The Secretary of the Army has made a determination that, as a result of the drought, the applicant has an inadequate supply of water for human consumption, and the applicant cannot obtain water.
(2) Transportation of water by vehicles, small diameter pipe line, or other means will be at 100 percent Federal cost.
(3) Corps assistance in the transportation of emergency water supplies will be provided only in connection with water needed for human consumption. Assistance will not be provided in connection with water needed for irrigation, recreation, or other non-life supporting purposes, or livestock consumption.
(4) Corps assistance will not include the purchase of water, nor the cost of loading or discharging the water into or from any Government conveyance,
(5) Equipment owned by the United States will be utilized to the maximum extent possible in exercising the authority to transport water, consistent with lowest total Federal cost.
(g)
Advance Measures consists of those activities performed prior to a flood event, or potential flood event, to protect against loss of life and/or significant damages to improved property from flooding. Emergency work under this authority will be considered when requested by the Governor of a State confronted with an imminent threat of unusual flooding. Corps assistance will be to complement the maximum efforts of tribal, State, and local authorities. Projects will be designed for the specific threat, normally of expedient-type construction, and typically temporary in nature.
(a)
(b)
(1) Describe the non-Federal efforts undertaken. Verify that all available resources have been committed.
(2) Identify the specific needs, and the required Corps assistance.
(3) Identify additional commitments to be accomplished by the non-Federal interests.
(4) Identify the non-Federal sponsor(s).
(c)
(d)
(e)
(f)
(g)
(2)
(a)
(b)
(2) Before furnishing assistance (other than short term technical assistance) under Advance Measures, or under Emergency Water Supplies, the district/division commander must receive a request, signed by the Governor (or the Governor's representative for Emergency Water assistance due to a contaminated source), identifying the problem, verifying that all available State and local resources have been committed, and requesting Federal assistance.
It is Corps policy that provision of assistance under Public Law 84-99 will, insofar as feasible, require local interests to: provide without cost to the United States all LERRD's necessary for the authorized work; hold and save the United States free from damages due to the authorized work, exclusive of damages due to the fault or negligence of the United States or its contractor; maintain and operate, in a manner satisfactory to the Chief of Engineers, all the works after completion. When assistance includes the construction of temporary protective works, the maintain and operate clause is modified by adding (or substituting, as applicable) the requirement for local interests to remove any temporary works constructed by the Corps under Public Law 84-99. If any permanent works are constructed, then the sponsor is required to operate and maintain the project in accordance with requirements determined by the Corps.
(a)
(b)
(c)
(d)
(e)
(f)
(2) For those unusual occasions where permanent construction (vice the temporary standard) for Advance Measures projects is employed, the local sponsor will normally be required to provide 25 percent of the project cost, in addition to LERRD's.
(a)
(b)
(c)
(d)
(e)
In addition to the standard requirements of local cooperation and according to the circumstances, local participation in project work may be in the form of: contributed funds; the furnishing of materials, equipment, or services; and/or accomplishment of work either concurrently or within a specified reasonable period of time. The final terms agreed upon will be set forth in writing and made a part of the CA before commencement of work.
(a)
(b)
(c)
Some sponsors of Federal flood control projects are not required to furnish written assurances of local cooperation, when such assurances already exist from the PCA of the original construction of the project. In lieu of a new PCA, the Corps will notify the sponsor, in writing, of the sponsor's standing requirements. These requirements include such items as LERRD's, costs attributable to deficient or deferred maintenance, removal of temporary works, cost-sharing requirements, and any other requirements contained in § 203.82. The project sponsor must acknowledge its responsibilities prior to the provision of Rehabilitation Assistance. If the existing PCA does not adequately address responsibilities, then a CA will be required.
Responsibility for operation and maintenance of a project for which emergency work under Public Law 84-99 is undertaken will always remain with the non-Federal sponsor throughout the process, and thereafter. The Corps will notify the non-Federal sponsor by letter when repair/rehabilitation/work efforts are completed. Detailed instructions, and suggestions relative to proper maintenance and operation, may be furnished as an enclosure to this letter. The letter will remind the local interests that they are responsible for satisfactory maintenance of the flood control works in accordance with the terms of the PCA or CA. In appropriate cases for Federal projects, refer to the “Flood Control Regulation for Maintenance and Operation of Flood Control Works: (33 CFR 208)” or the project's Operation and Maintenance Manual. Reporting requirements placed on the non-Federal
40 Stat. 266 (33 U.S.C. 1).
(a)
(b)
(c)
(d)
(e)
(2) No person shall permit or suffer any vessel, scow, raft, or float to come in contract with any gate or any of the locks of the Amelia Earhart Dam.
(f)
(g)
(h)
(i)
(2) All vessels over 100 gross tons including those which are accompanied by towboats must attach not less than two good and sufficient lines, cables, or hawsers to the bollards or other fixtures provided for the purpose to check the speed of the vessel and to stop it as soon as it has gone far enough to permit the lock gate behind it to be closed. Each line, cable, or hawser shall be attended on board while passing into the lock by one or more of the vessel's crew. Where vessels are so long that in order to get them wholly within the locks it is necessary to go within 100 feet of the lock gate ahead, the speed of the vessel must be slow and the vessel must be fully under control at all times by the lines, cables or hawsers. All towboats and vessels less than 100 gross tons may enter the locks without having lines out subject to the discretion of the superintendent. The master or person in charge of a vessel shall arrange to have any line, cable, or hawser handed or thrown from the lock walls by the superintendent, or his assistants, made fast on the vessel as requested or directed, so that in cases of emergency such line, cable, or hawser may also be used to check the speed of and stop the vessel.
(3) Operators of vessels less than 200 gross tons may use the floating moorings in the large lock to fasten lines or hawsers, but they shall not be used to check the way on any vessel greater than 30 gross tons.
(4) Vessels less than 30 gross tons may fasten lines to the floating moorings in the large or small locks. All persons shall keep off the floating moorings at all times.
(5) No line shall be attached to anything on or a part of the dam except the fixtures provided for this purpose.
(6) Equipment of each craft shall include a sufficient bow line and stern line.
(j)
(k) [Reserved]
(l)
(2) Lights are located at each end of each lock and will normally show red. No vessel shall come within 100 feet of the outside of any gate when the signal is red except when so directed by the superintendent.
(3) Fireboats and craft owned by the U.S. Government shall be given prompt and preferential lockage when they sound four long blasts.
(4) No vessel shall move into or out of any lock until the controlling signal is green. A green light in addition to audio loud speakers, operated by the superintendent or his assistants, will direct craft through the locks.
(5) It shall be the duty of every master or person in charge of any vessel to ascertain by personal observation that the lock gate is fully open before proceeding.
(m)
(n)
(a) The movements of all vessels or boats in and near the lock shall be under the direction of the superintendent in charge of these structures and his assistants, whose orders and signals shall be obeyed.
(b) Every vessel using the lock and drawing more than 10 feet shall be accurately and distinctly marked at the bow and stern, showing the exact draft of water at such portions of the vessel.
(c) All steam vessels desiring to pass through the lock shall signal for the same by two long and two short blasts of the whistle.
(d)(1) All vessels passing through the lock shall have their outboard spars, if any, rigged in, and booms amidships, and secured. All standing and running rigging must be triced in to keep it from blowing out and fouling the drawbridge. Every vessel of 200 tons and under shall be provided with at least two, and every vessel of more than 200 tons shall be provided with at least four good and sufficient lines, cables, or hawsers. Anchors shall either be stowed or shall hang from hawse pipes, hauled up close, clear of the water if possible. Vessels with anchors under foot or hanging from catheads will not be permitted to enter the lock.
(2) All vessels must be sufficiently manned and must have a sufficient number of round and fore-and-aft fenders to protect the lock from injury. All heavy rope fenders must be securely lashed to prevent their falling into the lock and interfering with the gates.
(e) All vessels approaching the lock while any other vessel going in the opposite direction is in or about to enter it shall be stopped where they will not obstruct the free passage of such other vessel.
(f) It shall be the duty of every master or person in charge of any vessel upon approaching the lock from the upstream end to ascertain by personal observation whether or not the upper lock gate is open, and a vessel shall not be permitted to come within 100 feet of the upper lock gate until the gate has been wholly withdrawn into its recess.
(g) All towboats, whether towing or not, and other steam vessels of less than 100 tons gross may enter the lock under their own power and without having lines out, but all other vessels, including those which are accompanied by towboats, must attach not less than two good and sufficient lines, cables, or hawsers to the bollards or other fixtures provided for the purpose to check the speed of the vessel and to stop it as soon as it has gone far enough to permit the lock gate behind it to be closed, and each line, cable, or hawser shall be attended on board while passing into the lock by one or more of the vessel's crew. Where vessels are so long that in order to get them wholly within the lock it is necessary to approach within 150 feet of the lock gate ahead, the speed of the vessel must be slow and fully under control by the lines, cables, or hawsers. Steam vessels of more than 100 tons gross, not including towboats, will not be permitted to turn their propellers on entering the lock after the bow of the vessel has entered, but will be drawn in by means of capstans on the lock walls or otherwise, and their speed must be checked and the vessel stopped by lines, cables, or hawsers as in other cases. All steam vessels may leave the lock under their own power. The master or person in charge of a vessel shall arrange to have any line, cable, or hawser handed or thrown from the lock walls by the superintendent or his assistants, made fast on the vessel as requested or directed, so that in cases of emergency such line, cable, or hawser may also be
(h) When a vessel is in position in the lock it shall be securely fastened in a manner satisfactory to the superintendent, or his assistant in charge of the lock at the time, to prevent the vessel from moving about while the lock is being filled or emptied, and the lines, cables, and hawsers used for this purpose shall be attended as far as is necessary or required while the filling or emptying is in progress.
(i) No vessel which has iron or irons projecting from it or lumber or other cargo projecting over its sides shall enter the lock, except at such time and with such precautions to prevent damage to the lock or its appurtenances as the superintendent, or the assistant in charge of the lock at the time, may require.
(j) All persons, whether in charge of vessels or not, are prohibited from willfully or carelessly damaging the lock, any of its appurtenances or the grounds adjacent thereto, and from throwing any material of any kind into the lock. No line shall be attached to anything except the bollards and other fixtures provided for the purpose.
(k) Upon each passage through the lock, the master or clerk of a vessel shall make a statement of the kind and tonnage of the freight carried.
(l) No person shall cause or permit any vessel or boat of which he is in charge to remain in the lock or its approaches for a longer time than is necessary for the passage of the lock, unless he is especially permitted to do so by the superintendent or the assistant in charge of the lock at the time, and if such vessel or boat is, in the opinion of such superintendent or assistant, in a position to obstruct navigation it shall be removed at once as requested or directed by such superintendent or assistant.
(m) All registered merchant vessels shall pass through the lock in the order directed by the superintendent or the assistant in charge of the lock at the time. Unregistered craft will not be allowed to pass through the lock separately unless especially permitted by such superintendent or assistant.
(n) The lock shall be operated promptly for the passage of all vessels upon signal excepting only in such cases as are specifically provided for in this section.
(a)
(b)
(2) The Engineer-In-Charge, through the marine traffic controller on duty, will enforce these regulations and monitor traffic through the canal. The marine traffic controller on duty is the individual responsible for interpretation of these regulations with respect to vessels transiting the canal. Vessels transiting the canal must obey the orders of the marine traffic controller.
(3) The government has tugs stationed at the West Boat Basin for emergency use on an on-call basis. A patrol vessel is manned and operational 24-hours a day.
(c)
(1) For radio communications, call the traffic controller on channel 16 to establish contact. The transmissions will then be switched to channel 12 or 14 as the working channel to pass information. Channel 13 is also available at the canal office; however, the use of channel 13 should be limited to emergency situations or whenever vessels do not have one of the other channels. All four channels are monitored continuously by the traffic controller. Radio discipline will be adhered to in accordance with FCC rules and regulations.
(2) For telephone communications with the traffic controller, call (617) 759-4431.
(3) Vessels shall maintain a radio guard on Marine VHF-FM channel 13 during the entire passage through the canal.
(4) All radio communications in the vicinity of the canal are tape recorded for future reference.
(d)
(e)
(2) The maximum length of pontoon rafts using the canal will be limited to 600 feet, and the maximum width to 100 feet. Pontoon rafts exceeding 200 feet in length will be required to have an additional tug on the stern to insure that the tow is kept in line. The tugs used must have sufficient power to handle the raft safely.
(3) Dead ships are required to transit the canal during daylight hours and must be provided with the number of tugs sufficient to afford safe passage through the canal. (A dead ship will not be allowed to enter the canal unless prior approval is granted by the Engineer-In-Charge; requests must be submitted 12 hours in advance of the passage).
(f)
(1) They must have sufficient horsepower to overcome tidal currents or they will be required to wait for favorable current conditions.
(2) Transits will be during daylight hours.
(3) No transit will be permitted when visibility conditions are unstable or less than 2 miles at the approaches and throughout the entire length of the canal.
(4) Transits must await a clear canal for passage.
(g)
(2) Vessels 65 feet in length and over shall not enter the canal until clearance has been obtained from the marine traffic controller by radio. See paragraph (c) “Communications” for procedures. If a vessel, granted prior clearance, is delayed or stops at the mooring basins, state pier, or the Sandwich bulkhead, a second clearance must be obtained prior to continuing passage through the canal.
(3) Vessels will be given clearance in the order of arrival, except when conditions warrant one-way traffic, or for any reason an order of priority is necessary, clearance will be granted in the following order.
(i) First—To vessels owned or operated by the United States, including contractors' equipment employed on canal maintenance or improvement work.
(ii) Second—To passenger vessels.
(iii) Third—To tankers and barges docking and undocking at the Canal Electric Terminal.
(iv) Fourth—To merchant vessels, towboats, commercial fishing vessels, pleasure boats and miscellaneous craft.
(4) Procedures in adverse weather: Vessels carrying flammable or combustible cargoes as defined in 46 CFR 30.25 will be restricted from passage through the canal when visibility is less than
(h)
(1)
(2)
(i)
(1) The vertical lift span on the railroad bridge is normally kept in the raised (open) position except when it is lowered for the passage of trains, or for maintenance purposes. Immediately preceding the lowering of the span, the operator will sound two long blasts of an air horn. Immediately preceding the raising of the span, the operator will sound one long blast of an air horn. When a vessel or craft of any type is approaching the bridge with the span in the down (closed) position and the span cannot be raised immediately, the operator of the bridge will so indicate by sounding danger signals of four short blasts in quick succession.
(2) When the lift span is in the down (closed) position in foggy weather or when visibility is obscured by vapor, there will be four short blasts sounded from the bridge every two minutes.
(j)
(k)
(2) Vessels within the limits of the canal shall comply with the applicable requirements for the use of pilots established by the Coast Guard, including but not limited to those contained in 46 CFR 157.20-40. Vessels will not be granted clearance to enter the canal until the marine traffic controller has been notified of the name of the pilot who will be handling the vessel.
(3) The master of a vessel will be responsible for notifying the marine traffic controller as soon as an emergency situation appears to be developing. When in the opinion of the marine traffic controller an emergency exists, he/she can require the master to accept the assistance of a helper vessel. Whether or not assistance is provided by a government vessel or by a private firm under contract to the government, the government reserves the right to seek compensation from the vessel owners for all costs incurred.
(4) Right-of-Way: All vessels proceeding with the current shall have the right-of-way over those proceeding
(5) Passing of vessels: The passing of one vessel by another when proceeding in the same direction is prohibited except when a leading low powered ship is unable to make sufficient headway. However, extreme caution must be observed to avoid collision, and consideration must be given to the size of the ship to be overtaken, velocity of current and wind, and atmospheric conditions. Masters of vessels involved shall inform the marine traffic controller on duty of developing situations to facilitate coordination of vessel movement. Meeting or passing of vessels at the easterly end of the canal between Station Minus 40 and Station 60 will not be permitted, except in cases of extreme emergency, in order to allow vessels to utilize the center line range to minimize the effects of hazardous eddies and currents. Due to bank suction and tidal set, meeting and passing of vessels at the following locations will be avoided:
(i) Sagamore Bridge.
(ii) Bourne Bridge.
(iii) Railroad Bridge.
(iv) Mass Maritime Academy.
(6) Unnecessary delay in canal: Vessels and other type crafts must not obstruct navigation by unnecessarily idling at low speed when entering or passing through the canal.
(7) Stopping in the waterway: Anchoring in the Cape Cod Canal Channel is prohibited except in emergencies. For the safety of canal operations it is mandatory that the masters of all vessels anchoring in or adjacent to the canal channel (Cape Cod Bay to Cleveland Ledge Light) for any reason, immediately notify the marine traffic controller.
(8) Utilization of mooring and boat basins and the Sandwich Bulkhead: Vessels mooring or anchoring in the mooring or boat basins at the Sandwich bulkhead must do so in a manner not to obstruct or impede vessel movements to and from facilities. These facilities are of limited capacity and permission to occupy them for periods exceeding 24 hours must be obtained in advance from the marine traffic controller. Mooring in the West Boat Basin at Buzzards Bay, near the railroad bridge, is not permitted except in an emergency. Fishing boats, yachts, cabin cruisers and other craft utilizing the East Boat Basin on the south side of the canal at Sandwich, Massachusetts are not permitted to tie up at the Corps of Engineers landing float or anchor in a manner to prevent canal floating plant from having ready access to the float. All vessels or barges left unattended must be securely tied with adequate lines or cables. The United States assumes no liability for damages which may be sustained by any craft using the bulkhead at Sandwich or the canal mooring or boat basin facilities. Vessels shall not be left unattended along the face of the government bulkhead. A responsible person with authority to authorize and/or accomplish vessel movement must remain onboard at all times.
(l)
(m) [Reserved]
(n)
(o)
(p)
(q)
(ii) All water resource development projects open for recreational use shall be available to the public without regard to sex, race, creed, color or national origin. No lessee, licensee, or concessionaire providing a service to the public shall discriminate against any person or persons because of sex, race, creed, color or national origin in the conduct of operations under the lease, license or concession contract.
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(ii) No person shall bring dogs (except seeing eye dogs), cats, or other pets into developed recreation areas unless penned, caged, or on a leash no longer than six feet or otherwise under physical restrictive controls at all time.
(9)
(ii) The operation or use of any audio or other noise producing device including, but not limited to, communications media and vehicles in such a manner as to unreasonably annoy, endanger persons or affect vessel traffic through the canal is prohibited.
(10)
(ii) The possession or use of fireworks is prohibited unless written permission has been received from the division engineer.
(11)
(12)
(ii) The division engineer shall, by public or private sales or otherwise, dispose of all lost, abandoned, or unclaimed personal property that comes into his/her custody or control. However, efforts should be made to find the owner, the owner's heirs or next of kin, or legal representatives. If the owner, heirs or next of kin, or legal representative is determined but not found, the property may not be disposed of until the expiration of 120 days after the date when notice, giving the time and place of the intended sale or other disposition, has been sent by certified or registered mail to that person at last known address. When diligent effort to determine the owner, owner's heirs or next of kin, or legal representative is unsuccessful, the property may be disposed of without delay, except that if it has a fair market value of $25 or more the property generally may not be disposed of until three months after the date it is received at the Cape Cod Canal Administrative Office. The net proceeds from the sale of property shall be placed into the Treasury of the United States as miscellaneous receipts.
(13)
(14)
(15)
(16)
(17)
(18)
(a)
(b)
(1) One long blast of a horn to indicate that the vessel must wait.
(2) One short blast of a horn to indicate that the lock is being made ready for entrance.
(3) Two short blasts of a horn to indicate permission to enter the lock.
(4) Four short and rapid blasts to attract attention, indicate caution, and signal danger.
(c)
(d)
(e)
(f)
(g)
(2) Tugboats arriving with their tows in a condition which will delay locking shall lose their turn if so ordered by the lock tender. Leaking boats may be excluded until put in shape to be passed through safely.
(h)
(i)
(j)
(k)
(l)
(m) [Reserved]
(n)
(o)
(a) Whenever the elevation of the pool created by the Federal dam at Troy, N.Y., shall fall to a point level with the crest of the main spillway, the elevation of which is +14.33 feet mean sea level, the operation of the power plant shall cease and further operation thereof shall be suspended until such time as the water level rises to or above +14.43 feet mean sea level.
(b) Flashboards may be maintained on the section of the spillway of the dam having an elevation of +14.33 feet mean sea level in order to increase the elevation of this section to an elevation equal to that of the auxiliary spillway, or +16.33 feet mean sea level:
(c) The tide staff to be used in determining the elevation of the pool shall be the ceramic tide staff now located on the westerly face of the east lock wall north of the northerly gates, the zero of which is set 2 feet below mean sea level.
(d) The regulations of the pool level and the maintenance of flashboards shall be subject to the supervision and approval of the District Engineer, New York City.
(a)
(b)
(c)
(d)
(e)
(f)
(g) [Reserved]
(h)
(2)
(i) [Reserved]
(j)
(k)
(l) [Reserved]
(m)
(n)
(o)
(p)
(q)-(s) [Reserved]
(t)
(u)
(a)
(1)
(2)
(3)
(4)
(b)
U.S. District Engineer, Norfolk, Virginia.
U.S. District Engineer, Wilmington, North Carolina.
U.S. District Engineer, Charleston, South Carolina.
U.S. District Engineer, Savannah, Georgia.
U.S. District Engineer, Jacksonville, Florida.
(c) [Reserved]
(d)
(e)
(ii)
(2)
(3)
(ii) The lockage of pleasure boats, house boats or like craft shall be expedited by locking them through with commercial craft (other than barges carrying petroleum products or highly hazardous materials) in order to utilize the capacity of the lock to its maximum. If, after the arrival of such craft, no separate or combined lockage can be accomplished within a reasonable time not to exceed the time required for three other lockages, then separate lockage shall be made.
(4)
(5)
(ii) Vessels which do not draw at least six inches less than the depth on miter sills or breast walls, or which have projections or sharp corners liable to damage gates or walls, shall not enter a lock or approaches.
(iii) No vessel having chains or lines either hanging over the sides or ends, or dragging on the bottom, for steering or other purposes, will be permitted to pass a lock or dam.
(iv) Power vessels must accompany tows through the locks when so directed by the lockmaster.
(v) No vessel whose cargo projects beyond its sides will be admitted to lockage.
(vi) Vessels in a sinking condition shall not enter a lock or approaches.
(vii) The passing of coal from flats or barges to steamers while in locks is prohibited.
(viii) Where special regulations for safeguarding human life and property are desirable for special situations, the same may be indicated by printed signs, and in such cases such signs will have the same force as other regulations in this section.
(ix) The lockmaster may refuse to lock vessels which, in his judgment, fail to comply with this paragraph.
(6)
(7)
(8)
(ii) The mooring of vessels or rafts near the approaches to locks except while waiting for lockage, or at other places in the pools where such mooring interferes with general navigation of the waterway is prohibited.
(9)
(f) [Reserved]
(g)
(2) No section of a raft will be permitted to be towed over any portion of a waterway unless the logs float sufficiently high in the water to make it evident that the section will not sink en route.
(3) Frequent inspections will be made by the person in charge of each raft to insure that all fastenings remain secure, and when any one is found to have loosened, it shall be repaired at once. Should any log or section be lost from a raft, the fact must be promptly reported to the District Engineer, giving as definitely as possible the exact point at which the loss occurred. In all cases the owner of the lost log or section will take steps immediately to remove the same from the waterway.
(4) The length and width of rafts shall not exceed such maximum dimensions as may be prescribed by the District Engineer.
(5) All rafts shall carry sufficient men to enable them to be managed properly, and to keep them from being an obstruction to other craft using the waterway. To permit safe passage in a narrow channel rafts will, if necessary, stop and tie up alongside the bank. Care must be exercised both in towing and mooring rafts to avoid the possibility of damage to aids to navigation maintained by the United States or under its authorization.
(6) When rafts are left for any reason with no one in attendance, they must be securely tied at each end and at as many intermediate points as may be necessary to keep the timbers from bagging into the stream, and must be moored so as to conform to the shape of the bank. Rafts moored to the bank shall have lights at 500-foot intervals along their entire length. Rafts must not be moored at prominent projections of the bank, or at critical sections.
(7) Logs may be stored in certain tributary streams provided a clear channel at least one-half the width of the channel be left clear for navigation along the tributary. Such storage spaces must be protected by booms and, if necessary to maintain an open channel, piling should also be used. Authority for placing these booms and piling must be obtained by written permit from the District Engineer.
(8) The building, assembling, or breaking up of a raft in a waterway will be permitted only upon special authority obtained from the District Engineer, and under such conditions as he may prescribe.
(h)
(i)
(j)
(k)
(a) The owner of or agency controlling the lock shall not be required to operate the navigation lock except from 7 a.m. to 7 p.m. during the period of February 15 through October 15 each year, and from 8 a.m. to 6 p.m. during the remaining months of the year. During the above hours and periods the lock shall be opened upon demand for the passage of vessels. The hours of operation are based on local time.
(b) The owner of or agency controlling the lock shall place signs of such size and description as may be designated by the District Engineer, U.S. Army Engineer District, Jacksonville, Fla., at each side of the lock indicating the nature of the regulations of this section.
(a) The level of the pool shall normally be maintained at elevation 56.5 feet above sea level:
(b) When, in the opinion of the District Engineer, an emergency exists requiring the lowering of the pool level to an elevation less than 56.5 above sea level either to safeguard the dikes or to increase the discharge from Lake Griffin in times of high water, the discharge past the dam shall be regulated in such manner as he may direct until he shall declare the emergency passed.
(a) The owner of or agency controlling the lock shall not be required to operate the navigation lock except from 7 a.m. to 12 noon, and from 1 p.m. to 7 p.m., during the period of February 15 through October 15 each year; and from 8 a.m. to 12 noon, and from 1 p.m. to 6 p.m., during the remaining months of each year. During the above hours and periods the lock shall be opened upon demand for the passage of vessels.
(b) The owner of the lock shall place signs, of such size and description as may be designated by the District Engineer, U.S. Army Engineer District, Jacksonville, Florida, at each side of this lock indicating the nature of the regulations of this section.
(a) The owner of or agency controlling the lock shall not be required to operate the navigation lock except from 7:00 a.m. to 12:00 noon, and from 1:00 p.m. to 7:00 p.m., during the period of February 15 through October 15 each year; and from 8:00 a.m. to 12 noon, and from 1:00 p.m. to 6:00 p.m., during the remaining months of each year. During the above hours and periods the lock shall be opened upon demand for the passage of vessels.
(b) The owner of the lock shall place signs, of such size and descriptions as may be designated by the District Engineer, U.S. Army Engineer District, Jacksonville, Florida, at each side of this lock indicating the nature of the regulations.
(a) The owner of or agency controlling the locks shall be required to open the navigation locks upon demand for passage of vessels during the following hours and periods:
(b) The owner of or agency controlling the locks shall place signs, of such size and description as may be designated by the District Engineer, U.S. Army Engineer District, Jacksonville, Florida, at each side of the locks indicating the nature of the regulations of this section.
(a) The owner of or agency controlling the lock shall not be required to operate the navigation lock except from 5:30 a.m. to 8:00 p.m. daily. During the above hours the lock shall be opened upon demand for the passage of vessels.
(b) The owner of the lock shall place signs, of such size and description as
(a) The owner of or agency controlling the lock shall not be required to operate the navigation lock except from 7 a.m. to 12 noon, and from 1 p.m. to 7 p.m., during the period of February 15 through October 15 each year; and from 8 a.m. to 12 noon, and from 1 p.m. to 6 p.m., during the remaining months of each year. During the above hours and periods the lock shall be opened upon demand for the passage of vessels.
(b) The owner of or agency controlling the lock shall place signs, of such size and description as may be designated by the District Engineer, U.S. Army Engineer District, Jacksonville, Fla., at each side of the lock indicating the nature of the regulations in this section.
(a) The regulations in this section shall apply to:
(1)
(2)
(3)
(4)
(5)
(b)
(1)
(2)
(3)
(4)
(c) [Reserved]
(d)
(2)
(3)
(4)
(i)
(ii)
(5)
(6)
(i) U.S. Government vessels, passenger vessels, commercial vessels, rafts, and pleasure craft.
(ii) The vessel arriving first at a lock will be locked through first. When vessels approach simultaneously from opposite directions, the vessel approaching at the same elevation as the water in the lock chamber will be locked through first. In order to achieve the most efficient utilization of the lock, the lockmaster is authorized to depart from the normal order of locking precedence, stated in paragraph (d)(6)(i) of this section, as in his judgment is warranted.
(iii) The lockage of pleasure boats, houseboats, or like craft may be expedited by locking them through with commercial craft (other than vessels carrying dangerous cargoes, as described in 46 CFR part 146). If, after the arrival of such craft, no combined lockage can be made within reasonable time, not to exceed three other lockages, then separate lockage shall be made.
(7)
(8)
(9)
(i) Vessels in a sinking condition.
(ii) Vessels leaking or spilling cargo.
(iii) Vessels not having a draft of at least three (3) inches less than the depth over the sills or breast walls.
(iv) Vessels having projection or cargo loaded in such a manner that is liable to damage the structure.
(v) Vessels having chains, links, or drags either hanging over the sides or ends or dragging on the bottom for steering or other purposes.
(vi) Vessels containing flammable or dangerous cargo must have the hatch covers in place and securely fastened.
(10)
(11)
(ii) Mooring near the approaches to locks is prohibited except when the vessels or tows are awaiting lockage.
(12)
(13) [Reserved]
(14)
(e)
(ii) Algiers Canal between the Mississippi River and Bayou Barataria, La., and on Harvey Canal, Gulf Intracoastal Waterway, mile 0 to mile 6 WHL, tows 74 feet in width will be allowed. Tows in excess of 55 feet wide desiring to move over Algiers Canal or Harvey Canal will obtain clearance from the lockmaster at Algiers Lock or Harvey Lock, respectively, before entering the canal. Overwidth tows will report clearing Algiers or Harvey Canal to the respective lockmaster and will rearrange tows to conform to prescribed dimensions immediately upon leaving the canal. The lockmaster will withhold permission for additional tows over 55 feet wide until all previously authorized tows moving in the opposite direction have cleared the waterway.
(iii)-(vi) [Reserved]
(vii) Vessels or tows shall not navigate through a drawbridge until the movable span is fully opened.
(6)
(7)
(f)
(1) Rafts will be permitted to navigate a waterway only if properly and securely assembled. Each raft shall be so secured as to prevent the loss or sinking of logs.
(2) All rafts shall carry sufficient men to enable them to be managed properly. It will be the responsibility of the owner to remove logs from the waterway that have broken loose from the raft.
(3) Building, assembling, or breaking up of a raft within a waterway may be permitted; however, the work must be done in an area that will not restrict the use of the waterway by other users. The work area must be cleared of loose logs so that they will not enter the waterway and become a hazard to navigation.
(g)
(h)
(i)
(2) The District Engineer may establish policy pertaining to mooring, exchanging crews, loading and unloading supplies, and making emergency repairs in the vicinity of locks so long as navigation is not impeded thereby.
(j)
(a) Between March 15 and September 15 each year, pleasure boats, houseboats, and other craft not employed for commercial purposes, will be locked through only at 6:00 and 11:45 a.m., and 6:30 p.m., except in cases of emergency; but whenever a lockage is made for a commercial boat, other craft may likewise pass through if there is room in the lock. At all other times lockages shall be made in accordance with § 207.180.
(b) The lock tender or one in charge of the lock shall be the judge as to whether the boat presenting itself for lockage is a commercial or pleasure boat.
(a)
(b)
(c)
(2)
(3)
(4)
(5) [Reserved]
(6)
(ii)
(7)
(d)
(ii) Vessels navigating the Colorado River and desiring passage either upstream or downstream through the crossing, or into the crossing and
(2)
The foregoing regulations are supplementary to the regulations in § 207.180.
(a)
(b)
(2)-(3) [Reserved]
(4)
(5)
(a) [Reserved]
(b)
(ii)
(2)
(ii) Vessels that are not equipped with a sound signal desiring passage through a lock shall give notice to the lockmaster by one long blast of the horn located at either end of the lock wall. The horn may be activated by pulling the properly marked chain or rope hanging from the horn down to the water surface. One long blast means a blast of from 4 to 6 seconds' duration.
(3)
(i) One green light to indicate that the lock is open to approaching navigation.
(ii) One red light to indicate that the lock is not open to approaching navigation. Vessels shall stand clear.
(iii) Navigation over the dam is possible during high water. When this condition exists, a continuous flashing red light, visible upstream and downstream, will be displayed to indicate that traffic will bypass the lock and pass over the dam on the Ouachita and Black Rivers.
(iv)
(4)
(5)
(ii) The lockage of pleasure boats, houseboats, or like craft may be expedited by locking them through with commercial craft (other than barges carrying dangerous cargoes). If, after the arrival of such craft, no combined lockage can be accomplished within a reasonable time, not to exceed the time required for three other lockages, then separate lockages shall be made. Dangerous cargoes are described in 46 CFR part 146.
(iii) Vessels, tows, or rafts navigating on the Ouachita and Black Rivers with overall dimensions greater than 80 feet wide, 600 feet long, and 9 feet draft, or tows or rafts requiring breaking into two or more sections to pass through the lock may transit the lock at such time as the lockmaster determines that they will neither unduly delay the transit of craft of lesser dimensions, nor endanger the lock structure and appurtenances because of wind, current, or other adverse conditions. These craft are also subject to such special handling requirements as the lockmaster finds necessary at the time of transit.
(iv) The maximum dimensions on the Red River Waterway of a vessel tow attempting to pass through the lock during normal pool stages in a single passage are 80 feet wide, 705 feet long, and 9 feet draft. Tows requiring breaking into two or more sections to pass through the lock may transit the lock at such times as the lockmaster/lock operator determines that they will neither unduly delay the transit of craft of lesser dimensions, nor endanger the lock structure and appurtenances because of wind, current, or other adverse conditions. These craft are also subject to such special handling requirements as the lockmaster/lock operator finds necessary at the time of transit.
(6)
(7)
(ii) Vessels which do not have a draft of at least 2 feet less than the depth over sills, or which have projections liable to damage gates, walls, or fenders, shall not enter the approaches to or pass through locks. Information concerning depth over sills may be obtained from the lockman on duty.
(iii) Vessels having chains, lines, or drags either hanging over the sides or ends or dragging on the bottom for steering or other purposes will not be permitted to pass locks or dams.
(iv) Towing vessels shall accompany all tows or partial tows through locks.
(v) No vessel whose cargo projects beyond its sides will be admitted to lockage.
(vi) Vessels in a sinking condition shall not enter locks or approaches.
(vii) The lockmaster may refuse to lock vessels which in his judgment fail to comply with the regulations in this paragraph.
(viii) This section shall not affect the liability of the owners and operators of boats for any damage caused by their operations to locks or other structures.
(8)
(9)
(ii) The mooring of vessels or rafts near the approaches to locks except while waiting for lockage, or at other places in the pools where such mooring interfers with general navigation, is prohibited.
(10)
(c)
(d)
(a)
(b)
(c)
(d) [Reserved]
(e)
(f)
(g)
(a) The floating of “sack”, rafts, or of loose timbers, logs, or cribs is prohibited.
(b) Rafts shall be made up of logs parallel with each other, secured, and held closely together by cross sticks, chains, or cables placed across each crib and at the joints between cribs. No raft shall be over 60 feet wide or 800 feet long.
(c) In rafting nonbuoyant timber each crib must contain self-buoyant logs in such proportion of “floaters” to “sinkers” as will safely float the whole; and in assembling such cribs, extra strong connections must be used to prevent the breaking up of a crib or the detachment of individual logs.
(d) No raft shall be moved at river stages less than that corresponding to a reading of 3
(e) A raft in transit must be accompanied by sufficient men, or by power boats of sufficient capacity to properly manage the movement of the raft and to keep it from being an obstruction to other craft navigating the river, or from forming jams at bridges.
(f) Rafts in transit must be so floated, and when not in transit be so tied to the bank, as not to interfere with the passage of boats.
(g) When rafts are left with no one in attendance they must be securely tied at each end and at as many intermediate points as will prevent them from bagging into the stream. When left at night a white light shall be exposed at each end of the raft.
(h) This section shall apply to the portion of the Tallahatchie River, Miss., between Batesville, Panola County, Miss., and the mouth.
(a)
(b)
(1)
(2)
(c)
(d)
(2) Vessels or tows, with overall dimensions greater than 105 feet wide or 595 feet long may transit the lock at such time as the lockmaster determines that they will neither unduly delay the transit of craft of lesser dimensions, nor endanger the lock structure and appurtenances because of wind, current, or other adverse conditions. These craft are also subject to such special handling requirements as the lockmaster deems necessary at the time of transit.
(e)
(2) Smoking, open flames, and activities capable of producing a flammable atmosphere such as painting will not be permitted in the lock chamber.
(3) All deckhands handling lines during locking procedures shall wear a personal flotation device.
(f)
(1) All hatches on barges used to transport dangerous cargoes shall be closed before the tow enters the lock area.
(2) Prior to entering the lock area, towboat pilots shall furnish the name of product, the source of shipment, the company which made the shipment, and the consignee. If a towboat is not equipped with a radio or its radio is out of service, pilots shall furnish this information to the lockmaster while the tow is in the lock chamber. The shipping papers required by Title 46, Code of Federal Regulations, shall be available for review by the lockmaster. Lockage shall be refused when this information is not furnished to the lockmaster.
(3) Fenders shall be water-soaked or otherwise spark proofed.
(4) Smoking, open flames, chipping, or other spark producing activity are prohibited in the “lock area.”
(5) Simultaneous lockage of other vessels with vessels carrying dangerous cargoes or containing flammable vapors shall normally not be permitted. if significant delays are occurring at a lock, such simultaneous lockages, except with pleasure craft, may be permitted by the lockmaster, when he/she determines such action safe and appropriate, provided:
(i) The first vessel entering or the last vessel exiting shall be secured before the other enters or leaves.
(ii) All masters involved have agreed to the joint use of the lock.
(g)
(2) Tows entering a lock shall come to a complete stop at a point designated by the district engineer before proceeding to the mooring position.
(3) When entering or exiting locks, tow speeds shall not exceed 200 feet per minute (rate of slow walk) or the rate of travel whereby the tow can be stopped by checking should mechanical difficulties develop. When navigating over Norrell Dam during high water, vessels shall reduce speed to the minimum necessary to maintain steerageway. Pilots should check with the individual lockmasters concerning prevailing conditions. It is also recommended that pilots check their ability to reverse their engines prior to beginning an approach. Towboat engines shall not be turned off in the lock unless authorized by lockmaster.
(4) The sides and ends of all vessels passing through any lock shall be free from protrusions of any kind which might damage the lock structure.
(5) All vessels shall be provided with suitable fenders. When entering and exiting locks, one deckhand, or more if the lockmaster so directs, shall be stationed at the bow and stern of tows. These deckhands shall maintain their
(6) Masters and pilots must use every precaution to prevent unnecessary delay in entering or leaving locks. Vessels failing to enter locks with reasonable promptness when signaled to do so shall lose their turn. Rearranging or switching of barges in the locks or in approaches is prohibited unless approved or directed by the lockmaster.
(7) No vessel shall enter a lock unless its draft is at least two feet less than the least depth of water over the sills. Information concerning controlling depth over sills can be obtained from the lockmaster at each lock or by inquiry at the office of the district engineer of the district in which the lock is located.
(8) Vessels awaiting their turn to lock shall be positioned so that they will not interfere with vessels leaving the lock. However, to the extent practicable under the prevailing conditions, vessels and tows shall be positioned so as to minimize approach time.
(9)
(ii) One deckhand, or more if the lockmaster so directs, shall tend the lines at the bow and stern of each section of a tow that transits a lock or moors to the river walls.
(10) Vessels shall enter and leave locks under such control as to prevent any damage to the walls and gates.
(11) Placing or discharging refuse of any description into the lock, on the lock walls, on the esplanade, or on any other government property is prohibited.
(h)
(i)
(j)
(ii) Mooring of any vessel will not be permitted at or between the arrival points without permission of the lockmaster.
(2)
(ii) Government mooring facilities at the junction of main stem and secondary channels are to provide temporary mooring for tows awaiting transfer of barges to or from ports, docks, or fleeting areas located on the secondary channels. These facilities shall not be used for storage of barges or fleeting activities. The maximum permissible time of mooring at the facilities shall be determined by the district engineer.
(k)
(1)
(2)
(i) Vessels desiring a single lockage shall give notice to the lockmaster by one prolonged blast of the horn followed by one short blast. If a double lockage is required, vessels shall give one prolonged blast of the horn followed by two short blasts. These signals are not required from pleasure craft not equipped with horns. Locking procedures for pleasure craft are prescribed in paragraph (h).
(ii) When the lock is ready for entrance, the lockmaster shall give one prolonged blast of the horn to signal permission to enter the lock chamber.
(iii) The lockmaster shall give permission to leave the lock chamber by one short blast of the horn.
(iv) Five or more short and rapid blasts of the lock horn will be used as a means of attracting attention, to indicate caution, or to signal danger. This signal will be used to attract the attention of the masters and crews of vessels using the lock or navigating in the lock area and to indicate that something unusual involving danger or requiring special caution is happening or is about to happen. When this signal is given by the lockmaster, the masters and crews of vessels in the vicinity shall immediately become alert to determine the reason for the signal and shall take the necessary steps to cope with the situation.
(3)
(i) One flashing green light to indicate that the lock is open to approaching navigation.
(ii) One flashing red light to indicate that the lock is not open to approaching navigation. Vessels shall stand clear.
(iii) Flashing amber and green lights to indicate that one or both lock gates can not be fully recessed or other unusual conditions exist. Vessels can enter the lock with caution.
(iv) In the absence of any of the above visual signals, pilots shall signal for lockage by radio or horn and wait for the lockmaster to acknowledge their signal.
(l)
(i) Three green lights visible through an arc of 360 degrees arranged in a vertical line on the end of the upstream river wall.
(ii) Two green lights visible through an arc of 360 degrees arranged in a vertical line on the end of the downstream river wall.
(iii) A single red light visible through an arc of 360 degrees on the ends of the upstream and downstream land walls.
(2) The following navigation lights will be displayed at Lock No. 2 during hours of darkness and heavy fog. They shall also be displayed at Norrell Lock during hours of darkness and heavy fog except when navigation is passing over the dam.
(i) Three green lights visible through an arc of 360 degrees arranged in a vertical line on the end of the upstream river wall.
(ii) Two green lights visible through an arc of 360 degrees arranged in a vertical line on the end of the downstream river wall.
(iii) A single red light visible through an arc of 360 degrees on the dolphin located furthest upstream in line with the land wall and on the dolphin located furthest downstream in line with the land wall.
(3) The following navigation lights will be displayed at Norrell Lock and Dam during hours of darkness and heavy fog when navigation is passing over the dam. During daylight hours a yellow and black disc will be displayed on each end (upstream and downstream) of the river wall to signal navigation over the dam.
(i) Three red lights visible through an arc of 360 degrees arranged in a vertical line on the end of the upstream river wall.
(ii) Two red lights visible through an arc of 360 degrees arranged in a vertical line on the end of the downstream river wall.
(iii) A single red light visible through an arc of 360 degrees on the dolphin located furthest upstream in line with the land wall and on the dolphin located furthest downstream in line with the land wall.
(iv) A single, flashing blue light visible through an arc of 360 degrees located on the end of the dam opposite the lock.
(m)
(n)
(2) No fishing will be permitted from the lock or dam structures.
(3) No one but employees of the United States shall move any lock machinery unless directed by the lockmaster. Tampering or meddling with the machinery or other parts of the lock is strictly forbidden.
(o)
(p)
(1) Any incident resulting in uncontrolled barges shall immediately be reported to the nearest lock and the appropriate U.S. Coast Guard Office. The report shall include information as to the number of loose barges, their cargo, and the time and location where they broke loose. The lockmaster shall be kept informed of the progress being made in bringing the barges under control so that he/she can initiate whatever actions may be warranted.
(2) Masters, owners, or other persons using the waterways to which the regulations in this section apply shall report to the nearest lockmaster or the district engineer by the most expeditious means available all marine accidents; such as fire, collision, sinking, or grounding, where there is possible obstruction of the channel or interference with navigation; furnishing a clear statement as to the name, address, and ownership of the vessel or
(i) Sunken or sinking barges shall be reported to the nearest lock both downstream and upstream of the location in order that traffic passing those points may be advised of the hazards. The appropriate U.S. Coast Guard Office shall also be notified.
(ii) Whenever it is necessary to report an incident involving uncontrolled, sunken or sinking barges, the cargo in the barges shall be precisely identified.
(iii) The owners or masters of vessels sunk in the navigable waters of the United States shall provide the appropriate district engineer with a copy of the sunken vessel report furnished to the appropriate U.S. Coast Guard Marine Inspection Office.
(q) [Reserved]
(r)
(s)
(t)
(a)
(2)
(b)
(1)
(ii) All hatches on barges used to transport flammable or hazardous materials shall be closed and latched, except those barges carrying a gas-free certificate.
(iii) Spark-proof protective rubbing fenders (“possums”) shall be used.
(2)
(ii) Smoking, open flames, and chipping or other spark-producing activities are prohibited on deck during the locking cycle.
(iii) Painting will not be permitted in the lock chamber during the locking cycle.
(iv) Tow speeds shall be reduced to a rate of travel such that the tow can be stopped by checking should mechanical difficulties develop. Pilots should check with the individual lockmasters concerning prevailing conditions. It is also recommended that pilots check their ability to reverse their engines prior to beginning an approach. Engines shall not be turned off in the lock until the tow has stopped and been made fast.
(v) U.S. Coast Guard regulations require all vessels to have on board life saving devices for prevention of drowning. All crew members of vessels required to carry work vests (life jackets) shall wear them during a lockage, except those persons in an area enclosed with a handrail or other device which would reasonably preclude the possibility of falling overboard. All deckhands handling lines during locking procedure shall wear a life jacket. Vessels not required by Coast Guard regulations to have work vests aboard shall have at least the prescribed life saving devices, located for ready access and use if needed. The lockmaster may refuse lockage to any vessel which fails to conform to the above.
(c)
(1) Any incident resulting in uncontrolled barges shall immediately be reported to the nearest lock. The report shall include information as to the number of loose barges, their cargo, and the time and location where they broke loose. The lockmaster or locks shall be kept informed of the progress being made in bringing the barges under control so that he can initiate whatever actions may be warranted.
(2) Whenever barges are temporarily moored at other than commercial terminals or established fleeting areas, and their breaking away could endanger a lock, the nearest lock shall be so notified, preferably the downstream lock.
(3) Sunken or sinking barges shall be reported to the nearest lock both downstream and upstream of the location in order that other traffic passing those points may be advised of the hazards.
(4) In the event of an oil spill, notify the nearest lock downstream, specifying the time and location of the incident, type of oil, amount of spill, and what recovery or controlling measures are being employed.
(5) Any other activity on the waterways that could conceivably endanger navigation or a navigation structure shall be reported to the nearest lock.
(6) Whenever it is necessary to report an incident involving uncontrolled, sunken or sinking barges, the cargo in the barges shall be accurately identified.
(d)
(2) Arrival posts or markers may be established ashore above and/or below
(e)
(f)
(g)
(1) The first vessel or tow in and the last vessel or tow out are secured before the other enters or leaves.
(2) Any vessel or tow carrying dangerous cargoes is not leaking.
(3) All masters involved have agreed to the joint use of the lock chamber.
(h)
(i)
(j)
(1)
(i) Vessels desiring lockage shall on approaching a lock give the following signals at a distance of not more than one mile from the lock;
(
(
(ii) When the lock is ready for entrance, the lock will give the following signals:
(
(
(iii) Permission to leave the locks will be indicated by the following signals given by the lock:
(
(
(iv) Four or more short blasts of the lock whistle delivered in rapid succession will be used as a means of attracting attention, to indicate caution, and to signal danger. This signal will be used to attract the attention of the captain and crews of vessels using or approaching the lock or navigating in its vicinity and to indicate that something unusual involving danger or requiring special caution is happening or is about to take place. When this signal is given by the lock, the captains and crews of vessels in the vicinity shall immediately become on the alert to determine the reason for the signal and shall take the necessary steps to cope with the situation.
(2)
(i)
(ii)
(iii)
(iv)
(3)
(4) All locks monitor 156.8 MHz (Ch. 16) and 156.65 MHz (Ch. 13) and can work 156.65 MHz (Ch. 13) and 156.7 MHz (Ch. 14) Ch. 16 is the authorized call, reply and distress frequency, and locks are not permitted to work on this frequency except in an emergency involving the risk of immediate loss of life or property. Vessels may call and work Ch. 13, without switching, but are cautioned that vessel to lock traffic must not interrupt or delay Bridge to Bridge traffic which has priority at all times.
(k)
(l)
(m)
(ii) Mooring of unattended or nonpropelled vessels or small craft at the upper or lower channel approaches will not be permitted within 1200 feet of the lock.
(2)
(ii) No vessel or other craft shall be moored to railroad tracks, to riverbanks in the vicinity of railroad tracks when such mooring threatens the safety of equipment using such tracks, to telephone poles or power poles, or to bridges or similar structures used by the public.
(iii) Except in case of great emergency, no vessel or craft shall anchor over revetted banks of the river, and no floating plant other than launches and similar small craft shall land against banks protected by revetment except at regular commercial landings. In all cases, every precaution to avoid damage to the revetment works shall be exercised. The construction of log rafts along mattressed or paved banks or the tying up and landing of log rafts against such banks shall be performed in such a manner as to cause no damage to the mattress work or bank paving. Generally, mattress work extends out into the river 600 feet from the low water line.
(iv) Any vessel utilizing a federally constructed mooring facility (e.g., cells, buoys, anchor rings) at the points designated on the current issue of the Corps' navigation charts shall advise the lockmaster at the nearest lock from that point by the most expeditious means.
(n)
(o)
(p)
(q)
(r)
(s)
(t) [Reserved]
(u)
(v)
(i) Three green lights visible through an arc of 360° arranged in a vertical line on the upstream end of the river (guard) wall unless the intermediate wall extends farther upstream. In the latter case, the lights will be placed on the upstream end of the intermediate wall.
(ii) Two green lights visible through an arc of 360° arranged in a vertical line on the downstream end of the river (guard) wall unless the intermediate wall extends farther downstream. In the latter case, the lights will be placed on the downstream end of the intermediate wall.
(iii) A single red light, visible through an arc of 360° on each end (upstream and downstream) of the land (guide) wall.
(2) At movable dams when the dam has been lowered or partly lowered so that there is an unobstructed navigable pass through the dam, the navigation lights indicated in the following paragraphs will be displayed during hours of darkness until lock walls and weir piers are awash.
(i) Three red lights visible through an arc of 360° arranged in a vertical line on the upstream end of the river (guard) wall.
(ii) Two red lights visible through an arc of 360° arranged in a vertical line on the downstream end of the river (guard) wall.
(iii) A single red light visible through an arc of 360° on each end (upstream and downstream) of the land (guide) wall.
(3) After lock walls and weir piers are awash they will be marked as prescribed in paragraph (x) of this section.
(4) If one or more bear traps or weirs are open or partially open, and may cause a set in current conditions at the upper approach to the locks, this fact will be indicated by displaying a white circular disk 5 feet in diameter, on or near the light support on the upstream end of the land (guide) wall during the hours of daylight, and will be indicated during hours of darkness by displaying a white (amber) light vertically under and 5 feet below the red light on the upstream end of the land (guide) wall.
(5) At Locks No. 1 and 2, Green River, when the locks are not in operation because of high river stages, a single red light visible through an arc of 360° will be displayed on each end (upstream and downstream) of the lock river (guard) will at which time the lights referred to above will not be visible.
(w)
(x)
(2) Where powerhouses or other substantial structures projecting considerably above the level of the lock wall are located on the river (guard) wall, a single red light located on top of one of these structures may be used instead of river wall buoys prescribed above until these structures are awash, after which they will be marked by a buoy of appropriate type and color (red nun or black can buoy) until covered by a depth of water equal to the project depth. Buoys will be lighted, if practicable.
(y)
1. Muskingum River Lock & Dam 1 has been removed. Ohio River slackwater provides navigable channel for recreational craft to Lock 2 near Devola, Ohio. Muskingum River Locks 2 thru 11 inclusive have been transferred to the State of Ohio and are operated during the recreational boating season by the Ohio Department of Natural Resources. Inquiries regarding Muskingum River channel conditions and lock availability should be directed to the aforementioned Department.
2. Little Kanawha River Lock and Dam 1 has been removed, thus permitting recreational craft to navigate up to Lock 2 near Slate, W. Va. Operation of Locks 2 thru 5 on the Little Kanawha River has been discontinued.
3. Big Sandy River: Lock 1 has been removed, thus permitting recreational craft to navigate to Lock 2, near Buchanan, Ky. Operation of Lock 2 and Lock 3 near Fort Gay, W. Va. has been discontinued. Operation of Lock and Dam 1 on Levisa Fork near Gallup, Ky., and Lock and Dam 1 on Tug Fork near Chapman, Ky. has been discontinued.
4. Operation of the following Green River Locks has been discontinued: Lock 4 near Woodbury, Ky., Lock 5 near Glenmore, Ky., and Lock 6 near Brownsville, Ky.
5. Operation of Barren River Lock and Dam No. 1 near Richardsville, Ky. has been discontinued.
6. Operation of Rough River Lock and Dam No. 1 near Hartford, Ky. has been discontinued.
7. Operation of Osage River Lock and Dam 1 near Osage City, Mo., has been discontinued.
8. Operation of the 34 locks in the Illinois and Mississippi (Hennepin) Canal, including the feeder section, has been discontinued.
9. Operation of the Illinois and Michigan Canal has been discontinued.
(a) [Reserved]
(b)
(a) All previous regulations of the Secretary of War relating to the use of the Mississippi River for the generation of power by the Mississippi River Power Co., including the memorandum of March 24, 1908, approved by the Secretary of War, March 26, 1908, are rescinded, and the following regulations will govern the operation of the dam until further orders:
(b) Excepting as specially provided in this section the normal flow of the river shall be discharged below the dam at all times of day and night.
(c) The Mississippi River Power Co. shall not during the period of navigation raise the level of its pond behind the Keokuk Dam when the natural flow of the Mississippi River is falling or when such natural flow is less than approximately 64,000 cubic feet per second, which corresponds to a normal stage of 6 feet above low water at Keokuk, Iowa, except upon the written permission of the U.S. District Engineer in charge of this locality, such permit to state the period which such ponding may cover and the maximum variation in stage below the dam which may be caused by each ponding.
(d) The granting of permits by the District Engineer shall be governed by the provision of the law authorizing the construction of the dam and its accessories, as follows:
(e) The power company when proposing to raise or lower the pond, either under general authority or special permission, shall give due notice to the District Engineer or his authorized agent of its intention.
(f) The power company shall hold all records relating to operations affecting the river discharge open to the inspection of the District Engineer or his authorized agent.
(g) It shall be the duty of the district engineer or his authorized agent to observe closely and carefully the operations of the power company and to maintain in addition to such as may be maintained by the power company, such river and pool gages as may be advisable, and make from time to time such examinations as may be necessary for determining the effect of the operation of the power dam and accessories on the river channels.
(h) The Department of the Army approves the method of regulating the flow below the Keokuk Dam by estimating the flow 24 hours in advance and maintenance of the stage corresponding to such flow as indicated by the river gage at U.S. Lock (the method employed during 1917). The general rules stated in paragraph (g) of this section are not intended to apply to unavoidable small compensating variations in pond level behind the dam inherent in such method of regulation.
In accordance with the provisions of Article 8 of Federal Power Commission License of June 7, 1923 (Project No. 362-Minn., Ford Motor Co.), this section is prescribed for the control of the pool level created by the Twin City Locks and Dam, Minneapolis, in the interest of navigation, and supersedes rules and regulations made effective January 1, 1928, by the Secretary of War:
(a) The pool above the dam shall not be allowed to drop below elevation 744.5
(b) Whenever, due to high flows, the pool above the dam is above elevation 746.5, all flashboards on the crest of the dam shall be removed or in the lowered position.
(c) To protect navigation in cases of emergency, such as the stranding of a boat or the loss of a pool below the Twin City Dam, etc., the licensee shall temporarily discharge water at such rates, subject to the limitations of paragraph (a) of this section, as may be directed by the U.S. District Engineer in charge of the locality.
(d) It shall be the duty of the U.S. District Engineer in charge of the locality to notify the licensee of the periods during which the river shall be considered open to navigation.
(e) It shall be the further duty of the said District Engineer or his authorized agent, by frequent inspections, to determine whether paragraphs (a) to (d) of this section are being observed. In case of noncompliance he shall so notify the licensee and report the facts to the Chief of Engineers.
(a) Parties engaged in the transportation of loose logs, timbers, and rafts of logs, poles, posts, ties, or pulpwood, on the waters described in this section, shall conduct their operations so as to interfere as little as possible with navigation by steamboats, launches, or other craft, or with the operations of other parties using the waters for purposes similar to their own, and, so far as may be possible, shall prevent the formation of log jams.
(b) In case of the formation of a jam, the owner of the logs, poles, posts, ties, or pulpwood, causing the jam, or the representatives in charge of the drive or tow, shall cause the same to be broken with the least practicable delay.
(c) Steamboats, launches, or other craft desiring to pass through a body of floating logs, poles, or ties shall be given all reasonable and necessary assistance in doing so by the representatives in charge of the logs, poles, posts, ties, or pulpwood causing the obstruction.
(d) Any individual, firm, or corporation banking logs, poles, posts, ties, or pulpwood on the shores or within the banks of any of the waters covered by this section, which are to be transported during the navigation season, shall so place them as to maintain a clear navigable channel width of not less than 20 feet.
(e) Parties using the river for rafted poles, posts, ties, or pulpwood shall not tie rafts up to the bank two or more abreast; shall not tie up where there will be less than 50 feet of clear waterway between their raft and the other bank or between their raft and another tied to the opposite bank; and shall not tie more than three rafts along any bank without leaving an opening for a landing.
(a)
(b)
And it shall be the duty of the Secretary of War to prescribe such rules and regulations in respect to the use and administration of said reservoirs as, in his judgment, the public interest and necessity may require; which rules and regulations shall be posted in some
(c)
(d)
(1) Notwithstanding any other provision of this section, the discharge from any reservoir may be varied at any time as required to permit inspection of, or repairs to, the dams, dikes or their appurtenances, or to prevent damage to lands or structures above or below the dams.
(2) Except as provided in paragraph (d)(1) of this section the average annual discharge from the respective reservoirs shall not be reduced below the following values, as nearly as they can practically be maintained:
(3) During the season of navigation on the upper Mississippi River, the volume of water discharged from the reservoirs shall be so regulated by the officer in charge as to maintain as nearly as practicable, until navigation closes, a sufficient stage of water in the navigable reaches of the upper Mississippi and in those of any tributary thereto that may be navigated and on which a reservoir is located.
(4) Surplus waters in storage above the stages listed in paragraph (d)(7) of this section not required for use in the aid of navigation, as provided for in paragraph (d)(3) of this section, may be discharged at such time and at such rates as will result, in the judgment of the District Engineer, in the greatest general benefit or the minimum of injuries to all affected interests.
(5) No discharge other than the minimum specified in paragraph (d)(2) of this section shall be permitted when a reservoir is at or below its minimum stage as set forth in paragraph (d)(7) of this section except such increases of discharge as may specifically be directed by the Chief of Engineers.
(6) The surplus inflow over the minimum discharge set forth in paragraph (d)(2) of this section shall be stored until the limit of capacity or safety of the reservoir is reached, or until such time as water may be discharged in accordance with this section.
(7) So far as practicable, under the requirements of this section, the officer in charge will cause the reservoirs to be maintained above the following minimum stages, referred to zeros of respective Government gauges:
The range of fluctuations in levels in any reservoir in a single calendar year shall be held at a minimum consistent with the requirements of this section and with the inflow of that year. If, through necessity reservoirs are drawn below these stages, minimum stages will be restored at the first practicable opportunity.
(e)
(f)
(g)
(a)
(2) Except during the period above mentioned, the parties engaged in handling logs upon the river shall have the right to sluice, drive, and float loose logs and to regulate the flow of water in the river as may best suit their convenience, all reasonable caution being taken to avoid log jams.
(3) This paragraph shall remain in force until modified or rescinded. (Act of May 9, 1900, 31 Stat. 172; 33 U.S.C. 410)
(b)
(2) The Northern States Power Co. shall establish automatic water-stage recorders of a type approved by the district engineer at the following localities:
(i) On the Nevers Pond near the dam.
(ii) On the St. Croix hydroplant pond near the dam.
(iii) On the St. Croix hydroplant tailrace.
(iv) On the St. Croix River near Osceola.
(v) On the St. Croix River near Marine.
(3) The gages are to be installed and maintained by the Northern States Power Co. in a manner satisfactory to the District Engineer, but their operation and inspection is to be under the sole direction of the District Engineer, who will retain the original records, furnishing the Northern States Power Co. with duplicates of the gage records.
(a) During the season of navigation, parties engaged in handling logs upon such portion of the river shall have the right to sluice, drive, and float logs in such manner as may best suit their convenience:
(b) Owners of loose logs running in the river must maintain a sufficient force of men on the river to keep the logs in motion and to prevent the formation of log jams or accumulation of logs on the several rapids; and said log owners must also construct and maintain for the control and direction of floating logs, such guide booms on said rapids and at other points on said river, as may be considered necessary by the District Engineer in charge of the District.
(c) Owners of sack and brail rafts must so handle the same as not to
(a) During the season of navigation, parties engaged in handling logs upon the river shall have the right to sluice, drive, and float logs in such manner as may best suit their convenience:
(b) A sufficient force of men must accompany each log drive to prevent the formation of log jams and to maintain an open channel for navigation.
(c) This section shall remain in force until modified or rescinded.
(a) Parties wishing to run logs on Red Lake River must provide storage booms near the head of the river to take care of said logs.
(b) No one will be permitted to turn into the river at any time more logs than he can receive at his storage boom.
(c) Tows arriving at the head of the river shall turn their logs into the river successively in the order of their arrival, and such logs shall be at once driven to the owner's storage boom.
(d) Parties authorized to run logs on the river shall have the use of the river on successive days in rotation to run their logs from their storage boom down, but not more than 1,000,000 feet, board measure, shall be released from the storage booms on any one day. Said parties must provide a sufficient force of log drivers to keep their logs in motion throughout the section of river above mentioned, so as to avoid obstructing the general navigation of the river.
(e) When a drive is made it shall be so conducted that not more than 1,500,000 feet, board measure, of logs shall pass any point on the river in 24 hours. The decision of the agent appointed by the United States shall be final as to the quantity of logs running at any time.
(f) This section shall remain in force until modified or rescinded.
(a)
(1) The elevation to be maintained in the Chicago River at the west end of the lock will be determined from time to time by the U.S. District Engineer, Chicago, Illinois. It shall at no time be higher than minus 0.5 foot, Chicago City Datum, and at no time lower than minus 2.0 feet, Chicago City Datum, except as noted in the preceding paragraph.
(b)
(2)
(3)
(4)
(
(
(
(
(
(ii) When in the lock, vessels shall not blow whistle signals for tugs, bridges, landings, etc., without the lockmaster's permission.
(iii) The master and chief engineer of each vessel of 500 gross tons or more shall be on duty at their respective stations when passing through the lock.
(5)
(6)
(7)
(8)
(9)
(10)
(ii) Mooring lines shall not be cast off until after the lock gates have been opened fully into their recesses, and the signal given to leave the lock. The lines leading aft shall be released first. The lines leading forward shall not be released until the vessel has started to move forward, so as to prevent the vessel from drifting back into the lock gates.
(11) [Reserved]
(12)
(13)
(14)
(15)
(16)
(17) [Reserved]
(18)
(19)
(a)
(2) The elevation to be maintained at the downstream end of the lock shall at no time be higher than minus 0.5 feet, Chicago City Datum, and at no time lower than minus 2.0 feet, Chicago City Datum, except as noted in paragraph (a)(1) of this section.
(b)
(a) The use, administration, and navigation of the canal and canal grounds shall be under the direction of the District Engineer, Engineer Department at Large, in charge of the locality, and his authorized agents. The term “canal” shall include all of the natural waters of the St. Marys River on the U.S. side of the International Boundary and all of the canalized waterway and the locks therein between the western or upstream limit, which is a north and south line tangent to the west end of the Northwest Pier, and the eastern or downstream limit, which is a north and south line tangent to the northeast corner of the old Fort Brady Reservation, the distance between limits being 1.9 miles. The term “canal grounds” shall include all of the United States part and other lands, piers, buildings, water level regulation works, hydroelectric power plant, and other appurtenances acquired or constructed for the channel improvement and use of the waterway.
Rules and regulations governing the movements of vessels and rafts in St. Marys River from Point Iroquois, on Lake Superior, to Point Detour, on Lake Huron, prescribed by the U.S. Coast Guard pursuant to 33 U.S.C. 475, are contained in part 92 of this title.
(b) Masters of all registered vessels approaching and desiring to use the locks shall, upon arriving at Sailors Encampment, Little Rapids Cut, and Brush Point, report the name of the vessel and its draft to the Coast Guard Lookout Stations at those points.
(c)
(d) When in the locks, vessels shall not blow whistle signals for tugs, supply vessels, or persons unless authorized to do so by the District Engineer or his authorized agents.
(e)(1)
(2)
(ii)
(f)
(2)
(g) For passage through the canal, vessels or boats owned or operated by the U.S. Government may be given precedence over all others.
(h)
(2)
(i) The first vessel to leave will be the vessel in the lock which is ready for vessel release first. The vessel in the other lock will be restrained by the gates remaining closed and the wire rope fender remaining in the down position.
(A) On down bound passages, the vessel retained shall not leave the lock until such time as the bow of the vessel leaving first reaches the end of the East Center pier.
(B) On up bound passages, the vessel retained shall not leave the lock until such time as the bow of the vessel leaving first reaches the railroad bridge.
(ii) When a 1,000 foot vessel is ready to depart the Poe Lock and a vessel has left the MacArthur Lock already, the 1,000 foot vessel may start to leave once the bow of the other vessel reaches the end of the respective nose pier.
(iii) Vessels will remain in radio contact with each other and with the Chief Lockmaster at all times until clear of the lock area.
(iv) The need for a deviation from the procedures set forth in paragraph (h)(2)(i) of this section will be determined on a case by case basis by the Chief Lockmaster. If two vessels masters agree to a different departure scheme, they both shall notify the Chief Lockmaster and request a change.
(i) Unless otherwise directed, all vessels or boats approaching the locks shall stop at the points indicated by signs placed on the canal piers until ordered by the District Engineer or his authorized agents to proceed into the lock.
(j) Vessels and boats shall not proceed to enter or leave a lock until the lock gates are fully in their recesses and the lockmaster has given directions for starting.
(k) Upon each passage through the canal, the master or clerk of the vessel or craft shall report to the canal office, upon the prescribed form, a statement of passengers, freight, and registered tonnage, and such other statistical information as may be required by the blank forms provided for the purpose.
(l) No business, trading, or loading or landing of freight, baggage, or passengers will be allowed on or over the canal piers or lock walls, or over the other piers within the limits of the canal grounds, except by prior authority of the District Engineer or his authorized agents.
(m) No person shall throw material of any kind into the canal, or litter the grounds with any refuse.
(n) The releasing of vessel steam, water, or waste from side discharge openings upon the piers or lock walls, the cleaning of boiler flues in the locks
(o) No person shall enter or navigate the canal with a boat or other craft which, when entering or while navigating the canal, shall have an iron or irons projecting from it or a rough surface or surfaces on it which would be liable to damage the lock walls or canal piers.
(p) No person shall cause or permit any vessel or boat of which he is in charge or on which he is employed to in any way obstruct the canal or delay in passing through it, except upon prior authority of the District Engineer or his authorized agents.
(q) No person shall enter upon any part of the canal grounds except as permitted, either generally or in specific instances, by the District Engineer or his authorized agents. No person shall willfully or carelessly injure, tamper with, or damage the canal or any of the Government buildings, works or structures, trees or shrubbery, or other public property pertaining to the canal or canal grounds.
(r)
(2)
(s) Smoking and open flames are prohibited on the canal grounds within 50 feet of any tanker transiting the canal and locks, and on board the tanker transiting the locks except in such places as may be designated in the ship's regulations.
(t) All oil tankers, barges, and other vessels which are used for transporting inflammable liquids, either with or without cargo, shall, if not equipped with fixed timber fenders, be prevented from contacting any unfendered pier, lock wall, or other structure by an adequate number of suitable fenders of timber, rubber, or rope placed between the vessel and such unfendered structure.
(u) The locks will be opened and closed to navigation each year as provided in paragraphs (u) (1) and (2) of this section except as may be authorized by the Division Engineer. Consideration will be given to change in these dates in an emergency involving disaster to a vessel or other extraordinary circumstances.
(1)
(2)
(v) The maximum overall dimensions of vessels that will be permitted to transit MacArthur Lock are 730 feet in length and 75 feet in width, except as
(1) Whenever the Poe Lock is out of service for a period exceeding 24 hours the District Engineer may allow vessels greater than 730 feet in length, but not exceeding 767 feet in length to navigate the MacArthur Lock. Masters of vessels exceeding 730 feet in length shall be required to adhere to special handling procedures as prescribed by the District Engineer.
(w) The maximum overall dimensions of vessels that will be permitted to transit the New Poe Lock without special restrictions are 100 feet in width, including fendering, and 1,000 feet in length, including steering poles or other projections. Vessels having overall widths of over 100 feet and not over 105 feet including fendering, and overall lengths of not more than 1,100 feet, including projections, will be permitted to transit the New Poe Lock at such times as determined by the District Engineer or his authorized representative that they will not unduly delay the transit of vessels of lesser dimensions, or endanger the lock structure because of wind, ice, or other adverse conditions. These vessels also will be subject to such special handling requirements as may be found necessary by the Area Engineer at time of transit. Vessels over 1,000 feet in length will be required to be equipped with six mooring cables and winches ready for use to assist in safe transit of the lock.
(x) Masters or other persons refusing to comply with the regulations in this section or any orders given in pursuance thereof, or using profane, indecent, or abusive language, may, in the discretion of the District Engineer or his authorized agents, be denied the privileges of the locks and canal grounds.
(a)
(b)
(1)-(3) [Reserved]
(4)
(ii)
(iii)
(5)
(c)
(1) The master or mate and not more than three deckhands will be permitted to go ashore from transiting vessels and then only for normal operations and business incident to the transit. A maximum of four men will be permitted ashore at any one time from any one ship.
(2)
(ii)
(3) No passengers or guest passengers will be permitted to embark or debark at St. Marys Falls Canal except in emergency when medical attention is required.
(4) Letters cited in paragraph (c)(2) of this section are valid only for a single passage through the lock area. In the event frequent access to the area is required a request for extended access with reasons therefor will be submitted to the Area Engineer, St. Marys Falls Canal, Sault Ste. Marie, Michigan, who may arrange for the necessary clearance.
(5) Emergency needs to embark or debark which develop with insufficient time to follow the procedure outlined in this paragraph will be approved or disapproved by the Area Engineer, St. Marys Falls Canal, Sault Ste. Marie, Michigan, according to the circumstances of the individual case, and
(a)
(2)
(3)
(4)
(5)
(6)
(ii) Pleasure boats, powered and non-powered, houseboats and similar craft will be provided with not more than one lockage each way through the same lock in a 24-hour period.
(iii) All small vessels or craft, such as skiffs, sculls, sailing boats, etc., shall be passed through locks in groups of not less than six at one lockage, or may be granted separate lockage if the traffic load at the time permits.
(iv) Lockage may be provided during certain hours other than announced at the intermediate locks provided prior requests are made to the Corps of Engineers, Fox River Project Office. Requests may be made either in writing, by telephone or in person to U.S. Army Corps of Engineers, Fox River Project Office, 1008 Augustine Street, Kaukauna, Wisconsin 54130, telephone: 414-766-3531.
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(15) [Reserved]
(16)
(17)
(ii) The outlet works of said dam shall be opened when and to the extent
(b)
(2) The drydock at Kaukauna, when not required for repairs or construction by the United States, may be used by private parties or corporations under certain restrictions and under the supervision and direction of the U.S. District Engineer in charge of the locality or his authorized agent.
(3) The drydock will be loaned to private parties only when no private drydock is available at the time and for the purpose desired. Applicants will be required to establish over their signature the fact that due effort has been made to secure the use of a private drydock and none can be had.
(4) Private parties desiring to use the Kaukauna drydock will give notice to the U.S. Assistant Engineer in local charge at Appleton, Wis., as long in advance as practicable, stating when use of the dock is wanted, nature of repairs required, and the dimensions and character of boat. No boat will enter the dock until the permission of the U.S. District Engineer or the Assistant Engineer above referred to has been obtained.
(5) All private parties or corporations using the Kaukauna drydock will furnish all material and labor, including blocking, when necessary, required for prompt execution of their work, and will also furnish all labor for properly operating, under the immediate personal supervision of an authorized canal employee, gates, and sluices of the drydock. No gate or sluice of the drydock will be operated, or in any way meddled with, except by permission of and under the personal supervision of such authorized canal employee.
(6) No boat will be allowed to occupy the Kaukauna drydock for a longer period than 2 days when other boats are waiting to use the dock, except in cases when, in the opinion of the U.S. District Engineer or his authorized agent, circumstances necessitate and justify a longer use than 2 days. The U.S. District Engineer or his authorized agent is authorized to remove from the drydock any boat using or occupying such dock without his authority, and the expense of such removal will be paid by the party or parties owning such boat.
(7) The wages of all mechanics and laborers, due from private parties for repairs carried on in the Kaukauna drydock, must be paid before the boat leaves the dock.
(8) Repair shop, timber shed, tools, etc., owned by the Government at and near the drydock shall not be used by parties allowed to occupy the drydock.
(9) Lumber and all material needed by parties allowed to use the drydock may be deposited in the drydock yards at such places as may be directed, but only for such time as repairs are being made, and residue must be entirely removed when the boat leaves the dock; general storage will not be permitted.
(10) All refuse and old material taken from boats under repairs must be removed or disposed of, as may be directed, by the owner of the boat or his employees without expense to the Government, and before the boat leaves the dock, and to the satisfaction of the agent in charge of the dock.
(11) The Government charges for the authorized and necessary use and occupancy of the Kaukauna drydock by private boats shall be, until further orders, as follows:
(i) Docking charges (including lay time for the calendar day on which vessel is docked): Tugs, motor boats, and dredges, 75 cents per linear foot; $25 minimum charge. Barges, dump scows, and derrick boats, 65 cents per linear foot; $20 minimum charge.
(ii) Lay-day charges (excluding Sundays and national holidays, unless repairs are made on such Sundays and holidays): For all vessels, 20 cents per linear foot per calendar day or part thereof; $7 per calendar day or part thereof, minimum charge.
(12) The charges for all use or occupancy of the Kaukauna drydock by a boat or private parties, after repairs on such boat have, in the opinion of the U.S. District Engineer or authorized
(13) The dock will be considered in use by a boat from the time the dock is placed at its disposal until the boat is out of the dock.
(14) The length of all vessels shall be the over-all length measured on the main deck from stem to stern.
(15) The charges for the use of the drydock shall be paid within 10 days from date of bill, which will be submitted to the owner by the District Engineer as promptly as possible after the vessel leaves the dock. If charges are not so paid, the vessel shall be liable to the amount of the charges and the cost of collection in the manner prescribed by law, and the owner of the vessel shall be denied the use of the drydock until all charges and the cost of collection have been paid to the United States.
(16) This section supersedes the regulations for the use of this drydock approved April 10, 1906, which regulations are hereby revoked.
(a)
(b)
Rule V. Whenever a steamer is nearing a short bend or curve in the channel where, from the height of the banks or other cause, a steamer approaching from the opposite direction cannot be seen for a distance of half a mile, the pilot of such steamer, when he shall have arrived within half a mile of such curve or bend, shall give a signal by one long blast of the steam whistle, which signal shall be answered by a similar blast by the pilot of any approaching steamer that may be within hearing. Should such signal be so answered by a steamer upon the farther side of such bend, then the usual signals for the meeting and passing shall immediately be given and answered; but if the first alarm signal of such pilot be not answered, he is to consider the channel clear and govern himself accordingly.
(c)
(d)
(e)-(g) [Reserved]
(h)
(2) Rafts shall be made up with logs parallel to each other, in the direction of raft lengths, secured and held closely together by frequent cross-sticks, chains, or cables.
(3) Rafts shall not be of greater dimensions, either way, than 50 feet wide by 600 feet long, and if longer than 300 feet shall be handled by two tugs.
(4) No raft shall pass through the canal, unless by special permission of the superintendent or his authorized assistants, who will direct a time for passing that will least interfere with other navigation.
(5) Masters of tugs and other persons in charge of rafts are required to avoid damaging the canal revetments, and displacing buoys, spars, or the pedestal of any range light aiding navigation through the canal. They shall keep careful watch when passing aids to navigation, and should any be accidentally displaced, shall report the fact at
(i)-(l) [Reserved]
(m)
(n)-(o) [Reserved]
(a)
(b)
(c)
(d)
(2) Overall width—16 feet.
(3) Height above water—15 feet when upper pool is at low water datum.
(4) Draft—6 feet when lower pool is at low water datum.
(e)
(2) Craft not equipped with whistle, horn, or siren may signal for lockage by use of the signal provided for this purpose located near the extreme end of the guide wall to the starboard side of the craft, both upbound and downbound.
(f)
(2) When the green signal light shows and the lock horn sounds three blasts, approach and enter the lock.
(3) Full control of the craft must be maintained while entering the lock.
(4) After entrance to the lock is complete, the craft shall be securely moored to the cleats and bitts situated on the lock wall.
(5) While moored in the lock, the operator of the craft shall maintain constant attention to the mooring lines, to provide slack or retain tautness as needed.
(6) The craft shall remain securely moored until the exit lock gate is fully open and the lock horn sounds one blast.
(7) When the exit lock gate is fully open and the lock horn has sounded one blast, the craft shall immediately leave the lock under full control of its operator.
(g)
(a) All boats, barges, and vessels entering the harbor will be required to take such positions as may be assigned them by the officer in charge, who will direct their movements, either from the breakwater or from the Government tug on the harbor.
(b) In the absence of any directions as to position, boats, barges, and vessels entering the harbor will observe the following rule: The first steam vessel, or the first steam vessel with consort in tow, on entering the harbor for shelter, will proceed to the upper end of the breakwater. All steam vessels, and all steam vessels with consorts in tow, entering later, will place themselves in a compact position close to those preceding them. Sailing craft will so locate themselves that they will not lie in the way of other vessels entering the harbor. All vessels of every description will in no way place themselves so as to interfere with the work of reconstruction of piers, or repairs, that may be in progress at the time.
(c) The use of chains in making fast to the breakwater will not be permitted. Lines must be attached to the snubbing posts only, and outboard anchors taken in.
(d) Steam craft with barges or vessels in tow will, if practicable, at once place them compactly alongside the breakwater, either taking in the towlines entirely or passing them on the breakwater so as not to interfere in any way with the landing or departure of boats or vessels between them. If impracticable to place them alongside the breakwater, they will each drop anchor and at once take in all towlines extending from one to the other.
(e) Passenger boats will, in general, have the preference as to location and attention by the officer in charge. Rafts will give way to all documented craft.
(f) All classes of boats, barges, vessels, or other floating property making fast to the breakwater must at once place such fenders between themselves and the breakwater as may be thought necessary by the officer in charge to prevent chafing or other damage.
(g) The unloading of wood, coal, ballast, stone, or freight of any class upon the breakwater is expressly prohibited, except in certain cases allowed by special permission from the officer in charge.
(h) Each and every piece of floating property made fast to the breakwater, or anchored in the harbor, must keep outboard from sunset to sunrise a conspicuous white light, and must have upon it and in immediate charge of it a watchman during the entire time such floating property is in the harbor. All colored lights must be at once taken in, or covered, on dropping anchor or making fast to the breakwater.
(a)-(c) [Reserved]
(d) No vessel shall moor or anchor to any structure of the United States without the consent of the District Engineer, U.S. Army, in charge of the locality, or his authorized agent.
(e) No vessel shall moor or anchor in or along any improved channel or basin in such manner as to interfere with improvement or maintenance operations therein. Whenever in the opinion of the District Engineer any vessel is so moored or anchored, the owner thereof shall cause said vessel to be moved upon notification from and within the time specified by said District Engineer.
(a)-(b) [Reserved]
(c) No vessel or other craft shall moor or anchor to any structure of the United States without the consent of the District Engineer, Corps of Engineers.
(d) No vessel or other craft shall moor or anchor in or along any improved channel or basin in such a manner as to interfere with the improvement or maintenance operations therein. Whenever in the opinion of the District Engineer any vessel or craft is so moored or anchored, the owner thereof shall cause such vessel or craft to be
(a)-(b) [Reserved]
(c) No vessel shall moor or anchor to any structure of the United States without the consent of the District Engineer, U.S. Army, in charge of the locality, or his authorized agent.
(d) No vessel shall moor or anchor in or along any improved channel or basin in such manner as to interfere with improvement or maintenance operations therein. Whenever in the opinion of the District Engineer any vessel is so moored or anchored, the owner thereof shall cause said vessel to be moved upon notification from and within the time specified by said District Engineer.
(a)-(b) [Reserved]
(c) No vessel shall moor or anchor to any structure of the United States without the consent of the District Engineer, U.S. Army, in charge of the locality, or his authorized agent.
(d) No vessel shall moor or anchor in or along any improved channel or basin in such manner as to interfere with improvement or maintenance operations therein. Whenever in the opinion of the District Engineer any vessel is so moored or anchored, the owner thereof shall cause said vessel to be moved upon notification from and within the time specified by said District Engineer.
(a) The term “canal” when used in this section will mean all of the Black Rock Waterway, including Black Rock Lock, and all of the lands, piers, buildings, and other appurtenances acquired by letters patent from the State of New York, or constructed for the use of the waterway; the southerly limit thereof being at the southerly end of Bird Island Pier, and the northerly limit being at the downstream end of the guide pier, Black Rock Lock, a length of 3.7 miles.
(b) The canal and all of its appurtenances and the use, administration and navigation thereof shall be in charge of the District Engineer, U.S. Army Engineer District, in charge of the locality, or his authorized agents.
(c) The movement of all vessels, boats, or other floating things in the canal shall be under the direction of the authorized agents of the District Engineer in charge, and their orders and instructions must be obeyed.
(d) For passage through the canal, vessels or boats belonging to the U.S. Government shall have precedence over all others.
(e) All registered vessels or boats must pass through the canal in order of their arrival at the canal limits, unless otherwise directed in accordance with this section.
(f) [Reserved]
(g) No vessel shall pass or approach within
(h) No vessel or boat shall anchor in or moor along the canal except at localities specially designated by the District Engineer or his agent; and no business, trading, or landing of freight or baggage, except such articles as may be readily carried in the hand, will be allowed on or over the canal lands or structures, without the permission of the District Engineer or his agent.
(i) No person or operator of a vessel in the Black Rock Canal, lock or approaching channels shall throw or discharge or permit to be thrown or discharged any solid material of any kind or any petroleum product of any kind into the canal, lock or appurtenant waters.
(j) All vessels and tows shall be navigated with care so as not to strike or disturb the channel buoys or channel markers. If a buoy or other channel marker is accidentally struck, damaged or displaced, the fact shall be reported immediately to the Black Rock Lock, foot of Bridge Street, Buffalo, N.Y., telephone 876-5454.
(k) Ferry Street Bridge: The clearheadroom under the bridge at low water datum is 17.3 feet for a width of 86 feet from the pivot pier, thence decreasing to 12.3 feet at the left (westerly) abutment.
(1) All vessels and boats which cannot pass under the bridge shall, on approaching the bridge, reduce speed sufficiently to enable them to come to a dead stop, without touching the bridge, in case the movable span cannot be lifted. If the wind is dangerously strong, passage of the bridge shall not be attempted by large vessels without the aid of a tug or tugs.
(2) Vessels and boats bound north shall have the right-of-way and priority for passage through the bridge over those bound south.
(3) All vessels and boats desiring passage through the bridge shall signal therefor by one long and two short whistle blasts.
(4) Upon receiving the opening signal, the bridge operator shall answer by giving the same signal on the bridge whistle and he shall then proceed at once to lift the bridge.
(5) In case the bridge cannot be lifted, for any cause, the bridge operator shall answer a vessel signal by giving five short whistle blasts; and the vessel shall then be stopped until the bridge is ready to be lifted, when the bridge operator shall give the whistle signal for passage and the vessel may proceed.
(6) In case the bridge is disabled so that it cannot be lifted for one-half hour or more pending repairs, red flags will be displayed on the bridge in daytime and two red lantern lights, one above the other, at night; and when such signals are displayed no vessel or boat shall signal for or attempt passage through the bridge.
(l)
(2) Radio communication will be the only means of control of vessel traffic in the canal in order to prevent a meeting or passing of vessels in the restricted area, and therefore it is mandatory that all vessels over 150 feet in length and tugs towing a barge or barges over 150 feet in combined length of tow be equipped with radio communication equipment operating on designated frequencies. Any vessel lacking such equipment will not be permitted to enter the canal unless arrangements are made with the Black Rock Lock by land telephone to 876-5454 or marine ship-to-shore facilities immediately before entering the canal.
(3) The Black Rock Lock radio communication equipment operates on VHF(FM) frequencies as follows: VHF—156.8 Mcs—Channel 16—Safety and Calling, VHF—156.7 Mcs—Channel 14—Working; VHF—156.6 Mcs—Channel 12 Working. A listening watch is maintained on VHF Channel 16.
(4) In order that positive control may be maintained it is mandatory that the following procedures be followed in communicating by radio with the Black Rock Lock:
(i) Vessels desiring to enter the Black Rock Canal from either the Buffalo Outer Harbor or the Buffalo River shall call the Black Rock Lock on VHF Channel 16 or by land telephone approximately 15 minutes before the estimated time of arrival at Buffalo Harbor Traffic Lighted Bell Buoy 1 located at latitude N. 42°50.1′ and longitude W.
(ii) Vessels desiring to enter the Black Rock Canal from either the Buffalo Outer Harbor or the Buffalo River shall call the Black Rock Lock on VHF Channel 16 or by land telephone to 876-5454 immediately before departing a dock and again when abreast of the North Breakwater South End Light on the southerly end of the North Breakwater.
(iii) In any radio communication from a vessel to the Black Rock Lock, and VHF(FM) frequencies will be utilized.
(iv) In any radio communication from a vessel to the Black Rock Lock, the VHF (FM) frequencies will be utilized if available in preference to the MF (AM) frequencies.
(v) When an initial radio contact has been made with the Black Rock Lock the vessel entering the canal shall maintain a standby watch at the radio until the passage through the canal and lock is completed.
(vi) Failure to comply with the foregoing procedures could result in considerable delay to a vessel and possibly in a collision between vessels in the restricted section of the canal.
(m)
(1) Northbound vessels and boats shall not be brought to within less than 300 feet of the upper lock gates, nor shall southbound vessels be brought to within less than 200 feet of the lower lock gates, until the lock is made ready and the lockmaster in charge signals the vessel to enter the lock.
(2) Vessels and boats shall not moor to the approach walls of the lock at either end, for any other purpose than waiting for lockage, except by direction or permission of the lockmaster.
(3) Commercial vessels will receive perference in passage through the locks. Small vessels such as row, sail, and motor boats, bent on pleasure only, will be passed through the lock in company with commercial vessels when small vessels can be safely accomodated or in the absence of commercial vessels may be passed through the lock individually or together in one lockage on the hour if northbound and on the half hour if southbound. However, commercial vessels will receive preference which could delay the passage of pleasure craft. Pleasure craft will not be permitted to pass through the lock with vessels carrying inflammable cargo. Vessels and other large boats when in the lock shall fasten one head line and one spring line to the snubbing posts on the lock walls, and the lines shall not be cast off until the signal is given by the lockmaster for the boats to leave the lock.
(4) Vessels and boats will be passed through the lock in order of their arrival except that the lockmaster may order a small vessel to lock through in company with another vessel, irrespective of the former's order of arrival.
(5) All vessels and boats shall be maneuvered with great care so as not to strike any part of the lock walls, or any gate or appurtenance thereto, or machinery for operating the gates, or the walls protecting the lock approaches.
(6) Vessels and boats shall not enter or leave until the lock gates are fully in their recesses, and the lockmaster has given direction for starting.
(7) [Reserved]
(8) Trespass on lock property is strictly prohibited. However, in that portion of the Black Rock Canal lying between the International Railway Bridge and the northerly end of the westerly lower guide pier, the following conditions shall apply to the embarking or disembarking of crew members or passengers of a vessel transiting the lock:
(i) Only the master or mate and two or three linesmen will be permitted to go ashore from transiting vessels and then only for normal operations and business incident to the transit. A
(ii) No crew members will be permitted to board a ship at the locks unless previously requested in writing by the master or owners, and approved by canal authorities.
(iii) No crew member may leave a ship while it is in transit in the lock or canal unless certified in advance as an emergency by the vessel master and approved by canal authorities.
(iv) No guest passengers will be permitted to either board or disembark at the canal or locks.
(9) Schedule of Seasonal Operation:
(i) March 23 through June 14—6 a.m. to 11 p.m., daily.
(ii) June 15 through September 6-24 hours, daily.
(iii) September 7 through November 30—6 a.m. to 11 p.m., daily.
(iv) December 1 through March 22—8 a.m. to 4:30 p.m., daily. During the navigation season the hours may be extended by the district engineer, depending on conditions and the need for lockage service. Public notices will be issued announcing the opening and closing dates at least 10 days in advance of such dates.
(10)
(a)-(b) [Reserved]
(c) No vessel shall moor or anchor to any structure of the United States without the consent of the District Engineer, U.S. Army, in charge of the locality, or his authorized agent.
(d) No vessel shall moor or anchor in or along any improved channel or basin in such manner as to interfere with improvement or maintenance operations therein. Whenever in the opinion of the District Engineer any vessel is so moored or anchored, the owner thereof shall cause said vessel to be moved upon notification from and within the time specified by said District Engineer.
(a)-(c) [Reserved]
(d) Vessels shall observe the following rule in mooring to the breakwater: The first self-propelled vessel stopping at the harbor for shelter will proceed to the upstream end of the breakwater and moor along either side of it. All similar vessels entering later will place themselves in a compact position close to those preceding them. Passenger vessels will, in general, have preference as to location of moorage. Sailing craft will so locate themselves that they will not lie in the way of other vessels entering the harbor. All vessels of every description will place themselves so as not to interfere with any work of reconstruction or repair that may be in progress at the time.
(e) The use of chains in making fast to the breakwater is prohibited. Lines must be attached to the snubbing posts only, and outboard anchors taken in.
(f) Vessels with other craft in tow will, if practicable, at once, moor them compactly along the breakwater, either taking in the towlines or placing the slack in them upon the breakwater in such a manner as not to interfere with other vessels. If necessary to moor alongside of other vessels moored to the breakwater, the towlines shall
(g) Vessels of every description mooring to the breakwater, must place suitable fenders between themselves and the breakwater to protect the timber walings on the breakwater from damage.
(h) The unloading of freight of any class upon the breakwater is expressly prohibited, except in accordance with special permission from the said District Engineer or his representative.
(i) Each and every vessel made fast to the breakwater, or anchored in the harbor without a line made fast to the shore or shore dock, must have at least one experienced person upon it during the entire time said vessel is thus moored in the harbor.
(a)
(2)
(3)
(ii)
(iii)
(iv)
(4)
(5)
(6)
(7)
(8)
(9)
(ii)
(10)
(11)
(12)
(13)
(14)
(15)
(16)
(17)
(18)
(19) [Reserved]
(20)
(21)
(a)
(2)
(b)
(2)
(3)
(4)
(i) To boats owned by the United States or employed upon river and harbor improvement work.
(ii) To passenger boats.
(iii) To freight and tow boats.
(iv) To rafts.
(v) To small vessels and pleasure craft.
(5)
(6)
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(c) [Reserved]
(d)
(e)
(a)
(b)
(c)
(d)
(2)
(3)
(4)
(e)
(f)
(1) When a recreational vessel lockage schedule is in effect, at the appointed time for lockage of recreation craft, recreation craft shall take precedence; however, commercial vessels may be locked through with recreation craft if safety and space permit. At other than the appointed time, the lockage of commercial and tow vessels shall take precedence and recreational craft may (only) lock through with commercial vessels only as provided in paragraph (h) of this section.
(2) If a recreational vessel lockage schedule is not in effect, commercial and tow vessels shall take precedence. Recreational craft may be locked through with commercial craft. If no commercial vessels are scheduled to be locked through within a reasonable time, not to exceed one hour after the arrival of the recreational vessels at the lock, the recreational vessel may be locked through separately. If a combined lockage cannot be arranged, the recreational craft shall be locked through after waiting three commercial lockages.
(g)
(h)
(2)
(3)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(s)
(t)
(u)-(v) [Reserved]
(w)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(a)
(2) [Reserved]
(3)
(4)
(5) [Reserved]
(6)
(b)
(2)
(3)
(i) From the west entrance of the Lake Washington Ship Canal to the western end of the west guide pier of the Hiram M. Chittenden Locks, and from the east end of the easternmost guide pier of said Locks to the white flashing dolphin located south of Webster Point on Lake Washington, including all of Salmon Bay, Lake Union, Portage Bay, and Union Bay, it shall be unlawful for any person to operate any watercraft or vessel at a speed in excess of 7 nautical miles per hour within 200 feet of any shoreline, pier, restricted area or shore installation.
(ii) From the western end of the aforesaid west guide pier to the eastern end of the aforesaid east guide pier at said Locks, it shall be unlawful for any person to operate any watercraft or vessel at a speed in excess of 4 nautical miles per hour.
Signs are located along the canal to indicate permissible speeds.
(4)
(5)
The term “long blasts” means blasts of four seconds duration, and the term “short blasts” means blasts of one second duration. Signals for the opening of drawbridges are prescribed in § 117.795 of chapter I.
(ii)
(iii)
(iv)
(v)
(6)
(ii) In the interest of safety and fire prevention, all woven rope fenders used with barges carrying flammable cargo should be water-soaked or otherwise fireproofed prior to entering the lock approaches.
(iii) Burning fenders should be dropped overboard immediately rather than being placed on the deck of a barge or towboat.
(iv) A minimum of one man with a portable fender shall be stationed at the head end of every tow of hazardous cargo and at the aft if the lockmaster so directs so as to protect the lock and guide walls from damage while entering or departing the lock structures.
(v) All cylinder or containers holding gases under pressure, or any other chemical or substance, shall be securely fastened to the hull of the vessel to prevent their rolling overboard into the lock chamber and becoming a hazard.
(vi) All containers holding paint, gasoline or other volatile materials shall be securely fastened with tight-fitting covers. To preclude a concentration of potentially explosive vapors, no paint will be allowed to be applied to the exterior of vessel hulls, houses, machinery, or other equipment while the vessels are in the lock chamber.
(vii) All hatches of tank barges must be closed prior to entering lock. Tank barges with open hatch or hatches will be denied lockage.
(viii) No smoking will be permitted aboard vessels with cargoes of fuel or explosives.
(ix) All vessels carrying hazardous cargoes shall so be identified with the lockmaster. They shall be in compliance with Department of Transportation (U.S. Coast Guard) regulations (CFR title 46, parts 30 thru 40, parts 146 thru 154, and 49 CFR parts 171 thru 179 and shall accordingly carry required markings. All DOT safety regulations for transit of hazardous cargoes shall be adhered to, whether or not specifically cited or duplicated herein.
(7) [Reserved]
(8)
(ii) Whenever required, log rafts passing in through the lock will be given a number that shall be fastened on one of the logs in the raft. This number will identify the raft and shall not be removed until the logs are used.
(iii) Two floats are maintained in Shilshole Bay near the entrance of the canal channel to facilitate the handling of logs in the canal. Rafts bound for the canal may be moored at one of
(9)
(10)
(ii) The placing of logs, vessels, or other floating objects within the limits of the dredged channels or anywhere in the canal where they may interfere with navigation to or from piers or industrial plants is prohibited.
(11)
(12)
(13)
(14)
(15)
Aids to navigation and other related data are shown on Nautical Chart No. 18447 published by the National Ocean Survey.
(16)
(ii) The least depth of water available over the barrier when raised will be shown on signs placed near the ends of the guide piers to the large lock. A yellow light mounted on these signs will
(iii) Vessels transiting the lock from east to west having draft requirements that exceed the water depth available over the barrier will advise the lockmaster by sounding one long and two short blasts of a horn or whistle. When the yellow light is extinguished on the signboard, the operator of the vessel may assume the barrier has been lowered.
(iv) Vessels transiting the lock from west to east having draft requirements that exceed the depth available over the intrusion barrier will advise the lockmaster by sounding one long and two short blasts of a horn or whistle. A yellow light mounted on a standard on the south lock wall and opposite the intrusion barrier will be lighted only when the barrier is in the raised position.
(v) It shall be the responsibility of the vessel operator to satisfy himself of the position of this barrier prior to passing over it.
(c)
(2) Two green lights, one vertically above the other, displayed ahead of a vessel, shall indicate that the waterway is clear. Two red lights, one vertically above the other, displayed ahead of a vessel, shall indicate that the waterway is not clear.
(3) A vessel approaching the narrow section and drawbridges from either end of the waterway shall give one long blast of a whistle and shall not enter the narrow section until green lights are displayed.
(4) One vessel may follow another vessel in either direction, but the channel shall not be kept open in the same direction for an unreasonable time if a vessel is waiting at the other end.
(5) Tugs, launches, and small craft shall keep close to one side of the channel when vessels or boats with tows are passing.
(6) All craft shall proceed with caution. The display of a green light is not a guarantee that the channel is clear of traffic, and neither the United States nor the City of Seattle will be responsible for any damage to vessels or other property which may be chargeable to mistakes in the operation of the signal lights or to their failure to operate.
For
(a)
(1)
(2)
(i) Failure to submit a required report.
(ii) Failure to provide a timely, accurate, and complete report.
(iii) Failure to submit monthly listings of idle vessels or vessels in transit.
(iv) Failure to submit a report required by the lockmaster or canal operator.
(3)
(4)
(5)
(6)
(7)
(i)
(ii)
(iii)
(iv)
(v)
(b) Implementation of the waterborne commerce statistics provisions of the River and Harbor Act of 1922, as amended by the Water Resources Development Act of 1986 (Pub. L. 99-662), mandates the following.
(1)
(i) For vessels under lease/charter agreements, the lessee or charterer of any commercial vessel engaged in commercial transportation will be responsible for the filing of said reports until the lease/charter expires.
(ii) The vessel owner, or his designated agent, is always the responsible party for ensuring that all commercial activity of the vessel is timely reported.
(2) The following Vessel Information Reports are to be filed with the Army Corps of Engineers, at the address specified on the ENG Form, and are to include:
(i)
(A) All movements of domestic waterborne commercial vessels shall be reported, including but not limited to: Dry cargo ship and tanker moves, loaded and empty barge moves, towboat moves, with or without barges in tow, fishing vessels, movements of crew
(B) Vessels idle during the month must also be reported.
(C) Notwithstanding the above requirements, the following waterborne vessel movements need not be reported:
(
(
(
(
(
(D) ENG Forms 3925 and 3925b shall be completed and filed by vessel operating companies each month for all voyages or vessel movements completed during the month. Vessels that did not complete a move during the month shall be reported as idle or in transit.
(E) The vessel operating company may request a waiver from the Army Corps of Engineers, and upon written approval by the Waterborne Commerce Center, the company may be allowed to provide the requisite information of the above paragraph (D), on computer printouts, magnetic tape, diskettes, or alternate medium approved by the Center.
(F) Harbor Maintenance Tax information is required on ENG Form 3925 for cargo movements into or out of ports that are subject to the provisions of section 1402 of the Water Resources Development Act of 1986 (Pub. L. 99-662).
(
(
(
(ii)
(iii)
(iv)
(c)
(1)
(2)
(3)
(d)
(1) To identify vessel operating companies that should be reporting waterborne commerce data, The Corps will make use of, but is not limited to, the following sources.
(i) Data on purchase and sale of vessels.
(ii) U.S. Coast Guard vessel documentation and reports.
(iii) Data collected at Locks, Canals, and other facilities operated by the Corps.
(iv) Data provided by terminals on ENG Form 3926.
(v) Data provided by the other Federal agencies including the Internal Revenue Service, Customs Service, Maritime Administration, Department of Transportation, and Department of Commerce.
(vi) Data provided by ports, local facilities, and State or local governments.
(vii) Data from trade journals and publications.
(viii) Site visits and inspections.
(2)
(3)
(i)
(ii)
(iii)
(4)
Sec. 7, 58 Stat. 890; 33 U.S.C. 709.
(a)
(2) The State, political subdivision thereof, or other responsible local agency, which furnished assurance that it will maintain and operate flood control works in accordance with regulations prescribed by the Secretary of the Army, as required by law, shall appoint a permanent committee consisting of or headed by an official hereinafter called the “Superintendent,” who shall be responsible for the development and maintenance of, and directly in charge of, an organization responsible for the efficient operation and maintenance of all of the structures and facilities during flood periods and for continuous inspection and maintenance of the project works during periods of low water, all without cost to the United States.
(3) A reserve supply of materials needed during a flood emergency shall be kept on hand at all times.
(4) No encroachment or trespass which will adversely affect the efficient operation or maintenance of the project works shall be permitted upon the rights-of-way for the protective facilities.
(5) No improvement shall be passed over, under, or through the walls, levees, improved channels or floodways, nor shall any excavation or construction be permitted within the limits of the project right-of-way, nor shall any change be made in any feature of the works without prior determination by the District Engineer of the Department of the Army or his authorized representative that such improvement, excavation, construction, or alteration will not adversely affect the functioning of the protective facilities. Such improvements or alterations as may be found to be desirable and permissible under the above determination shall be constructed in accordance with standard engineering practice. Advice regarding the effect of proposed improvements or alterations on the functioning of the project and information concerning methods of construction acceptable under standard engineering practice shall be obtained from the District Engineer or, if otherwise obtained, shall be submitted for his approval. Drawings or prints showing such improvements or alterations as finally constructed shall be furnished the District Engineer after completion of the work.
(6) It shall be the duty of the superintendent to submit a semiannual report to the District Engineer covering inspection, maintenance, and operation of the protective works.
(7) The District Engineer or his authorized representatives shall have access at all times to all portions of the protective works.
(8) Maintenance measures or repairs which the District Engineer deems necessary shall be promptly taken or made.
(9) Appropriate measures shall be taken by local authorities to insure that the activities of all local organizations operating public or private facilities connected with the protective works are coordinated with those of the Superintendent's organization during flood periods.
(10) The Department of the Army will furnish local interests with an Operation and Maintenance Manual for each completed project, or separate useful part thereof, to assist them in carrying out their obligations under this part.
(b)
(i) No unusual settlement, sloughing, or material loss of grade or levee cross section has taken place;
(ii) No caving has occurred on either the land side or the river side of the levee which might affect the stability of the levee section;
(iii) No seepage, saturated areas, or sand boils are occurring;
(iv) Toe drainage systems and pressure relief wells are in good working condition, and that such facilities are not becoming clogged;
(v) Drains through the levees and gates on said drains are in good working condition;
(vi) No revetment work or riprap has been displaced, washed out, or removed;
(vii) No action is being taken, such as burning grass and weeds during inappropriate seasons, which will retard or destroy the growth of sod;
(viii) Access roads to and on the levee are being properly maintained;
(ix) Cattle guards and gates are in good condition;
(x) Crown of levee is shaped so as to drain readily, and roadway thereon, if any, is well shaped and maintained;
(xi) There is no unauthorized grazing or vehicular traffic on the levees;
(xii) Encroachments are not being made on the levee right-of-way which might endanger the structure or hinder its proper and efficient functioning during times of emergency.
(2)
(i) There are no indications of slides or sloughs developing;
(ii) Wave wash or scouring action is not occurring;
(iii) No low reaches of leave exist which may be overtopped;
(iv) No other conditions exist which might endanger the structure.
(c)
(i) No seepage, saturated areas, or sand boils are occurring;
(ii) No undue settlement has occurred which affects the stability of the wall or its water tightness;
(iii) No trees exist, the roots of which might extend under the wall and offer accelerated seepage paths;
(iv) The concrete has not undergone cracking, chipping, or breaking to an extent which might affect the stability of the wall or its water tightness;
(v) There are no encroachments upon the right-of-way which might endanger the structure or hinder its functioning in time of flood;
(vi) Care is being exercised to prevent accumulation of trash and debris adjacent to walls, and to insure that no fires are being built near them;
(vii) No bank caving conditions exist riverward of the wall which might endanger its stability;
(viii) Toe drainage systems and pressure relief wells are in good working condition, and that such facilities are not becoming clogged.
(2)
(d)
(i) Pipes, gates, operating mechanism, riprap, and headwalls are in good condition;
(ii) Inlet and outlet channels are open;
(iii) Care is being exercised to prevent the accumulation of trash and debris near the structures and that no fires are being built near bituminous coated pipes;
(iv) Erosion is not occurring adjacent to the structure which might endanger its water tightness or stability.
(2)
(e)
(i) No parts are missing;
(ii) Metal parts are adequately covered with paint;
(iii) All movable parts are in satisfactory working order;
(iv) Proper closure can be made promptly when necessary;
(v) Sufficient materials are on hand for the erection of sand bag closures and that the location of such materials will be readily accessible in times of emergency.
(2)
(f)
(2)
(g)
(i) The channel or floodway is clear of debris, weeds, and wild growth;
(ii) The channel or floodway is not being restricted by the depositing of waste materials, building of unauthorized structures or other encroachments;
(iii) The capacity of the channel or floodway is not being reduced by the formation of shoals;
(iv) Banks are not being damaged by rain or wave wash, and that no sloughing of banks has occurred;
(v) Riprap sections and deflection dikes and walls are in good condition;
(vi) Approach and egress channels adjacent to the improved channel or floodway are sufficiently clear of obstructions and debris to permit proper functioning of the project works.
(2)
(h)
(2)
(a)
(b)
(1) Section 7 of the Flood Control Act of 1944 (58 Stat. 890, 33 U.S.C. 709) directs the Secretary of the Army to prescribe regulations for flood control and navigation in the following manner:
Hereafter, it shall be the duty of the Secretary of War to prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with Federal funds provided on the basis of such purposes, and the operation of any such project shall be in accordance with such regulations:
(2) Section 9 of Public Law 436-83d Congress (68 Stat. 303) provides for the development of the Coosa River, Alabama and Georgia, and directs the Secretary of the Army to prescribe rules and regulations for project operation in the interest of flood control and navigation as follows:
The operation and maintenance of the dams shall be subject to reasonable rules and regulations of the Secretary of the Army in the interest of flood control and navigation.
This Regulation will also be applicable to dam and reservoir projects operated under provisions of future legislative acts wherein the Secretary of the Army is directed to prescribe rules and regulations in the interest of flood control and navigation. The Chief of Engineers, U.S. Army Corps of Engineers, is designated the duly authorized representative of the Secretary of the Army to exercise the authority set out in the Congressional Acts. This Regulation will normally be implemented by letters of understanding between the Corps of Engineers and project owner and will incorporate the provisions of such letters of understanding prior to the time construction renders the project capable of significant impoundment of water. A water control agreement signed by both parties will follow when deliberate impoundment first begins or at such time as the responsibilities of any Corps-owned projects may be transferred to another entity. Promulgation of this Regulation for a given project will occur at such time as the name of the project appears in the
(3) Federal Energy Regulatory Commission (FERC), formerly Federal Power Commission (FPC), Licenses.
(i) Responsibilities of the Secretary of the Army and/or the Chief of Engineers in FERC licensing actions are set forth in reference 3c above and pertinent sections are cited herein. The Commission may further stipulate as a licensing condition, that a licensee enter into an agreement with the Department of the Army providing for operation of the project during flood times, in accordance with rules and regulations prescribed by the Secretary of the Army.
(A) Section 4(e) of the Federal Power Act requires approval by the Chief of Engineers and the Secretary of the Army of plans of dams or other structures affecting the navigable capacity of any navigable waters of the United States, prior to issuance of a license by the Commission as follows:
The Commission is hereby authorized and empowered to issue licenses to citizens * * * for the purpose of constructing, operating and maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization of power across, along, from or in any of the streams or other bodies of water over which Congress has jurisdiction * * *
(B) Sections 10(a) and 10(c) of the Federal Power Act specify conditions of project licenses including the following:
(1)
(2)
(C) Section 18 of the Federal Power Act directs the operation of any navigation facilities built under the provision of that Act, be controlled by rules and regulations prescribed by the Secretary of the Army as follows:
The operation of any navigation facilities which may be constructed as part of or in connection with any dam or diversion structure built under the provisions of this Act, whether at the expense of a licensee hereunder or of the United States, shall at all
(ii) Federal Power Commission Order No. 540 issued October 31, 1975, and published November 7, 1975 (40 FR 51998), amending § 2.9 of the Commission's General Policy and Interpretations prescribed Standardized Conditions (Forms) for Inclusion in Preliminary Permits and Licenses Issued Under part I of the Federal Power Act. As an example, Article 12 of Standard Form L-3, titled: “Terms and Conditions of License for Constructed Major Projects Affecting Navigable Waters of the United States,” sets forth the Commission's interpretation of appropriate sections of the Act, which deal with navigation aspects, and attendant responsibilities of the Secretary of the Army in licensing actions as follows:
The United States specifically retains and safeguards the right to use water in such amount, to be determined by the Secretary of the Army, as may be necessary for the purposes of navigation on the navigable waterway affected; and the operations of the Licensee, so far as they affect the use, storage and discharge from storage of waters affected by the license, shall at all times be controlled by such reasonable rules and regulations as the Secretary of the Army may prescribe in the interest of navigation, and as the Commission may prescribe for the protection of life, health, and property, * * * and the Licensee shall release water from the project reservoir at such rate * * * as the Secretary of the Army may prescribe in the interest of navigation, or as the Commission may prescribe for the other purposes hereinbefore mentioned.
(c)
(1) The terms
(2) The term
(3) The term
(4) The term
(5) For the purpose of this regulation, the term
(6) The term
(d)
(2)
(3)
(4)
(5)
(ii) When deemed necessary by the Corps of Engineers, information given on the water control diagram or release schedule will be supplemented by appropriate text to assure mutual understanding on certain details or other important aspects of the water control plan not covered in this regulation, on the water control diagram or in the release schedule. This material will include clarification of any aspects that might otherwise result in unsatisfactory project performance in the interest of flood contol and/or navigation. Supplementation of the agreement will be necessary for each project where the Corps of Engineers exercises the discretionary authority to prescribe the flood control regulation on a day-to-day (real-time) basis. The agreement will include delegation of the responsibility. The document should also cite, as appropriate, section 7 of the 1944 Flood Control Act, the Federal Power Act and/or other congressional legislation authorizing construction an/or directing operation of the project.
(iii) All flood control regulations published in the
(iv) Nothing in this regulation prohibits the promulgation of specific regulations for a project in compliance with the authorizing acts, when agreement on acceptable regulations cannot be reached between the Corps of Engineers and the owner.
(6)
(7)
(8)
(9)
(ii) Any water impounded in the flood control space defined by the water control agreement shall be evacuated as rapidly as can be safely accomplished without causing downstream flows to exceed the controlling rates;
(iii) Nothing in the plan of regulation for flood control shall be construed to require or allow dangerously rapid changes in magnitudes of releases. Releases will be made in a manner consistent with requirements for protecting the dam and reservoir from major damage during passage of the maximum design flood for the project.
(iv) The project owner shall monitor current reservoir and hydro- meteorological conditions in and adjacent to
(v) In all cases where the project owner retains responsibility for real-time implementation of the water control plan, he shall make current determinations of: Reservoir inflow, flood control storage utilized, and scheduled releases. He shall also determine storage space and releases required to comply with the water control plan prescribed by the Corps of Engineers. The owner shall report this information on a timely basis as requested by the Corps of Engineers.
(vi) The water control plan is subject to temporary modification by the Corps of Engineers if found necessary in time of emergency. Requests for and action on such modifications may be made by the fastest means of communication available. The action taken shall be confirmed in writing the same day to the project owner and shall include justification for the action.
(vii) The project owner may temporarily deviate from the water control plan in the event an immediate short-term departure is deemed necessary for emergency reasons to protect the safety of the dam, or to avoid other serious hazards. Such actions shall be immediately reported by the fastest means of communication available. Actions shall be confirmed in writing the same day to the Corps of Engineers and shall include justification for the action. Continuation of the deviation will require the express approval of the Chief of Engineers, or his duly authorized representative.
(viii) Advance approval of the Chief of Engineers, or his duly authorized representative, is required prior to any deviation from the plan of regulation prescribed or approved by the Corps of Engineers in the interest of flood control and/or navigation, except in emergency situations provided for in paragraph (d)(9)(vii) of this section. When conditions appear to warrant a prolonged deviation from the approved plan, the project owner and the Corps of Engineers will jointly investigate and evaluate the proposed deviation to insure that the overall integrity of the plan would not be unduly compromised. Approval of prolonged deviations will not be granted unless such investigations and evaluations have been conducted to the extent deemed necessary by the Chief of Engineers, or his designated representatives, to fully substantiate the deviation.
(10)
(11)
(i) Reservoir, dam, and lake names,
(ii) Stream, county, and State corresponding to the damsite location,
(iii) The maximum current storage space in acre-feet to be reserved exclusively for flood control and/or navigation purposes, or any multiple-use
(iv) The name of the project owner, and
(v) Congressional legislation authorizing the project for Federal participation.
(e)
The Secretary of the Interior, through his agent, the Lower Colorado River Authority (LCRA) shall operate the Marshall Ford Dam and Reservoir in the interest of flood control as follows:
(a)
(2)
(i) Colorado River near San Saba (08147000).
(ii) Pedernales River near Johnson City (08153500).
(iii) Llano River at Llano (08151500).
(3)
(4)
(ii)
(A)
(B)
(C)
(
(D)
(E)
(F)
(G)
(iii)
(5)
(A) The water control plan is subject to temporary modification by the Corps of Engineers, if found necessary in time of emergency. Requests for and action on such modifications may be made by the fastest means of communication available. The action taken shall be confirmed in writing the same day to the project owner and shall include justification for the action.
(B) The project owner may temporarily deviate from the water control plan in the event an immediate short-term departure is deemed necessary for emergency reasons to protect the safety of the dam, or to avoid serious hazards. Such actions shall be immediately reported by the fastest means of communication available. Actions shall be confirmed in writing the same
(C) Advance approval of the Chief of Engineers, or this duly authorized representative, is required prior to any deviation from the plan of regulation prescribed or approved by the Corps of Engineers in the interest of flood control and/or navigation, except in emergency situations provided for in paragraph (a)(5)(i)(B) of this section. When conditions appear to warrant a prolonged deviation from the approved plan, the project owner and the Corps of Engineers will jointly investigate and evaluate the proposed deviation to insure that the overall intergrity of the plan would not be unduly compromised. Approval of prolonged deviations will not be granted unless such investigations and evaluations have been conducted to the extent deemed necessary by the Chief of Engineers, or his designated representative, to fully substantiate the deviations.
(ii) The Fort Worth District Corps of Engineers will serve as the LCRA contact point for any deviation from or modification of the water control plan. The communication network will be described in the Water Control Manual. The Fort Worth District will notify the Division Engineer, Southwestern Division, Corps of Engineers of any deviations or modifications of the water control plan and request his approval. The Division Engineer has been designated as the authorized representative of the Chief of Engineers in matters relating to projects within the Southwestern Division which are subject to provisions of Section 7 of the 1944 Flood Control Act.
(b)
(i) Project information.
(A) Lake elevations at midnight and 0800 hours.
(B) Uncontrolled spillway, flood-control conduits, and turbine releases: Cubic feet per second at 0800 hours, and day-second-feet average for the previous 24 hours, ending at midnight.
(C) Computed average inflow, in day-second-feet for the previous 24 hours, ending at midnight.
(D) Total precipitation in inches for the previous 24 hours at the dam, ending at 0800 hours.
(E) Summary of streamflow and channel conditions at gages named in paragraphs (a)(2) and (a)(4)(i) of this section.
(ii) Lake Buchanan Pool elevation at 0800 hours.
(2) Whenever flood conditions are imminent, or stages of 16 feet (20,000 c.f.s.) or more at the Austin gage have been reached, the Authority shall report at once to the District Engineer by the fastest means of communications available. Data listed in paragraph (b)(1) of this section shall be reported to, and at intervals prescribed by the District Engineer for the duration of flood surveillance and control operations.
The Bureau of Reclamation, or its designated agent, shall operate the Twin Buttes Dam and Reservoir in the interest of flood control as follows:
(a) Whenever the Twin Buttes Reservoir level is between elevations 1,940.2 (top of conservation pool) and elevation 1,969.1 (top of flood control pool) the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable the flood damage below the reservoir. All flood control releases shall be made in amounts which, when combined with releases from San Angelo Reservoir on the North Concho River and local inflow below the dam, will not produce flows in excess of bankful capacities on the South Concho and Concho Rivers downstream of the reservoir. In order to accomplish this purpose, flows shall not exceed a 22.5-foot stage (25,000 c.f.s.) on
(b) When the Twin Buttes Reservoir level exceeds elevation 1,969.1 (top of flood control pool), releases shall be made at the maximum rate possible and continued until the pool elevation recedes to elevation 1,969.1 when releases shall be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation in immediate charge of operation of the Twin Buttes Dam shall furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report, on forms provided by the District Engineer for this purpose, showing (1) for Twin Buttes Reservoir, the elevation of the reservoir level; number of river outlet works gates in operation with their respective openings and releases; uncontrolled spillway releases; storage; reservoir inflow; available evaporation data; and precipitation in inches; and (2) for Nasworthy Reservoir, the elevation of the reservoir level; irrigation outlet works and controlled spillway releases; storage; tailwater elevation; and reservoir inflow. Normally, one reading at 8 a.m. shall be shown for each day. Readings of all items except evaporation shall be shown for at least three observations a day when the Twin Buttes Reservoir level is above elevation 1,940.2. Whenever the Twin Buttes Reservoir level rises to elevation 1,940.2 and releases for flood regulation are necessary or appear imminent, the Bureau representative shall report at once to the District Engineer by telephone or telegraph and, unless otherwise instructed, shall report once daily thereafter in that manner until the reservoir level recedes to elevation 1,940.2. These latter reports shall reach the District Engineer by 9 a.m. each day.
(d) The regulations of this section insofar as they govern use of the flood control storage capacity in Twin Buttes Reservoir above elevation 1,940.2 are subject to temporary modification in time of flood by the District Engineer, if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation in immediate charge of operations of the Twin Buttes Dam by any available means of communication and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, with a copy to the representative in charge of the Twin Buttes Dam.
(e) Flood control operation shall not restrict releases necessary for municipal, industrial, and irrigation uses.
(f) Releases made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the Twin Buttes Dam and Reservoir from major damage or inconsistent with safe routing of the inflow design flood (spillway design flood).
(g) The discharge characteristics of the river outlet works (capable of discharging approximately 32,470 c.f.s. with the reservoir level at elevation 1,969.1) shall be maintained in accordance with the construction plans (Bureau of Reclamation Specifications No. DC-5274 as modified by revised drawings and criteria in Designers' Operating Criteria, Twin Buttes Dam, dated February 1963).
(h) All elevations stated in this section are at Twin Buttes Dam and are referred to the datum in use at that location.
The representative of the agency charged with the operation of the Pensacola Dam, referred to in this section as the Representative shall operate the dam and reservoir in the interest of flood control as follows:
(a) Whenever the pool stage exceeds elevation 745 at the dam, the discharge facilities shall be operated under the direction of the District Engineer, Engineer Department at Large, in charge of the locality, so as to reduce as much as practicable the flood damage below
(b) The District Engineer will advise the Representative when inflow rates are anticipated which will raise the pool above elevation 745 at the dam. The District Engineer will also advise the Representative of essential increase in the flood control storage capacity of the reservoir which should be provided by drawing the pool down below elevation 745 at the dam in order to obtain maximum flood control benefits, with the provision that the suggested reduction in power storage shall at no time exceed the replacement volume of flow then in sight in the streams above the reservoir.
(c) The Representative shall furnish the District Engineer, daily, a report showing the elevation of the reservoir pool and the tailwater, number of gates in operation, spillway and turbine releases, evaporation, storage, reservoir inflow, and precipitation in inches as shown by Agency gages. One reading shall be shown for each day with additional readings of releases for all changes in spillway gate operation, and with readings of all items except evaporation three times daily when the District Engineer advises the Representative that flood conditions are imminent. By agreement between the Representative and the District Engineer, any of the foregoing information may be furnished by telephone and may, if agreed upon, be omitted from the report. Whenever the pool is above elevation 745 at the dam the Representative shall submit additional reports by telegraph or telephone as directed by the District Engineer, with a report to be furnished immediately whenever the pool rises above elevation 745 at the dam.
(d) The District Engineer will furnish the Representative with all available information and detailed instructions for operation of the reservoir in the interest of flood control during an emergency condition when communications between the dam and the District Office are broken. In the event that the District Engineer or his authorized representative cannot be reached by telephone, telegraph or by other means during a flood emergency, these instructions will govern. The provisions of paragraphs (a), (b), and (c) of this section will govern at all times except during such an emergency.
(e) Elevations stated in this section are referred to Pensacola datum which is 1.07 feet below mean sea level.
The Bureau of Reclamation, or its designated agent, shall operate the Altus Dam and Reservoir in the interest of flood control as follows:
(a) Flood control storage in the reservoir between elevation 1559 (top of conservation pool) and elevation 1562 (top of flood control pool) amounts to 21,448 acre-feet (based on 1953 sedimentation survey). Whenever the reservoir level is within this elevation range, the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable the flood damage below the dam, and to limit the reservoir level to elevation 1562 when possible.
(b) When the reservoir level is below elevation 1559 and the predicted volume of runoff from the area above the dam exceeds the volume of water necessary to raise the reservoir level above elevation 1559, the reservoir will be operated to obtain maximum overall benefits which may consist of preflood releases:
(c) When the reservoir level exceeds elevation 1559, releases will be made equal to inflow or 2,000 c.f.s., whichever is smaller, except that when the reservoir elevation forecast indicates that this operation will result in a reservoir level exceeding elevation 1562, releases will be increased in order to provide maximum overall benefits and prevent the reservoir level from exceeding elevation 1562, insofar as possible. The flood control pool will be emptied by continuing the peak discharge rate
(d) If the reservoir level exceeds elevation 1562 (top of flood control pool) releases shall be made at the maximum rate possible through the spillway gates, conduit, and the uncontrolled spillway and continued until the reservoir level recedes to elevation 1559, at which time releases will be made equal to inflow.
(e) Whenever the reservoir level is above elevation 1559 and communication with the Bureau of Reclamation Regional Office and the Corps of Engineers District Office is unobtainable, releases shall be made equal to inflow until all gates are fully open. The maximum release thus obtained shall be maintained until the pool recedes to elevation 1559 at which time releases shall be made to equal inflow.
(f) The representative of the Bureau of Reclamation, or its designated agent, in immediate charge of the operation of Altus Dam will furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report on forms provided by the District for this purpose, showing the reservoir pool elevation; the number of spillway gates in operation with their respective opening and releases; the uncontrolled spillway release; conduit, canal outlet wasteway, and irrigation releases; storage; reservoir inflow; available evaporation data; and precipitation in inches. A reading at 8 a.m., noon, 4 p.m., and midnight, shall be shown for each day. Whenever the reservoir level rises to elevation 1559 and releases for flood control regulation are necessary or appear imminent, the representative of the Bureau of Reclamation or its designated agent, shall report at once to the District Engineer by telephone or telegraph and, unless otherwise instructed, shall report at 8 a.m., noon, and 3 p.m. thereafter, in that manner, until the reservoir level recedes to elevation 1559. These latter reports shall reach the District Engineer by 9 a.m., 1 p.m., and 4 p.m. each day.
(g) The regulations of this section, insofar as they govern use of the flood control storage capacity above elevation 1559 are subject to temporary modification by the District Engineer in time of flood, if found desirable on the basis of conditions at the time. Such desired modifications shall be coordinated with and approved by the Bureau of Reclamation.
(h) Flood control operation shall not restrict releases necessary for irrigation, municipal, and industrial uses.
(i) Releases made in accordance with the regulations of this section are subject to the conditions that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and reservoir from major damage.
(j) Any time that the Bureau of Reclamation determines that operation in accordance with the regulations of this section will jeopardize the safety of Altus Dam, they will so advise the District Engineer and will assume operational responsibility and take action necessary to assure the safety of the dam.
(k) The discharge characteristics of the controlled and the uncontrolled spillways (capable of discharging approximately 42,800 c.f.s. and 2,000 c.f.s., respectively, with the reservoir level at elevation 1562) shall be maintained in accordance with the construction plans (Bureau of Reclamation Drawing No. 258-D-69).
(l) All elevations stated in this section are at Altus Dam and are referred to the datum in use at that location.
The Bureau of Reclamation shall operate the Fort Cobb Dam and Reservoir in the interest of flood control as follows:
(a) Whenever the reservoir level is between elevation 1342.0, top of the conservation pool, and elevation 1354.8, top of flood control pool, the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable the flood damage below the reservoir. All flood control releases shall be made in amounts which, when combined with local inflow below the dam,
(b) When the reservoir level exceeds elevation 1354.8, top of flood control pool, releases shall be made at the maximum rate possible and continued until the pool elevation recedes to elevation 1354.8 when releases shall be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation in immediate charge of operation of the Fort Cobb Dam shall furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report, on forms provided by the District Engineer showing the elevation of the reservoir level; number of river outlet works gates in operation with their respective openings and releases; uncontrolled spillway and municipal outlet works release; storage; tailwater elevation; reservoir inflow; available evaporation data; and precipitation in inches. Normally, one reading at 8:00 a.m., shall be shown for each day. Readings of all items except evaporation shall be shown for at least three observations a day when the reservoir level is above elevation 1342.0. Whenever the reservoir level rises to elevation 1342.0 and releases for flood regulation are necessary or appear imminent, the Bureau representative shall report at once to the District Engineer by telephone or telegraph and, unless otherwise instructed, shall report once daily thereafter in that manner until the reservoir level recedes to elevation 1342.0. These latter reports shall reach the District Engineer by 9:00 a.m., each day.
(d) The regulations of this section insofar as they govern use of the flood control storage capacity above elevation 1342.0 are subject to temporary modification in time of flood by the District Engineer if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation in immediate charge of operations of the Fort Cobb Dam by any available means of communication and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, with a copy to the representative in charge of the Fort Cobb Dam.
(e) Flood control operation shall not restrict releases necessary for municipal-industrial and irrigation uses:
(f) Releases made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and reservoir from major damage or inconsistent with safe routing of the inflow design flood.
(g) All elevations stated in this section are at Fort Cobb Dam and are referred to the datum in use at that location.
The Bureau of Reclamation shall operate the Foss Dam and Reservoir in the interest of flood control as follows:
(a) Whenever the reservoir level is between elevation 1652.0, top of conservation pool, and elevation 1668.6, top of flood control pool, the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable the flood damage below the reservoir. All flood control releases shall be made in amounts which, when combined with local inflow below the dam, will not produce flows in excess of bankfull on the Washita River downstream of the reservoir. In order to accomplish this purpose, flows shall not exceed an 18.0 foot stage (3,000 c.f.s.) on the USGS gage on the Washita River near Clinton, Oklahoma, river mile 447.4, or an 18.0 foot stage (6,000 c.f.s.) on the USGS
(b) When the reservoir level exceeds elevation 1668.6, top of flood control pool, releases shall be made at the maximum rate possible through the river outlet works and uncontrolled spillway and continued until the pool elevation recedes to elevation 1668.6 when releases shall be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation in immediate charge of operation of the Foss Dam shall furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, on forms provided by the District Engineer for this purpose, a report, showing the elevation of the reservoir level; number of river outlet works gates in operation with their respective openings and releases; canal outlet works, municipal outlet works and uncontrolled spillway releases; storage; tailwater elevation; reservoir inflow; available evaporation data; and precipitation in inches. Normally, one reading at 8:00 a.m. shall be shown for each day. Readings of all items except evaporation shall be shown for at least three observations a day when the reservoir level is above elevation 1652.0. Whenever the reservoir level rises to elevation 1652.0 and releases for flood regulation are necessary or appear imminent, the Bureau representative shall report at once to the District Engineer by telephone or telegraph and, unless otherwise instructed, shall report once daily thereafter in that manner until the reservoir level recedes to elevation 1652.0. These latter reports shall reach the District Engineer by 9:00 a.m., each day.
(d) The regulations of this section insofar as they govern use of the flood control storage capacity above elevation 1652.0 are subject to temporary modification in time of flood by the District Engineer if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation in immediate charge of operations of the Foss Dam by any available means of communication and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, with a copy to the representative in charge of the Foss Dam.
(e) Flood control operations shall not restrict releases necessary for municipal-industrial and irrigation uses.
(f) Releases made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and reservoir from major damage or inconsistent with safe routing of the inflow design flood.
(g) All elevations stated in this section are at Foss Dam and are referred to the datum in use at that location.
The Bureau of Reclamation, or its designated agent, shall operate the Arbuckle Dam and Lake of the Arbuckles in the interest of flood control as follows:
(a) Flood control storage in Lake of the Arbuckles between elevation 872 (top of conservation pool) and elevation 885.3 (top of flood control pool) initially amounts to 36,400 acre-feet. Whenever the lake level is within this elevation range the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable of the flood damage below the lake. In order to accomplish this purpose, flood control releases shall be limited to amounts, which when combined with local inflows below the dam will not produce flows in excess of bankfull on Rock Creek downstream of the lake and on the Washita River, from the confluence of Rock Creek to Durwood, Okla. Operating stages and corresponding flows are as follows: An 11-foot stage (15,000 c.f.s.) on the U.S.G.S. gage on Rock Creek near Dougherty, Okla., river mile 1; and a 20-foot stage (15,000 c.f.s.) on the U.S.G.S. gage on the Washita River near Durwood, Okla., river mile 63.4.
(b) When the level in Lake of the Arbuckles exceeds elevation 885.3 (top of flood control pool), releases shall be made at the maximum rate possible through the river outlet works and the uncontrolled spillway and continued until the lake level recedes to elevation 885.3 when releases shall be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation or its designated agent in immediate charge of operation of the Arbuckle Dam shall furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report, on forms provided by the District Engineer for this purpose, showing the lake elevation; the number of river outlet works gates in operation with their respective openings and releases; uncontrolled spillway release; municipal pumping rate; tailwater elevation; available evaporation data; and precipitation in inches. Normally, a reading at 8 a.m., noon, 4 p.m., and midnight shall be shown for each day. Whenever the lake level rises to elevation 872 and releases for flood regulation are necessary or appear imminent, the representative of the Bureau of Reclamation or its designated agent, shall report at once to the District Engineer by telephone or telegraph and unless otherwise instructed shall report once daily thereafter in that manner until the lake level recedes to elevation 872. These latter reports shall reach the District Engineer by 9 a.m. each day.
(d) The regulations of this section, insofar as they govern use of flood control storage capacity above elevation 872, are subject to temporary modification in time of flood by the District Engineer if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation and its designated agent in immediate charge of operation of the Arbuckle Dam by any available means of communication, and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, and his designated agent, with a copy to the representative in charge of the Arbuckle Dam.
(e) Flood control operation shall not restrict pumping necessary for municipal and industrial uses and releases necessary for downstream users.
(f) Releases made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and lake from major damage or inconsistent with the safe routing of the inflow design flood (spillway design flood).
(g) The discharge characteristics of the river outlet works (capable of discharging approximately 1,880 c.f.s. when the lake level is at 872) shall be maintained in accordance with the construction plans (Bureau of Reclamation Specifications No. 6099 as modified by the “as built” drawings).
(h) All elevations stated in this section are at Arbuckle Dam and are referred to the datum in use at that location.
The Bureau of Reclamation, or its designated agent, shall operate the Sanford Dam and Lake Meredith in the interest of flood control as follows:
(a) Flood control storage in the reservoir, Lake Meredith, between elevation 2941.3 (top of conservation pool) and elevation 2965.0 (top of flood control pool) initially amounts to 462,100 acre-feet. Whenever the reservoir level is within this elevation range, the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable the flood damage below the reservoir. All flood control releases shall be made in amounts which, when combined with local inflow below the dam, will not produce flows in excess of bankfull on the Canadian River downstream of the reservoir. In order to accomplish this purpose, flows shall not exceed 25,000 c.f.s. at the Sanford Dam site or an 8.0-foot stage (75,000 c.f.s.) on the U.S.G.S. gage on the Canadian
(b) When the reservoir level exceeds elevation 2965.0 (top of flood control pool) releases shall be made at the maximum rate possible through the flood control outlet works, the river outlet works and the uncontrolled spillway and continue until the pool level recedes to elevation 2965.0 when releases will be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation, or its designated agent in immediate charge of operation of the Sanford Dam will furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report, on forms provided by the District Engineer for this purpose showing the pool elevation; the number of flood control outlet works gates in operation with their respective openings and releases; the uncontrolled spillway release; and the municipal outlet works release; storage; tailwater elevation; reservoir inflow; available evaporation data; and precipitation in inches. Normally a reading at 8 a.m., noon, 4 p.m., and midnight, shall be shown for each day. Readings of all items except evaporation shall be shown for at least four observations a day when the reservoir level is at or above elevation 2941.3. Whenever the reservoir level rises to elevation 2941.3 and releases for flood regulation are necessary or appear imminent, the representative of the Bureau of Reclamation, or its designated agent, shall report at once to the District Engineer by telephone or telegraph and, unless otherwise instructed, will report once daily thereafter in that manner until the reservoir level recedes to elevation 2941.3. These latter reports shall reach the District Engineer by 9 a.m. each day.
(d) The regulations of this section, insofar as they govern use of the flood control storage capacity above elevation 2941.3, are subject to temporary modification in time of flood by the District Engineer if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation and its designated agent in immediate charge of operation of the Sanford Dam by the best available means of communication, and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, and his designated agent, with a copy to the representative in charge of the Sanford Dam.
(e) Flood control operation shall not restrict pumping necessary for municipal and industrial uses and releases necessary for downstream users.
(f) Release made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and reservoir from major damage or inconsistent with the safe routing of the inflow design flood (spillway design flood).
(g) The discharge characteristics of the flood control outlet works (capable of discharging approximately 22,000 c.f.s. with the reservoir level at elevation 2941.3) shall be maintained in accordance with the construction plans (Bureau of Reclamation Specifications No. DC-5725 as modified by revised drawings and criteria in Designers' Operating Criteria, Sanford Dam, dated October 1965).
(h) All elevations stated in this section are at Sanford Dam and are referred to the datum in use at that location.
The Bureau of Reclamation, or its designated agent, shall operate the Cheney Dam and Reservoir in the interest of flood control as follows:
(a) Flood control storage in the reservoir is the capacity between elevation 1421.6 (top of the conservation pool) and elevation 1429.0 (top of the flood control pool), and initially amounts to 80,860 acre-feet. Whenever the reservoir level is within this range the flood control discharge facilities shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in
(b) When the reservoir level exceeds elevation 1429.0 (top of flood control pool), releases shall be made at the maximum rate possible through the river outlet works and the uncontrolled spillway and continued until the pool recedes to elevation 1429.0 when releases shall be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation or its designated agent in immediate charge of operation of the Cheney Dam shall furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report, on forms provided by the District Engineer for this purpose, showing the pool elevation; the number of river outlet works gates in operation with their respective openings and releases; uncontrolled spillway release; municipal pumping rate; storage; tailwater elevation; reservoir inflow; available evaporation data; and precipitation in inches. Normally, a reading at 8 a.m., noon, 4 p.m., and midnight, shall be shown for each day. Whenever the reservoir pool rises to elevation 1421.6 and releases for flood regulation are necessary or appear imminent, the representative of the Bureau of Reclamation or its designated agent, shall report at once to the District Engineer by telephone or telegraph, and, unless otherwise instructed, shall report once daily thereafter in that manner until the reservoir pool recedes to elevation 1421.6. These latter reports shall reach the District Engineer by 9 a.m. each day.
(d) The regulations of this section, insofar as they govern use of flood control storage capacity above elevation 1421.6, are subject to temporary modification in time of flood by the District Engineer if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation and its designated agent in immediate charge of operations of the Cheney Dam by any available means of communication, and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, and his designated agent, with a copy to the representative in charge of the Cheney Dam.
(e) Flood control operation shall not restrict pumping necessary for municipal and industrial uses and releases necessary for downstream users.
(f) Releases made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and reservoir from major damage or inconsistent with the safe routing of the inflow design flood (spillway design flood).
(g) The discharge characteristics of the river outlet works (capable of discharging approximately 3,590 c.f.s. with the reservoir level at elevation 1421.6) shall be maintained in accordance with the construction plans (Bureau of Reclamation Specifications No. DC-5744 as modified by revised drawings and criteria in Designers' Operating Criteria, Cheney Dam, dated November 1964).
(h) All elevations stated in this section are at Cheney Dam and are referred to the datum in use at that location.
The Bureau of Reclamation, or its designated agent, shall operate Norman Dam and Lake Thunderbird in the interest of flood control as follows:
(a) Flood control storage in Lake Thunderbird between elevation 1039 (top of the conservation pool) and elevation 1049.4 (top of flood control pool) initially amounts to 76,600 acre-feet. Whenever the reservoir level is within this elevation range the flood control discharge facilities at Norman Dam shall be operated under the direction of the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, so as to reduce as much as practicable the flood damage below the reservoir. In order to accomplish this purpose, flood control releases shall be limited to amounts which, when combined with local inflows below the dam, will not produce flows in excess of bankfull on the Little River downstream of the reservoir. Controlling bankfull stages and corresponding flows, as presently estimated, are as follows: A 7.5-foot stage (1,800 c.f.s.) on the U.S.G.S. gage on Little River near Tecumseh, Okla., river mile 77.2 and a 17-foot stage (6,500 c.f.s.) on the U.S.G.S. gage on Little River near Sasakwa, Okla., river mile 24.1.
(b) When the reservoir level in Lake Thunderbird exceeds elevation 1049.4 (top of flood control pool), releases shall be made at the maximum rate possible through the river outlet works and the uncontrolled spillway and continued until the pool recedes to elevation 1049.4 when releases shall be made to equal inflow or the maximum release permissible under paragraph (a) of this section, whichever is greater.
(c) The representative of the Bureau of Reclamation or its designated agent in immediate charge of operation of the Norman Dam shall furnish daily to the District Engineer, Corps of Engineers, Department of the Army, in charge of the locality, a report, on forms provided by the District Engineer showing the pool elevation; the number of river outlet works gates in operation with their respective openings and releases; uncontrolled spillway release; municipal pumping rate; storage; tail water elevation; reservoir inflow; available evaporation data; and precipitation in inches. Normally, a reading at 8 a.m., noon, 4 p.m. and midnight, shall be shown for each day. Whenever the reservoir level rises to elevation 1039 and releases for flood regulation are necessary or appear imminent, the representative of the Bureau of Reclamation or its designated agent, shall report at once to the District Engineer by telephone or telegraph and, unless otherwise instructed, shall report once daily thereafter in that manner until the reservoir level recedes to elevation 1039. These latter reports shall reach the District Engineer by 9 a.m. each day.
(d) The regulations of this section, insofar as they govern use of flood control storage capacity above elevation 1039.0, are subject to temporary modification in time of flood by the District Engineer if found desirable on the basis of conditions at the time. Such desired modifications shall be communicated to the representative of the Bureau of Reclamation and its designated agent in immediate charge of operations of the Norman Dam by any available means of communication, and shall be confirmed in writing under date of the same day to the Regional Director in charge of the locality, and his designated agent, with a copy to the representative in charge of the Norman Dam.
(e) Flood control operation shall not restrict pumping necessary for municipal and industrial uses and releases necessary for downstream users.
(f) Releases made in accordance with the regulations of this section are subject to the condition that releases shall not be made at rates or in a manner that would be inconsistent with emergency requirements for protecting the dam and reservoir from major damage or inconsistent with the safe routing of the inflow design flood (spillway design flood).
(g) The discharge characteristics of the river outlet works (capable of discharging approximately 5,400 c.f.s. with the reservoir level at elevation 1039.0) shall be maintained in accordance with the construction plans (Bureau of Reclamation Specifications No. DC-5793 as revised by the “as built drawings”).
(h) All elevations stated in this section are at Norman Dam and are referred to the datum in use at that location.
The Turlock Irrigation District and Modesto Irrigation District, acting jointly, hereinafter called the Districts, shall operate Don Pedro Dam and Reservoir in the interest of flood control, and the City and County of San Francisco, hereinafter called the City, shall operate Hetch Hetchy Dam and Reservoir and Cherry Valley Dam and Reservoir in the interest of flood control all as follows:
(a) Storage space in Don Pedro Reservoir shall be kept available for flood-control purposes in accordance with the Flood-Control Storage Reservation Diagram currently in force for that reservoir, except when storage of floodwater is necessary as prescribed in paragraph (d) of this section. The Flood-Control Storage Reservation Diagram in force as of the promulgation of this section is that dated 4 April 1956, File No. TU-1-26-7, and is on file in the Office of the Chief of Engineers, Department of the Army, Washington, D.C., in the office of the Turlock Irrigation District, Turlock, California, and in the office of the Modesto Irrigation District, Modesto, California. Revisions of the Flood-Control Storage Reservation Diagram may be developed from time to time as necessary by the Corps of Engineers and the Districts. Each such revision shall be effective upon the date specified in the approval thereof by the Chief of Engineers and by the presidents of the Districts and from that date until replaced shall be the Flood-Control Storage Reservation Diagram currently in force for the purpose of this section. Copies of the Flood-Control Storage Reservation Diagram currently in force shall be kept on file in and may be obtained from the office of the District Engineer, Corps of Engineers, in charge of the locality, the office of the Turlock Irrigation District, Turlock, California, and the office of the Modesto Irrigation District, Modesto, California.
(b) Storage space in Hetch Hetchy Reservoir shall be kept available for flood-control purposes in accordance with the Flood-Control Storage Reservation Diagram for that reservoir currently in force, except when storage of floodwater is necessary as prescribed in paragraph (e) of this section. The Flood-Control Storage Reservation Diagram in force as of the promulgation of this section is that dated April 4, 1956, File No. TU-3-26-1, and is on file in the Office. Chief of Engineers, Department of the Army, Washington, D.C., and in the office of the Public Utilities Commission of the City and County of San Francisco, California. Revisions of the Flood-Control Storage Reservation Diagram may be developed from time to time as necessary by the Corps of Engineers and the City. Each such revision shall be effective upon the date specified in the approval thereof by the Chief of Engineers and by the Public Utilities Commission of the City and County of San Francisco, California, and from that date until replaced shall be the Flood-Control Storage Reservation Diagram currently in force for the purpose of this section. Copies of the Flood-Control Storage Reservation Diagram currently in force shall be kept on file in and may be obtained from the office of the District Engineer, Corps of Engineers, in charge of the locality, and the office of the Public Utilities Commission of the City and County of San Francisco, California.
(c) Storage space in Cherry Valley Reservoir shall be kept available for flood-control purposes in accordance with the Flood-Control Reservation Diagram currently in force for that reservoir except when storage of floodwater is necessary as prescribed in paragraph (e) of this section. The Flood-Control Storage Reservoir Diagram in force as of the promulgation of this section is that dated April 4, 1956, File No. TU-2-26-6, and is on file in the Office, Chief of Engineers, Corps of Engineers, Department of the Army, Washington, D.C., and in the office of the Public Utilities Commission of the City and County of San Francisco,
(d) Any water temporarily stored in the flood-control space indicated by the Flood-Control Storage Reservation Diagram currently in force for Don Pedro Reservoir shall be released as rapidly as can be accomplished without causing flows in Tuolumne River below LaGrange Dam to exceed 7,000 c.f.s. during rain floods or to exceed 9,000 c.f.s. at all other times.
(e) Any water temporarily stored in the flood-control space indicated by the Flood-Control Storage Reservation Diagrams currently in force for Hetch Hetchy and Cherry Valley Reservoirs shall be released as rapidly as can be accomplished without exceeding the respective safe channel capacities, and without materially contributing to major encroachment into the flood-control space at Don Pedro Reservoir. Such releases shall be proportioned between Hetch Hetchy and Cherry Valley Reservoirs in such manner as to assure that the percentage of encroachment into the flood-control space at the two reservoirs will tend toward equality insofar as possible. Whenever the storage space in Don Pedro Reservoir is less than 90 percent of that indicated by the Flood-Control Storage Reservation Diagram currently in force for that reservoir, releases from Hetch Hetchy and Cherry Valley Reservoirs shall be restricted to those required in connection with the generation of hydroelectric power in the power system of the City and in connection with diversion into the water supply system of the City.
(f) In the event that the water level in Don Pedro Reservoir rises above elevation 605.55 at the dam (top of spillway gates), subsequent operation of the dam shall be such as to cause downstream flows to exceed as little as possible the criteria prescribed in paragraph (d) of this section, and in no event to cause the maximum subsequent release from the reservoir to exceed the estimated maximum subsequent inflow to the reservoir.
(g) In the event that the water level in Hetch Hetchy Reservoir rises above elevation 3806 at the dam (top of spillway gates), subsequent operation of the dam shall be such as to cause downstream flows to exceed as little as possible the criteria prescribed in paragraph (e) of this section, and in no event to cause the maximum subsequent release from the reservoir to exceed the estimated maximum subsequent inflow to the reservoir.
(h) In the event that the water level in Cherry Valley Reservoir rises above elevation 4700 at the dam (spillway crest), subsequent operation of the dam shall be such as to cause downstream flows to exceed as little as possible the criteria prescribed in paragraph (e) of this section, and in no event to cause the maximum subsequent release from the reservoir to exceed the estimated maximum subsequent inflow to the reservoir.
(i) Nothing in the regulations of this section shall be construed to require dangerously rapid changes in magnitudes of releases from any of the reservoirs.
(j) The Districts shall procure such current basic hydrologic data, make such current determinations of required flood-control storage reservation in Don Pedro Reservoir, and current calculations of permissible releases from Don Pedro Reservoir as are required to accomplish the flood-control objectives of the regulations of this section.
(k) The City shall procure such current basic hydrologic data, and make such current calculations of permissible releases from Hetch Hetchy and
(l) The City shall keep the District Engineer, Corps of Engineers, in charge of the locality, and the Districts currently advised of reservoir releases, reservoir storages, basic operating criteria which affect the schedule of operations, and such other operating data as the District Engineer, Corps of Engineers, may request for Hetch Hetchy, Eleanor, and Cherry Valley Reservoirs.
(m) The Districts shall keep the District Engineer, Corps of Engineers, in charge of the locality, and the City currently advised of reservoir releases, reservoir storages, basic operating criteria which affect the schedule of operations, and such other operating data as the District Engineer, Corps of Engineers, may request for Don Pedro Reservoir.
(n) The flood-control regulations of this section are subject to temporary modification by the District Engineer, Corps of Engineers, if found necessary in time of flood emergency. Request for and action on such modifications may be made by any available means of communication, and such action shall be confirmed in writing under date of same day to the operating agency for the reservoir affected.
5 U.S.C. 301; 33 U.S.C. 1; 10 U.S.C. 3012.
(a)
(2) Public observation of Mississippi River Commission meetings includes public participation in the deliberations of the Commission only to the extent specifically provide in public notices of such meetings.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(i) Deliberations of the Commission in determining whether or not to close a portion or portions of a meeting in accordance with paragraphs (e)(4) and (e)(5) of this section.
(ii) Deliberations of the Commission in determining whether or not to withhold from disclosure information pertaining to a portion or portions of a meeting as provided in paragraphs (e)(4) and (e)(5) of this section.
(iii) Deliberations of the Commission pertaining to changes in the subject matter of a meeting or changes in the determination to open or close a portion or portions of a meeting to the public following the public announcement of such meeting in accordance with paragraph (d)(4) of this section.
(iv) Deliberations of the Commission in determining whether to waive the one-week public notice requirement in accordance with paragraph (d)(2) of this section.
(c)
(2) The President shall, after consultation with the Commissioners, prepare a detailed agenda for planned Commission meetings at the earliest practicable time. Suggestions from the public of proposed agenda items are invited.
(d)
(ii) Lists the agenda items or subjects to be discussed at the meeting,
(iii) States whether the meeting or portions of the meeting are to be closed or open to public observation,
(iv) States whether or not public participation in the meeting will be permitted, and
(v) States the name and business phone number of the official who will respond to requests for information about the meeting. Public announcements of Commission meetings shall include releases to the news media in the Lower Mississippi River Valley and mailing notices of such meetings to all persons and agencies known to have an interest in the Commission's work and to others who request such announcements.
(2) The one-week period for public notice required by paragraph (d)(1) of this section shall not be applicable when a majority of the entire membership of the Commission determines by a recorded vote that Commission business requires that a meeting be called at an earlier date. The Secretary shall, however, issue the public notice required by paragraph (d)(1) of this section at the earliest practicable time.
(3) When due to unforeseen circumstances it is necessary to change the time or place of a meeting following the public announcement required by paragraph (d)(1) of this section, the Secretary will publicly announce such change at the earliest practicable time.
(4) The subject matter of a meeting, or the determination of the Commission to open or close a portion or portions of a meeting to the public, may be changed following the public announcement required by paragraph (d)(1) of this section only if: (i) A majority of the entire membership of the Commission determines by a recorded vote that Commission business so requires and that no earlier announcement of the change was possible, and (ii) the Secretary publicly announces such change and the vote of each member on such change at the earliest practicable time.
(5) Immediately following each public announcement required by this section,
(e)
(i) Disclose matters that are (A) specifically authorized under criteria established by Executive order to be kept secret in the interests of national defense or foreign policy and (B) in fact properly classified pursuant to such Executive order;
(ii) Relate solely to the internal personnel rules and practices of the Commission;
(iii) Disclose matters specifically exempted from disclosure by statute [other than the Freedom of Information Act (5 U.S.C. 552), provided that such statute: (A) Requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue, or (B) establishes particular criteria for withholding or refers to particular types of matters to be withheld;
(iv) Disclose trade secrets and commercial or financial information obtained from a person and privileged or confidential;
(v) Involve accusing any person of a crime, or formally censuring any person;
(vi) Disclose information of a personal nature when disclosure would constitute a clearly unwarranted invasion of personal privacy;
(vii) Disclose investigatory records compiled for law-enforcement purposes, or information which, if written, would be contained in such records. But only to the extent that the production of such records or information would: (A) Interfere with enforcement proceedings, (B) deprive a person of a right to a fair trial or to an impartial adjudication, (C) constitute an unwarranted invasion of personal privacy, or (D) disclose the identity of a confidential source, and, in the case of a record compiled by a criminal law-enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national-security intelligence investigation, confidential information furnished only by the confidential source:
(viii) Disclose information the premature disclosure of which would be likely to significantly frustrate implementation of a proposed Commission action except: (A) When the Commission has already disclosed to the public the content or nature of its proposed action or (B) when the Commission is required by law to make such disclosure on its own initiative prior to taking final Commission action on such proposal;
(ix) Specifically concerns the Commission's participation in a civil action or proceeding.
(2) In each instance where the Commission determines that a portion or portions of a meeting may be closed to the public, or determines that information may be withheld from the public for one or more of the exemptions listed in paragraph (e)(1) of this section, the Commission shall consider and determine whether or not the public interest requires that the portion or portions of the meeting be open to the public and whether or not the public interest requires that the information be released to the public.
(3) Whenever any person whose interest may be directly affected by a portion of a meeting requests that the Commission close such portion to the public for any of the reasons referred to in paragraph (e)(1) (v), (vi) or (vii) of this section, the Commission, upon the request of any one of its members, shall vote by recorded vote whether to close such meeting.
(4) Action to close a portion or portions of a meeting for one or more of the reasons listed in paragraphs (e)(1) (i) through (ix) of this section, or to withhold information from the public for one or more of the reasons listed in paragraphs (e)(1) (i) through (ix) of this
(5) A separate recorded vote of the Commission shall be taken with respect to each meeting a portion or portions of which the Commission proposes to close to the public, and a separate vote of the members of the Commission shall be taken to determine whether to withhold information from the public. The vote of each Commissioner participating in such vote shall be recorded and no proxies shall be allowed.
(6) Within one day of any vote taken pursuant to paragraphs (e)(4) and (e)(5) of this section, the Commission shall make publicly available a written copy of such vote reflecting the vote of each member on the question. If a portion or portions of a meeting are to be closed to the public, the Commission shall within one day of the vote taken pursuant to paragraphs (e)(4) and (e)(5) of this section make publicly available a written explanation of its action in closing a portion or portions of the meeting together with a list of all persons expected to attend the meeting and their affiliations.
(7) For every portion or portions of a meeting closed pursuant to paragraphs (e)(1) (i) through (ix) of this section, the Chief Legal Officer of the Commission shall publicly certify that, in his or her opinion, the meeting may be closed to the public and shall state each relevant exemptive provision. A copy of such certification, together with a statement from the presiding officer of the meeting setting forth the time and place of the meeting, and the persons present, shall be retained in the Commission files.
(f)
(i) A complete transcript or electronic recording (disclosing the identity of each speaker) adequate to record fully the proceedings of the Commission at a portion or portions of a meeting closed to the public for the reasons specified in paragraphs (e)(1) (i) through (ix) of this section.
(ii) The statement of the presiding officer of each Commission meeting, a portion or portions of which were closed to the public, as required by paragraph (e)(7) of this section.
(iii) The certification of the Chief Legal Officer, as required by paragraph (e)(7) of this section, for each Commission meeting, a portion or portions of which were closed to the public.
(2) The records required by paragraph (f)(1) of this section shall be retained for at least two years following any meeting or not less than one year following conclusion of Commission action with respect to any matter discussed at such meeting, whichever occurs later.
(g)
(2) Public inspection of such records shall take place at the headquarters of the Mississippi River Commission, 1400 Walnut Street, Vicksburg, Mississippi 39180.
(3) The Secretary shall provide (subject to withholding of information for the reasons stated in paragraphs (e)(1) (i) through (ix) of this section) upon request of any person, copies of the records required by the provisions of (f)(1) of this section, including transcriptions of electronic recordings at the actual cost of transcription or duplication.
(a) Department of the Army authorization is required pursuant to section 4(f) of the Outer Continental Shelf Lands Act of 1953 (67 Stat. 462; 43 U.S.C. 1333(f)) in coastal waters and the water covering the Outer Continental Shelf. The determination whether or not to issue a Department of the Army authorization for structures on the Outer Continental Shelf related to exploration of minerals is based upon the proposed activities' effect on navigation and national security. All other
(b) The following rules have been developed jointly by the Los Angeles district engineer and the 11th Coast Guard District, in consultation with the Bureau of Land Management and the U.S. Geological Survey for drilling in the Gulf of Santa Catalina:
(1) All drilling with a single tract will be covered by a single application.
(2) Where practicable, applications shall be submitted at least 120 days in advance of drilling for tracts where drilling is expected to be accomplished within the traffic separation scheme, the precautionary zone or within 2 nautical miles of a traffic lane.
(3) Applications shall include the location of any known proposed drilling site and the estimated start and completion dates for each. Updated information on the plan shall be furnished as soon as available. One individual (and alternate) shall be designated by the applicant as responsible for maintaining close liaison with all involved agencies.
(4) Where it is not feasible to perform exploratory work from outside the traffic lanes or
(i) Exploratory vessels within a traffic lane will, to the degree practicable, be sited near traffic lane boundaries.
(ii) Exploratory vessels within one traffic lane, or in the precautionary zone, shall be separated by at least 8 nautical miles in the direction of the lane axis.
(iii) Exploratory vessels located within the traffic lanes, or the precautionary zone, shall not have their pendant buoys within 3,000 yards from the pendant buoys of any other vessel.
(iv) Exploratory rigs and vessels engaged in offshore development may have no cables, anchors, buoys, or other associated equipment within the traffic lanes,
(a)
(b)
(c)
(2) If in the investigation of an application or a declaration of intention filed under the Federal Power Act the Division Engineer considers a public hearing desirable in the interests of navigation or flood control, the Chief of Engineers will be notified whereupon the matter will be brought to the attention of the Commission. No public hearing will be held unless specifically authorized by the Commission or by the Chief of Engineers. If a hearing is authorized it will be limited strictly to consideration of the purpose for which approval is granted.
(3) The report will describe and discuss material facts having a definite bearing on the interests of navigation and flood control and the general effect the project would have on a comprehensive plan of developing the water resources of the basin. Specific reference will be made to pertinent published documents containing the results of studies and/or resolutions directing studies to be made. In the case of an application for permit or license for an unconstructed project the report will include a recommendation as to whether development should be undertaken by the United States rather than by a licensee. A recommendation for Federal development will be supported by a showing as to how this would serve the Corps of Engineers programs and policies. In the case of an application for permit or license for a constructed project the report should contain appropriate comments concerning possible redevelopment to improve the usefulness of the project in relation to the objectives of the Corps program in the basin.
(4) The report on an application for license will contain recommendations of the Division Engineer concerning the inclusion in the license of any terms and conditions that are considered to be necessary or desirable in the public interest from the standpoint of Corps of Engineers responsibilities.
(5) The report on an application for permit will contain such recommendations as required to insure coordination of the applicant's studies with the Division or District Engineer in cases where interests of the Corps of Engineers are involved. In all cases, the report will contain, in lieu of specific recommendations, a discussion of interests which should be protected by articles in a license issued subsequent to the permit period.
(6) If the project is on a Federal reservation or contemplates the use of a dam, either of which is under the jurisdiction of the Department of the Army, the report should state, giving reasons:
(i) Whether the project will interfere or be inconsistent with the purpose for which such reservation was created or acquired and what conditions, if any, should be imposed for the adequate protection and utilization of the reservation.
(ii) Whether the dam may be advantageously used by the United States for public purposes in addition to authorized purposes and whether it should be reserved for such use.
(iii) Whether the development should be undertaken by the United States.
(7) The reports will not be released or made public except by specific authority of the Chief of Engineers, nor will copies of a report, its findings, or recommendations be furnished to the applicant, to interested parties, or to the Commission until released by the Chief of Engineers.
(d)
(2) Projects will be classified as major, minor, minor part or transmission line projects as indicated in the Federal Power Act and as specified in the instructions from the Commission.
(3) Inspection during the construction of a major project will be made monthly, or as often as may be necessary for the Division Engineer to assure himself that the terms of the license are being complied with and the work is of acceptable quality and in accordance with the approved plans. The frequency of inspections of minor, minor part, and transmission line projects is left to the discretion of the Division Engineer.
(4) After a project has been completed and placed in operation and is under the supervision of the Division Engineer, annual inspection will be made of major and minor projects but inspection of transmission line projects will not be made unless specifically requested by the Commission.
(5) Reports on supervision and inspections of operations under Federal Power Commission permits and licenses will be submitted in accordance with instructions in paragraph (e) of this section.
(e)
(1)
(2)
(3)
(i) Whether the operation of the project has been satisfactory insofar as the interests of navigation are concerned.
(ii) Whether any infraction by the licensee of the conditions in the interest of navigation has come to the attention of the Division Engineer.
(f)
For regulations of the Federal Energy Regulatory Commission, see 18 CFR chapter I.
(a)
(b)
(c)
(2) Section 302, Pub. L. 95-91, 95th Congress, Department of Energy Organization Act, August 4, 1977 (91 Stat. 565).
(d)
(e)
(2) All FOA Commanders will develop, in coordination with their respective power marketing agency, a system for exchanging operating information. The system will include general operating information and information on conditions that could substantially affect costs or power availability.
(f)
(g)
(ii)
(2)
(a) Section 5 of the River and Harbor Act of July 13, 1892 (27 Stat. 111; 33 U.S.C. 628), prohibits the expenditure of money appropriated for the improvement of rivers and harbors for dredging inside of harbor lines duly established.
(b) It is not the policy of the Department to expend Federal funds for the removal of wrecks or other obstructions shoreward of established harbor lines.
Section 1 of the Act of Congress of March 1, 1893 (27 Stat. 507; 33 U.S.C. 661), created the California Debris Commission, consisting of three officers of the Corps of Engineers, to regulate under the supervision of the Chief of Engineers and direction of the Secretary of the Army, hydraulic mining in the territory drained by the Sacramento and San Joaquin River systems, California. Under section 9 of the act (27 Stat. 508; 33 U.S.C. 669), the individual proprietor or proprietors, or in case of a corporation, its manager or agent appointed for that purpose, owning mining ground in this territory which it is desired to work by the hydraulic process, must file with the Commission a verified petition, setting forth such facts as will comply with law and the rules prescribed by the Commission. The law contains detailed instructions with regard to facts required to be shown by the petitioner and the procedure to be followed by the Commission in issuing an order directing the methods and specifying the manner in which operations shall proceed. Full information on law and procedure can be obtained from the Secretary, California Debris Commission, 650 Capitol Mall, Sacramento, California 95814.
(a) [Reserved]
(b)
(c)
(2) An Act of Congress approved June 29, 1888 (25 Stat. 209; 33 U.S.C. 441-451), as amended on August 28, 1958 (72 Stat. 970-971; 33 U.S.C. 441-451b) forbids the placing, discharging, or depositing of refuse, dirt, ashes, cinders, mud, sand, dredgings, sludge, acid, or any other matter of any kind, other than that flowing from streets, sewers, and passing therefrom in a liquid state, in the tidal waters of the harbors of New York, Hampton Roads, and Baltimore or its adjacent or tributary waters, within the limits which shall be prescribed by the Supervisor of the Harbor. The provisions of this act are enforced by the Supervisor under the direction of the Secretary of the Army.
(d)
(2) Section 16 of the River and Harbor Act of March 3, 1899 (30 Stat. 1153; 33 U.S.C. 412), provides that every person and every corporation that shall violate, or that shall knowingly aid, abet, authorize or instigate a violation of the provisions of sections 13, 14 and 15, shall be guilty of a misdemeanor. On conviction thereof violators shall be punished by a fine, imprisonment, or both, in the discretion of the court. Any master, pilot, and engineer, or person or persons acting in such capacity, respectively, on board of any boat or vessel who shall knowingly engage in towing any scow, boat, or vessel loaded with any material specified in section 13 to any point or place of deposit or discharge in any harbor or navigable water, elsewhere than within the limits defined and permitted by the Secretary of the Army, or who shall willfully injure or destroy any work of the United States contemplated in section 14, or who shall willfully obstruct the channel of any waterway in the manner contemplated in section 15, shall be deemed guilty of a violation of the Act. Upon conviction he shall be punished as provided in this section, and shall also have his license revoked or suspended for a term to be fixed by the judge before whom tried and convicted. Any boat, vessel, scow, raft, or other craft used or employed in violating any of the provisions of sections 13, 14, and 15 shall be liable for the pecuniary penalties specified in this section, and in addition for the amount of the damages done by said boat, vessel, scow, raft, or other craft. The latter sum shall be placed to the credit of the appropriation for the improvement of the harbor or waterway in which the damage occurred, and said boat, vessel, scow, raft, or other craft may be proceeded against summarily by way of libel in any district court of the United States having jurisdiction thereof.
(e)
(2) Under the provisions of section 17, District Engineers and the United States collectors of customs and other revenue officers, have power and authority to swear out process and to arrest and take into custody, with or without process, any person or persons who may commit any of the acts or offenses prohibited by sections 9 to 16, inclusive, or who may violate any of the provisions of the same. No person shall
(3) It is the duty of each District Engineer to take notice of any violations of the laws for the protection of the navigable waters and the works of improvement therein that may occur in his district and to take the necessary steps to secure enforcement of the law. Whenever any violation of any of these provisions of law comes to his attention he will investigate carefully the circumstances of the case and will determine the amount of the damage for which the parties committing the violation are responsible under section 16 of the River and Harbor Act of March 3, 1899. He will advise the responsible parties to remove the illegal structure or deposit or to repair the damage at their own expense within a time specified by him. When there is reasonable doubt as to legal liability or the facts do not appear to warrant legal action, the District Engineer will report the case to the Chief of Engineers for decision before communicating with the responsible parties. When the damage must be repaired within a reasonable time, if the responsible parties so request in writing and if, when considered advisable by the District Engineer to protect the interests of the United States, they furnish a satisfactory bond or other guaranty, he may cause the repairs to be made by employees of the United States and then call upon the responsible parties to pay over to him the cost of the damages when finally ascertained. Where the damage is not to be repaired within a reasonable time, the District Engineer will make final settlement with the responsible parties as promptly as possible by collecting the estimated amount of the damages. All sums so received will be deposited promptly to the credit of the Treasurer of the United States for recredit to the appropriation affected and will be accounted for in the District Engineer's money accounts by proper vouchers. With reference to the method of ascertaining the amount of the damages under section 16 of the Act, a distinction should be made between cases involving property that should be repaired and those involving property that should be abandoned. In the former cases the amount of the damages should be the total cost of repairs, less any salvage value and any enhanced value. In the latter cases, the amount of the damages should be the fair value of the property, less any salvage value. Whether or not there has been any enhanced value (
(4) If the parties deny their responsibility, or if they refuse or neglect to remove any unlawful structure or deposit or to repair the damages within the time specified by the District Engineer, the matter will be reported to the Chief of Engineers with such evidence as the District Engineer may be able to obtain and his recommended action under section 17 of the Act of March 3, 1899. In a situation requiring immediate action, the District Engineer may report the case directly to the U.S. attorney for the district. The Chief of Engineers will be advised of such action by a written report. Although the Corps of Engineers has certain police powers under this Act it has been the long standing policy to secure compliance with its provisions short of legal proceedings. Accordingly every effort will be made to accomplish corrective measures prior to initiation of action leading to such proceedings. As a general rule, while minor and unintentional or accidental violations of the provisions of the Act need not be reported to the Chief of Engineers, all willful or intentional violations and all cases in which the parties responsible refuse or neglect to remove the unlawful structure or deposit or to make
(5) The procedure in cases involving injurious deposits is similar to that described for other violations of law except that as the damage caused thereby cannot be repaired readily there will be no reason for serving any notice on the parties responsible for the violations further than to bring to their attention the consequences thereof.
(6) Section 6 of the river and Harbor Act approved March 3, 1905 (33 Stat. 1148; 33 U.S.C. 417) provides that expenses incurred by the Corps of Engineers in all investigations, inspections, hearings, reports, service of notice, or other action incidental to examinations into alleged violations of laws for protection and preservation of navigable waters shall be payble from any funds which may be available for the improvement, maintenance, operation, or care of the waterways or harbors affected. If such funds are not available in sums judged by the Chief of Engineers to be adequate, they shall be payable from any funds available for examinations, surveys, and contingencies of rivers and harbors.
(a) When an application is received for the temporary closure of a waterway for the construction of a structure or the performance of other work in the waterway, the District Engineer will assure himself of the necessity for the closure and arrange after informal communication with any important navigation interests concerned the time and duration of the closure which will enable the operations to be completed with the least interference with navigation. If there is no question as to the necessity and propriety of the closure, the District Engineer is authorized to inform the applicant as follows: “The Department of the Army will interpose no objection to the closure for a stated period beginning at a specified date:
(b) District Engineers will give careful consideration to the effect of any closure on through navigation. Should coordination with other districts be necessary the case will be forwarded to the Division Engineer for such coordination.
(c) Cases not falling within the authority above conferred will be forwarded to the Chief of Engineers with the recommendations of the Division and District Engineers.
(a)
(2) District engineers (or division engineers if considered preferable by the latter to avoid duplication in cases where the regulations involved apply to more than one district) will distribute copies of departmental regulations to all known interested parties as soon as their publication has been noted in the
(b)
(2) Section 6 of the River and Harbor Act approved June 13, 1902 (32 Stat. 374; 33 U.S.C. 499) provides that regulations prescribed by the Secretary of the Army may be enforced as provided in section 17 of the River and Harbor Act approved March 3, 1899 (30 Stat. 1153; 33 U.S.C. 413).
(3) District Engineers will take action with respect to regulations prescribed for waterways under their jurisdiction:
(i) To insure that the regulations are brought to the attention of the public.
(ii) To insure that the regulations are properly and fairly administered.
(iii) To recommend any revisions necessary to permit full use of the waterway by the public.
(c)
(2) On receipt of a request from any element of the Department of Defense or other agency for approval by the Secretary of the Army of regulations establishing danger zones under authority of either Act, the District Engineer will, prior to issuing any public notice, make certain that the applicant: (i) Has coordinated its proposed operations with any operations being conducted or contemplated by other agencies in the same area with a view to avoiding interagency conflicts, (ii) has obtained clearance from the proper Regional Subcommittee on Airspace, Rules of the Air and Air Traffic Control (Air Coordinating Committee), where the use of airspace is involved, and (iii) has conducted preliminary discussions with local interests when considered advisable. In the case of proposed danger zones off the Atlantic and Pacific Coasts, the coordination referred to in (c)(2)(i) of this section will include the Commander, Service Force, U.S. Atlantic Fleet, or the Commander, Western Sea Frontier.
(3) The authority to prescribe danger zone regulations must be exercised so as not to interfere with or restrict unreasonably the food fishing industry. Whenever the establishment of a proposed danger zone or restricted area may affect fishing operations the District Engineer will consult with the regional director, U.S. Fish and Wildlife Service, Department of the Interior. Two copies of all notices of applications for the establishment of danger zones and restricted areas will be forwarded to the Chief of Staff, U.S. Air Force. In addition, notices of all applications relating to the establishment of aerial gunnery and bombing areas will be sent to local Army, Navy, and Federal Aviation Agency representatives.
(4) If the use of water areas is desired only for such temporary, occasional, or intermittent periods that operations can be conducted safely without imposing restrictions on navigation, applicants may be informed that formal regulations by the Secretary of the Army are not required. However, proper notices for mariners requesting that vessels avoid the areas will be issued by the District Engineer to all interested persons. Copies will be sent to the Commandant, U.S. Coast Guard, Washington, D.C. 20226 and the Commander, U.S. Naval Oceanographic Office, Washington, D.C. 20390.
(d)
(2) Section 13 of the river and Harbor Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407) authorizes the Secretary of the Army to permit the deposit of refuse matter in navigable waters, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, within limits to be defined and under conditions to be prescribed by him. Although the Department has exercised this authority from time to time, it is considered preferable to act under Section 4 of the River and Harbor Act of March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419). As a means of assisting the Chief of Engineers in determining the effect on anchorage of vessels, the views of the U.S. Coast Guard will be solicited by coordination with the Commander of the local Coast Guard District.
(3) Under the authority contained in an Act of Congress to prevent obstructive and injurious deposits within the harbor and adjacent waters of New York City of June 29, 1888 (25 Stat. 209; 33 U.S.C. 441), the Supervisor of New York Harbor has established dumping areas in those waters and has prescribed regulations for their use. The provisions of the act are enforced by the Supervisor under the direction of the Secretary of the Army.
(4) In considering requests for the establishment of dumping grounds, District and Division Engineers will give careful consideration to the requirements of navigation and will take action to prevent unreasonable injury to fish and wildlife.
(e)
(2) Copies of the notices sent to interested parties, together with a list of parties to whom sent, will accompany reports on all applications for promulgation of regulations submitted to the Chief of Engineers for necessary action.
(3) In all instances when response to a public notice has been received from a Member of Congress, the District Engineer will inform the Member of Congress of the final action taken on the application.
(f)
(2) Among the instances warranting public hearings are general public opposition to the promulgation of regulations governing the use and navigation of navigable waters. District Engineers will notify the Division Engineer of the need for a hearing, state the proposed arrangements therefor and obtain his concurrence therein. Public hearings will be held in any case when Congressional interests or responsible local authorities make an official and valid request therefor and such action will fulfill the above-stated policy and objectives.
(a)
(b)
The Department of the Army in accordance with Section 4 of the Flood Control Act of December 22, 1944, as amended by section 4 of the Flood Control Act of July 24, 1946 (60 Stat. 641) prepares and administers plans to obtain the maximum sustained public benefit from the use of reservoir areas under its control for recreation and other related purposes, when such use is consistent with the operation and maintenance of the reservoir project for the specific purposes of the reservoir project as authorized by law and when such use is determined not to be contrary to the public interest. The plans are prepared and administered by the District Engineers, subject to review and approval of the Division Engineers and the Chief of Engineers, in close cooperation with other Federal agencies and local interests. The views and desires of these agencies and local interests are obtained normally by conferences with the District Engineers. In many cases, public hearings are held by the District Engineers at appropriate times in the vicinity of the reservoir area at which time anyone can express his views relative to these plans for consideration of the Department of the Army. Rules and regulations are prescribed by the Secretary of the Army to govern the public use of the reservoir areas in accordance with the law as a part of the master plan for recreational and related uses of the reservoir area. These rules and regulations are published in 36 CFR parts 311 to 326. Licenses and leases are granted under the law containing conditions and provisions to govern the use of specific portions of the reservoir area. Full information concerning such matters may be obtained from the District Engineer in charge of the reservoir.
(a) Regulations for the operation and maintenance of local flood protection works approved by the Secretary of the Army under the authority contained in Section 3 of the Flood Control Act of June 22, 1936, as amended and supplemented, are codified as § 208.10 of this chapter. These regulations cover conditions normally and regularly required. Whenever the regulations are not sufficiently broad to cover the specific maintenance and operation requirements of a particular project, District Engineers will submit through the Division Engineers recommended additional regulations needed for that particular project. Such supplemental regulations will require approval of the Secretary of the Army and will be made applicable only to the individual project concerned. Local interests will be advised of the approved regulations for operation and maintenance of local flood protection works at the time assurances of local cooperation are requested. District Engineers will keep informed as to the extent of compliance with approved regulations for operation and maintenance through regular, periodic inspection of the projects concerned and through careful analysis of the semiannual reports which the operating and maintaining agencies are required to submit in accordance with the regulations. The District Engineer's views as to any measures required to conform to the approved regulations will be furnished to the agencies responsible. In any case where the District Engineer has been unable to arrange satisfactory compliance or where there is question or disagreement as to the measures required for compliance, a report of the circumstances, together with the recommendations of the District and Division Engineers, will be submitted to the Chief of Engineers for consideration.
(b) Regulations for the use of storage allocated for flood control or navigation at reservoirs constructed wholly or in part with Federal funds provided on the basis of such purposes, are contained in § 208.16
(a) The policy of the Corps of Engineers with respect to showing the locations of submarine cables and pipelines on nautical charts published by the Corps of Engineers is as follows:
(1) Within protected waters such as harbors, rivers, bays, estuaries or other inland waterways the location of submarine cables and pipelines is to be indicated by shaded areas marked “Pipeline area” or “Cable area”. The extent of the limits of the area will be governed by local conditions but shall include the immediate area which overlies the cable or pipeline.
(2) Ordinarily, the shaded area on a chart which depicts a cable area or pipeline area should not exceed 500 feet on each side of the location of the cable or pipeline except on small scale charts where an area of that width would not be of sufficient prominence.
(3) The shaded area will be designated “cable area” or “pipeline area” as appropriate, but no other information as to the character or ownership of the installation will appear on the chart.
(b) District engineers will furnish copies of all permits issued for submarine cable and pipelines to the National Oceanic and Atmospheric Administration (NOAA), National Ocean Service, ATTN: N/CG222, Rockville, MD 20852, with his/her recommendation of whether or not the installation should be shown on NOAA nautical charts. National Ocean Service must be notified of the commencement and completion dates for all permitted activities under this section. (Note: Decisions to publish these cables and pipelines on NOAA nautical charts lie solely within NOAA's discretion.)
While the regulations prescribed by the Secretary of the army for various navigation improvements usually strictly prohibit trespass on Government property, those regulations will not be construed as prohibiting access to navigation works of general public interest subject to the following criteria:
(a) The public will not be permitted in areas where their presence would subject themselves or Government operating personnel to serious accident hazards.
(b) The public will not be permitted in areas where their presence would interfere with any phases of navigation operations.
(c) The public will be given access to all areas other than those specified under paragraphs (a) and (b) of this section, subject only to the normal legal requirements with respect to property and personal rights.
The collection of commercial statistics pertaining to rivers, harbors, and waterways, and annual reports thereof to Congress, are required by the River and Harbor Act of June 23, 1866 (14 Stat. 70), the act of February 21, 1891 (26 Stat. 766), the River and Harbor Act of June 13, 1902 (32 Stat. 376), the River and Harbor Act of July 25, 1912 (37 Stat. 201), the River and Harbor Act of September 22, 1922 (42 Stat. 1043), and Pub. L. No. 16, February 10, 1932 (47 Stat. 42). It is the policy of the Department to hold in strict confidence any data or information which has been furnished by shippers and others upon the understanding that it will not be disclosed and will only be used in the compilation of port or waterway statistics. In case Federal or State agencies or local interests request other than general information made permissible hereunder, their attention will be called to the policy indicated in this section.
(a)
(b) This regulation will be applied by all elements of the Corps of Engineers with Civil Works responsibilities.
(c)
(d)
(i) Information as to the authorization by Congress of a project involving changes affecting aids, such as channel limits, breakwaters, including a copy of the project document;
(ii) The proposed operations on such projects during the next fiscal year, to be furnished annually on the release of the budget estimates;
(iii) Plans showing the final location of the channel limits or structures to be furnished at the time work is undertaken.
(2) Changes in channel limits affecting navigation aids, made under general or specific provisions of the law, should be made the subject of a conference with the Coast Guard District Commander. He will be promptly informed as to the approval of such changes and the probable date of completion of the work.
(3) District Engineers will furnish direct to the various Coast Guard District Commanders, for their immediate information, any facts which may come to their attention in connection with their duties which will be of benefit to the Coast Guard in maintaining its system of aids to navigation. This should include statements as to the displacement of or defects in any such aids to navigation.
(4) If work involving harbor or channel improvements directly affects any existing aids to navigation or any structures of the Coast Guard, Districts Engineers will, when practicable, give notice to the Coast Guard District Commander sufficiently in advance to permit taking such steps as may be deemed necessary by the Coast Guard. If the Coast Guard District Commander specifically requests that the affected structure be replaced, the District Engineer will inform him of the estimated cost and will proceed with the work if so authorized by the Chief of Engineers. On completion of the work, the
(e)
(2) District Engineers will notify the Coast Guard District Commander in every case where aids to navigation for marking works of harbor or channel improvements are established or discontinued. Notice should be given of such aids as may be of use or interest to general navigation. Notice need not be given as to such buoys, lights, or fog signals as are of temporary or unimportant character, or of importance only to the Corps of Engineers. Omit also lights or fog signals on ferry slips and on piers used only by certain vessels, and stakes, bushes, and barrel buoys marking shallow and little-used channels.
(3) In placing aids to navigation in connection with harbor or channel improvement works, District Engineers should see that they do not conflict in character or otherwise with other aids to navigation in the vicinity. District Engineers should confer with the Coast Guard District Commander on this subject.
(4) The necessary blank forms for reporting information regarding Corps of Engineers aids will be furnished upon request by the Coast Guard District Commander.
(5) It is essential that the Coast Guard by furnished with information for publication concerning markers installed by the Corps of Engineers as temporary aids to navigation, for new improvements, in advance of permanent aids, and also concerning other markers that may be established in connection with Corps of Engineers operations that may also serve as important aids to navigation. Care will be exercised to see that all markers established are not misleading to general navigation and do not interfere with aids to navigation estabished by the Coast Guard.
(f)
(2) If buoys with special markings are needed to indicate the different sides of the navigable channel, prior arrangements will be made with the Coast Guard District Commander having jurisdiction.
(g)
(2) Channel survey drawings furnished to the Coast Guard are to include:
(i) Either NAD 27 or State Plane grids.
(ii) Plots of the positions of aids to navigation.
(iii) Written notations of the coordinates in NAD 27 or State Plane Coordinates of the fixed aids to navigation found during the survey.
(3) The standard tabular forms with illustrated data follow:
(i) For channels 400 feet wide and greater (ENG Form 4020-R).
(ii) For channels 100 to 400 feet wide (ENG Form 4021-R).
(iii) For channels less than 100 feet in width, report controlling depths only based on at least 80 percent of project width, 40 percent on either side of centerline. (The submission of tabular forms is not required for channels having a project depth less than 10 feet except coastal inlets and harbors of refuge.)
(4) The tabulations of depths should be amplified by footnotes or otherwise to show clearly and definitely the location of controlling shoals, tendency of shoals to recur, and all other critical information of special value and importance for safe navigation of the channel. Reaches of channel not presently named should be identified in the tabular form by reference to chartered aids or features, or assigned identifying names, numbers or letters. For localized irregular project areas where the application of the tabular form would not be practical, the controlling depth based on a safe navigable width will be described as well as unusual or critical conditions of shoaling.
(5) The prompt dissemination of the latest detailed information concerning channel conditions is of utmost importance, and necessary measures will be taken to insure that such information is reported without delay simultaneously to the U.S. Naval Oceanographic Office, the Coast Guard, the National Ocean Survey and Defense Mapping Agency. When a dangerous shoaling is found during the progress of a survey, information thereon will be furnished immediately to the above-mentioned agencies, so that such information may be made available to mariners promptly, and buoys shifted to mark the shoal. Descriptions of any dredging or other operations in important channels in tidal waters—either in progress and not already reported, or soon to be undertaken—together with a statement of the work and expected duration, will also be reported in order that Naval and other vessels may be warned to look out for dredges and other plant, temporary markers and lights.
(6) District Engineers having charge of improvements of harbors and waterways shown on charts of the Defense Mapping Agency or of the National Ocean Survey will send to both offices promptly, as ascertained for the correction of such charts, the following information: Descriptions of changes in channel location and depth, or of obstructions that may be discovered, with such prints and other information as may be necessary to permit the existing charts to be corrected to date. All maps should contain sufficient data to permit the fixed plane or reference, bench marks, base lines, etc., to be determined and located. The survey stations should be shown and, when no unreasonable expenditure of time or labor is involved, the map will show one or more triangulation station(s) of the National Ocean Survey in such a way as to facilitate connection of old or new work. The source of authority for the shoreline and topography should be stated on the map. The data supplied should indicate what charts are affected.
(7) When any survey of areas covered by charts of the Defense Mapping Agency or the National Ocean Survey is completed, a print of each tracing will be sent direct to both the Defense Mapping Agency and the National Ocean Survey. It is not necessary that tracings be fully complete as to form and title when such prints are made. An informal manuscript title marked
(8) Information relative to the improvement of harbors and waterways such as dredging operations, and precautions rendered necessary due to the presence of dredging or other plant will, when considered necessary, be brought to the attention of vessel owners or operators regularly using the waterway. This will be done through issuing bulletins or notices by District Engineers.
(h)
(i)
(2) This Public Law authorizes the Chief of Engineers to provide for the sale of any of the material prepared under authority of the act—and of publications, charts, or other material prepared under his direction pursuant to other legislative authorization or appropriation, and to charge therefor a sum of not less than the cost of reproduction.
(3) District Engineers are authorized to publish the material covered in paragraph 8a above, and to sell such material. Except for material specifically prepared for free distribution to the general public, the charges for such other published information will be not less than the cost of its reproduction.
(4) Condition survey maps or charts, sold or otherwise distributed to the public, showing depths will specifically state the date or dates that the surveys were made. They shall also have the following notation printed or stamped thereon:
“The information depicted on this map represents the results of surveys made on the dates indicated and can only be considered as indicating the general conditions existing at that time.”
(a) Section 4 of the Administrative Procedure Act requires publication of general notice of proposed rule making in the
(b) General notice of proposed rule making published in accordance with the above will include: (1) A statement of the time, place, and nature of public rule making proceedings; (2) reference to the authority under which the rule is proposed; and (3) either the terms or substance of the proposed rule or a description of the subjects and issues involved.
(a)
(b)
(c)
(2) AR 37-27.
(3) ER 1-1-6.
(4) ER 10-1-3, Appendix XIII.
(5) ER 1110-1-8100.
(6) ER 1140-2-303.
(d)
(1) The work will be performed on a cost reimbursable basis.
(2) Work may be performed for State and local units of government, foreign governments or private firms only when it is firmly established that private commerical laboratory facilities capable of performing such work are not available, or because of location or for other reasons it is clearly impractical to utilize such private commerical laboratory services. The requesting entity must further certify that such services cannot be procured reasonably and expeditiously through ordinary business channels.
(3) Performance of the work will not interfere with provisions of services essential to the mission of the Corps.
(4) Performance of the work will not require an increase in the permanent staff of the facility.
(5) Performance of the work will not require expansion of normal facilities.
(6) The work is within the scope of authorized activities of the laboratory at which the work is to be performed.
(7) Performance of the work will not be adverse to the public interest.
(8) Prior to undertaking laboratory investigations or materials testing for private firms, written certification will be obtained from such firms stating that the results of the work will not be used in litigation or for promotional purposes.
(e)
(2)
(3)
(i) When the final product will directly contribute to a specific planning, design, or construction activity which derives its principal support from Federal funds in the form of a grant or otherwise.
(ii) Where an exception is granted based on a direct benefit to the Government. Adequate justification, outlining the direct benefits which are expected to accrue to the Government, will be forwarded to HQDA (DAEN-CWE-DC) Washington, DC 20314, for review and approval prior to deletion of the surcharge.
(f)
(1)
(2)
(3)
(g)
(a)
(b)
(c)
(2) Senate Document No. 10, 90th Congress, 1st Session, “Study of Federal Reimbursement Policy for Work by States and other Non-Federal Entities on Authorized Water Resources Projects.”
(3) Section 221, FCA of 1970 (Pub. L. 91-611, 42 U.S.C. 1962d-5b).
(4) ER 405-2-680.
(5) ER 1140-2-301.
(6) ER 1180-1-1, (para. A-310, App. A).
(d)
(i) The work, even if the Federal Government does not complete the authorized project, will be separately useful or will be an integral part of a larger non-Federal undertaking that is separately useful;
(ii) The work done by the non-Federal entity will not create a potential hazard;
(iii) Approval of the proposal will be in the general public interest;
(iv) Only work commenced after project authorization and execution of an agreement pursuant to this Regulation will be eligible for reimbursement or credit;
(v) Proposed reimbursement will not exceed the amount that the District Engineer considers a reasonable estimate of the reduction in Federal expenditures resulting from construction of the project component by the non-Federal entity.
(2) Before finally approving any agreement under section 215, the Chief of Engineers will inform the Secretary of the Army and the Chairman (Senate and House), Subcommittee on Public Works, Committee on Appropriations of the proposed arrangements. The Chief of Engineers will not sign an agreement until Secretarial and Committee concurrences are obtained.
(3) Section 215 authority will not be used where it might appear to circumvent the intent of Congress. It will not, for example, be used to initiate work on projects to which Congressional committees have indicated general opposition or refused to provide requested funds, or to accelerate portions of work on which construction has already been commenced by the Federal Government.
(4) Section 215(f) authorizes a specific allotment of funds to reimburse non-Federal entities for work accomplished under the Section. No allotment has been established, nor is one proposed at this time. Until one is, and firm procedures are established, any agreement with a non-Federal entity shall call for reimbursement, or for credit against required contributions, only when construction funds for the Federal project which incorporates the part constructed by the non-Federal entity are appropriated and allocated.
(5) The non-Federal entity will normally be required to develop the design memorandum, engineering plans, and specifications for the work it proposes to undertake. Subject to policies established in ER 1140-2-301, as modified in paragraph (e)(2) of this section, the District Engineer may provide engineering services with funds advanced by the non-Federal entity if he determines it to be impracticable for the entity to obtain the services elsewhere. Non-Federal engineering and overhead costs for the part of the Federal project that the non-Federal entity proposes to construct will be part of the reimbursement agreement.
(6) The agreement shall include local cooperation items required by the project authorization and by Section 221, FCA of 1970.
(7) Reimbursement of non-Federal work under Section 215 is not applicable to small projects authorized under the general authority of Section 107, Pub. L. 86-645, as amended. (33 U.S.C. 577); Section 205, Pub. L. 858, 80th Congress, as amended, (33 U.S.C. 701s); and Section 103, Pub. L. 87-874, as amended,
(e)
(2) If Federal preconstruction planning funds are not available to the project and it is considered impractical for the non-Federal entity to prepare a partial design memorandum and/or plans and specifications, the draft agreement may propose that this work be accomplished by the Corps of Engineers through an advance of non-Federal funds for this purpose. Certain advances of funds will be necessary, in any event, to cover other costs which are required on the part of the Corps of Engineers. Paragraph 11 of ER 1140-2-301 requires that requests to the Appropriations Committees for approval of advances of funds should normally be submitted to the Committees by non-Federal interests outside of Corps of Engineers channels. An exception to this procedure will be made in the case of Section 215 proposals in that the request for approval of advances will be made a part of the request to the committees for approval of the overall arrangement referred to in paragraph (d)(2) of this section. Thus, proposed advances of funds for the following purposes will be clearly set forth in the draft agreement: (i) Preparation of a partial design memorandum and/or plans and specifications (ii) corps review of design scheduled for accomplishment by local interests, and (iii) periodic and final inspections.
(3) The District Engineer will submit for review an unsigned draft agreement to OCE. All agreements will be prepared for the signature of the Chief of Engineers.
(4) The District Engineer will be notified of any changes in the draft agreement that the Chief of Engineers may require, and will negotiate a final agreement with the non-Federal entity. After signature of the agreement by the non-Federal entity, the District Engineer will forward three copies to HQDA (DAEN-CWO-C) WASH DC 20314, for signature by the Chief of Engineers.
(5) Upon receipt from OCE of the full executed agreement, the District Engineer will transmit the signed agreement to the non-Federal entity.
(6) The Division Engineer will review the (partial) design memorandum, and, if it meets the relevant criteria in paragraph (d)(1) of this section, will submit it to OCE with the recommendations on whether or not the work may proceed subject to reimbursement under the agreement.
(7) The Division Engineer will approve plans and specifications.
(8) The non-Federal entity will award contract.
(9) The District Engineer will conduct periodic and final inspections.
(10) Upon completion of the local work, the District Engineer will certify the cost data, and that performance has been in accordance with the agreement.
(f)
(1) Expire 3 years after the date of execution if the non-Federal entity has not commenced the work contemplated by the agreement.
(2) State the time allowed for completion of the work. A reasonable time shall be allowed, but normally not over 2 construction seasons.
(3) Fully describe the work to be accomplished by the non-Federal entity and specify the manner in which it will be carried out.
(4) The agreement will specify that reimbursement by the Federal Government will not exceed $1,000,000.
(5) Provide for necessary review of designs, plans, and specifications, by the District Engineer.
(6) Provide for examination and review of proposed contracts and for inspection of the work by the District Engineer for conformance with the terms of the agreement.
(7) State fully the basis on which reimbursement or credit shall be determined, and provide for the final adjustment when the balance of the Federal project is constructed. If the improvement proposed by the non-Federal entity includes work that will not become a part of the Federal project, the means of determining the part eligible for reimbursement shall be fully defined.
(8) State that such reimbursement shall depend upon appropriation of funds applicable to the project and shall not take precedence over other pending projects of higher priority.
(9) Specify that reimbursement or credit for non-Federal work shall apply only to that work undertaken after execution of the agreement. The term “work” shall include advance engineering and design as well as actual construction.
(10) State that the agreement is not to be construed as committing the United States to reimbursement if the Federal project is not undertaken, or if the Federal project should be modified in such a way that the work performed by the non-Federal entity does not constitute a part thereof.
(11) Contain applicable equal employment clauses from Armed Services Procurement Regulations.
(g)
(2) The amount of reimbursement shall equal the approved expenditures made by the non-Federal entity for work that would have been accomplished at Federal expense if the entire project were carried out by the Corps of Engineers, and as covered in the agreement under paragraphs (f) (7) and (10) of this section. The amount of reimbursement will not exceed, however, the amount that the District Engineer finds to be a reasonable estimate of the reduction in Federal expenditure resulting from construction by the non-Federal entity.
An act authorizing the construction, repair, and preservation of certain public works on rivers and harbors for navigation, flood control, and for other purpose. (82 Stat. 731).
Sec. 215. (a) The Secretary of the Army, acting through the Chief of Engineers, may, when he determines it to be in the public interest, enter into agreement providing for reimbursement to States or political subdivisions thereof for work to be performed by such non-Federal public bodies at water resources development projects authorized for construction under the Secretary of the Army and the supervision of the Chief of Engineers. Such agreements may provide for reimbursement of installation costs incurred by such entities or an equivalent reduction in the contributions they would otherwise be required to make, or in appropriate cases, for a combination thereof. The amount of Federal reimbursement, including reductions in contributions, for a single project shall not exceed $1,000,000.
(b) Agreements entered into pursuant to this section shall (1) fully describe the work to be accomplished by the non-Federal public body, and be accompanied by an engineering plan if necessary therefor; (2) specify the manner in which such work shall be carried out; (3) provide for necessary review of design and plans, and inspection of the work by the Chief of Engineers or his designee; (4) state the basis on which the amount of reimbursement shall be determined; (5) state that such reimbursement shall be dependent upon the appropriation of funds applicable thereto or funds available therefor, and shall not take precedence over other pending projects of higher priority for improvements; and (6) specify that reimbursement or credit for non-Federal installation expenditures shall apply only to work undertaken or Federal projects after project authorization and execution of the agreement, and does not apply retroactively to past non-Federal work. Each such agreement shall expire three years after the date on which it is executed if the work to be undertaken by the non-Federal public body has not commenced before the expiration of that period. The time allowed for completion of the work will be determined by the Secretary of the Army, acting through the Chief of Engineers, and stated in the agreement.
(c) No reimbursement shall be made, and no expenditure shall be credited, pursuant to this section, unless and until the Chief of Engineers or his designee, has certified that the work for which reimbursement or credit is
(d) Reimbursement for work commenced by non-Federal public bodies no later than one year after enactment of this section, to carry out or assist in carrying out projects for beach erosion control, may be made in accordance with the provisions of section 2 of the Act of August 13, 1946, as amended (33 U.S.C. 426f). Reimbursement for such work may, as an alternative, be made in accordance with the provisions of this section, provided that agreement required herein shall have been executed prior to commencement of the work. Expenditures for projects for beach erosion control commenced by non-Federal public bodies subsequent to one year after enactment of this section may be reimbursed by the Secretary of the Army, acting through the Chief of Engineers, only in accordance with the provisions of this section.
(e) This section shall not be construed (1) as authorizing the United States to assume any responsibilities placed upon a non-Federal body by the conditions of project authorization, or (2) as committing the United State to reimburse non-Federal interests if the Federal project is not undertaken or is modified so as to make the work performed by the non-Federal Public body no longer applicable.
(f) The Secretary of the Army is authorized to allot from any appropriations hereafter made for civil works not to exceed $10,000,000 for any one fiscal year to carry out the provisions of this section. This limitation does not include specific project authorizations providing for reimbursement.
Secs. 2301-2314, 3012, 70A Stat. 127-133, 157; 10 U.S.C. 2301-2314, 3012.
In connection with all construction contracts estimated to cost $100,000 or more for which an invitation is scheduled to be issued, an advance notice to prospective bidders will be prepared sufficiently in advance of the actual issuance of the invitation to stimulate interest on the part of the greatest possible number of contractors. Advance notices may also be prepared on projects estimated to cost less than $100,000 and for supplies where considered desirable. ENG Form 3132-R or ENG Form 3133-R [set out in paragraphs 205 and 206, Appendix A, Engineer Contract Instructions (ER 1180-1-1)] will be used to send advance notices to prospective bidders. Lengthy notices may be reproduced and mailed using ENG Form 3133-R as a foldover wrapper fastened with a wire staple. Advance notices will contain the information required by ENG Form 3132-R, but additional information may be added as appropriate. The advance notices will:
(a) Describe the proposed work in sufficient detail to permit prospective general contractors, subcontractors and suppliers to determine reasonably whether the work is of a nature and volume to warrant their buying plans;
(b) Specify the date by which bidders should return the request card in order to receive a complete bid set;
(c) State the various locations (offices) where plans will be on public display, available for inspection without charge; and
(d) Include for construction contracts a statement as to the approximate value of the proposed construction. That statement of value shall be in increments as follows: (1) Less than $25,000; (2) the nearest multiple of $25,000 up to $100,000; (3) the nearest multiple of $100,000 from $100,000 to $1 million; (4) the nearest multiple of $500,000 for from $1 million to $10 million; (5) over $10 million for all projects of greater estimated value.
The successful bidder will be notified in writing of the acceptance of his bid. Under construction contracts, this notice may accompany the contract papers which are forwarded for execution. To avoid error, or confusing the notice of award with a notice to proceed, the notice of award will be substantially in the following format:
You are hereby notified that your bid dated ____ in the sum of $___ covering ____ is accepted. A formal contract will be prepared for execution. Acceptable performance and payment bonds (if required) must be furnished upon execution of the formal contract. If approval of the contract is required by its express terms, the contract is not fully executed until such approval is obtained.
(a)
(b)
(c)
(d)
(1) Performance and payment bonds have been furnished, when required;
(2) The award has been approved when approval is required; and
(3) Notice to proceed has been forwarded to the contractor where required.
(a)
(2) When an appeal is taken pursuant to a disputes clause in a contract which limits appeals to disputes concerning questions of fact, the Board may in its discretion hear, consider and decide all questions of law necessary for the complete adjudication of
(3) Emphasis is placed upon the sound administration of these rules in specific cases, because it is impracticable to articulate a rule to fit every possible circumstance which may be encountered. These rules will be interpreted so as to secure a just and inexpensive determination of appeals without unnecessary delay.
(4) Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise. The parties are expected to cooperate and to voluntarily comply with the intent of such procedures without resort to the Board except on controversial questions. The Board may order exchange of complicated exhibits prior to hearing in order to expedite the hearing.
(5) All time limitations specified for various procedural actions are computed as maximums, and are not to be fully exhausted if the action described can be accomplished in a lesser period. These time limitations are similarly eligible for extension in appropriate circumstances, on good cause shown.
(6) Whenever reference is made to contractor, appellant, contracting officer, respondent and parties, this shall include respective counsel for the parties, as soon as appropriate notices of appearance have been filed with the Board.
(b)
(c)
(d)
(e)
(i) The decision and findings of fact from which the appeal was taken;
(ii) The contract including pertinent amendments, specifications, plans and drawings;
(iii) All correspondence between the parties pertinent to the appeal, including the letter or letters of claim in response to which a decision was issued;
(iv) Transcripts of any testimony taken during the course of proceedings and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board;
(v) Such additional information as may be considered material.
(2)
(3)
(4)
(5)
(f)
(g)
(2) Within 30 days from receipt of said complaint, or the aforesaid notice from the Recorder of the Board, respondent shall prepare and file with the Board an original and two copies of an answer thereto, setting forth simple, concise and direct statements of respondent's defenses to each claim asserted by appellant. This pleading shall fulfill the generally recognized requirements of an answer, and shall set forth any affirmative defenses or counter-claims, as appropriate. Upon receipt thereof, the Recorder shall serve a copy upon appellant. Should the answer not be received within 30 days, the Board may, in its discretion, enter a general denial on behalf of the Government, and the appellant shall be so notified.
(h)
(2) The Board may, in its discretion, and within the proper scope of the appeal, permit either party to amend his pleading upon conditions just to both parties. When issues within the proper
(i)
(2) In appropriate cases, the appellant shall also elect whether he desires the optional accelerated procedure prescribed in Rule 12.
(j)
(k)
(i) The simplification or clarification of the issues;
(ii) The possibility of obtaining stipulations, admissions, agreements on documents, understandings on matters already of record or similar agreements which will avoid unnecessary proof;
(iii) The limitation of the number of expert witnesses, or avoidance of similar cumulative evidence, if the case is to be heard;
(iv) The possibility of agreement disposing of all or any of the issues in dispute;
(v) Such other matters as may aid in the disposition of the appeal.
(2) The results of the conference shall be reduced to writing by the Administrative Judge in the presence of the parties, and this writing shall thereafter constitute part of the record.
(l)
(m)
(2) In cases involving $5,000 or less where there is a hearing the presiding Administrative Judge may in his discretion at the conclusion of the hearing and after such oral argument as he deems appropriate render oral summary findings of fact, conclusions and a decision on the appeal. The Board will subsequently furnish the parties a typed copy of the decision for record and payment purposes and to establish the date on which the period for filing a motion for reconsideration under Rule 29 commences.
(3) Except as herein modified, these rules otherwise apply in all respects.
(n)
(2) A case submitted on the record pursuant to Rule 11 shall be ready for decision when the parties are so notified by the Board. A case which is heard shall be ready for decision upon receipt of the transcript or upon receipt of the briefs when briefs are to be submitted.
(3) The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal. Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing or after notification by the Board that the case is ready for decision in cases submitted on the record.
(o)
(2)
(3)
(4)
(5)
(6)
(p)
(2) The Board may issue protective orders as in the case of depositions.
(q)
(r)
(s)
(t)
(u)
(v)
(w)
(x)
(2)
(3)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
(gg)
(hh)
(a)
(2)
(ii) The Board consists of a chairman, vice chairman, and other members, all of whom are attorneys at law duly licensed by a state, commonwealth, territory, or the District of Columbia. In general, the appeals are assigned to a panel of at least three members who decide the case by a majority vote. Board members are designated Administrative Judges.
(3)
(ii) If a contract with an executive agency was awarded on 1 March 1979 or thereafter, the Contract Disputes Act is automatically applicable.
(iii) All other appeals are not subject to the Contract Disputes Act of 1978 and are controlled by the Board's rules published 14 January 1975 (33 CFR 210.4).
(iv) If the Contract Disputes Act is applicable to the appeal, the contractor can elect an accelerated procedure if the disputed amount is $50,000 or less. If the disputed amount is $10,000 or less the contractor has a further right to elect a small claims (expedited) procedure. Both of these procedures are described in Rule 12. Particular note should be made of the 180 day limit on processing accelerated procedure cases and the 120 day limit on processing small claims (expedited) procedure cases.
(4)
(ii) Preliminary procedures are available to encourage full disclosure of relevant and material facts, and to discourage unwarranted surprise. The parties are expected to cooperate and to voluntarily comply with the intent of such procedures without resort to the Board except on controversial questions. The Board expects the parties to exchange complicated exhibits prior to hearing in order to expedite the hearing.
(iii) Whenever reference is made to contractor, appellant, contracting officer, respondent, and parties, this shall include respective counsel for the parties as soon as appropriate notices of appearance have been filed with the Board.
(b)
(2) Where the contractor has submitted a claim of $50,000 or less to the contracting officer and has requested a written decision within 60 days from receipt of the request, and the contracting officer has not done so, the contractor may file a notice of appeal as provided in paragraph (b)(1) of this section, citing the failure of the contracting officer to issue a decision.
(3) Where the contractor has submitted a claim to the contracting officer and the contracting officer has failed to issue a decision within a reasonable time, the contractor may file a notice of appeal as provided in paragraph (b)(1) of this section, citing the failure to issue a decision.
(4) Upon docketing of appeals filed pursuant to paragraph (b)(2) or (3) of this section, the Board may, at its option, stay further proceedings pending issuance of a final decision by the contracting officer within such period of time as is determined by the Board.
(5) In lieu of filing a notice of appeal under paragraph (b)(2) or (3) of this section, the contractor may request the Board to direct the contracting officer to issue a decision in a specified period of time, as determined by the Board, in the event of undue delay on the part of the contracting officer.
(c)
(d)
(e)
(i) The decision from which the appeal is taken;
(ii) The contract including specifications and pertinent amendments, plans and drawings;
(iii) All correspondence between the parties relevant to the appeal, including the letter or letters of claim in response to which the decision was issued;
(iv) Transcripts of any testimony taken during the course of proceedings, and affidavits or statements of any witnesses on the matter in dispute made prior to the filing of the notice of appeal with the Board; and
(v) Any additional information considered relevant to the appeal.
(2)
(3)
(4)
(5)
(6) Notwithstanding the foregoing, the filing of the Rule 4 (1) and (2) documents may be dispensed with by the Board either upon request of the appellant in his notice of appeal or thereafter upon stipulation of the parties.
(f)
(2) The Board may entertain and rule upon other appropriate motions.
(g)
(2)
(h)
(i)
(j)
(k)
(i) Simplification, clarification, or severing of the issues;
(ii) The possibility of obtaining stipulations, admissions, agreements and rulings on admissibility of documents, understandings on matters already of record, or similar agreements that will avoid unnecessary proof;
(iii) Agreements and rulings to facilitate discovery;
(iv) Limitation of the number of expert witnesses, or avoidance of similar cumulative evidence;
(v) The possibility of agreement disposing of any or all of the issues in dispute; and
(vi) Such other matters as may aid in the disposition of the appeal.
(2) The administrative judge or examiner of the Board shall make such rulings and orders as may be appropriate to aid in the disposition of the appeal. The results of pre-trial conferences, including any rulings and orders, shall be reduced to writing by the administrative judge or examiner and this writing shall thereafter constitute a part of the record.
(l)
(m)
(1) Sub-Rule 12.1
(ii) In appeals where the amount in dispute is $50,000 or less, the appellant may elect to have the appeal processed under an ACCELERATED procedure requiring decision of the appeal, whenever possible, within 180 days after the Board receives written notice of the appellant's election to utilize this procedure. The details of this procedure appear in sub-Rule 12.3 of this Rule.
(iii) The appellant's election of either the SMALL CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure may be made by written notice within 60 days after receipt of notice of docketing, unless such period is extended by the Board for good cause. The election may not be withdrawn except with permission of the Board and for good cause.
(2)
(A) Within 10 days from the Government's first receipt from either the appellant or the Board of a copy of the appellant's notice of election of the SMALL CLAIMS (EXPEDITED) procedure, the Government shall send the Board a copy of the contract, the contracting officer's final decision, and the appellant's claim letter or letters, if any; remaining documents required under Rule 4 shall be submitted in accordance with times specified in that rule unless the Board otherwise directs;
(B) Within 15 days after the Board has acknowledged receipt of appellant's notice of election, the assigned administrative judge shall take the following actions, if feasible, in an informal meeting or a telephone conference with both parties: (
(ii) Pleadings, discovery, and other prehearing activity will be allowed only as consistent with the requirement to conduct the hearing on the date scheduled, or if no hearing is scheduled, to close the record on a date that will allow decisions within the 120-day limit. The Board, in its discretion, may impose shortened time periods for any actions prescribed or allowed under these rules, as necessary to enable the Board to decide the appeal within the 120-day limit, allowing whatever time, up to 30 days, that the Board considers necessary for the preparation of the decision after closing the record and the filing of briefs, if any.
(iii) Written decision by the Board in cases processed under the SMALL CLAIMS (EXPEDITED) procedure will be short and contain only summary findings of fact and conclusions. Decisions will be rendered for the Board by a single administrative judge. If there has been a hearing, the administrative judge presiding at the hearing may, in the judge's discretion, at the conclusion of the hearing and after entertaining such oral arguments as deemed appropriate, render on the record oral summary findings of fact, conclusions, and a decision of the appeal. Whenever such an oral decision is rendered, the Board will subsequently furnish the parties a typed copy of such oral decision for record and payment purposes and to establish the starting date for the period for filing a motion for reconsideration under Rule 29.
(iv) A decision against the Government or the contractor shall have no value as precedent, and in the absence of fraud shall be final and conclusive and may not be appealed or set aside.
(3)
(ii) Written decisions by the Board in cases processed under the Accelerated procedure will normally be short and contain only summary findings of fact and conclusions. Decisions will be rendered for the Board by a single Administrative Judge with the concurrence of the Chairman or the Vice Chairman or other designated Administrative Judge, or by a majority among these
(4)
(n)
(2) Except as the Board may otherwise order in its discretion, no proof shall be received in evidence after completion of an oral hearing or, in cases submitted on the record, after notification by the Board that the case is ready for decision.
(3) The weight to be attached to any evidence of record will rest within the sound discretion of the Board. The Board may in any case require either party, with appropriate notice to the other party, to submit additional evidence on any matter relevant to the appeal.
(o)
(2)
(3)
(4)
(5)
(6)
(p)
(q)
(r)
(s)
(t)
(u)
(2)
(v)
(i)
(ii)
(iii)
(2)
(3)
(A) 15 days before a scheduled deposition where the attendance of a witness at a deposition is sought;
(B) 30 days before a scheduled hearing where the attendance of a witness at a hearing is sought.
(ii) A request for a subpoena shall state the reasonable scope and general relevance to the case of the testimony and of any books and papers sought.
(4)
(5)
(ii) Where the witness is located in a foreign country, a letter rogatory or subpoena may be issued and served under the circumstances and in the manner provided in 28 U.S.C. 1781-1784.
(6)
(ii) A subpoena requiring the attendance of a witness at a deposition or hearing may be served at any place. A subpoena may be served by a United States marshal or deputy marshal, or by any other person who is not a party and not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by personally delivering a copy to that person and tendering the fees for one day's attendance and the mileage provided by 28 U.S.C 1821 or other applicable law; however, where the subpoena is issued on behalf of the Government, money payments need not be tendered in advance of attendance.
(iii) The party at whose instance a subpoena is issued shall be responsible for the payment of fees and mileage of the witness and of the officer who serves the subpoena. The failure to make payment of such charges on demand may be deemed by the Board as a sufficient ground for striking the testimony of the witness and the books or papers the witness has produced.
(7)
(w)
(x)
(y)
(z)
(aa)
(bb)
(cc)
(dd)
(ee)
(ff)
(gg)
(hh)
(2) In computing any period of time, the day of the event from which the designated period of time begins to run shall not be included, but the last day of the period shall be included unless it is a Saturday, Sunday, or a legal holiday, in which event the period shall run to the end of the next business day.
(ii)
(jj)
(kk)
Sections 211.1 through 211.4 issued under 5 U.S.C. 301, unless otherwise noted.
The term
(a)
(b)
(c)
(a) The Chief of Engineers, under the authority of the Secretary of the Army, is charged with the responsibility for the acquisition, management and disposal of all real estate or interests therein required for use by the Department of the Army for river and harbor, flood control and allied purposes.
(b) [Reserved]
(a) Real property and interests therein may be acquired by the Department of the Army by:
(1) Purchase.
(2) Condemnation.
(3) Transfer from other Government departments and agencies.
(4) Lease or similar instrument.
(5) Donation or gift.
(b)
(2)
(3)
(4)
Sections 211.5 through 211.9 issued under R.S. 161; 5 U.S.C. 301.
There are three methods by which the temporary use of real estate under the control of the Department of the Army may be granted: Lease, easement and licenses, or permit.
(a)
(2) The Chief of Engineers, under the supervision of the Secretary of the Army, is authorized to construct, maintain, and operate public park and recreational facilities in reservoir areas under the control of the Department of the Army and to permit the construction, maintenance, and operation of such facilities. The Secretary of the Army is authorized to grant leases of lands, including structures or facilities thereon, in reservoir areas for such periods and upon such terms as he may deem reasonable:
(b)
(i)
(ii)
(iii)
(A) Railroad tracks;
(B) Oil pipelines;
(C) Substations for electric power transmission lines, telephone lines, and telegraph lines, and pumping stations for gas, water, sewer, and oil pipelines;
(D) Canals;
(E) Ditches;
(F) Flumes;
(G) Tunnels;
(H) Dams and reservoirs in connection with fish and wildlife programs, fish hatcheries, and other fish-cultural improvements;
(I) Roads and streets;
(2)
(i) Such rights-of-way shall be granted only upon a finding by the Secretary of the Army that the same will not be incompatible with the public interest.
(ii) Such rights-of-way shall not include any more land than is reasonably necessary for the purpose for which granted.
(iii) All or any part of such rights-of-way may be annulled and forfeited by the Secretary of the Army for failure to comply with the terms and conditions of the grant or for the nonuse for a period of two consecutive years or abandonment of rights granted (10 U.S.C. 2668).
(a)
(b) [Reserved]
(a)
(b)
(c)
Applications for use of Civil Works property should be made to the District Engineer of the district within the boundaries of which the real estate is located. The District Engineer will determine whether the property will be required for public use during the period of the contemplated grant and whether the requested grant will interfere with any operations of the United States.
Sections 211.10 through 211.13 issued under R.S. 161; 5 U.S.C. 301.
(a) Acts authorizing the Secretary of the Army to dispose of land acquired for the improvements of canals, rivers and harbors, or for flood control purposes are as follows:
(1) Section 7 of the act of Congress approved August 30, 1935 (49 Stat. 1048; 33 U.S.C. 558a) as extended by section 6 of the act approved August 18, 1941 (55 Stat. 650; 33 U.S.C. 701c-2, 77th Congress) authorizing sale of lands no longer needed for the purpose for which acquired.
(2) [Reserved]
(b) [Reserved]
(a)
(b)
(c)
The Secretary of the Army is authorized to exchange lands acquired for river and harbor and flood control projects for privately owned lands required for such purposes. (Sec. 2 of the act of June 20, 1938 (52 Stat. 804; 33 U.S.C. 558b) as extended by sec. 3 of the act of August 11, 1939 (53 Stat. 1414, 33 U.S.C. 558b-1).)
In any case in which it may be necessary or advisable in the execution of an authorized project to exchange real property of the Government for real property required for such project, the Chief of Engineers receives a directive from the Secretary of the Army, and effects the exchange through the Division Engineers, Corps of Engineers.
Sections 211.14 through 211.24 issued under R.S. 161; 5 U.S.C. 301.
The term
(a) All claims and demands whatever against the Government, unless there is some special authority for the settlement thereof by the department concerned, shall be settled and adjusted in the General Accounting Office (see R.S., sec. 236, as amended by act of June 10, 1921, 42 Stat. 24; 31 U.S.C. 71).
(b)
(c)
(d)
(a) AR (Army Regulations) 25-25 has been issued in furtherance of the act of July 3, 1943. The regulations in this part, in keeping with the terms of the act, apply to claims for damages only. Paragraph 7 of AR 25-25 provides that claims for damages to real property incident to the use and occupancy thereof by the government under a lease express or implied, or otherwise, are payable under this section even though legally enforceable against the Government as contract claims. However, if deemed preferable in the best interest of the Government claims payable under paragraph 7 may be processed to the General Accounting Office for direct settlement under sec. 236, Revised Statutes. Claims for rent of real property are not payable under AR 25-25.
(b) AR 100-64 has been issued in furtherance of Section 236, Revised Statutes, as amended by the act of June 10, 1921; 42 Stat. 24, 31 U.S.C. 71. These regulations provide exclusive authority for the consideration and settlement of claims for rent and other payments of an express or implied contractual nature, and optional authority with AR 25-25 for settlement of damages, in excess of $1,000 arising out of the use and occupancy of real estate by the Department of the Army or the Army under an agreement expressed or implied. AR 100-64 applies to all claims for rent regardless of amount and for other payments of a contractual nature, for example, claims for electricity, heat, light, water, and other out-of-pocket expenses, repairs, etc., where such expenses are not included in the lease as a part of the rental consideration.
(a) Authority has been delegated to Division Engineers, within the geographical limits of their respective jurisdictions, to approve or disapprove, in amounts not exceeding $1,000, any claim within the purview of the act of July 3, 1943, as amended. Insofar as real estate claims are concerned this delegation of authority applies only to claims for damages incident to the use and occupancy of real property by the Department of the Army or the Army.
(b) Division Engineers have no authority to settle and make payment of claims for damages in excess of $1,000 or for rents or other payments of a contractual nature regardless of amount arising out of the use and occupation of real estate under an agreement, express or implied, or otherwise.
Real estate claims may be presented by the owner of the property or his duly authorized agent or legal representative. The word “owner”, as so used, includes lessees, mortgagors, and conditional vendees, but does not include mortgagees, conditional vendors, and others having title for purposes of security only. The claim, if filed by an agent or legal representative, should show the title of the person signing and be accompanied by evidence of the appointment of such person as agent, executor, administrator, guardian, or other fiduciary.
All real estate claims should be submitted to the United States Division Engineer in whose jurisdiction the claim arises.
Claims should be submitted by presenting in triplicate a signed statement, giving the claimant's address, setting forth the amount of the claim, and, so far as possible, the detailed facts and circumstances giving rise to the claim, indicating and describing the property involved, the date or dates, and the nature and extent of the damage, loss or destruction claimed, and the agency or branch of the Department of the Army or Army using the property. Upon receipt of such a claim the Division Engineer will, where practicable or necessary, furnish the claimant with Department of the Army forms for a more formal presentation of his claim including instructions as to their use.
(a) All claims must be substantiated by competent evidence. If the claim is for rent or other payment the claimant should furnish evidence as to the value of the property, income from the property if previously rented, or rental value of similar property in the vicinity. If the property is under a formal lease to the Government, the claimant should identify the lease and state the covenants of the lease upon which he predicates his claim. Where the claim is for damage to the property which has been or can be economically repaired the claimant should submit in triplicate an itemized signed statement or estimate of the cost of repairs and copies of itemized receipts, evidencing payment for any expenditures made in relation to the property for which reimbursement is claimed.
(b) In support of claims for damage to crops the claimant should submit a statement showing the number of acres, or other unit measure of crops damaged, the normal yield per unit, the gross amount which would have been realized from normal yield, and an estimate of the further cost of cultivation, harvesting and marketing; if the crops are one which need not be planted each year, the diminution in value of the land beyond the damage to the current year's crop should also be stated. All such statements or estimates should, if possible, be by disinterested competent witnesses, preferably responsible dealers of the type of property damaged.
In each Division Office the Division Engineer has appointed a Claims Officer or Assistant Claims Officers who have the duty and responsibility under the direction of the Division Real Estate Officer, to investigate all real estate claims. The activities and responsibilities of these Claims Officers are described more fully under § 211.23.
Upon the receipt of any real estate claim it is submitted to a Claims Officer who investigates the matter and secures all evidence necessary for a full consideration of the claim and upon which a determination can be made as to the liability of the Government. For this purpose the Claims Officer is authorized and charged with the duty of securing sufficient evidence to establish with certainty the following general points:
(a) The nature of the claim.
(b) The interest of the claimant in the property and the interest that others may have in the property.
(c) Date and circumstances under which occupation of premises occurred and date of vacation. If under a lease, the lease number and date of lease.
(d) Inspection of the premises and determination of the amount of damages.
(e) If claim is for rental without formal lease or agreement, data as to the market and rental value of the property.
(f) Any other pertinent evidence the particular facts of the case require.
(a)
(b)
(c)
(d)
Sections 211.25 through 211.28 issued under R.S. 161; 5 U.S.C. 301.
(a)
(2)
(3)
(b) [Reserved]
(a)
(b)
Jurisdiction is acquired in accordance with the laws of the various States.
The jurisdiction ceded by the State laws, by deeds of cession and by the enactment of special legislation shall be accepted in accordance with section 355, Revised Statutes, as amended, in order to establish Federal jurisdiction. This is accomplished by a letter from the Secretary of the Army addressed to the Governor of the State concerned or by an indorsement on the deed of cession giving notice of such acceptance.
Sections 211.71 through 211.81 issued under sec. 2, 70 Stat. 1065; 16 U.S.C. 460f.
The Act of Congress approved August 6, 1956 (70 Stat. 1065).
(a)
(b)
(1)
(2)
(3)
The Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) is hereby delegated authority to determine that lands in reservoir areas under the jurisdiction of the Department of the Army, other than lands withdrawn or reserved from the public domain, (a) are not required for project purposes or for public recreational use, and (b) are being used for or are available for cottage site development and use, and to determine that such lands are available for sale for cottage site development and use. The Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) is authorized to withdraw any lands determined available for sale for cottage site development and use at any time prior to the execution of a contract of sale for such lands, provided, he determines that such withdrawal will facilitate the administration of the reservoir area or will otherwise be in the public interest.
Upon determination in accordance with §§ 211.71 through 211.80 that land is available for sale for cottage site development and use, the appropriate District Engineer, U.S. Army Engineer District (hereinafter referred to as the
The Chief of Engineers, or his designee, is authorized to determine the fair market value of any site determined available for sale for cottage site development and use based on an appraisal thereof by a qualified appraiser. Sale of a cottage site to a lessee holding a lease on the date of the Act will be made for a price equal to the fair market value of the site at the time of the sale.
The costs of any surveys or the relocation of boundary markers deemed necessary by the District Engineer as an incident of the conveyance of lands under §§ 211.71 through 211.80 shall be borne by the grantee.
Any individual cottage site offered for sale generally will not contain more than approximately one acre. Such sites shall not be subdivided but shall remain intact as single units, and no more than one cottage may be constructed on each site. Not more than one site at any one reservoir will be sold to any person or organization. Sales to lessees of lands determined available for sale for cottage site development and use, who have a priority to purchase under the provisions of the Act, will be accomplished by negotiation. Sales to lessees who do not have a priority to purchase under the provisions of the Act may be accomplished by negotiation in the discretion of the Chief of Engineers or the Director of Real Estate (Assistant to the Chief of Engineers for Real Estate). Sales to persons other than lessees will be accomplished by public auction, or sealed bids, in accordance with procedure prescribed by the Chief of Engineers. If no acceptable bid or offer is received as a result of a public auction or solicitation for sealed bids, sale may be accomplished by negotiation in accordance with procedure prescribed by the Chief of Engineers.
The Government will not construct any roads for the sole purpose of providing access to lands sold or to be sold for cottage site development and use. The Government shall be under no obligation to service or maintain existing roads used primarily for access to lands sold for cottage site development and use. Any lands determined by the Chief of Engineers or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) as being used or to be used for roads primarily to serve any cottage site area sold under the authority of the Act may be offered by the District Engineer for transfer to the State, any political subdivision thereof, or organization in accordance with the provisions of the Act.
The agreement between the purchaser and the Government will be evidenced by a contract of sale. Authority is hereby delegated to the Chief of Engineers or the District Engineer to accept any offer which meets the requirements of the Act and §§ 211.71 through 211.80 and to execute the contract of sale on behalf of the United States of America.
(a) Authority to execute quitclaim deeds conveying land for cottage site development and use or for access roads is delegated to the Chief of Engineers, with authority to redelegate to Division and/or District Engineers.
(b) The authority delegated to the Chief of Engineers in paragraph (a) of this section to execute quitclaim deeds conveying land for cottage site development and use or for access roads has been redelegated by the Chief of Engineers to the Division Engineer, U.S. Army Engineer Division, New England, and to District Engineers having responsibility for real estate activities.
Delegations, rules and regulations in §§ 211.71 to 211.80 are applicable to:
(a) Fort Gibson Reservoir Area, Oklahoma.
(b) Lake Texoma and the Denison Reservoir Area, Oklahoma and Texas.
(c) Tenkiller Ferry Reservoir Area, Oklahoma.
(d) Harlan County Reservoir Area, Nebraska.
(e) Fort Randall Reservoir Area, South Dakota.
(f) Garrison Reservoir Area, North Dakota.
(g) Kanopolis Reservoir Area, Kansas.
(h) Arkabutla Reservoir Area, Mississippi.
(i) Enid Reservoir Area, Mississippi.
(j) Sardis Reservoir Area, Mississippi.
(k) Narrows Reservoir Area, Arkansas.
(l) Wappapello Reservoir Area, Missouri.
(m) Norfork Reservoir Area, Arkansas and Missouri.
(n) Clark Hill Reservoir Area, Georgia and South Carolina.
(o) Alatoona Reservoir Area, Georgia.
(p) Center Hill Reservoir Area, Tennessee.
(q) Dale Hollow Reservoir Area, Tennessee.
(r) Lake Cumberland, Kentucky.
(s) Fort Supply Reservoir, Oklahoma.
Secs. 211.101 to 211.111 issued under sec. 205, 72 Stat. 316.
Section 205 of the Act of Congress approved July 3, 1958 (72 Stat. 316) and section 11 of the Act of Congress approved December 23, 1971 (85 Stat. 800).
(a)
(b)
(c)
(d)
(e)
The Chief of Engineers and the Director of Public Works are hereby delegated authority to determine which lands are not required for public purposes, including public recreational use, and to determine the exceptions, restrictions and reservations, as are in the public interest, to be included in any reconveyance, including the reservation of such mineral rights as are determined necessary for the efficient operation of the project. This delegation of authority shall not apply to lands below the level of 529 feet in the Garza-Little Elm Reservoir project and below 560 feet in the Grapevine Reservoir project as the lands below these levels will not be available for reconveyance pursuant to the act.
Upon determination in accordance with §§ 211.101 to 211.111 that land is not required for public purposes, including public recreational use, the appropriate District Engineer shall give notice to the former owners thereof (a) by registered letter, addressed to the last known address of the former owner; and (b) by publication at least twice at not less than 15-day intervals in two newspapers having general circulation in the vicinity in which the land is located.
Application for reconveyance of land shall be filed with the appropriate District Engineer. Said application shall be in writing, dated and signed by the former owner, or by his attorney in fact, and shall identify the land for which he is making application for reconveyance. Any such application will be considered as filed timely when mailed to or delivered to the appropriate District Engineer within ninety (90) days from the date of the last publication of availability of the land for reconveyance to said former owners. The appropriate District Engineer may extend said ninety (90) day period for a good cause. Any application may be withdrawn by written notice, executed by the former owner, or by his attorney in fact, to the appropriate District Engineer at any time prior to the execution of the contract of sale.
An objection by an abutting owner to reconveyance of land to a former owner shall be filed with the appropriate District Engineer. Such objection shall be in writing, dated and signed by the abutting owner, or his attorney in fact, and shall include identification of the land to which the objection pertains, the name of the former owner, the reasons for the objection, and a reference to the land records where the ownership of the abutting owner is recorded. A copy of the letter addressed to the former owner objecting to the reconveyance shall be attached to the letter addressed to the appropriate District Engineer, or other evidence of such notice of objection shall be furnished to the appropriate District Engineer. No objection will be considered valid unless the party or individual making the objection is the record owner of land abutting or adjoining the land to which the objection pertains.
After an objection has been made by an abutting owner to a reconveyance, and agreement reached concerning the reconveyance shall be furnished in writing, signed by both the abutting owner and the former owner, or their attorneys in fact, to the appropriate District Engineer. Such agreement must be mailed or delivered to the appropriate District Engineer within ninety (90) days after the date of receipt of the notice of objection by the
Upon receipt of an application from a former owner, the Chief of Engineers and/or the appropriate District Engineer is hereby delegated authority to determine the price at which the land will be sold pursuant to the provisions of section 205(d) of the Act of Congress approved July 3, 1958 (72 Stat. 316) or pursuant to the provisions of section 11 of the Act of Congress approved December 23, 1971 (85 Stat. 800) and the cost of any surveys or boundary markings necessary as an incident to the conveyance.
Upon determination of the price at which the land will be reconveyed, and after the reaching of an agreement by the former owner and the abutting owner if an objection to the reconveyance was made by the abutting owner, the appropriate District Engineer will prepare a contract of sale containing the terms and conditions of the reconveyance and deliver it to the applicant for acceptance. The contract of sale shall provide for the deposit of earnest money equal to twenty (20) percent of the price at which the land will be sold or the estimated cost of any surveys or boundary markings necessary as an incident to the reconveyance, whichever is greater. The deposit will be applied to the price at the time of settlement. In the event of default, the deposit will be retained by the Government as liquidated damages. Failure of the applicant to execute the contract of sale or to deposit the earnest money with the appropriate District Engineer within thirty (30) days after receipt of the contract, unless a written extension of said thirty (30) days is granted by the appropriate District Engineer, in accordance with section 205(e) of the Act of Congress approved July 3, 1958 (72 Stat. 316) or in accordance with section 11 of the Act of Congress approved December 23, 1971 (85 Stat. 800) and the delegation contained in § 211.111, that within a reasonable time after receipt of a proper application for any reconveyance of such land, the parties have been unable to reach a satisfactory agreement with respect to the reconveyance of such land. Authority is hereby delegated to the Chief of Engineers and/or the appropriate District Engineer to execute the contract of sale for and on behalf of the United States of America.
Reconveyance of the land will be by quitclaim deed executed by the Secretary of the Army.
If no application for reconveyance is made by a former owner within ninety (90) days, or authorized extension thereof, from the date of the last publication of the notice in a newspaper or, if within a reasonable time after receipt of a proper application for any reconveyances, the appropriate District Engineer and the former owner are unable to reach a satisfactory agreement with respect to the reconveyance, the Chief of Engineers and/or the appropriate District Engineer is hereby delegated authority to certify (a) that notice has been given to the former owner of such land pursuant to the Act and §§ 211.101 to 211.111, and that no qualified applicant has made timely application for reconveyance of such land; or (b) that within a reasonable time after receipt of a proper application for reconveyance the parties have been unable to reach a satisfactory agreement with respect to the reconveyance of such land. After such certification has been executed, disposition of the land shall be made pursuant to the Federal Property Administrative Services Act of 1949, as amended, subject to such reservations, restrictions, exceptions,
Sections 211.141 through 211.147 issued under sec. 108(d), 74 Stat. 487; 33 U.S.C. 578.
Section 108 of the Act of Congress approved 14 July 1960 (74 Stat. 486).
(a)
(b)
(c)
(d)
(e)
(a) The Chief of Engineers and/or the Director of Civil Works (Assistant to the Chief of Engineers for Civil Works) is hereby delegated authority to determine:
(1) That the development of public port or industrial facilities on land within a project will be in the public interest;
(2) That such development will not interfere with the operation and maintenance of the project;
(3) That disposition of the land for these purposes under this Act will serve the objectives of the project;
(4) If two or more agencies file applications for the same land, which agency's intended use of the land will best promote the purposes for which the project was authorized; and
(5) The conditions, reservations and restrictions to be included in a conveyance under this Act.
(b) The District Engineer is hereby delegated authority to:
(1) Give notice of any proposed conveyance under this Act and to afford an opportunity to interested eligible agencies in the general vicinity of the land to apply for its purchase as hereinafter provided; and
(2) Determine the period of time in which applications for conveyances may be filed.
The District Engineer shall give notice of the availability of any land for conveyance under this Act and afford an opportunity to eligible agencies in the general vicinity of the land to apply for its purchase (a) by publication at least twice at not less than 15 day intervals in two newspapers having general circulation within the State in which the available land is located and, if any agency of an adjoining State or States may have an interest in the development of such land for public port or industrial facilities, by publication at least twice at not less than 15 day intervals in two newspapers having general circulation within such State or States, and (b) by letters to all agencies who may be interested in the development of public port or industrial facilities on the available land.
Any agency interested in the development of public port or industrial facilities upon the available land shall file a written application with the District Engineer within the time designated in the public notice. The application shall state fully the purposes for which the land is desired and the scope of the proposed development.
No conveyance shall be made for a price less than the fair market value of the land.
Any conveyance of land under this Act will be subject to the final approval of the Secretary of the Army and will be by quitclaim deed executed by the Secretary of the Army.
Pub. L. 84-99, as amended, Emergency Flood Control Work 33 U.S.C. 701n; (69 Statute 186), dated June 28, 1955.
This provides information, guidance, and policy for execution of the Chief of Engineers' authority to furnish supplies of clean drinking water pursuant to Pub. L. 84-99, as amended by section 82(2), Pub. L. 93-251 (88 Stat. 34).
This regulation is applicable to Corps of Engineers field operating agencies assigned Civil Works activities, including the USAED Alaska, and the Pacific Ocean Division. Its provisions are applicable within the 50 states, and the District of Columbia, Puerto Rico, Virgin Islands, American Samoa, and Guam.
(a) Pub. L. 84-99, as amended (33 U.S.C. 701n).
(b) Pub. L. 93-251, Section 82(2).
(c) Pub. L. 93-523.
(d) ER 500-1-1.
Section 82(2), Pub. L. 93-251, dated 7 March 1974, revised Pub. L. 84-99, as amended, by adding the following new sentence. “The Chief of Engineers, in the exercise of his discretion, is further authorized to provide emergency supplies of clean drinking water, on such terms as he determines to be advisable, to any locality which he finds is confronted with a source of contaminated drinking water causing or likely to cause a substantial threat to the public health and welfare of the inhabitants of the locality.” This authority expands the measures the Chief of Engineers may employ in providing emergency relief pursuant to Pub. L. 84-99.
Emergency work under this authority will be applied to situations in which the source of water has become contaminated. The contamination may be accidental, deliberate, or caused by natural events. The maximum contaminent levels in drinking water are set forth by the Environmental Protection Agency pursuant to Pub. L. 93-523. However, loss of the water source or supply due to any cause is not included in the language of Section 82(2), Pub. L. 93-251, and furnishing emergency supplies by the Corps of Engineers under those situations was not intended by this legislation. Approval of measures to furnish clean drinking water will be pursuant to this regulation, and in accordance with procedures outlined in ER 500-1-1 by HQDA (DAEN-CWO-E) WASH DC 20314. DAEN-CWO-E will be notified by telephone when the emergency water situation becomes known.
(a) The amendment provides for furnishing emergency supplies of drinking water. The method of furnishing those supplies is not provided for in the amendment, and is left to the discretion of the Chief of Engineers. Any feasible method, including restoration of service from an alternate source when the main source has been contaminated, is authorized where most feasible (however, see paragraphs (d) and (e) of this section).
(b) The scope of work is limited solely to providing emergency supplies of clean drinking water. Sewage treatment and disposal, and other sanitary requirements, are not included. In addition, the Corps of Engineers role in providing emergency supplies is a temporary measure until the locality is able to assume their responsibility. The locality is ultimately responsible for providing supplies of drinking water.
(c) The cause of the contamination may be due to any situation, not necessarily flood related. It encompasses all situations involving a contaminated source of drinking water, whether caused by flooding or otherwise.
(d) To be eligible, a locality must be confronted with a source of water that is contaminated. The loss of clean drinking water must not be solely the result of a failure in the distribution system. For example, the emergency could be due to a failure of a reservoir purification system, and the locality might thus be faced with a contaminated source. Furnishing of emergency supplies of clean drinking water may not be undertaken in these cases since the distribution system is not considered to be a source. A loss of supply is not in itself a justification for furnishing supplies of water by the Corps of Engineers under this authority.
(e) Employment of the authority under the amendment requires a finding by the Chief of Engineers, or his delegate, that there is, in fact, a contaminated source of drinking water.
(f) The contamination must cause or be likely to cause a substantial threat to the public health and welfare. An identifiable and defined threat of impairment to the public health and welfare is considered necessary. There is no requirement, however, that actual sickness exist from contaminated water to invoke the authority. But a clear threat must be established. Lack of palatability, in itself, may not constitute a serious health threat (see § 214.9(d)).
(g) Inhabitants of the locality, rather than commercial enterprises, are identified as the group threatened. A business firm faced with contamination of water used in its process is not eligible. The drinking water used by the people in the area must be affected.
The authority to approve measures for furnishing emergency supplies of clean drinking water pursuant to the section 82(2), Pub. L. 93-251 amendment of Pub. L. 84-99, is delegated to division engineers, up to a $50,000 expenditure for the incident. Additional obligational authority of Code 400 funds will be obtained from DAEN-CWO-E prior to authorizing the proposed added work.
The authority does not require correcting the contamination, or repair of water systems so that clean drinking water supplies become available again. Reestablishing community water supplies remains the responsibility of local government and other Federal programs. These methods may be employed under the authority, if they are the most feasible ways to provide emergency supplies of clean drinking water, but there is no mandate to do so. To the extent state or local governments can provide water with their own resources, the locality will be excluded from the provision of emergency supplies under Pub. L. 84-99. In general, the following situations are not considered to be appropriate for Corps action under this authority:
(a) Contamination which causes a loss of palatability, but poses no material threat to public health and welfare.
(b) Contamination, such as by bacteria, which can be reduced to a safe level by the users boiling the water.
(c) Confrontation with normal levels of impurities or contaminants in a drinking water source that does not pose substantial threat to the public health.
(d) Contamination by natural intrusions over a period of time, which are known to be occurring and which may accumulate in sufficient concentrations to pose a future health threat, but which have not yet reached the level of a present hazard.
(e) Loss or diminishing of a water source, due to such things as an earthquake or drought.
(f) Contamination of a drinking water source as a regular occurrence due to recurring events such as drought or flooding, when no corrective community action has yet been initiated.
(g) Contamination which, while posing a substantial threat to health and welfare, can be corrected by local authorities, other Federal authorities, or other appropriate means before emergency supplies are deemed necessary.
Providing emergency supplies of clean drinking water pursuant to the emergency functions of the Corps of Engineers is supplemental to the efforts of the community. Such actions must be in accordance with both Federal and municipal authorities. Corps response must be restricted to requests for assistance received from an appropriate state official. Each request must be considered on its own merits. The factors in each case may vary, but the following should be included in the evaluation.
(a) Whether the criteria required by the law and outlined in § 214.6 have been met.
(b) The extent of state and local efforts to provide clean drinking water and their capability to do so. Corps efforts to provide temporary supplies of drinking water must be limited to measures clearly beyond the resources reasonably available to the state and locality.
(c) The adequacy of the state or local community agreement to mutually participate with the Federal government, on terms determined advisable by the Chief of Engineers, or his delegate, which must include the following:
(1) To provide, without cost to the United States, all lands, easements, and rights-of-way necessary for the authorized work.
(2) To hold and save the United States free from damages in connection with the authorized work other than negligence attributable to the United States or its contractor.
(3) To maintain and operate in a manner satisfactory to the Chief of Engineers all installed work during the emergency.
(4) To remove when determined feasible by the district engineer, at no cost to the Federal government, the installed equipment at the end of the emergency and return it to the Corps of Engineers.
(5) As soon as possible to actively initiate measures required to resolve the emergency situation.
(d) The provision of water quality statements with the request, and the identification of the threat to public health and welfare as determined by recognized authorities such as the State Health Department, Environmental Protection Agency, or recognized commercial laboratory.
(e) The identification of the affected area as a legally recognized governmental body or public entity that exercises a measure of control in the common interest of the inhabitants.
The temporary emergency supplies of clean drinking water may be provided through such actions as:
(a) The use of water tank trucks to haul clean drinking water from a nearby known safe source to water points established for local distribution.
(b) Procurement and distribution of bottled water.
(c) Laying of temporary above ground water lines from a nearby safe source of water to the affected community where water points for local distribution can be established.
(d) Installation of temporary filtration.
Costs incurred by the Corps of Engineers in furnishing emergency supplies of clean drinking water are chargeable to Pub. L. 84-99 funds, 96X3125, Code 910-400 and repayment by the community generally will not be required. Costs of necessary measures for the decontamination of the water supply source are the responsibility of local governments and are not authorized under Pub. L. 84-99.
(a)
(b)
(c)
(d)
(e)
(1) The drawdown period using the maximum drawdown capability of the proposed project facilities, under the situation described in paragraph (d) of this section. Information should be included on the pool elevation and corresponding storage volume at end of the period.
(2) Information on facilities that would be required to meet the design criteria for drawdown, including the estimated first cost and annual cost of these facilities. If the estimated cost for such facilities is significantly greater than for the proposed project facilities, similar information on intermediate facilities should be provided.
Secs. 2 and 4(e) of the Federal Power Act of 1920 (41 Stat. 1603, 16 U.S.C. 791-823), as amended; sec. 10 of the River and Harbour Act of 1899 (30 Stat. 1151, 33 U.S.C. 403); and sec. 404 of Federal Water Pollution Control Act Amendments of 1972 (86 Stat. 816, 33 U.S.C. 1344)
(a)
(1) Investigation of applications filed with FERC for permits and licenses, and for relicensing of projects to ascertain impacts on Corps of Engineers responsibilities.
(2) Investigation of applications for surrender or termination of license to ascertain impacts on Corps of Engineers responsibilities.
(3) Supervision and inspection of operations of licensed hydroelectric projects to ascertain impacts on Corps of Engineers responsibilities.
(b)
(c)
(2) Code of Federal Regulations, Title 18, part 1 to 149 relating to FERC General Rules and Regulations, available at the U.S. Government Printing Office, Washington, D.C. 20402.
(3) ER 1145-2-303 (33 CFR 209.120),
(4) ER 1140-2-1, Submission of Data for Headwater Benefits Determination.
(d)
(2)
(3)
(4)
(5)
(6)
(e)
(1) Section 2 of the Act provides in part that:
The Commission may request the President to detail an officer or officers from the Corps of Engineers, or other branches of the United States Army to serve the Commission as engineer officer or officers * * *.
(2) Section 4(e) of the Act provides in part that:
The Commission is hereby authorized and empowered * * * to issue licenses to citizens of the United States, or to any associations of such citizens, or to any corporation organized under the laws of the United States or any State thereof, or to any State or municipality for the purpose of construction, operating, and maintaining dams, water conduits, reservoirs, powerhouses, transmission lines, or other project works necessary or convenient for the development and improvement of navigation and for the development, transmission, and utilization, of power across, along, from or in any of the streams or other bodies of water over which Congress has jurisdiction * * *.
* * *Provided that no license affecting the navigable capacity of any navigable water of the United States shall be issued until the plans of the dam or other structures affecting navigation have been approved by the Chief of Engineers and the Secretary of the Army.
(f)
(1)
(ii) Recommendations for license provisions required to protect the interest of navigation. This item is discussed under paragraphs 7, 8 and 9.
(iii) Consideration of the project in relation to a comprehensive plan for developing the basin water resources from the standpoint of the Corps of Engineers' programs and responsibilities.
(iv) Consideration of environmental aspects of a project as related to navigation and flood control matters or other specific Corps interests and responsibilities in particular cases.
(v) The matter of possible redevelopment of an existing project to improve the usefulness of the project in relation to the objectives of the Corps program in the basin. In the case of an unconstructed project, based on request from the Commission, a recommendation along with justification, should be included as to whether or not development should be undertaken by the United States.
(vi) Consideration of structural safety and adequacy of spillway design flood for FERC licensed projects are the responsibility of the FERC. The Dam Safety Act, Pub. L. 92-367 provides that dams constructed pursuant to license issued under the authority of Federal Power Act are specifically exempted from the Corps National inspection program. This does not preclude the Corps District and Division offices from making comments on license applications for the FERC information, about any design deficiencies that are brought to their attention.
(2)
(ii) Recommendations should be furnished to the FERC with respect to possible need for “take over” of a project by the Federal Government. Details on “take over” under the Federal Power Act are provided in part 16 of the CFR, Title 18 (part 1 to 149). A copy of part 16 is provided for ready reference in Appendix A of this part.
(iii) FERC Preliminary Permit Application. Consider appropriate recommendations to insure coordination of applicant's studies with the Division or District Engineer in cases where responsibilities and interests of the Corps of Engineers would be affected. The report should include discussion of Corps interests which could result in recommendations for provisions to be included in a subsequent license. In general proposed construction of power facilities at or in conjunction with a Corps reservoir project will be reviewed with the objective of recommending design, construction and operation factors that the applicant must consider in its studies in order for the proposed power development to be compatible, physically and economically, with the authorized function of the Corps project(s).
(g)
(h)
(1) Form L-3 (Revised October 1975)
Terms and Conditions of License for Constructed Major Project Affecting Navigable Waters of the United States.
(2) Form L-4 (Revised October 1975)
Terms and Conditions of License for Unconstructed Major Project Affecting Navigable Waters of the United States.
(i)
(i) In regard to FERC licensing of projects, Corps responsibilities under section 10 of the River and Harbor Act of 1899, for power related activities, may normally be met through the FERC licensing procedure including insertion of terms and conditions in the license of the interest of navigation. Section 4(e) of the Federal Power Act provides for approval of plans of project works by the Chief of Engineers and Secretary of the Army from the standpoint of interests of navigation. The consideration for our approval under section 4(e) will be limited to effects of project power related activities on navigation.
(ii) Applications to Corps Divsion or District Engineers for approval of repairs, maintenance or modification of non-Federal water power projects authorized under River and Harbor Acts as well as special Acts of Congress prior to 1920, or requests for advice with respect thereto should be referred to the FERC for consideration in accordance with the provisions of the Federal Power Act. The permittee should be advised that the application is being referred to the FERC for consideration and that if a FERC license is required Corps recommendations will be furnished to the FERC.
(2) Responsibilities under section 404 of the Federal Water Pollution Control Act as amended in 1972 (33 U.S.C. 1151) pertinent to discharge of dredged or fill material into the navigble waters at specified disposal sites will be met only through the Department of Army permit procedures as specified in ER 1145-2-303. In regard to FERC cases involving section 404, our report to the FERC through (DAEN-CWE-HY) will specify the need for a Department of Army permit (section 404) if, on the basis of the Division and District Engineers' reports, such permit is deemed necessary. A Department of the Army permit will be required for any portion of a proposed project which involves the discharge of dredged or fill material into the waters of the United States. This includes the placement of fill necessary for construction of a project's dam and appurtenant structures.
(3) When applicable, FERC will be advised that the requirement for Department of the Army permit pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 for the transport of dredged material from the project site for the purpose of dumping it into the ocean waters will be met only through the Department of the Army permit program.
(4) In connection with FERC licensed projects there may be proposed non-power water oriented activities, such as recreational development, which are associated with the overall project but may not be a part of the hydroelectric power facilities at the project. Such cases, if involving navigable waters should be reviewed from the standpoint of need for a section 10 permit. Such section 10 permit actions would involve consideration of the overall public interest, including water quality, fish and wildlife, recreation, general environmental concerns and the needs and welfare of the people. Corps responsibilities for permit requirements under section 10 of the River and Harbor Act of 1899 for nonpower activities affecting navigable waters at the FERC projects will be met only through the Corps permit procedures. The Corps' report to FERC through (DAEN-CWE-HY) will specify the need for such permit when recommended by the Division and District Engineers' report.
(j)
(k)
(l)
(m)
(n)
(o)
(2) Non-personal costs amounting to less than $100 for any single investigation will not be reimbursed from the Commission funds but will be charged also to “Special Investigations” under the appropriations for “General Expenses.” Each Division Engineer charged with a detailed investigation of an application for license or the supervision of a project that will require more than a nominal amount of nonpersonal costs will be specifically requested to submit an estimate of the funds required upon assignment of the work by the Chief of Engineers.
(3) Reimbursement from the FERC funds for nonpersonal costs in excess of $100 will be made by the Chief of Engineers upon submission of a voucher on Standard Form 1080 by the District Engineer through the Division Engineer. The voucher will show the fiscal year during which the work was done and the Commission project number on which the money was spent.
Federal Power Act, secs. 7(c), 14, 15, 309 (16 U.S.C. 800, 807, 808, 825h.
This part implements the amendments of sections 7(c), 14, and 15 of part I of the Federal Power Act, as amended, enacted by Public Law 90-451, 82 Stat. 616, approved August 3, 1968. It applies to projects subject to sections 14 and 15 of the Federal Power Act including projects for which a nonpower license may be issued. Procedures are provided for the filing of applications for either power or nonpower licenses for projects whose licenses are expiring. A license for a power project issued to either the original licensee or another licensee is referred to in this part as a “new license” and a license for a nonpower project as a “non-power license”. Also provided are procedures for the filing of recommendations for takeover by Federal departments or agencies and applications for renewal of licenses not subject to section 14.
In order that there should be adequate notice and opportunity to file timely applications for a license the Commission's Secretary will give notice of the expiration of license of a project (except transmission line and minor projects) 5 years in advance thereof in the same manner as provided in section 4(f) of the Act. The Secretary shall upon promulgation of the rules herein give notice, as provided in section 4(f) of the Act, of all whose license terms have expired since January 1, 1968, or which will expire within 5 years of the effective date of this rule. In addition, the Commission each year will publish in its annual report and in the
(a) An existing licensee must file an application for a “new license” or “nonpower license” or a statement of intention not to file an application for a “new license” no earlier than 5 years and no later than 3 years prior to the expiration of its license, except that, where the license will expire within 3
(b) Any other person or municipality may file an application for a “new license” or “non-power license” within 5 years of the expiration of the license, but in no event, unless authorized by the Commission, later than 6 months after issuance of notice of the filing of an application or statement by the licensee under § 16.4 or 2
(c) Any application submitted after the expiration of the time specified herein for filing must be accompanied by a motion requesting permission to file late, which motion shall detail the reasons of good cause why the application was not timely filed and how the public interest would be served by its consideration.
When any timely application or statement within the meaning of § 16.3 is received, or when the Commission grants any motion for consideration of a late filed application, notice of receipt thereof will be furnished the applicant, and public notice will be given in the same manner as provided in sections 4(f) and 15(b) of the Act (49 Stat. 838; 41 Stat. 1072; 82 Stat. 616; 16 U.S.C. 797, 808) §§ 1.37 and 2.1 of this chapter, the Fish and Wildlife Coordination Act, 48 Stat. 401, as amended, 16 U.S.C. 661
No application for annual license need be filed nor will such application be accepted under section 15 of the Act. An existing licensee making timely filing for a new license will be deemed to have filed for an annual license. If the Commission has not acted upon an application by licensee for a new license at the expiration of the license terms, by the issuance of an order granting, denying or dismissing it, an annual license shall be issued by notice of the Secretary.
(a) Each application for a new license hereunder shall conform in form to § 131.2 of this chapter, and shall set forth in appropriate detail all information and exhibits prescribed in §§ 4.40 through 4.42 of this chapter, inclusive and in § 4.51 of this chapter, as well as additional information specified in paragraphs (b) through (e) of this section, except that Exhibit A may be incorporated in an application by reference where one applicant files applications for several projects, one of which already contains an Exhibit A or in any case where applicant has filed an Exhibit A within 10 years preceding the filing of the application, and that Exhibits N and O as specified in § 4.41 of this chapter need only be filed as provided in paragraph (c) of this section. An original and fourteen conformed copies of the application and all accompanying exhibits shall be submitted to the Commission plus one additional conformed copy for each interested State Commission.
(b) An application for a “new license” hereunder shall include a statement showing the amount which licensee estimates would be payable if the project were to be taken over at the end of the license term pursuant to the provisions of sections 14 and 15 of the Federal Power Act. This statement shall include estimates of: (1) Fair value; (2) net investment; and (3) severance damages. (This subsection is not applicable to State, municipal, or nonlicensee applicants.)
(c) If the applicant proposes project works in addition to those already under license, the maps, plans, and descriptions of the project works (Exs. I, J, L and M) shall distinguish the project works of parts thereof which have been constructed from those to be constructed. Exhibits N and O shall also be included in the application relating to new construction.
(d) Applicant shall furnish its plans for the future modification or redevelopment of the project, if any, and shall set forth in detail why technically feasible, additional capacity is not proposed for installation at the time of relicensing.
(e) Applicant shall file a statement on the effect that takeover by the United States or relicensing to another applicant would have upon the supply of electric energy to the system with which it is interconnected, the rates charged its customers, the licensee's financial condition, and taxes collected by local, State, and Federal Governments. (This subsection is not applicable to State, municipal or nonlicensee applicants.)
Each application for “non-power license” shall generally follow the form prescribed in § 131.6 of this chapter, except for subsections 7 and 8 thereof. It shall be accompanied by
(a) Applicant shall furnish a description of the nonpower purpose for which the project is to be utilized and a showing of how such use conforms with a comprehensive plan for improving or developing a waterway or waterways for beneficial uses, including a statement of the probable impact which conversion of the project to nonpower use will have on the power supply of the system served by the project.
(b) Applicant shall identify the State, municipal, interstate or Federal agency, if any, which is authorized or willing to assume regulatory supervision over the land, waterways and facilities to be included within the nonpower project. (If there is such an agency, applicant shall foward one copy of the application to such agency.)
(c) Applicant shall submit a proposal for the removal or other disposition of power facilities of the project.
A recommendation that the United States exercise its right to take over a project may be filed by any Federal department or agency no earlier than 5 years and no later than 2 years prior to the expiration of the license term;
If the Commission, after notice and opportunity for hearing, concludes upon departmental recommendation, a proposal of any party, or its own motion, that the standards of section 10(a) of the Act would best be served if a project whose license is expiring is taken over by the United States, it will issue its findings and recommendations to this effect, and after any modification thereof, upon consideration of any application for reconsideration, made in conformity with the provisions of § 1.34 of this chapter governing applications for rehearing, forward copies of its findings and recommendations to the Congress.
If the Commission does not recommend to the Congress that a project be taken over, a Federal department or agency which has filed a timely recommendation for takeover as provided in this part may, within thirty (30) days of issuance of an order granting a license, file a motion, with copies to the parties in the proceeding, before the Commission requesting a stay of the license order. Upon the filing of such a motion, the license order automatically will be stayed for 2 years from the date of issuance of the order, unless the stay is terminated earlier upon motion of the department or agency requesting the stay or by action of Congress. The Commission will notify Congress of any such stay. Upon expiration or termination of the stay, including any extension thereof by act of Congress, the Commission's license order shall automatically become effective in accordance with its terms. The Commission will notify Congress of each license order
A determination whether or not there is to be a Federal takeover of a project would ultimately be made by Congress through the enactment of appropriate legislation. If Congress authorizes takeover, the Secretary will immediately give the Licensee not less than 2 years' notice in writing of such action. Within 6 months of issuance of such notice the Licensee shall present to the Commission any claim for compensation consistent with the provisions of section 14 of the Federal Power Act and the regulations of the Commission.
Licenses whose minor or minor part licenses are not subject to sections 14 and 15 of the Act and wish to continue operation of the project after the end of the license term shall file an application for a “new license” 1 year prior to the expiration of their original license in accordance with applicable provisions of part 4 of this chapter.
Acceptance for filing or rejection of applications under this part shall be in accordance with the provisions of § 4.31 of this chapter.
Upon the completion of the project, or at such other time as the Commission may direct, the Licensee shall submit to the Commission for approval revised exhibits insofar as necessary to show any divergence from or variations in the project area and project boundary as finally located or in the project works as actually constructed when compared with the area and boundary shown and the works described in the license or in the exhibits approved by the Commission, together with a statement in writing setting forth the reasons which in the opinion of the Licensee necessitated or justified variation in or divergence from the approved exhibits. Such revised exhibits shall, if and when approved by the Commission, be made a part of the license under the provisions of Article 2 hereof.
The following FPC standard articles Forms, in addition to the standard Forms L-3, and L-4 which are provided in this appendix, are available from the FPC offices:
23 U.S.C. 116(d); delegation in 49 CFR 1.45(b); 33 U.S.C. 467
(a)
(b)
(c)
(d)
(e)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(f)
(1) Areas where the imposed or aggravated flood condition is non-hazardous. Affected interest should be informed of the nature of the imposed non-hazardous flood condition.
(2) Areas where the construction and operation of a dam and spillway do not increase or create a hazardous condition.
(g)
(h)
(1) For various flood magnitudes up to the probable maximum flood determine the “with” and “without project” flood conditions downstream of a dam spillway for the following:
(i) Flooded area.
(ii) Flood depth.
(iii) Flood duration.
(iv) Velocities.
(v) Debris and erosion.
(2) Determine the combinations of flood magnitudes and the above flood conditions that could be the most hazardous and/or result in the greatest increase in hazard from “without” to “with project” flood conditions. Designate these combinations of flood magnitude and flood conditions as the critical conditions.
(3) For the critical conditions selected above outline the areas where the project could increase and/or create (impose) one or more of the critical conditions. Areas where spillway flows do not create or increase flood conditions are excluded from further analysis.
(4) Determine where the imposed critical conditions as outlined above would be hazardous and non-hazardous. Non-hazardous areas are defined as those areas where:
(i) Flood depths are maximum of 2 feet in urban and rural areas.
(ii) Flood depths are essentially non-damaging to urban property.
(iii) Flood durations are a maximum of 3 hours in urban areas and 24 hours in agricultural areas.
(iv) Velocities do not exceed 4 feet per second.
(v) Debris and erosion potentials are minimal.
(vi) Imposed flood conditions would be infrequent. That is, the exceedence frequency should be less than 1 percent. Hazardous areas are those where any of the above criteria are exceeded.
(5) Based upon the information developed above and the principles outlined in paragraphs (c) through (f) of this section, decide on the extent of area and estate required for hydrologic safety purposes.
(i)
(a)
(b)
(c)
(2) National Electrical Safety Code (ANSI C2), available from IEEE Service Center, 445 Hoes Lane, Piscataway, N.J. 08854.
(d)
(2)
(3)
(e)
(1) In general, minimum vertical clearances shall not be less than shown in Table 232-1, Item 7, of ANSI C2, even for reservoirs or areas not suitable for sailboating or where sailboating is prohibited.
(2) If clearances not in accordance with Table 232-1 of ANSI C2 are proposed, justification for the clearances should be provided.
(f)
(a)
(b)
(c)
(2) ER 1110-2-1806.
(3) ER 1110-2-8150.
(4) ER 1130-2-419.
(5) State-of-the-Art for Assessing Earthquake Hazards in the United States—WES Miscellaneous Papers S-73-1—Reports 1 thru 14. Available from U.S. Army Engineer Waterways Experiment Station, P.O. Box 631, Vicksburg, Mississippi 39180.
(d)
(e)
(2)
(f)
(2) If the project is located in an area where the earthquake is felt but causes no or insignificant damage (Modified Mercalli Intensity VI or less) to structures in the vicinity of the project, project operations personnel should make an immediate inspection. This inspection should determine: (i) Whether there is evidence of earthquake damage or disturbance, and (ii) whether seismic instrumentation, where present, has been triggered. The Chief, Engineering Division should be notified by phone of the results of the inspection. If damage is observed, which is considered to threaten the immediate safety or operational capability of the project, immediate action should be taken as covered in paragraph (f)(1) of this section. For other situations, the Chief of Engineering Division will determine the need for and urgency for an engineering inspection.
(3) When an engineering inspection of structures is deemed necessary following a significant earthquake, HQDA (DAEN-CWE) WASH DC 20314 will be notified of the inspection program as soon as it is established.
(4) As a general rule, the structures which would be of concern following an earthquake are also the structures which are involved in the inspection program under ER 1110-2-100. Whenever feasible, instrumentation and prototype testing programs undertaken under ER 1110-2-100 to monitor structural performance and under ER 1110-2-8150 to develop design criteria will be utilized in the post-earthquake safety evaluation programs. Additional special types of instrumentation will be incorporated in selected structures in which it may be desirable to measure forces, pressures, loads, stresses, strains, displacements, deflections, or other conditions relating to damage and structural safety and stability in case of an earthquake.
(5) Where determined necessary, a detailed, systematic engineering inspection will be made of the post-earthquake condition of each structure, taking into account its distinctive features. For structures which have incurred earthquake damage a formal technical report will be prepared in a format similar to inspection reports required under ER 1110-2-100. (Exempt from requirements control under paragraph 7-2b, AR 335-15.) The report will include summaries of the instrumentation and other observation data for each inspection, for permanent record and reference purposes. This report will be used to form a basis for major remedial work when required. Where accelerometers or other types of strong motion instruments have been installed, readings and interpretations from these instruments should also be included in the report. The report will contain recommendations for remedial work when appropriate, and will be
(g)
(h)
(2) The Construction Divisions of the District offices will be responsible for the installation of the earthquake instrumentation devices and for data collection if an earthquake occurs during the construction period.
(3) The Operations Division of the District offices will be responsible for the immediate assessment of earthquake damage and notifying the Chief, Engineering Division as discussed in paragraphs (f)(1) and (2). The Operations Division will also be responsible for earthquake data collection after the construction period in accordance with the instrumental observation programs, and will assist and participate in the post-earthquake inspections.
(4) The U.S. Geological Survey has the responsibility for servicing and collecting all data from strong motion instrumentation at Corps of Engineers dam projects following an earthquake occurrence. However, the U.S. Army Waterways Experiment Station (WES) is assigned the responsibility for analyzing and interpreting these earthquake data. Whenever a recordable earthquake record is obtained from seismic instrumentation at a Corps project, the Division will send a report of all pertinent instrumentation data to the Waterways Experiment Station, ATTN: WESGH, P.O. Box 631, Vicksburg, Mississippi 39180. The report on each project should include a complete description of the locations and types of instruments and a copy of the instrumental records from each of the strong motion machines activated. (Exempt from requirements control under paragraph 7-2v, AR 335-15).
(5) The Engineering Divisions of the Division offices will select structures for special instrumentation for earthquake effects, and will review and monitor the data collection, processing, evaluating, and inspecting activities. They will also be specifically responsible for promptly informing HQDA (DAEN-CWE) WASH DC 20314, when evaluation of the condition of the structure or analyses of the instrumentation data indicate the stability of a structure is questionable. (Exempt for requirements control under paragraph 7-2o, AR 335-15.)
(6) Division Engineers are responsible for issuing any supplementary regulations necessary to adapt the policies and instructions herein to the specific conditions within their Division.
(i)
(a)
(b)
(c)
(d)
(2)
(e)
(2) The term “reservoir regulation schedule” refers to a compilation of operating criteria, guidelines, rule curves and specifications that govern basically the storage and release functions of a reservoir. In general, schedules indicate limiting rates of reservoir releases required during various seasons of the year to meet all functional objectives of the particular project, acting separately or in combination with other projects in a system. Schedules are usually expressed in the form of graphs and tabulations, supplemented by concise specifications.
(f)
(2) Necessary actions will be taken to keep approved water control plans up-to-date. For this purpose, plans will be subject to continuing and progressive study by personnel in field offices of the Corps of Engineers. These personnel will be professionally qualified in technical areas involved and familiar with comprehensive project objectives and other factors affecting water control. Organizational requirements for water control management are further discussed in ER 1110-2-1400.
(3) Water control plans developed for specific projects and reservoir systems will be clearly documented in appropriate water control manuals. These
(4) Development and execution of water control plans will include appropriate consideration for efficient water management in conformance with the emphasis on water conservation as a national priority. The objectives of efficient water control management are to produce beneficial water savings and improvements in the availability and quality of water resulting from project regulation/operation. Balanced resource use through improved regulation should be developed to conserve as much water as possible and maximize all project functions consistent with project/system management. Continuous examination should be made of regulation schedules, possible need for storage reallocation (within existing authority and constraints) and to identify needed changes in normal regulation. Emphasis should be placed on evaluating conditions that could require deviation from normal release schedules as part of drought contingency plans (ER 1110-2-1941).
(5) Adequate provisions for collection, analysis and dissemination of basic data, the formulation of specific project regulation directives, and the performance of project regulation will be established at field level.
(6) Appropriate provisions will be made for monitoring project operations, formulating advisories to higher authorities, and disseminating information to others concerned. These actions are required to facilitate proper regulation of systems and to keep the public fully informed regarding all pertinent water control matters.
(7) In development and execution of water control plans, appropriate attention will be given to project safety in accordance with ER 1130-2-417 and ER 1130-2-419 so as to insure that all water impounding structures are operated for the safety of users of the facilities and the general public. Care will be exercised in the development of reservoir regulation schedules to assure that controlled releases minimize project impacts and do not jeopardize the safety of persons engaged in activities downstream of the facility. Water control plans will include provisions for issuing adequate warnings or otherwise alerting all affected interests to possible hazards from project regulation activities.
(8) In carrying out water control activities, Corps of Engineers personnel must recognize and observe the legal responsibility of the National Weather Service (NWS), National Oceanic and Atmospheric Administration (NOAA), for issuing weather forecasts and flood warnings, including river discharges and stages. River forecasts prepared by the Corps of Engineers in the execution of its responsibilities should not be released to the general public, unless the NWS is willing to make the release or agrees to such dissemination. However, release to interested parties of factual information on current storms or river conditions and properly quoted NWS forecasts is permissible. District offices are encouraged to provide assistance to communities and individuals regarding the impact of forecasted floods. Typical advice would be to provide approximate water surface elevations at locations upstream and downstream of the NWS forecasting stream gages. Announcement of anticipated changes in reservoir release rates as far in advance as possible to the general public is the responsibility of Corps of Engineers water control managers for projects under their jurisdiction.
(9) Water control plans will be developed in concert with all basin interests which are or could be impacted by or have an influence on project regulation. Close coordination will be maintained with all appropriate international, Federal, State, regional and local agencies in the development and execution of water control plans. Effective public information programs will be developed and maintained so as to inform and educate the public regarding Corps of Engineers water control management activities.
(10) Fiscal year budget requests for water control management activities
(g)
(2)
(A) Conditions that require public involvement and public meetings include: Development of a new water control manual that includes a water control plan; or revision or update of a water control manual that changes the water control plan.
(B) Revisions to water control manuals that are administratively or informational in nature and that do not change the water control plan do not require public meetings.
(C) For those conditions described in paragraph (g)(2)(i)(A) of this section, the Corps will provide information to the public concerning proposed water control management decisions at least 30 days in advance of a public meeting. In so doing, a separate document(s) should be prepared that explains the recommended water control plan or change, and provides technical information explaining the basis for the recommendation. It should include a description of its impacts (both monetary and nonmonetary) for various purposes, and the comparisons with alternative plans or changes and their effects. The plan or manual will be prepared only after the public involvement process associated with its development or change is complete.
(D) For those conditions described in paragraph (g)(2)(i)(A) of this section, the responsible division office will send each proposed water control manual to the Army Corps of Engineers Headquarters, Attn: CECW-EH-W for review and comments prior to approval by the responsible division office.
(ii)
(3)
(4)
(5)
(h)
(2) Engineering Manuals (EM) and Engineer Technical Letters (ETL) are issued by OCE to serve as general guidelines and technical aids in developing water control plans and manuals for individual projects or systems.
(3) EM 1110-2-3600 discusses principles and concepts involved in developing water control plans. Instructions relating to preparation of “Water Control Manuals for speicfic projects” are included. EM 1110-2-3600 should be used as a general guide to water control activities. The instructions are sufficiently flexible to permit adaptation to specific regions. Supplemental information regarding technical methods is provided in numerous documents distributed to field offices as “hydrologic references.”
(4) Special assistance in technical studies is available from the Hydrologic Engineering Center, Corps of Engineers, 609 Second Street, Davis, California 95616 and DAEN-CWE-HW.
(i)
(2) Water control manuals prepared in substantially the detail and format specified in instructions referred to in paragraph 8 are required for all reservoirs under the supervision of the Corps of Engineers, regardless of the purpose or size of the project. Water Control manuals are also required for lock and dam, reregulation and major control structure projects that are physically regulated by the Corps of Engineers. Where there are several projects in a drainage basin with interrelated purposes, a “Master Manual” shall be prepared. The effects of non-Corps projects will be considered in appropriate detail, including an indication of provisions for interagency coordination.
(3) “Preliminary water control manuals,” for projects regulated by the Corps of Engineers should contain regulation schedules in sufficient detail to establish the basic plan of initial project regulation.
(4) As a general rule, preliminary manuals should be superseded by more detailed interim or “final” manuals within approximately one year after the project is placed in operation.
(5) Each water control manual will contain a section on special regulations to be conducted during emergency situations, including droughts.
(6) One copy of all water control manuals and subsequent revisions shall be forwarded to DAEN-CWE-HW for file purposes as soon as practicable after completion, preferably within 30 days from date of approval at the division level.
(j)
(2) Water control plans will be developed and processed as soon as possible for applicable projects already completed and being operated by other entities, including projects built by the Corps of Engineers and turned over to others for operation.
(3) In so far as practicable, water control plans for non-Corps projects should be developed in cooperation with owning/operating agencies involved during project planning stages. Thus, tentative agreements on contents, including pertinent regulation schedules and diagrams, can be accomplished prior to completion of the project.
(4) The magnitude and nature of storage allocations for flood control or navigation purposes in non-Corps projects are governed basically by conditions of project authorizations or other legislative provisions and may include any or all of the following types of storage assignments:
(i) Year-round allocations: Storage remains the same all year.
(ii) Seasonal allocations: Storage varies on a fixed seasonal basis.
(iii) Variable allocations of flood control from year to year, depending on hydrologic parameters, such as snow cover.
(5) Water control plans should be developed to attain maximum flood control or navigation benefits, consistent with other project requirements, from the storage space provided for these purposes. When reservoir storage capacity of the category referred to in paragraph (j)(4)(iii) is utilized for flood control or navigation, jointly with other objectives, the hydrologic parameters and related rules developed under provisions of ER 1110-2-241, 33 CFR part 208 should conform as equitably as possible with the multiple-purpose objectives established in project authorizations and other pertinent legislation.
(6) Storage allocations made for flood control or navigation purposes in non-Corps projects are not subject to modifications by the Corps of Engineers as a prerequisite for prescribing 33 CFR 208.11 regulations. However, regulations developed for use of such storage should be predicated on a mutual understanding between representatives of the Corps and the operating agency concerning the conditions of the allocations in order to assure reasonable achievement of basic objectives intended. In the event field representatives of the Corps of Engineers, and the operating agency are unable to reach necessary agreements after all reasonable possibilities have been explored, appropriate background explanations and recommendations should be submitted to DAEN-CWE-HW for consideration.
(7) The Chief of Engineers is responsible for prescribing regulations for use of flood control or navigation storage and/or project operation under the provisions of the referenced legislative acts. Accordingly, any regulations established should designate the division/
(8) Responsibility for compliance with 33 CFR 208.11 regulations rests with the operating agency. The division or district commander of the area in which the project is located will be kept informed regarding project operations to verify reasonable conformance with the regulations. The Chief of Engineers or his designated representative may authorize or direct deviation from the established water control plan when conditions warrant such deviation. In the event unapproved deviations from the prescribed regulations seem evident, the division or district commander concerned will bring the matter to the attention of the operating agency by appropriate means.
(9) Regulations should contain information regarding the required exchange of basic data between the representative of the operating agency and the U.S. Army Corps of Engineers, that are pertinent to regulation and coordination of interrelated projects in the region.
(10) All 33 CFR 208.11 regulations shall contain provisions authorizing the operating agency to temporarily deviate from the regulations in the event that it is necessary for emergency reasons to protect the safety of the dam, to avoid health hazards, and to alleviate other critical situations.
(k)
(l)
(m)
(2)
(3)
(4)
(5)
(6)
(ii) Master plans for water control data systems and significant revisions thereto will be prepared by division water control managers and submitted to DAEN-CWE-HW by 1 February each year for review and approval of engineering aspects. Engineering approval does not constitute funding approval. After engineering approval is obtained, equipment in the master plan is eligible for consideration in the funding processes described in ER 1125-2-301
(A) Outline the system performance requirements, including those resulting from any expected expansions of Corps missions.
(B) Describe the extent to which existing facilities fulfill performance requirements.
(C) Describe alternative approaches which will upgrade the system to meet the requirements not fulfilled by existing facilities, or are more cost effective then the existing system.
(D) Justify and recommend a system considering timeliness, reliability, economics and other factors deemed important.
(E) Delineate system scope, implementation schedules, proposed annual capital expenditures by district, total costs, and sources of funding.
(iii) Modified master plans should be submitted to DAEN-CWE-HW by 1 February, whenever revisions are required, to include equipment not previously approved or changes in scope or approach. Submittal by the February date will allow adequate time for OCE review and approval prior to annual budget submittals.
(iv) Division commanders are delegated authority to approve detailed plans for subsystems and networks of approved master plans. Plans approved by the division commander should meet the following conditions:
(A) The plan conforms to an approved master plan.
(B) The equipment is capable of functioning independently.
(C) An evaluation of alternatives has been completed considering reliability, cost and other important factors.
(D) The plan is economically justified, except in special cases where legal requirements dictate performance standards which cannot be economically justified.
(v) Copies of plans approved by the division commander shall be forwarded to appropriate elements in OCE in support of funding requests and to obtain approval of Automatic Data Processing Equipment (ADPE), when applicable.
(vi) Water control data systems may be funded from Plant Revolving Fund; O&M General; Flood Control, MR&T, and Construction, General. Funding for water control equipment that serves two or more projects will be from Plant Revolving Fund in accordance with ER 1125-2-301. District and division water control managers will coordinate plant revolving fund requests with their respective Plant Replacement and Improvement Program (PRIP) representatives following guidance provided in ER 1125-2-301. Budget funding requests under the proper appropriation title should be submitted only if the equipment is identified in an approved master plan.
(vii) Justification for the Automatic Data Processing Equipment (ADPE) aspects of water control data systems must conform to AR 18-1, Appendix I or J as required. The “Funding for ADPE” paragraph in Appendixes I and J must cite the source of funds and reference relevant information in the approved master plan and detailed plan.
(viii) Division water control managers will submit annual letter summaries of the status of their respective water control systems and five-year plan for improvements. These summaries will be submitted to DAEN-CWE by 1 June for coordination with DAEN-CWO, CWB and DSZ-A, prior to the annual budget request. Summaries should not be used to obtain approval of significant changes in master plans. Sources of funding for all items for each district and for the division should be delineated so that total system expenditures and funding requests are identified. Changes in the master plan submitted 1 February should be documented in this letter summary if the changes were approved.
(7)
(ii) During major drought situations or low-flow conditions, narrative summaries of the situation should be furnished to alert the Chief of Engineers regarding the possibility of serious runoff deficiencies that are likely to call for actions associated with Corps of Engineers reservoirs.
(iii) The reports referred to in paragraphs (m)(7) (i) and (ii) of this section will include general summaries regarding the status of reservoir storage, existing and forecasted at the time of the reports.
(8)
(9)
(n)
(2) The Mississippi River Water Control Management Board was established by ER 15-2-13. It consists of the Division Commanders from LMVD, MRD, NCD, ORD, and SWD with the Director of Civil Works serving as chairman. The purposes of the Board are:
(i) To provide oversight and guidance during the development of basin-wide management plans for Mississippi River Basin projects for which the US Army Corps of Engineers has operation/regulation responsibilities.
(ii) To serve as a forum for resolution of water control problems among US Army Corps of Engineers Divisions within the Mississippi River Basin when agreement is otherwise unobtainable.
(o)
1. (a) “Regulations for Use of Storage Allocated for Flood Control or Navigation and/or Project Operation at Reservoirs subject to Prescription of Rules and Regulations by the Secretary of the Army in the Interest of Flood Control and Navigation” (33 CFR 208.11) prescribe the responsibilities and general procedures for regulating reservoir projects capable of regulation for flood control or navigation and the use of storage allocated for such purposes and provided on the basis of flood control and navigation, except projects owned and operated by the Corps of Engineers; the International Boundary and Water Commission, United States and Mexico; and those under the jurisdiction of the International Joint Commission, United States and Canada, and the Columbia River Treaty.
(b) Pertinent information on projects for which regulations are prescribed under Section 7 of the 1944 Flood Control Act, (Pub. L. 78-58 Stat. 890 (33 U.S.C. 709)) the Federal Power Act (41 Stat. 1063 (16 U.S.C. 791(A))) and Section 9 of Pub. L. 436-83d Congress (68 Stat. 303) is published in the
Publication in the
2. Section 7 of Act of Congress approved 22 December 1944 (58 Stat. 890; 33 U.S.C. 709), reads as follows:
“Hereafter, it shall be the duty of the Secretary of War to prescribe regulations for the use of storage allocated for flood control or navigation at all reservoirs constructed wholly or in part with Federal funds provided on the basis of such purposes, and the operation of any such project shall be in accordance with such regulations:
3. Section 9(b) of the Reclamation Project Act of 1939, approved 4 August 1939 (53 Stat. 1189, 43 U.S.C. 485), provides that the Secretary of the Interior may allocate to flood control or navigation as part of the cost of new projects or supplemental works; and that in connection therewith he shall consult with the Chief of Engineers and may perform any necessary investigations under a cooperative agreement with the Secretary of the Army. These projects are subject to 33 CFR 208.11 regulations.
4. Several dams have been constructed by State agencies under provisions of legislative acts wherein the Secretary of the Army is directed to prescribe rules and regulations for project operation in the interest of flood control and navigation. These projects are subject to 33 CFR 208.11 regulations.
5. There are few dams constructed under Emergency Conservation work authority or similar programs, where the Corps of Engineers has performed major repairs or rehabilitation, that are operated and maintained by local agencies which are subject to 33 CFR 208.11 regulations.
6. The Federal Power Act, approved 10 June 1920, as amended (41 Stat. 1063, 16 U.S.C. 791 (A)), established the Federal Power Commission, now Federal Energy Regulatory Commission (FERC), with authority to issue licenses for constructing, operating, and maintaining dams or other project works for the development of navigation, for utilization of water power and for other beneficial public uses in any streams over which Congress has jurisdiction. The Chief of Engineers is called upon for advice and assistance as needed in formulating reservoir regulation requirements somewhat as follows:
a. In response to requests from the FERC, opinions and technical appraisals are furnished by the Corps of Engineers for consideration prior to issuance of licenses by the FERC. Such assistance may be limited to general presentations, or may include relatively detailed proposals for water control plans, depending upon the nature and scope of projects under consideration. The information furnished is subject to such consideration and use as the Chairman, FERC, deems appropriate. This may result in inclusion of simple provisions in licenses without elaboration, or relatively detailed requirements for reservoir regulation schedules and plans.
b. Some special acts of Congress provide for construction of dams and reservoirs by non-Federal agencies or private firms under
7. Projects constructed by the Corps of Engineers for local flood protection purposes are subject to conditions of local cooperation as provided in Section 3 of the Flood Control Act approved 22 June 1936, as amended. One of those conditions is that a responsible local agency will maintain and operate all works after completion in accordance with regulations prescribed by the Secretary of the Army. Most such projects consist mainly of levees and flood walls with appurtenant drainage structures. Regulations for operation and maintenance of these projects has been prescribed by the Secretary of the Army in 33 CFR 208.10. When a reservoir is included in such a project, it may be appropriate to apply 33 CFR 208.10 in establishing regulations for operation, without requiring their publication in the
8. Regulation plans for projects owned by the Corps of Engineers are not prescribed in accordance with 33 CFR 208.11. However, regulation plans for projects constructed by the Corps of Engineers and turned over to other agencies or local interests for operation may be prescribed in accordance with 33 CFR 208.11.
9. The Small Reclamation Projects Act of 6 August 1956 provides that the Secretary of the Interior may make loans or grants to local agencies for the construction of reclamation projects. Section 5 of the Act provides in part that the contract covering any such grant shall set forth that operation be in accordance with regulations prescribed by the head of the Federal department or agency primarily concerned. Normally, 33 CFR 208.11 is not applicable to these projects.
1.
b. Background information on the project and conditions requiring flood control or navigation services, and other relevant factors, are assembled by the District Engineer and incorporated in a “Preliminary Information Report”. The Preliminary Information Report will be submitted to the Division Engineer for review and approval. Normally, the agency having jurisdiction over the particular project is expected to furnish information on project features, the basis for storage allocations and any other available data pertinent to the studies. The Corps of Engineers supplements this information as required.
c. Studies required to develop reservoir regulation schedules and plans usually will be conducted by Corps of Engineers personnel at District level, except where the project regulation affects flows in more than one district, in which case the studies will be conducted by or under supervision of Division personnel. Assistance as may be available from the project operating agency or others concerned will be solicited.
d. When necessary agreements are reached at district level, and regulations developed in accordance with 33 CFR 208.11 and EM 1110-2-3600, they will be submitted to the Division Commander for review and approval, with information copies for DAEN-CWE-HW. Usually the regulations include diagrams of operating parameters.
e. For projects owned by the Bureau of Reclamation, the respective Regional Directors are designated as duly authorized representatives of the Commissioner of Reclamation. By letter of 20 October 1976, the Commissioner delegated responsibilities to the Regional Directors as follows: “Regarding the designated authorization of representatives of the Commissioner of Reclamation in matters relating to the development and processing of Section 7 flood control regulations, we are designating each Regional Director as our duly authorized representative to sign all letters of understanding, water control agreements, water control diagrams, water control release schedules and other documents which may become part of the prescribed regulations.
f. In accordance with the delegation cited in paragraph e, 33 CFR 208.11 regulations pertaining to Bureau of Reclamation projects will be processed as follows:
(1) After regulation documents submitted by District Commanders are reviewed and approved by the Division Commander they are transmitted to the respective Regional Director of the Bureau of Reclamation for concurrence of comment, with a request that tracings of regulation diagrams be signed and returned to the Division Commander.
(2) If any questions arise at this stage appropriate actions are taken to resolve differences. Otherwise, the duplicate tracings of the regulation diagram are signed by the Division Commander and transmitted to the office of the project owner for filing.
(3) After full agreement has been reached in steps (1) and (2), the text of proposed regulations is prepared in final form. Copies of any diagrams involved are included for information only.
(4) A letter announcing completion of action on processing the regulations, with pertinent project data as specified in paragraph 208.11(d)(11) of 33 CFR 208.11, and one copy of the signed tracings of diagrams are forwarded to HQDA (DAEN-CWE-HW) WASH DC 20314 for promulgation and filing. The office of the Chief of Engineers will forward the pertinent project data to the Liaison Officer with the Federal Register, requesting publication in the
g. Regulations developed in accordance with 33 CFR 208.11 and applicable to projects that are not under supervision of the Bureau of Reclamation are processed in substantially the manner described above. All coordination required between the Corps of Engineers and the operating agency will be accomplished at field level.
h. Upon completion of actions listed above, Division Commanders are responsible for informing the operating agencies at field level that regulations have been promulgated.
2.
3.
(a)
(b)
(c)
(2) Freedom of Information Act, Pub. L. 87-487, 4 July 1967.
(3) ER 500-1-1.
(d)
(e)
(1) An update of the National Inventory of Dams.
(2) Inspection of the following non-Federal dams (the indicated hazard potential categories are based upon the location of the dams relative to developed areas):
(i) Dams which are in the high hazard potential category (located on Federal and non-Federal lands).
(ii) Dams in the significant hazard potential category believed by the State to represent an immediate danger to the public safety due to the actual condition of the dam.
(iii) Dams in the significant hazard potential category located on Federal lands.
(iv) Specifically excluded from the national inspection program are:
(A) Dams under the jurisdiction of the Bureau of Reclamation, the Tennessee Valley Authority, the International Boundary and Water Commission and the Corps of Engineers and
(B) Dams which have been constructed pursuant to licenses issued under the authority of the Federal Power Act, and
(C) Dams which have been inspected within the 12-month period immediately prior to the enactment of this act by a State agency and which the Governor of such State requests be excluded from inspection.
(f)
(1) To update the National Inventory of Dams by 30 September 1980.
(2) To perform the initial technical inspection and evaluation of the non-Federal dams described in paragraph 222.8(e) of this section to identify conditions which constitute a danger to human life or property as a means of expediting the correction of hazardous conditions by non-Federal interests. The inspection and evaluation is to be completed by 30 September 1981.
(3) To obtain additional information and experience that may be useful in determining if further Federal actions are necessary to assure national dam safety.
(4) Encourage the States to establish effective dam safety programs for non-Federal dams by 30 September 1981 and assist the States in the development of the technical capability to carry out such a program.
(g)
(ii) The State has the basic responsibility for the protection of the life and property of its citizens. Once a dam has been determined to be unsafe, it is the State's responsibility to see that timely remedial actions are taken.
(iii) The Corps of Engineers has the responsibility for executing the national program. The Federal program for inspection of dams does not modify the basic responsibilities of the States or dam owners. The Engineering Division of the Civil Works Directorate is responsible for overall program goals, guidance, technical criteria for inspections and inventory and headquarters level coordination with other agencies. The Water Resources Support Center (WRSC) located at Kingman Building, Fort Belvoir, Virginia 22060 is responsible for:
(A) Program Coordination of both the inventory and inspection programs.
(B) Developing and defining functional tasks to achieve program objectives.
(C) Determining resource requirements. (Budget)
(D) Compiling and disseminating progress reports.
(E) Monitoring and evaluating program progress and recommending corrective measures as needed.
(F) Collecting and evaluating data pertaining to inspection reports, dam owners' responses to inspection report recommendations, attitudes and capabilities of State officials, State dam safety legislation, Architect-Engineer performance, etc., for defining a comprehensive national dam safety program.
(G) Responding to Congressional, media, scientific and engineering organization and general public inquiries.
(2)
(h)
(1) The National Inventory of Dams should be updated and verified to include all Federal and non-Federal dams covered by the Act. Those dams are defined as all artificial barriers together with appurtenant works which impound or divert water and which: (1) Are twenty-five feet or more in height or (2) have an impounding capacity of fifty acre-feet or more. Barriers which are six feet or less in height, regardless of storage capacity or barriers which have a storage capacity at maximum water storage elevation of fifteen acre-feet or less regardless of height are not included.
(2) Inventory data for all dams shall be provided in accordance with Appendix B.
(3) The hazard potential classification shall be in accordance with paragraph 2.1.2
(4) As in the original development of the inventory, the States should be encouraged to participate in the work of completing, verifying and updating the inventory. Also, when available, personnel of other appropriate Federal agencies should be utilized for the inventory work on a reimbursable basis. Work in any State may be accomplished:
(i) Under State supervision utilizing State personnel or Architect-Engineers contracts.
(ii) Under Corps supervision utilizing Corps employees, employees of other Federal agencies or Architect-Engineer contracts.
(5) A minimum staff should be assigned in Districts and Divisions to administer and monitor the inventory activities. Generally, the work should be accomplished by architect-engineers or other Federal agency personnel under State or Corps supervision. Corps personnel should participate in the inventory only to the extent needed to assure that accurate data are collected.
(6) The National Inventory of Dams computerized data base in stored on the Boeing Computer Services (BCS) EKS computer system in Seattle, Washington. The data base uses Data Base Management System 2000 and is accessible for query by all Corps offices.
(7) Appendix B indicates details on accessing and updating inventory data.
(8) Appendix I describes the procedure for using NASA Land Satellite (LANDSAT) Multispectral Scanner data along with NASA's Surface Water Detection and Mapping (DAM) computer program to assist in updating and verifying and National Inventory of Dams.
(9) All inventory data for dams will be completed and verified utilizing all available sources of information (including LANDSAT overlay maps) and will include site visitation if required. It is the responsibility of the District Engineer to insure that the inventory of each State within his area of responsibility is accurate and contains the information required by the General Instructions for completing the forms for each Federal and non-Federal dam.
(i) [Reserved]
(j)
(1)
(i) No inspection of a dam should be initiated until the hazard potential classification of the dam has been verified to the satisfaction of the Corps. Dams in the significant hazard category should be inspected only if requested by the State and only then if the State can provide information to show that the dam has deficiencies that pose an immediate danger to the public safety. Guidance for the selection of significant category non-Federal dams on Federal lands will be given in the near future.
(ii) Selection for inspection of non-Federal dams located on Federal lands or non-Federal dams designed and constructed under the jurisdiction of some Federal agency, should be coordinated with the responsible Federal agency. The appropriate State or regional representative of the Federal agency also should be contacted to obtain all available data on the dam. Representatives of the agency may participate in the inspection if they desire and should be given the opportunity to review and comment on the findings and recommendations in the inspection report prior to submission to the Governor and the dam owner. Examples of such dams are: non-Federal dams built on lands managed by National Forest Service, Bureau of Land Management, Fish and Wildlife Service, etc.; non-Federal dams designed and constructed by the Soil Conservation Service of the U.S. Department of Agriculture; high hazard mine tailings and coal mine waste dams under the jurisdiction of the Mine Safety and Health Administration, Department of Labor.
(iii) Indian-owned dams on trust lands are considered to be non-Federal dams. All dams in the high hazard potential category will be inspected. Privately-owned dams located on Indian lands are to be included in the program, however BIA-owned dams on Indian lands are Federal dams and are exempt.
(2)
(i)
(ii)
(iii) Field investigations should be carried out in a systematic manner. A detailed checklist or inspection form should be developed and used for each dam inspection and appended to the inspection report. The size of the field inspection team should be as small as practicable, generally consisting of only one representative of each required discipline in order to control the costs of the inspection without sacrificing the quality of the inspection. The inspection team for the smaller less complex dams should be limited to two or three representatives from appropriate technical areas with additional specialists used only as special conditions warrant. The larger more complex projects may require inspection teams of three or four specialists. Performance of overly detailed and precise surveys and mapping should be avoided. Necessary measurement of spillway, dam slopes, etc. can generally be made with measuring tapes and hand levels.
(iv)
(v)
(B) Adequacy of spillway. The “Recommended Guidelines for Safety Inspection of Dams,” Appendix D, provide current, acceptable inspection standards for spillway capacity. Any spillway capacity that does not meet the criteria in the “Guidelines” is considered inadequate. When a spillway's capacity is so deficient that it is seriously inadequate, the project must be considered
(
(
(
(vi) All inspection reports will receive one level of independent review by the Corps. If the reports are prepared by the Corps, the independent review may be performed internally within the district office. However, in cases which involve significant economic, social or political impacts and technical uncertainties in evaluating the dams, advice may be obtained from the staffs of the Division Engineer and the Office, Chief of Engineers.
(3)
(ii)
(iii) In general the Governor will be responsible for public release of an inspection report and for initiating any public Statements. However, an approved report must be treated as any other document subject to release upon request under the Freedom of Information Act. The letters of transmittal to the Governor and owner should indicate that under the provisions of the Freedom of Information Act, the documents will be subject to release upon request after receipt by the Governor. Proposed final reports will be considered as internal working papers not subject to release under the Freedom of Information Act. Corps personnel, A-E contractor personnel and others working under supervision of the Corps will be cautioned to avoid public statements about the condition of the dam until after the District Engineer has approved the report. The Corps will respond fully to inquiries after the Governor has received the approved report or been notified of an unsafe dam. An information copy of the report should be sent to the District office normally having jurisdiction if other than the District responsible for the inspection.
(iv)
(4)
(5)
(k)
(l)
(2)
(m)
(1) Priority must be placed on inspection of dams and updating the national dam inventory; hence, diversion of resources to training activities should not deter or delay these principle program functions.
(2) Salaries, per diem and travel expenses relating to training activities of State employees will be a State expense. There will be no tuition charge for State employees.
(3) Architect-Engineer firms will be required to pay expenses and tuition costs for their employees participating in Corps-sponsored training activities.
(4) Corps-sponsored training will require that each trainee is a qualified engineer or geologist and will concentrate on engineering technology related directly to dam safety. (This may require screening of proposed candidates for training.)
(5) Under this program, the Corps will not sponsor training that is intended primarily to satisfy requirements for a degree.
(6) Training by participation in actual dam inspections and/or management of the inspection program should be encouraged.
To facilitate better coordination with the States, the Division Engineers are responsible for the dam inspection program by States as follows:
1. The updating of the inventory will include the completion of all items of data for all dams now included in the inventory, verification of the data now included in the inventory, and inclusion of complete data for all appropriate existing dams not previously listed. Data completion, verification and updating will be scheduled over a three year period.
2. The inventory data will be recorded on Engineering Form 4474 and 4474A (Exhibit 2). The general instructions for completing the forms are printed on the back of the forms. Parts I and II of the forms are to be fully completed. The instruction for completing Item 29, Line 5, Para. II (Engr Form 4474A) is revised to conform identically with the hazard potential classification contained in the recommended guidelines for safety inspection of dams. Additional data has been added to designate Corps districts in which the dam is located, Federal agency owned dams, Corps owned dams, Federal agency regulated dams, dams constructed with technical or financial assistance of the U.S. Soil Conservation Service, and privately owned dams located on Federal property.
3. All inventory data will be verified utilizing all available sources of information and will include site visitation if required.
4. The Inventory Data Base is stored on the Boeing Computer Services (BCS) EKS System in Seattle, Washington. The data is available to all Corps offices for queries using Data Base Management System 2000 (S2K).
a. To access the National Data Base log on BCS and type the following:
b. For current information and changes to the National Inventory Data Base, type:
5. The inventory update data will be furnished and the National Data Base will be updated on a monthly basis. The monthly submission will cover all dams whose inventory data were completed since the last report. The update data will be loaded directly onto the Boeing Computer by the field office.
a. The procedure for loading the data on the Boeing Computer can be printed by accessing the Boeing Computer and listing the information file “HOTDAM.” (See paragraph 4b. above.)
b. It is the responsibility of the submitting office to edit the data prior to furnishing it for the update. Editing will be accomplished by processing the data using the Inventory Edit Computer program developed by the Kansas City District. This procedure is described in the “HOTDAM” file.
6. Federal agencies will be uniformly designated by major and minor abbreviations according to the following list whenever applicable to Items 46 through 53. Abbreviations are to be left justified within the field with one blank separating major and minor abbreviations.
7.
a.
b.
c.
8.
a. Table 1 describes the character set to be used for keypunch cards of Engr. Forms 4474 and 4474A.
b. Exhibit 1 is the EDPC keypunch instructions and punch card formats defining the data fields (Items) and card columns to be used in preparing punched cards in compliance with the requirements of this regulation.
c. Exhibit 2 are prints of Engr. Forms 4474 and 4474A which are laid out in punch card format to facilitate punching cards directly from the completed forms.
1. Phase I inspections are not intended to provide detailed hydrologic and hydraulic analyses of dam and reservoir capabilities. However, when such analyses are available, they should be evaluated for reliability and completeness. If a project's ability to pass the appropriate flood (see Table 3, page D-12 of Recommended Guidelines) can be determined from available information of a brief study, such an assessment should be made. It should be noted that hydrologic and hydraulic analyses connected with the Phase I inspections should be based on approximate methods or systematized computer programs that take minimal effort. The Hydrologic Engineering Center (HEC) has developed a special computer program for hydrologic and hydraulic analyses to be used with the Phase I inspection program. Other Field Operating Agencies have developed similar computer programs or generalized procedures which are acceptable for use. All such efforts should be completed with minimum resources.
2. A finding that a dam will not safely pass the flood indicated in the Recommended Guidelines does not necessarily indicate that the dam should be classified as unsafe. The degree of inadequacy of the spillway to pass the appropriate flood and the probable adverse impacts of dam failure because of overtopping must be considered in making such classification. The following criteria have
a. There is high hazard to loss of life from large flows downstream of the dam.
b. Dam failure resulting from overtopping would significantly increase the hazard to loss of life downstream from the dam from that which would exist just before overtopping failure.
c. The spillway is not capable of passing one-half of the probable maximum flood without overtopping the dam and causing failure.
3. The above criteria are generally adequate for evaluating most non-Federal dams. However, in a few cases the increased hazard potential from overtopping and failure is so great as to result in catastrophic consequences. In such cases, the evaluation of condition 2c should utilize a flood more closely approximating the full probable maximum flood rather than one-half the flood. An example of such a situation would be a large dam immediately above a highly populated flood plain, with little likelihood of time for evacuation in the event of an emergency.
4. Conditions 2a and 2b require an approximation of housing location in relation to flooded areas. Resources available in Phase I inspections do not permit detailed surveys or time-consuming studies to develop such relationships. Therefore, rough estimates will generally be made from data obtained during the inspection and from readily available maps and drawings. Brief computer routings such as the HEC-1 dam break analysis, using available data, are recommended in marginal cases. The HEC-1, dam break version, is available on the Boeing Computer Services or may be obtained from the Hydrologic Engineering Center, Davis, California. Available resources do not permit detailed studies or investigations to establish the amount of overtopping that would cause a dam to fail, as designated in condition 2c. Professional judgment and available information will have to be used in these determinations. When detailed investigations and studies are required to make a reasonable judgment of the conditions which designate an unsafe dam, the inspection report should recommend that such studies be the responsibility of the dam owner.
5. During the inspection of a dam, consideration should be given to impacts on other dams located downstream from the project being inspected. When failure of a dam would be likely to cause failure of another dam(s) downstream, its designation as an unsafe dam could result in multiple impacts. Therefore, the information should be explicitly described in the inspection report. Such information may be vital to the priorities established by State Governors for dam improvements. Similarly, when the failure of an upstream dam (classified as unsafe) could cause failure of the dam being inspected, this information should be prominently displayed in the inspection report.
6. The criteria established in paragraph 2 for designating unsafe dams because of seriously inadequate spillways are considered reasonable and prudent. They provide a consistent bases for declaring unsafe dams and also serve as an effective compromise between the Recommended Guidelines and unduly low standards suggested by special interests and individuals unfamiliar with flood hazard potential.
7. The Hydrometeorological Branch (HMB) of the National Weather Service has reviewed some 500 experienced large storms in the United States. The purpose of the review was to ascertain the relative magnitude of experienced large storms to probable maximum precipitation (PMP) and their distribution throughout the country. Their review reveals that about 25 percent of the major storms have exceeded 50 percent of the probable maximum precipitation for one or more combinations of area and duration. In fact some storms have very closely approximated the PMP values. Exhibits C-1 thru C-5 indicate locations where experienced storms have exceeded 50 percent of the PMP.
8. There are several options to consider when selecting mitigation measures to avoid severe consequences of a dam failure from overtopping. The following measures may be required by a Governor when sufficient legal authority is available under State laws and a dam presents a serious threat to loss of life.
a. Remove the dam.
b. Increase the height of dam and/or spillway size to pass the probable maximum flood without overtopping the dam.
c. Purchase downstream land that would be adversely impacted by dam failure and restrict human occupancy.
d. Enhance the stability of the dam to permit overtopping by the probable maximum flood without failure.
e. Provide a highly reliable flood warning system (generally does not prevent damage but avoids loss of life).
The recommended guidelines for the safety inspection of dams were prepared to outline principal factors to be weighed in the determination of existing or potential hazards and to define the scope of activities to be undertaken in the safety inspection of dams. The establishment of rigid criteria or standards is not intended. Safety must be evaluated in the light of peculiarities and local conditions at a particular dam and in recognition of the many factors involved, some of which may not be precisely known. This can only be done by competent, experienced engineering judgment, which the guidelines are intended to supplement and not supplant. The guidelines are intended to be flexible, and the proper flexibility must be achieved through the employment of experienced engineering personnel.
Conditions found during the investigation which do not meet guideline recommendations should be assessed by the investigator as to their import from the standpoint of the involved degree of risk. Many deviations will not compromise project safety and the investigator is expected to identify them in this manner if that is the case. Others will involve various degrees of risk, the proper evaluation of which will afford a basis for priority of subsequent attention and possible remedial action.
The guidelines present procedures for investigating and evaluating existing conditions for the purpose of identifying deficiencies and hazardous conditions. The two phases of investigation outlined in the guidelines are expected to accomplish only this and do not encompass in scope the engineering which will be required to perform the design studies for corrective modification work.
It is recognized that some States may have established or will adopt inspection criteria incongruous in some respects with these guidelines. In such instances assessments of project safety should recognize the State's requirements as well as guideline recommendations.
The guidelines were developed with the help of several Federal agencies and many State agencies, professional engineering organizations, and private engineers. In reviewing two drafts of the guidelines they have contributed many helpful suggestions. Their contributions are deeply appreciated and have made it possible to evolve a document representing a consensus of the engineering fraternity. As experience is gained with use of the guidelines, suggestions for future revisions will be generated. All such suggestions should be directed to the Chief of Engineers, U.S. Army, DAEN-CWE-D, Washington, D.C. 20314.
1.1.
1.2.
1.3.
2.1.
2.1.1.
2.1.2.
2.2.
2.3.
2.4.
3.1.
3.2.
3.3.
3.4.
3.4.1. Particular attention should be given to detecting evidence of leakage, erosion, seepage, slope instability, undue settlement, displacement, tilting, cracking, deterioration, and improper functioning of drains and relief wells. The adequacy and quality of maintenance and operating procedures as they pertain to the safety of the dam and operation of the control facilities should also be assessed.
3.4.2. Photographs and drawings should be used freely to record conditions in order to minimize descriptions.
3.4.3. The field inspection should include appropriate features and items, including but not limited to those listed in Appendix II, which may influence the safety of the dam or indicate potential hazards to human life or property.
3.5.
3.5.1.
3.5.2.
3.6.
3.6.1.
3.6.2.
3.6.3.
3.6.4.
4.1.
4.2.
4.3.
4.3.1.
4.3.1.1.
4.3.1.2.
4.3.2.
4.3.3.
4.3.4.
4.4
4.4.1
4.4.2.
4.4.2.1.
4.4.2.2.
4.4.3.
4.4.3.1.
4.4.3.2.
4.4.3.3.
4.4.3.4.
The factors of safety listed in Table 4 are recommended as minimum acceptable. Final accepted factors of safety should depend upon the degree of confidence the investigating engineer has in the engineering data
4.4.3.5.
4.4.3.6.
Where a factor of safety less than 1.5 is obtained the provision of an underseepage control system is indicated. The factor of safety of 1.5 is a recommended minimum and may be adjusted by the responsible engineer based on the competence of the engineering data.
4.4.4.
4.4.4.1.
4.4.4.2.
4.4.4.3.
4.4.4.4.
4.4.4.5.
4.4.4.5.1.
For sliding downhill the angle α is negative and Equation (1) becomes:
When the plane of investigation is horizontal, and the angle α is zero and Equation (1) reduced to the following:
4.4.4.5.2.
When considering cross-bed shear through a relatively shallow, competent rock strut, without adverse jointing or faulting, W and α may be taken at zero and 45°, respectively, and an estimate of passive wedge resistance
4.4.4.5.3.
When the downstream passive wedge contributes to the sliding resistance, the shear friction safety factor formula becomes:
The above direct superimposition of passive wedge resistance is valid only if shearing rigidities of the foundation components are similar. Also, the compressive strength and buckling resistance of the downstream rock layer must be sufficient to develop the wedge resistance. For example, a foundation with closely spaced, near horizontal, relatively weak seams might not contain sufficient buckling strength to develop the magnitude of wedge resistance computed from the cross-bed shear strength. In this case wedge resistance should not be assumed without resorting to special treatment (such as installing foundation anchors). Computed sliding safety factors approximating 3 or more for all loading conditions without earthquake, and 1.5 including earthquake, should indicate satisfactory stability, depending upon the reliability of the strength parameters used in the analyses. In some cases when the results of comprehensive foundation studies are available, smaller safety factors may be acceptable. The selection of shear strength parameters should be fully substantiated. The bases for any assumptions; the results of applicable testing, studies and investigations; and all pre-existing, pertinent data should be reported and evaluated.
5.1.
5.2.
5.2.1.
5.2.1.1. Description of dam including regional vicinity map showing location and plans, elevations and sections showing the essential project features and the size and hazard potential classifications.
5.2.1.2. Summary of existing engineering data, including geologic maps and information.
5.2.1.3. Results of the visual inspection of each project feature including photographs and drawings to minimize descriptions.
5.2.1.4. Evaluation of operational adequacy of the reservoir regulation plan and maintenance of the dam and operating facilities and features that pertain to the safety of the dam.
5.2.1.5. Description of any warning system in effect.
5.2.1.6. Evaluation of the hydraulic and hydrologic assumptions and structural stability.
5.2.1.7. An assessment of the general condition of the dam with respect to safety based upon the findings of the visual inspection and review of engineering data. Where data on the original design indicate significant departure from or non-conformance with guidelines contained herein, the engineer-in-charge of the investigation will give his opinion of the significance, with regard to safety, of such factors. Any additional studies, investigations and analyses considered essential to assessment of the safety of the dam should be listed, together with an opinion about the urgency of such additional work.
5.2.1.8. Indicate alternative possible remedial measures or revisions in operating and maintenance procedures which may (subject to further evaluation) correct deficiencies and hazardous conditions found during the investigation.
5.2.2.
5.2.2.1. Summary of additional engineering data obtained to determine the hydraulic and hydrologic capabilities and/or structural stability.
5.2.2.2. Results of all additional studies, investigations, and analyses performed.
5.2.2.3. Technical assessment of dam safety including deficiences and hazardous conditions found to exist.
5.2.2.4. Indicate alternative possible remedial measures or revision in maintenance and operating procedures which may (subject
This appendix lists engineering data which should be collected from project records and, to the extent available, included in the
1.
a.
b.
2.
a. Drainage area and basin runoff characteristics (indicating pending changes).
b. Elevation of top of conservation pool or normal upper retention water surface elevation, as applicable (base level of any flood impoundment).
c. Storage capacity including dead or inactive storage, corresponding to top of conservation or normal upper retention level (cumulative, excluding flood control and surcharge storage).
d. Elevation of the top of flood control pool.
e. Storage capacity of flood control zone (incremental).
f. Elevation of maximum design pool (corresponding to top of surcharge storage or spillway design flood).
g. Storage capacity of surcharge zone (incremental, above top of flood control pool or, above normal upper retention level if flood control space not provided).
h. Height of freeboard (distance between maximum design flood water surface and top of dam).
i. Elevation of top of dam (lowest point of embankment or non-overflow structure).
j. Elevation of crest, type, width, crest length and location of spillways (number, size and type of gates if controlled).
k. Type, location, entrance and exit inverts of outlet works and emergency drawdown facilities (number, size and shape of conduits and gates, including penstocks and sluices).
l. Location, crest elevation, description of invert and abutments (concrete, rock, grass, earth) and length of limited service and emergency spillways.
m. Location and dscription of flashboards and fuse plugs, including hydraulic head (pool elevation) and other conditions required for breaching, along with the assumed results of breaching.
n. Location and top elevation of dikes and floodwalls (overflow and non-overflow) affected by reservoir. Include information on low reaches of reservoir rim.
o. Type, location, observations and records of hydrometeorological gages appurtenant to the project.
p. Maximum non-damaging discharge, or negligible damage rate, at potential damage locations downstream.
3.
4.
5.
6.
7.
8.Water Control Plan including regulation plan under normal conditions and during flood events or other emergency conditions. The availability of dam tenders, means of communication between dam tenders and authority supervising water control, and method of gate operation (manual, automatic, or remote control) should be included. Flood warning systems should be described in sufficient detail to enable assessment of their reduction in the flood hazard potential.
9.
a. Summary of past major flood events including any experiences that presented a serious threat to the safety of the project or to human life or property. The critical project feature, date and duration of event, causative factor, peak inflow and outflow, maximum elevation of water surface, wind and wave factors if significant, issuance of alert or evacuation warnings and adequacy of project feature involved should be included in the summary of past experience of serious threat to the safety of the project.
b. Records of performance observations including instrumentation records.
c. List of any known deficiencies that pose a threat to the safety of the dam or to human life or property.
d. History of previous failures or deficiencies and pending remedial measures for correcting known deficiencies and the schedule for accomplishing remedial measures should be indicated.
10.
11.
12.
a.
(1) Quantity, time and area distribution, and reference source of depth-area-duration data of spillway design storm precipitation (point precipitation if applicable).
(2) Maximum design flood inflow hydrograph including loss rates (initial and average for design flood conditions) and time of runoff concentration of reservior watershed (peak inflow only when applicable).
(3) Maximum design flood outflow hydrograph (maximum outflow only when applicable).
(4) Discharge-frequency relationship, preferably at damsite, including estimated frequency of spillway design flood for small dams, when appropriate.
(5) Reservior area and storage capacity versus water surface elevation (table or curves).
(6) Rating curves (free flow and partial gate openings) for all discharge facilities contributing to the maximum design flood outflow hydrograph. Also a composite-rating of all contributing facilities, if appropriate.
(7) Tailwater rating curve immediately below damsite including elevation corresponding to maximum design flood discharge and approximate nondamaging channel capacity.
(8) Hydrologic map of watershed above damsite including reservior area, watercourse, elevation contours, and principal stream-flow and precipitation gaging stations.
b.
c.
This appendix provides guidance for performing field inspections and may serve as the basis for developing a detailed checklist for each dam.
1.
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
2.
a.
b.
c.
d.
e.
3.
a.
b.
c.
d.
4.
a.
b.
c.
d.
e.
f.
5.
a.
b.
c.
d.
e.
f.
6.
a.
b.
c.
d.
7.
8.
a.
b.
Name of Dam
ID Number from Inventory
State, County and River or Stream where dam is located
Owner
Size and Hazard Classification
Names of Inspectors
Names of Review Board
Approval Signature of District Engineer
Give brief assessment of general condition of dam with respect to safety, including a listing of deficiencies, and recommendations indicating degree of urgency.
a. Authority
b. Purpose and Scope of Inspection
a. Site Information
b. Description of Structures—Dam, Outlet, Spillway and other principal features.
c. Purpose of Dam
d. Design, Construction and Operating History
Briefly describe physical condition of the dam and appurtenant structures as they were observed during the field inspection. (If field inspection form is appended, only present summary.) Describe operational procedures, including any warning system, condition of operating equipment, and provision for emergency procedures. Describe any pertinent observations of the reservoir area and downstream channel adjacent to dam.
a. Structural and Geotechnical
(1) General
(2) Embankment and/or Foundation Condition
(3) Stability—Briefly discuss pertinent information such as design, construction and operating records. Assess stability under maximum loading on basis of the record data, together with observations of field inspection and results of any additional, brief calculations performed by inspectors. If additional, detailed stability analyses are considered necessary, recommend that the owner engage a qualified engineer or firm to provide the analysis.
b. Hydrologic and Hydraulic
(1) Spillway Adequacy—Briefly describe pertinent record information such as hydrologic and hydraulic design data, flood of record, and previous analyses. Describe any hydraulic and hydrologic analyses made for this inspection. Present conclusion with respect to adequacy of spillway to pass the recommended spillway design flood without overtopping dam. If overtopping would occur, and if available from the type of analysis used, give maximum depth over top of dam and duration of overtopping, assuming the dam does not fail. Also indicate the largest flood, as a percentage of the probable maximum flood which can be passed without overtopping.
(2) Effects of overtopping—If dam is overtopped by the recommended spillway design flood, provide assessment as to whether or not dam would likely fail, and if, in case of failure, the hazard to loss of life downstream of the dam would be substantially increased over that which would exist without failure. If information upon which to base a reasonable assessment is insufficient, so state and describe the needed data, and recommend that the necessary studies be performed by engineers engaged by the owner.
c. Operation and Maintenance
Assess operating equipment and procedures, emergency power for gate operation, and Emergency Action Plan. Assess quality of maintenance as it pertains to dam safety.
Provide conclusions on condition of dam and list all deficiencies. If dam is considered unsafe, so state and give reason.
List all recommended actions, including additional studies, installation of new surveillance procedures and devices, development of Emergency Action Plans, and remedial work. Recommend that a qualified engineering firm be retained to accomplish any recommended additional investigations and studies and also to design and supervise remedial works.
a. Inspection Checklist (if available)
b. Other Illustrations as follows:
(1) Include a map showing location of the dam. Usually a portion of a USGS quadrangle sheet can be used which will show the topography of the area, location of the dam, exent of the lake and drainage basin, and perhaps indicate the downstream development.
(2) If available, include a plan and section of the dam.
(3) General photographs of the dam and downstream channel should be included.
(4) Color photographs of deficiencies should be included. These should be held to the minimum required to illustrate the deficiencies.
(5) Available engineering data including Hydrologic/Hydraulic calculation and physical test results that might be available.
The indicated information shall be provided in the format shown on Pg F-3 for each dam assessed to be unsafe during the reporting period. A separate data sheet should be provided for each unsafe dam. The information supplied should conform to the following.
a.
b.
c.
d.
e.
f.
g.
h.
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k.
l.
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o.
a.
b.
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d.
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f.
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m.
1. Division Reporting:
2. Date:
3. Information Required for Each State Regarding Total Number of Inspections Performed (AE Inspections included) (Cumulative):
3.1. Number of Inspections Initiated by on-site inspection or the review of engineering data from project records.
3.2. Number of Inspections Competed (The number of inspection reports which have been submitted to the District Engineer for review and approval).
3.3 Number of Dams Reported to the Governor as Unsafe.
3.4. Number of Approved Inspection Reports Submitted to the Governor.
4. Information Required for Each State Regarding Inspections Performed Under AE Contracts (Cumulative):
4.1. Number of Dams Contracted for Inspection by AE's with State or Corps.
4.2. Number of Inspections Initiated by AE's by on-site inspection or the review of engineering data from project records.
4.3. Number of Inspections Completed by AE's (The number of inspection reports which have been submitted to the District Engineer for review and approval).
4.4. Number of Approved Inspection Reports Prepared by AE's Submitted to the Governor.
1. Division Reporting:
2. Date:
3. Information Required for Each State Regarding Total Number of Inspections Performed (Cumulative):
4. Information Required for Each State Regarding Inspections Performed Under A/E Contracts (Cumulative):
1.
2.
a. All information pertaining to each dam to be inspected as contained in the National Inventory of Dams.
b. Copies of recommended format for preparation of inspection report, engineering data check list and visual inspection check list.
c. All available pertinent information pertaining to the Dam Inspection Program and previous investigations having a bearing on inspections to be performed under this contract.
d. Right-of-entry for access to each dam site.
3.
a.
(1)
(2)
Particular attention shall be given to detecting evidence of leakage, erosion, seepage, slope instability, undue settlement, displacement, tilting, cracking, deterioration, and improper functioning of drains and relief wells. The degree and quality of maintenance and regulating procedures for operation of the control facilities shall be assessed. The design and existing condition of such control facilities (
(3)
(a)
(b)
(c)
(d)
b.
c.
d.
4.
5.
*
6.
a. Each inspection report will be submitted for review to the Contracting Officer. Reports will be revised as required by the Contracting Officer. After all revisions have been made, the original and __ copies of each inspection report shall be submitted to the Contracting Officer.
b. Text of all reports shall be typewritten and printed on both sides of 8″×10
7.
a. All inspections and reports included under this contract shall be completed within __ days from date of Notice to Proceed.
b. If the option for performing an H&H analysis for any particular site is exercised, the AE shall complete such analysis within __ days from date of Notice to Proceed. However, the overall completion time stated in paragraph 7a above shall not change.
1.
2.
3.
4.
5.
6.
b. Request for exceptions should be documented to include firm boundary definitions and appropriate justification to demonstrate why the procedure cannot be used. This request should be submitted to WRSC WASH DC 20314, through the normal engineering chain of command.
c. Map overlays will be produced for all areas of the Continental United States even if they are not used in a few selected regions. This processing is required for a future Computer Water Body Change Detection system.
7.
8.
b. Regional Centers are responsible for:
(1) Acquiring proper LANDSAT data tape from EROS Data Center (Sioux Falls, South Dakota). Actual data scene selection will be coordinated with Division and/or District to insure proper consideration is given to local priorities and seasonal coverage.
(2) Arranging computer processing support using NASA's DAM package.
(3) Establishing proper control between satellite scanner-oriented coordinates and earth latitude/longitude.
(4) Producing total coverage of map overlays at a scale of 1:24,000 and/or smaller scales as required by Divisions and/or Districts.
(5) Instructing District, State, or contractor personnel in the assembly and use of map overlays.
c. Divisions/Districts are responsible for:
(1) Designating one person from each Division and District as the point of contact with the Regional Center and provide this person's name and phone number to the Regional Center.
(2) Providing the Regional Center with map coverage of their area of responsibility. This will include state indexes and 7
(3) Coordinating with the Regional Center in selecting LANDSAT data tapes.
(4) Providing information to Regional Center on scale and priorities of desired computer produced map overlays.
(5) Assembling computer print-outs into overlay maps, and using as appropriate to assist in verification and updating the National Inventory of Dams.
9.
(a)
(b)
(c)
(1) To provide oversight and guidance during the development of basin-wide management plans for Mississippi River Basin projects for which the U.S. Army Corps of Engineers has operation/regulation responsibilities.
(2) To serve as a forum for resolution of water control problems among U.S. Army Corps of Engineers Divisions within the Mississippi River Basin when agreement is otherwise unobtainable.
(d)
(e)
(1) Oversight of procedures for maintaining and improving inter-divisional coordination of water control management activities within the Mississippi River Basin.
(2) Oversight of the development and use of facilities (physical and computer models, Automatic Data Processing Equipment, and communications and information dissemination networks) needed to provide the best obtainable water control system for the entire Mississippi River Basin, utilizing the coordinated capabilities of projects now in operation and scheduled to be placed in operation in the reasonably near future.
(3) Oversight of basin-wide operating/regulation plans for U.S. Army Corps of Engineers projects in the Mississippi River Basin.
(4) Periodic reports to the Chief of Engineers regarding the Board's activities and its plans.
(f)
(1) The Board meets periodically to review past activities and project operations, and to discuss new or revised basin-wide operating/regulation plans.
(2) The Board acts on all proposals for (temporary or permanent) deviation from approved basin-wide operating plans.
(3) The Board provides instructions to committees under its jurisdiction and reviews their recommendations for improvements in basin-wide water control management.
(g)
(h)
National Environmental Policy Act (NEPA) (42 U.S.C. 4321
This regulation provides guidance for implementation of the procedural provisions of the National Environmental Policy Act (NEPA) for the Civil Works Program of the U.S. Army Corps of Engineers. It supplements Council on Environmental Quality (CEQ) regulations 40 CFR parts 1500 through 1508, November 29, 1978, in accordance with 40 CFR 1507.3, and is intended to be used only in conjunction with the CEQ regulations. Whenever the guidance in this regulation is unclear or not specific the reader is referred to the CEQ regulations. Appendix A provides guidance on processing NEPA documents except for those concerning regulatory actions. Appendix C (formally ER 200-2-1) has been added to provide guidance on preparing and processing a notice of intent to prepare an EIS for publication in the
This regulation is applicable to all HQUSACE elements and all Field Operating Activities (FOAs) having responsibility for preparing and processing environmental documents in support of Civil Works functions.
(a) Executive Order 12291, Federal Regulation, February 17, 1981 (46 FR 13193, February 19, 1981).
(b) Executive Order 12114, Environmental Effects Abroad of Major Federal Actions, January 4, 1979 (44 FR 1957, January 9, 1979).
(c) Clean Water Act (formerly known as the Federal Water Pollution Control Act) 33 U.S.C. 1344 (hereinafter referred to as section 404).
(d) Endangered Species Act of 1973, as amended, 16 U.S.C. 1531
(e) Environmental Effects Abroad of Major Department of Defense Actions; Policies and Procedures 32 CFR part 197 (44 FR 21786-92, April 12, 1979).
(f) Fish and Wildlife Coordination Act, 16 U.S.C. 661
(g) National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321
(h) National Historic Preservation Act of 1966, as amended, 16 U.S.C. 470
(i) “Regulations for Implementing the Procedural Provisions of the National Environmental Policy Act of 1969,” (40 CFR parts 1500 through 1508, November 29, 1978), Council on Environmental Quality.
(j) Economic and Environmental Principles and Guidelines for Water and Related Land Resource Implementation Studies (48 CFR parts 10249 through 10258, March 10, 1983).
(k) Regulatory Programs of the Corps of Engineers 33 CFR parts 320 through 330, and 334.
(l) CEQ Information Memorandum to Agencies Containing Answers to 40 Most Asked Questions on NEPA Regulations (46 FR 34263-68, July 28, 1983).
(m) ER 310-1-5. Federal Register Act Requisitioning.
(n) ER 1105-2-10 thru 60. Planning Regulations.
Refer to 40 CFR part 1508; other definitions may be found in the references given above.
The district commander is the Corps NEPA official responsible for compliance with NEPA for actions within district boundaries. The district commander also provides agency views on other agencies' environmental impact statements (EIS). The Office of Environmental Policy HQUSACE (CECW-
Actions normally requiring an EIS are:
(a) Feasibility reports for authorization and construction of major projects;
(b) Proposed changes in projects which increase size substantially or add additional purposes; and
(c) Proposed major changes in the operation and/or maintenance of completed projects.
District commanders may consider the use of an environmental assessment (EA) on these types of actions if early studies and coordination show that a particular action is not likely to have a significant impact on the quality of the human environment.
Actions normally requiring an EA, but not an EIS, are listed below:
(a)
(b)
(c)
(1) Section 205, Small Flood Control Authority;
(2) Section 208, Snagging and Clearing for Flood Control Authority;
(3) Section 107, Small Navigation Project Authority;
(4) Section 103, Small Beach Erosion Control Project Authority; and
(5) Section 111, Mitigation of Shore Damages Attributable to Navigation Projects.
(d)
(e)
(2) Disposal of real property for public port and industrial purposes.
(3) Grants of leases or easements for other than minor oil and gas transmission lines, electric power transmission lines, road and highway rights-of-way, and sewage or water treatment facilities and land fills.
In responding to emergency situations to prevent or reduce imminent risk of life, health, property, or severe economic losses, district commanders may proceed without the specific documentation and procedural requirements of other sections of this regulation. District commanders shall consider the probable environmental consequences in determining appropriate emergency actions and when requesting approval to proceed on emergency actions, will describe proposed NEPA documentation or reasons for exclusion from documentation. NEPA documentation should be accomplished prior to initiation of emergency work if time constraints render this practicable. Such documentation may also be accomplished after the completion of emergency work, if appropriate. Emergency actions include Flood Control and Coastal Emergencies Activities pursuant to Pub. L. 84-99, as amended, and projects constructed under sections 3 of the River and Harbor Act of 1945 or 14 of the Flood Control Act of 1946 of the Continuing Authorities Program. When possible, emergency actions considered major in
Actions listed below when considered individually and cumulatively do not have significant effects on the quality of the human environment and are categorically excluded from NEPA documentation. However, district commanders should be alert for extraordinary circumstances which may dictate the need to prepare an EA or an EIS. Even though an EA or EIS is not indicated for a Federal action because of a “categorical exclusion”, that fact does not exempt the action from compliance with any other Federal law. For example, compliance with the Endangered Species Act, the Fish and Wildlife Coordination Act, the National Historic Preservation Act, the Clean Water Act, etc., is always mandatory, even for actions not requiring an EA or EIS.
(a) For a period of one year from the effective date of these regulations, district commanders should maintain an information list on the type and number of categorical exclusion actions which due to extraordinary circumstances triggered the need for an EA and finding of no significant impact (FONSI) or an EIS. If a district commander determines that a categorical exclusion should be modified, the information will be furnished to the division commander, who will review and analyze the actions and circumstances to determine if there is a basis for recommending a modification to the list of categorical exclusions. HQUSACE (CECW-RE) will review recommended changes for Corps-wide consistency and revise the list accordingly. See 33 CFR part 325, appendix B for categorical exclusions for regulatory actions.
(b) Activities at completed Corps projects which carry out the authorized project purposes. Examples include routine operation and maintenance actions, general administration, equipment purchases, custodial actions, erosion control, painting, repair, rehabilitation, replacement of existing structures and facilities such as buildings, roads, levees, groins and utilities, and installation of new buildings utilities, or roadways in developed areas.
(c) Minor maintenance dredging using existing disposal sites.
(d) Planning and technical studies which do not contain recommendations for authorization or funding for construction, but may recommend further study. This does not exclude consideration of environmental matters in the studies.
(e) All Operations and Maintenance grants, general plans, agreements, etc., necessary to carry out land use, development and other measures proposed in project authorization documents, project design memoranda, master plans, or reflected in the project NEPA documents.
(f) Real estate grants for use of excess or surplus real property.
(g) Real estate grants for Government-owned housing.
(h) Exchanges of excess real property and interests therein for property required for project purposes.
(i) Real estate grants for rights-of-way which involve only minor disturbances to earth, air, or water:
(1) Minor access roads, streets and boat ramps.
(2) Minor utility distribution and collection lines, including irrigation.
(3) Removal of sand, gravel, rock, and other material from existing borrow areas.
(4) Oil and gas seismic and gravity meter survey for exploration purposes.
(j) Real estate grants of consent to use Government-owned easement areas.
(k) Real estate grants for archeological and historical investigations compatible with the Corps Historic Preservation Act responsibilities.
(l) Renewal and minor amendments of existing real estate grants evidencing authority to use Government-owned real property.
(m) Reporting excess real property to the General Services Administration for disposal.
(n) Boundary line agreements and disposal of lands or release of deed restrictions to cure encroachments.
(o) Disposal of excess easement interest to the underlying fee owner.
(p) Disposal of existing buildings and improvements for off-site removal.
(q) Sale of existing cottage site areas.
(r) Return of public domain lands to the Department of the Interior.
(s) Transfer and grants of lands to other Federal agencies.
(a)
(b)
(c)
A FONSI shall be prepared for a proposed action, not categorically excluded, for which an EIS will not be prepared. The FONSI will be a brief summary document as noted in 40 CFR 1508.13. In the case of feasibility, continuing authority, or special planning reports and certain planning/engineering reports, the draft FONSI and EA should be included within the draft report and circulated for a minimum 30-day review to concerned agencies, organizations and the interested public (40 CFR 1501.4(e)(2)). In the case of operation and maintenance activities involving the discharge of dredged or fill material requiring a public notice, the notice will indicate the availability of the EA/FONSI. For all other Corps project actions a notice of availability of the FONSI will be sent to concerned agencies, organizations and the interested public (40 CFR 1501.4(e)(1)).
As soon as practicable after a decision is made to prepare an EIS or supplement, the scoping process for the draft EIS or supplement will be announced in a notice of intent. Guidance on preparing a notice of intent to prepare an EIS for publication in the
An EIS for feasibility or continuing authority reports and certain planning/engineering reports may be combined with or integrated into the report in accordance with 40 CFR 1500.4(o) and 1506.4. An EIS combined with the report shall follow the format in 40 CFR 1502.10, follow the main report, use colored paper and not be an attachment or appendix. An EIS integrated within the report may follow the instructions in the last paragraph of 40 CFR 1502.10. Additional guidance on combining and integrating EISs is located in ER 1105-2-60. Where the EIS is not combined with or integrated into the project document, the EIS shall be a separate document and follow the format in 40 CFR 1502.10. CEQ regulations suggest maximum lengths for the text of an EIS at
(a)
(b)
(c)
(d)
A record of decision shall be prepared by the district commander, in accordance with 40 CFR 1505.2, for the signature of the final decisionmaker as prescribed by applicable Corps regulations. Procedures implementing the decision are discussed in 40 CFR 1505.3. Incoming letters of comment on the final EIS will be furnished for review by the decisionmaker who signs the record of decision. For example, the record of decision for feasibility reports will be signed by the ASA(CW) at the time the report is transmitted to Congress for authorization.
See 40 CFR 1505.2(c) and 1505.3. District commanders shall, upon request from interested agencies or the public, provide reports on the progress and status of required mitigation and other provisions of their decisions on Corps
Lead agency, joint lead agency, and cooperating agency designation and responsibilities are covered in 40 CFR 1501.5 and 1501.6. The district commander is authorized to enter into agreements with regional offices of other agencies as required by 40 CFR 1501.5(c). District or division commanders will consult with HQUSACE (CECW-RE), WASH DC 20314-1000 prior to requesting resolution by CEQ as outlined by 40 CFR 1501.5 (e) and (f).
(a)
(b)
Five copies of draft, final and supplement EISs should be sent to: Director, Office of Federal Activities (A-104), Environmental Protection Agency, 401 M Street SW., Washington, DC 20460. District commanders should file draft EISs and draft supplements directly with EPA. Final EISs and final supplements should be filed by appropriate elements within HQUSACE for feasibility and reevaluation reports requiring Congressional authorization. Division commanders should file final EISs and final supplements for all other Corps actions except for final EISs or final supplements for permit actions which should be filed by the district commander after appropriate reviews by division and the incorporation of division's comments in the EIS. HQUSACE and/or division will notify field office counterparts when to circulate the final EIS or final supplement and will file the final document with EPA after notified that distribution of the document has been accomplished.
(a)
(b)
Draft and final EISs and supplements will be available to the public as provided in 40 CFR 1502.19 and 1506.6. A summary may be circulated in lieu of the EIS, as provided in 40 CFR 1502.19,
District commanders shall request comments as set forth in 40 CFR 1503 and 1506.6. A lack of response may be presumed to indicate that the party has no comment to make.
(a)
(b)
(c)
(d)
(e)
See 40 CFR 1506.2.
See 40 CFR 1506.3. A district commander will normally adopt another Federal agency's EIS and consider it to be adequate unless the district commander finds substantial doubt as to technical or procedural adequacy or omission of factors important to the Corps decision. In such cases, the district commander will prepare a draft and final supplement noting in the draft supplement why the EIS was considered inadequate. In all cases, except
See 40 CFR 1506.1.
See 40 CFR part 1504. If the district commander determines that a predecision referral is appropriate, the case will be sent through division to reach CECW-RE not later than 15 days after the final EIS was filed with EPA. Corps actions referred to CEQ by another Federal agency shall be transmitted to CECW-RE for further guidance. See paragraph 19, 33 CFR part 325, appendix B, for guidance on predecision referrals affecting regulatory permit actions.
The timing and processing of NEPA documents in relation to major decision points are addressed in paragraphs 11 and 14 and appendix A for studies and projects and 33 CFR part 320 through 330 for regulatory actions.
See 40 CFR 1502.25.
(a) For Federal projects, NEPA documents shall be prepared concurrently with and utilize data from analyses required by other environmental laws and executive orders. A listing of environmental laws and orders is contained in table 3.4.3 of Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies. Reviews and consultation requirements, analyses, and status of coordination associated with applicable laws, executive orders and memoranda will be summarized in the draft document. The results of the coordination completed or underway pursuant to these authorities will be summarized in the final document. Where the results of the ongoing studies are not expected to materially affect the decision on the proposed action, the filing of the final EIS need not be delayed.
(b)
(1) The district commander through the division commander will notify CECW-PE, PN, PS or PW as appropriate, of an impending action which may impact on another country and for which environmental studies may be necessary to determine the extent and significance of the impact. The district commander will inform CECW-P whether entry into the country is necessary to study the base condition.
(2) CECW-P will notify the State Department, Office of Environment and Health (OES/ENH) of the district commander's concern, and whether a need exists at this point to notify officially the foreign nation of our intent to study potential impacts. Depending on expected extent and severity of impacts, or if entry is deemed necessary, the matter will be referred to the appropriate foreign desk for action.
(3) As soon as it becomes evident that the impacts of the proposed actions are considered significant, CECW-P will notify the State Department. The State Department will determine whether the foreign embassy needs to be notified, and will do so if deemed appropriate, requesting formal discussions on the matter. When the International Joint Commission (IJC) or the International Boundary and Water Commission, United States and Mexico (IBWC) is involved in a study, the State Department should be consulted to determine the foreign policy implications of any action and the proper course of action for formal consultations.
(4) Prior to public dissemination, press releases or reports dealing with impact assessments in foreign nations should be made available to the appropriate foreign desk at the State Department for clearance and coordination with the foreign embassy.
(a)
(b)
NEFA documents for Civil Works activities other than permits will be processed in accordance with the instructions contained in this appendix and applicable paragraphs in the regulation.
a.
b.
c.
d.
e.
a.
b.
c.
a.
b.
c.
d.
4.
1.
2.
3.
a. A brief transmittal letter inclosing three (3) signed copies of the notice of intent should be processed through local Chief, Information Management channels to: HQDA, SFIS-APP, ATTN: Department of the Army Liaison Officer with the Office of the Federal Register, Alexandria, VA 22331-0302. This office will review and correct (if needed) all documents prior to publication in the
b. The notice must be signed by the official issuing the document along with the signer's typed name, rank and position title for military officials or name and position title for civilian officials. A signer cannot sign “as acting” or “for” if another name is shown in the signature block. All three copies sent forward must be signed in ink. A xerox copy of the signature is not allowed.
c. A six-digit billing code number must be typed or handwritten in ink at the top of the first page on all three copies of a notice. This billing code number can be found on GPO bills, GPO Form 400, in the upper left corner opposite the address. The billing code number will be indicated as 3710-XX. FOAs must submit an open-end printing and binding requisition, Standard Form 1, each fiscal year to cover
4.
Intent To Prepare A Draft Environment Impact Statement (DEIS) For a Proposed (
Agency: U.S. Army Corps of Engineers, DoD.
Action: Notice of Intent.
Summary: The summary should briefly state in simple language what action is being taken, why the action is necessary, and the intended effect of the action. Extensive discussion belongs under the Supplementary Information caption.
For Further Information Contact: Questions about the proposed action and DEIS can be answered by: (Provide name, telephone number, and address of the person in the district or division who can answer questions about the proposed action and the DEIS).
Supplementary Information: The Supplementary Information should contain the remainder of the necessary information of the document. It should contain any authority citation,
1. Briefly describe the proposed action.
2. Briefly describe reasonable alternatives.
3. Briefly describe the Corps' scoping process which is reasonably foreseeable for the DEIS under consideration. The description:
a. Shall discuss the proposed public involvement program and invite the participation of affected Federal, state and local agencies, affected Indian tribes, and other interested private organizations and parties.
b. Shall identify significant issues to be analyzed in depth in the DEIS.
c. May discuss possible assignments for input into the EIS under consideration among the lead and cooperating agencies.
d. Shall identify other environmental review and consultation requirements.
4. Indicate whether or not a scoping meeting will be held. Indicate time, date and location if a meeting is scheduled.
5. Provide an estimated date when the DEIS will be made available to the public.
• Text to be double-spaced. Use block format.
• Place local billing code number at the top of the first page on all three copies.
• Margins—one inch on top, bottom and right side; and one and one-half inches on the left side.
• Pages must be numbered consecutively.
• Text should be typed on one side only.
• Use 8
Pub. L. 738, 74th Cong.; Pub. L. 89-72; Pub. L. 91-190.
This regulation provides guidance for including Environmental Quality (EQ) measures in Corps of Engineers water resource development plans.
This regulation is applicable to all OCE elements and field operating activities having Civil Works responsibilities.
(a) PL 89-72
(b) ER 1105-2-10
(c) ER 1105-2-200
(a) The role of the Corps of Engineers in the development of water and related land resources has gradually broadened over the past century. Starting with the development of navigation on the Mississippi River in 1824, the Corps role has grown to encompass, among others, flood control, beach erosion control and hurricane protection, hydroelectric power, recreation, water supply, water quality, fish and wildlife and low-flow augmentation. Laws, executive orders, and national policies promulgated in the past decade require that the quality of the environment be protected and, where possible, enhanced as the nation grows. As a result, the Federal role in EQ, including the Corps, has continued to broaden. Balancing economic and environmental interests is a major requirement to be considered in the planning of all Corps projects.
(b) Enhancement of the environment is an objective of Federal water resource programs to be considered in the planning, design, construction, and operation and maintenance of projects. Opportunities for enhancement of the environment are sought through each
(c) The 1105-2-200 series of Engineer Regulations describe the procedures to be followed in developing water resource plans. These procedures require the establishment of planning objectives (generally encompassing a combination of National Economic Development (NED) and EQ outputs), and evaluation of alternative plans to meet those objectives to differing degrees. With respect to the recommendation of measures for Corps implementation, ER 1105-2-200 states that, “If the selected plan or a portion thereof is not within existing Corps implementation authority, but is responsive to the planning objectives established for the study, the reporting officer may recommend Federal (Corps) participation.” The ER further states that the basis for and extent of such participation is to be specified, including the precedent setting aspects of the recommendation, and further, that such recommendations are to be coordinated through DAEN-CWP before commitments are made to states or local interests. This regulation expands upon that policy and provides operational policies and criteria which will allow the field to recommend authorization for implementation of certain EQ measures.
The following policies and procedures set forth criteria to be applied in determining when EQ measures may be recommended for implementation by the Corps.
(a)
(2)
(3)
(4)
(b)
(i) Implemented on lands required for the water resource development;
(ii) Required to complete or more fully develop proposed EQ measures partly on lands, including mitigation lands, required for the water resource development;
(iii) More cost effective to implement or manage when directly integrated with the implementation or management of the water resource development.
(2)
(i) Level of significance of the EQ resource.
(ii) Proximity to the proposed water resource development.
(iii) Acceptability and support for Corps implementation.
(iv) Certainty of the pending loss or significant degradation of the EQ resource in the absence of implementing the proposed EQ measure.
(v) Relationship of the EQ measures to implementing the proposed water resources development.
(vi) Relationship of the EQ measures to assigned missions of other agencies and the capability for timely implementation by these agencies.
(vii) Cost effectiveness.
The selected plan may include EQ measures not proposed for Corps implementation, but to be accomplished through other Federal programs or by local interests. Planning reports including such measures will discuss how they would impact on the recommended plan, and how they may be implemented by the appropriate Federal agency or the local interests. However, implementation of such measures will not be required as local cooperation for the works proposed for Corps implementation.
Pub. L. 738, 74th Congress, 33 U.S.C. 701a.
This regulation provides policies and guidance for Corps of Engineers participation in urban flood damage reduction projects and establishes criteria to distinguish between improvements to be accomplished by the Corps under its flood control authorities and storm sewer systems to be accomplished by local interests.
This regulation is applicable to all OCE elements and all field operating acitivities having Civil Works responsibilities.
(a) Executive Order 11988—Floodplain Management, dated 24 May 1977.
(b) U.S. Water Resources Council, Floodplain Management Guidelines, (43 FR 6030), to February 1978.
(c) ER 1105-2-811.
(d) ER 1140-2-302.
(e) ER 1140-2-303.
(f) EP 1165-2-2.
For purposes of this regulation the following definitions apply:
(a)
(1) Provide general local government for specific population concentrations, and,
(2) Occupy an essentially continuous area of developed land, containing such structures as residences, public and commercial buildings, and industrial sites.
(b)
(c)
Coordinated comprehensive planning at the regional or river basin level, or for an urban or metropolitan area, can help to achieve solutions to flood problems that adequately reflect future changes in watershed conditions, and help to avoid short-sighted plans serving only localized situations. This planning is particularly important in areas where significant portions of a watershed are expected to be urbanized in the future. Changes in land use may result in major alterations of the runoff characteristics of the watershed. Hydrologic changes must be projected for the period of analysis. In this effort, responsible local planning organizations should provide information and assist the Corps in development of projected land uses and expected practices for collection and conveyance of runoff over the period of analysis. Conversely, the Corps may be able to provide non-Federal interests with valuable information about water related consequences of alternative land uses and drainage practices.
(a) Satisfactory resolution of water damage problems in urban areas often involves cooperation between local non-Federal interests and the Federal flood control agencies. In urban or urbanizing areas, provision of a basic drainage system to collect and convey the local runoff to a stream is a non-Federal responsibility. This regulation should not be interpreted to extend the flood damage reduction program into a system of pipes traditionally recognized as a storm drainage system. Flood damage reduction works generally address discharges that represent a serious threat to life and property. The decision criteria outlined below therefore exclude from consideration under flood control authorities small streams and ditches with carrying capacities typical of storm sewer pipes. Location of political boundaries will not be used as a basis for specifying project responsibility. Project responsibilities can be specified as follows:
(1) Flood damage reduction works, as defined in this regulation, may be accomplished by the Corps of Engineers.
(2) Construction of storm sewer systems and components thereof will be a non-Federal responsibility. Non-Federal interests have a responsibility to design storm sewer systems so that residual damages are reduced to an acceptable level.
(b) Consideration will be given to the objectives and requirements of Executive Order 11988 (reference § 238.3(a)) and the general guidelines therefor by the U.S. Water Resources Council (reference § 238.3(b)).
(a)
(2) A number of conditions within a drainage area may limit discharges for the 10-percent flood, without proportionately reducing discharges for larger floods, such as the one-percent flood. Examples include the presence of extremely pervious soils, natural storage (wetlands) or detention basins or diversions with limited capacity. Other conditions could result in a hydrological disparity between the 10- and one-percent flood events.
(3) Division Engineers, except for NED and POD, are authorized to grant exceptions to the 800 cfs, 10-percent flood discharge criterion specified in this § 238.7(a)(1) whenever both of the following criteria are met:
(i) The discharge for the one-percent flood exceeds 1800 cfs; and
(ii) The reason that the 10-percent flood discharge is less than 800 cfs is attributable to a hydrologic disparity similar to those described in § 238.7(a)(2).
(4) Flood damage reduction works must conform to the definition in § 238.4(b) and must be justified based on Corps of Engineers evaluation procedures in use at the time the evaluation is made. Flood reduction measures, such as dams or diversions, may be located upstream of the particular point where the hydrologic criteria (and area criterion, if appropriate) are met, if economically justified by benefits derived within the stream reach which does qualify for flood control improvement. Similarly, the need to terminate flood control improvements in a safe and economical manner may justify the extension of some portions of the improvements, such as levee tiebacks, into areas upstream of the precise point where Federal flood control authorities become applicable.
(b)
(c)
(2) Man-made structures that convey sanitary sewage or storm runoff, or a combination of sanitary and storm sewage, to a treatment facility will not be classified as flood damage reduction works. Flows discharged into a natural or previously modified natural waterway for the purpose of conveying the water away from the urbanized area will be assumed to be a part of the flow thereof regardless of quality characteristics.
(d)
(e)
In addition to providing flood damage reduction works in urban areas, the Corps may provide related services to State and local governments on a reimbursable basis. Under Title III of the Inter-governmental Cooperation Act of 1968, specialized or technical services for which the Corps has specific expertise may be furnished only when such services cannot be procured reasonably and expeditiously from private firms (see ER 1140-2-303).
(a) Cost sharing and other provisions of local cooperation shall be in conformity with applicable regulations for structural and non-structural flood damage reduction measures.
(b) Responsible non-Federal entities will be required to provide satisfactory assurances that they will adopt, enforce, and adhere to a sound, comprehensive plan for flood plain management for overflow areas of communities involved. To this end, District Engineers will inform HUD, and other concerned Federal and non-Federal planning and governing agencies, of flood plain management services available under Section 206 of the Flood Control Act of 1960, as amended (33 U.S.C. 709a).
In conducting flood damage reduction studies, reporting officers shall comply with the 1965 Agreement between the Soil Conservation Service and the Corps (contained in EP 1165-2-2) in determining the responsible Federal agency. Corps personnel should also keep abreast of the public works programs administered by other Federal agencies, such as the Environmental Protection Agency, the Department of Housing and Urban Development, Farmers Home Administration and the Department of Commerce, in order to coordinate flood control improvements with storm sewer system improvements and to avoid program overlap. Coordination of planning activities with A-95 clearinghouses will help to achieve this objective (see ER 1105-2-811).
Pub. L. 738, 74th Congress 33 U.S.C. 701a.
This regulation establishes policy for determining the extent of Federal participation in covered flood control channels.
This regulation applies to all OCE elements and all field operating agencies having civil works responsibilities.
(a) Executive Order 11988, Floodplain Management, 24 May 1977.
(b) ER 1105-2-200.
(c) ER 1165-2-21.
Projects will be formulated and evaluated in accordance with the policies and procedures described in ER 1105-2-200. If, during the planning process, it appears that covered flood control channels are desirable, reporting officers may evaluate them and include them when they best serve the public interest. Selection of the plan which
Reports on proposals to provide covered channels shall include a discussion of the following matters.
(a) Impacts of sudden reduction in discharge and increased upstream channel stages when the channel entrance is submerged. This discussion shall include the effects resulting from the SPF.
(b) Dangers of rupture resulting from pressurization.
(c) Features provided to prevent human ingress and their impact on project functions.
(d) Effect of the cover on inspection and maintenance costs.
(e) Features provided for pressure release and air venting.
(f) Need for a storm warning system.
(g) Facilities provided to divert flows exceeding the design flow.
Evaluation of the above items may indicate that submergence of entrances to covered channels may have significant impacts on the level of flooding. The requirements of EO 11988 and the significance of the resulting flood damage may require that the covered portion of the channel be enlarged to provide capacity to pass the SPF. If inclusion of SPF capacity on the covered portions of the project cannot be justified, the added capacity may be reduced to the extent that the project will not increase upstream stages resulting from the SPF when compared to the without-project condition. If this capacity is still not feasible, covered channels shall not be recommended.
Covered channels are likely to be considered in boundary areas demarking urban drainage and flood control. Reporting officers shall apply the policies given in ER 1165-2-21 to separate flood control facilities from urban drainage facilities.
At local protection projects local interests are required to provide all lands, easements, rights-of-way and all alterations and relocations of utilities, streets, bridges, buildings, storm drains and other structures and improvements; hold and save the United States free from damages due to the construction works except damages due to the fault or negligence of the United States or its contractor; and assume operation and maintenance of the works after completion. In addition, local interests are required to provide additional cost sharing to reflect special local benefits or betterments. Such additional special cost sharing will not be required for covered channels when the addition of the cover increases net NED flood control benefits when compared to the open channel or when they are provided for safety in schoolyards, playgrounds, or other known play areas for juveniles. However, the separable cost of providing covers for mitigating SWB or RD impacts or to provide areas for public or private uses such as parking, or the provision of areas for recreation development, etc., will be assigned to local interests. The separable cost of recreational facilities to be constructed on or adjacent to the cover,
These regulations are applicable to all projects not approved by OCE prior to the date of this regulation.
Section 104, Water Resources Development Act of 1986 (Pub. L. 99-662); 33 U.S.C. 2214.
This establishes guidelines and procedures for Department of the Army application of the provisions of section 104 of Pub. L. 99-662.
Policies and procedures contained herein apply to all HQUSACE elements and field operating agencies of the Corps of Engineers having Civil Works responsibilities.
Section 104 of Pub. L. 99-662.
Section 104 authorizes and directs the development of guidelines which include criteria for determining whether work carried out by local interests is compatible with a project for flood control. Compatible work which was carried out prior to project authorization, before 17 November 1986 but after 17 November 1981, may be considered part of the project and credited against the non-Federal share of the cost of project, if the local sponsor applied for consideration of such work not later than 31 March 1987. Local work to be carried out after 17 November 1986 must receive Army approval prior to construction to be eligible for credit, taking into account the economic and environmental feasibility of the project. (Such approval can only be given on the basis of the guidelines required to be issued pursuant to section 104(a); hence, the law is silent with respect to work performed between 17 November 1986 and the effective date of the guidelines.) The credit will not relieve the non-Federal sponsor of the requirement to pay 5 percent of the project costs in cash during construction of the remainder of the project. This legislative authority also provides that benefits and costs of compatible work will be considered in the economic evaluation of the Federal project. This includes the costs and benefits of compatible local work which was carried out after 17 November 1981 or within the 5 years prior to the initial obligation of reconnaissance study funds if that should establish a later date.
Discussion of this legislation is contained in the Conference Report, H.R. Rpt. No. 99-1013, which accompanies H.R. 6. The House passed version of the bill contained a number of project-specific provisions that authorized credit against the non-Federal share for compatible work completed by local interests. The Senate passed version authorized crediting of compatible flood control works for projects under study. Both general provisions would enable local interests to proceed with compatible work on the understanding that the local improvements would be considered a part of the Federal project for the purpose of benefit-to-cost analysis, as well as subsequent cost sharing. The Conference Committee deleted virtually all of the crediting provisions applicable to individual projects and expanded the general provision allowing the Secretary to credit the cost of certain work undertaken by local interests prior to project authorization against the non-Federal share of project costs and to consider the benefits and costs in the economic evaluation of a more comprehensive project.
(a) Section 104 is applicable only to projects specificially authorized by the Congress (not to projects authorized by the Chief of Engineers under continuing authorities), and only to “flood control” projects except in instances where the Congress may provide, by specific language in the authorization, that a project of other characterization is eligible for section 104 credit consideration.
(1) Section 104 provisions will be applied only at locations where Federal construction of a congressionally authorized project, or separable element thereof, is initiated after April 30, 1986; a congressionally authorized study is underway; or where the feasibility report has been forwarded for Executive Branch review or for consideration by Congress.
(2) The crediting provisions of section 104 are applicable only to non-Federal work started after the reconnaissance phase of Corps preauthorization studies but prior to project authorization. No credit is available under section 104 for non-Federal work started after project authorization.
(3) A credit recommendation will be in response to a specific request from a State, city, municipality or public agency that is the prospective local sponsoring agency for the contemplated Federal plan.
(b) Work eligible for crediting shall be limited to that part of the local improvement directly related to a flood control purpose. (These guidelines, although they generally make reference to flood control “projects,” should be understood to have equivalent application to allocated flood control costs in a multiple purpose project.) Measures (structural or nonstructural) undertaken for channel alignment, navigation, recreation, fish and wildlife, land reclamation, drainage, or to protect against land erosion, and which, in conjunction with the project, do not produce appreciable and dependable effects in preventing damage by irregular and unusual rises in water levels, are not classed as flood control works and are ineligible for credit.
(c) Future work proposed for crediting should be separately useful for flood control or other purposes even if the Federal Government does not construct the contemplated project, and must not create a potential hazard.
(d) For local work initiated before 17 November 1986, but after 17 November 1981, the local sponsoring agency must have requested consideration by letter dated on or before 31 March 1987. For new local work commenced after 17 November 1986, only work for which the sponsor receives notification of compatibility and extent of potential credit pursuant to § 240.9(c) of this regulation shall be eligible for credit.
(e) The maximum amount creditable shall equal the actual expenditures made by non-Federal entities (not limited solely to the project sponsor's specific efforts and expenditures) for work that meets the criteria set forth above and in § 240.7 or 240.8. Expenditures eligible for inclusion in the amount creditable include the costs of all efforts actually required for the non-Federal implementation of the compatible flood control works including, but not necessarily limited to, costs for permits, environmental, cultural or archeological investigations, engineering and design, land acquisition expense, other LERRD, and construction of the flood control works including any required mitigation measure. For construction efforts accomplished by non-Federal interests using their own forces and other resources, for which “costs” may not be recorded, consideration will be given to inclusion of a reasonable estimate of the value thereof (as if accomplished by contract). Regardless of the total amount creditable on this basis, however, the amount actually credited will not exceed the amount that is a reasonable estimate of the reduction in Federal project expenditures resulting from substitution of the local work for authorized project elements or, in the case of compatible work outside the scope of the project
(f) Regardless of the total amount creditable for compatible work at the time of construction, the local sponsor will be required to contribute 5 percent of the total project cost in cash during construction of the project by the Corps. The credit can only be applied toward the value of needed lands, easements, rights-of-way, relocations, and disposal areas (LERRD) the sponsor would otherwise have to provide plus any additional required cash contribution needed to make the total sponsor contribution equal at least 25 percent of total project costs. As a consequence of crediting non-Federal construction costs against LERRD requirements some costs for LERRD may become a Federal responsibility.
(g) Reimbursement to non-Federal interests will not be made for any excess of costs for compatible works beyond that which can be credited in accordance with § 240.6(f). In this regard, reimbursements pursuant to section 103(a)(3) of Pub. L. 99-662 will not be made should the non-Federal share of project-related costs exceed 50 percent of total project-related costs by virtue of such excess of costs for compatible work.
(h) Local interests are responsible for developing all necessary engineering plans and specifications for the work they propose to undertake. However, those costs, including engineering and overhead, directly attributable to the creditable part of local work may be included in the amount credited.
(i) Non-Federal costs in connection with LERRD required for the Federal project, regardless of when incurred, will be recognized in computation of the LERRD component of project costs (the credit provisions of section 104, Pub. L. 99-662, have no direct bearing on this).
(j) Non-Federal construction and LERRD costs in connection with compatible work for which credit can be given will, when those costs are incorporated in project costs, be included in their related categories, and total project cost sharing responsibilities will be adjusted accordingly.
(a) For work accomplished prior to project authorization, the following local improvements can be construed as compatible and considered for credit:
(1) Work that would constitute an integral part of the Federal project as authorized (integral work);
(2) Work that would have been included in the Federal project if it had not been assumed to be part of the without project condition (external work); and
(3) Work that reduces the construction cost of the Federal plan (substitute work).
(b) For local work accomplished subsequent to project authorization, only work started prior to authorization, and for which credit consideration was requested by letter dated on or before 31 March 1987, is eligible for credit under the provisions of section 104. New non-Federal work initiated after project authorization, provided it is on an element of the authorized project, is subject to limited credit under a separate authority. Such work, if the sponsor desires related credit, should be undertaken under formal agreement pursuant to section 215 of the Flood Control Act of 1968 Pub. L. 90-483, approved August 13, 1968, as amended.
(c) All creditable non-Federal costs for compatible work, and related benefits, may be considered in the project economic evaluation and, to the extent the related benefits are required for economic justification, creditable costs
(d) Flood control projects authorized in Pub. L. 99-662 subject to sections 903 (a) and (b) or similar provisions 401(b) and 601(b)) of that act fall, with respect to crediting non-Federal costs, under this paragraph. (However, pending completion of the relevant procedural requirements for such projects, as set forth in those provisions of the act, section 215 agreements covering proposed non-Federal accomplishment of compatible work on the project will not be executed.) Works eligible for credit will be explicitly addressed in new project reports submitted to the Secretary of the Army pursuant to sections 903 (a) and (b) or similar provisions.
(e) Formulas for determining the amount of allowable credit in accordance with these guidelines are provided in Appendix B.
(a) In general, for projects authorized after 17 November 1986, work eligible for credit will be explicitly addressed in recommendations to Congress. If a report has been submitted to Congress, work on an element of the recommended Federal project or work that reduces its construction cost can be considered for credit.
(b) Local work initiated after 17 November 1981 or within 5 years before the first obligation of funds for the reconnaissance study began, whichever is later, can be incorporated into the recommended plan for the purpose of economic evaluation. However, credit can be considered only for local work undertaken after the end of the reconnaissance study and for which a credit application has been acted upon prior to construction pursuant to § 240.9 procedures. (For any portion of such work undertaken prior to 17 November 1986, credit may be granted only if a letter application was received prior to 31 March 1987.) If such work was undertaken between 17 November 1986 and the effective date of this regulation, an after-the-fact application pursuant to the § 240.9 procedures will be accepted.
(c) Reports recommending Federal participation in a plan should include the following, “Future non-Federal expenditures for improvements that, prior to their construction, are found to be compatible with the plan recommended herein, as it may be subsequently modified, will entitle the (
(d) All costs for non-Federal work incorporated in the recommended plan in accordance with this paragraph shall be included in total project first costs and will therefore be subject to cost sharing. Related benefits will be included in the project's economic evaluation.
(a) For non-Federal works undertaken prior to 17 November 1986, credit determinations (deferred until these guidelines became effective) will be made by the Secretary in response to the applications received prior to 31 March 1987. Future non-Federal works for which credit may be allowed under the provisions of section 104 of Pub. L. 99-662 are limited, basically, to local works undertaken while Federal preauthorizations studies of a Federal project for the locality are in progress. Credit consideration for such works will be governed by the procedures set forth here. Non-Federal entities desiring credit should confer with the District Engineer and submit a written application to him. The application will include a full description of planned work, plans, sketches, and similar engineering data and information sufficient to permit analysis of the local proposal.
(b) The District Engineer shall review the engineering adequacy of the local proposal and its relation to the Federal Plan and determine what part of the proposed local improvement would be eligible for credit. The District Engineer will forward his recommendations through the Division Engineer and the Chief of Engineers to the Assistant Secretary of the Army
(1) Basis for concluding the local plan is appropriate in relation to the prospective Federal plan.
(2) Total estimated cost and benefits of creditable work.
(3) Environmental effects of the local work, including a brief statement of both beneficial and detrimental effects to significant resources.
(4) The urgency for proceeding with the local plan.
(c) Upon being informed of the Secretary's decision, the District Engineer shall reply by letter stating to the local applicant what local work and costs can reasonably be expected to be recommended for credit under the provisions of section 104 (assuming that the final plan for a Federal project, when it is ultimately recommended, remains such as to preserve the local work as a relevant element). If the improvement proposed by the non-Federal entity includes work that will not become a part of the Federal project, the means of determining the part eligible for credit shall be fully defined. This letter shall include the following conditions:
(1) This shall not be interpreted as a Federal assurance regarding later approval of any project nor shall it commit the United States to any type of reimbursement if a Federal project is not undertaken.
(2) This does not eliminate the need for compliance with other Federal, State, and local requirements, including any requirements for permits, Environmental Impact Statements, etc.
(3) Upon authorization of the Federal project, approval shall be subject to rescission if the non-Federal work has not commenced and, as a consequence, Corps planning for orderly implementation of the project is being adversely affected.
(d) The non-Federal entity will notify the District engineer when work commences. The District Engineer will conduct periodic and final inspections. Upon completion of local work, local interests shall provide the District Engineer details of the work accomplished and the actual costs directly associated therewith. The District Engineer shall audit claimed costs to ascertain and confirm those costs properly creditable and shall inform the non-Federal entity of the audit results.
(e) During further Corps studies, the local work actually accomplished that would constitute a legitimate part of the overall recommended Federal project may be incorporated within any plan later recommended for implementation.
(f) The District Engineer shall submit a copy of his letter and notification of creditable costs of completed work to the Secretary through the Division Engineer and the Chief of Engineers.
(g) All justification sheets supporting new start recommendations for Preconstruction Engineering and Design or Construction of projects will include information on credits in the paragraph on local cooperation. The information should include but not be limited to date of the District Engineer's letter to the sponsor pursuant to § 240.9(c) of this regulation, status of the creditable work, estimated or actual cost of the work and the estimated amount of credit.
1.
2. The “formulas” for determining the amount of credit that may be allowed in the various cases are provided in the following paragraphs. TPC means the total estimate of project costs for the project as it was authorized. LERRD means the costs for lands, easements, rights-of-way, relocations and disposal areas as included in that estimate.
3. Calculations for several hypothetical examples are provided to illustrate how crediting determinations would impact on
4.
Crediting non-Federal interests for constructing an integral part of the project or substitute work will not result in any increase in project costs. Ordinarily, the result will simply be a transfer of equivalent responsibilities between the Corps and non-Federal interests. If non-Federal interests should accomplish compatible integral or substitute work exceeding the possible credit, the Corps will be relieved of the expense of constructing an increment of the project. An example is provided below. In this example, non-Federal interests have accomplished integral project work amounting to 30.0 million. LERRD are less than 20% of TPC so that the maximum value of local cooperation against which they may receive credit is $20.0 million. Since the $10.0 for which credit cannot be given nonetheless represents useful project work, in this example the Corps would be relieved of the costs for accomplishing that much construction.
5.
Crediting non-Federal interests for compatible work which was not part of the project as authorized (external work) will result in an increase in project costs and an increase in the net Federal costs. The costs for compatible external work for which non-Federal interests desire credit must be incorporated into the estimate of total project costs (but only to the extent that credit can actually be given). Assigned Federal and non-Federal project costs then making up the adjusted total project costs will both be greater than for the basic project. However, the net effect will be a savings to non-Federal interests in the further costs they will have for fulfilling local cooperation requirements. The maximum amount that can be credited for compatible external work (and thus added to project costs), where LERRD ≤25% TPC, follows from Credit, C = 20% (TPC + C) which reduces to C = 0.2TPC + 0.2C, then to 0.8C = 0.2TPC, and finally C = (0.2/0.8)TPC or 0.25TPC as indicated in a, above. An example of crediting in a case involving external work is provided below. In this example, as in example 1, non-Federal interests have accomplished work amounting to $30.0 million. This work, however, was not intergral with the project as authorized (it has been determined to be compatible external work), so that any part of it for which credit is given must be added to TPC. Since, in this case LERRD are less than 25% of TPC, the maximum amount that can be credited is 25% of TPC, or $25.0 million. Adjusting TPC by this amount results in an added Federal cost of $18.75 million (75% of the $25.0 million increase).
6.
Note that total credit, C=C1+C2. Formula 6.a. is derived from C=C1+C2=20% (TPC+C2). An example of crediting in a case involving both kinds of compatible works is provided below. In this example non-Federal interests have accomplished $25.0 million in compatible work, $5.0 of which was integral with the project as authorized and $20.0 of which was external. The integral work is credited in the first step against the extra cash component of the original local cooperation requirements. TPC is unaffected; however, the target against which credit for the external work might be credited has been partially used up. The second step shows only the incremental effects of crediting external work. Using 6.a. the maximum credit that can be given for this work is $18.75 million. Although other non-Federal requirements are extinguished as a result of the credit for the external work, the non-Federal 5% cash contribution increases by $0.9375 million, say $0.94 (5% of $18.75). In the final step, the incremental effects of crediting the external work are added in with the values obtained in step 1.
Sec. 103(m), Pub. L. 99-662, 100 Stat. 4082 (33 U.S.C. 2201
This rule gives general instructions on the implementation of section 103(m) of the Water Resources Development Act of 1986, Public Law 99-662, as amended by section 201 of the Water Resources Development Act of 1992, Public Law 102-588, for application to flood control projects.
This rule applies to all U.S. Army Corps of Engineers Headquarters (HQUSACE), elements and Major Subordinate Commands and District Commands of the Corps of Engineers having Civil Works Responsibilities.
References cited in paragraphs (f) thru (i) may be obtained from USACE Pub. Depot, CEIM-SP-D, 2803, 52d Avenue, Hyattsville, MD 20781-1102. References cited in paragraphs (d) and (e) may be obtained from the National Information Services, 5285 Port Royal Road, Springfield, VA 22161. References (a), (b) and (c) may be reviewed in your local library or by writing your local Congressperson.
(a) Water Resources Development Act, 1986, Public Law 99-662, 100 Stat. 4082, 33 U.S.C. 2201
(b) Water Resources Development Act 1992, Public Law 102-580, 106 Stat. 4797, 33 U.S.C. 2201
(c) U.S. Water Resources Council, Economic and Environmental Principles and Guidelines for Water and Related Land Resources Implementation Studies, March 10, 1983.
(d) Office of Personnel Management, FPM Bulletin 591-30.
(e) Office of Personnel Management, FPM 591-32.
(f) U.S. Army Corps of Engineers, Engineer Regulation 1165-2-29.
(g) U.S. Army Corps of Engineers, Engineer Regulation 1165-2-121.
(h) U.S. Army Corps of Engineers, Engineer Regulation 1165-2-131.
(i) U.S. Army Corps of Engineers, Engineer Regulation 405-1-12.
(a) Procedures described herein establish an “ability to pay” test which will be applied to all flood control projects. As a result of the application of the test, some projects will be cost-shared by the non-Federal interest at a lower level than the standard non-Federal share that would be required under the provisions of section 103 of Pub. L. 99-662, 33 U.S.C. 2213. The “standard share”, as used herein, refers to the non-Federal share that would apply to the project before any ability to pay consideration.
(b) Section 103(m) requires that all cost-sharing agreements for flood control covered by the terms of section 103(a) or 103(b) be subject to the ability to pay test. The test must therefore be applied not only to projects specifically authorized by Congress, but to the continuing authority projects constructed under section 14 of the 1946 Flood Control Act (33 U.S.C. 701r), section 205 of the 1948 Flood Control Act (33 U.S.C. 701s), and section 208 of the 1954 Flood Control Act (33 U.S.C. 701g), all as amended.
(c) The ability to pay test shall be conducted independently of any analysis of a project sponsor's ability to finance its ultimate share of proposed project costs. The ability to finance is addressed in a statement of financial capability which considers current borrowing constraints, alternative sources of liquidity, etc. It is therefore much more narrowly defined than the ability to pay test, which considers the underlying resource base of the community as a whole. The ability to pay test shall not be used to affect project scope, or to change budgetary priorities among projects competing for scarce Federal funds.
(d) Any reductions in the level of non-Federal cost-sharing as a result of the application of this test will be applied to construction costs only. Operations, maintenance and rehabilitation responsibilities are unaffected by the ability to pay test.
(e) When projects are eligible for credits as outlined in ER 1165-2-29, reference § 241.3(e), the ability to pay test will be applied before any adjustments are made for credits. If the ability to pay test results in a lower non-Federal
(f) The test is based on the following principles:
(1) Since the standard non-Federal cost-share is substantilly less than full costs in every case, the ability to pay test should be structured so that reductions in the level of cost-sharing will be granted in only a limited number of cases of severe economic hardship.
(2) The test should depend not only on the economic circumstances within a project area, but also on the conditions of the state(s) in which the project area is located. Although states' policies with respect to supporting local interests on flood control projects are not uniform, the state represents a potential source of financial assistance which should be considered in the analysis.
(3) The alternative level of cost-sharing determined under the ability to pay principle should be governed in part by project benefits. If, as a result of the project, local beneficiaries receive more income, or are required to use fewer resources on flood damage repair or replacement, or on flood insurance, a portion of these resources should be available to pay for the non-Federal share, even in those cases where an analysis of current economic conditions indicates that there are relatively limited resources in the project area and its state.
(4) Since project benefits represent availability of resources in the future, but not the present, project sponsors should be permitted to defer a certain percentage of the non-Federal share whenever current economic circumstances suggest that non-Federal resources may be limited.
(g) The Non-Federal interest may, at its discretion, waive the application of the ability to pay test. In this case, the Non-Federal interest shall be considered to have the ability to pay the standard cost-share and no further economic inquiry will be required.
(a)
(1) Calculate the ratio of flood control benefits (developed using the Water Resources Council's
(2) If the factor determined in § 241.5(a)(1), when expressed as a percentage, is greater than the standard level of cost-sharing, the standard level will apply.
(3) If the factor determined in § 241.5(a)(1), when expressed as a percentage, is less than the standard level of cost-sharing, projects may be eligible for either a reduction in the non-Federal share to this “benefits based floor” (BBF), or for a partial reduction to a share between the standard level and the BBF, as determined by the procedures in step two, § 243.5. In no case however, will the non-Federal cost-share be less than five percent.
(b)
(1) To assure consistency, the calculations in § 241.5(b) (2) and (3) will be performed by HQUSACE and distributed to all FOA's via Engineering Circulars. The information will be updated and distributed to HQUSACE and to the field as soon as new data are available. The procedures may be verified for any single county or state using the sources cited.
(2) For each of the three latest calendar years for which information is available, determine the level of per capita personal income in the state in
(3) For each of the three latest calendar years for which information is available, determine the level of per capita personal income in the county where the project beneficiaries are located (the “project area”), and compare this to the national average of per capita personal income. Source: Dept. of Commerce, Bureau of Economic Analysis, as published yearly in the April
(4) When the project area, as determined by the location of the project's beneficiaries, includes more than one county, calculate a composite project area index by taking a weighted average of the county index numbers, the weights being equal to the relative levels of benefits received in each county. When the project area includes more than one state, the state index for the project should be calculated using the same weighting technique.
(5) Calculate an “Eligibility Factor” for the project according to the following formula:
(6) Since estimates (available from the Bureau of Economic Analysis) of per capita personal income for Puerto Rico, Guam and other U.S. territories are well below the national average, the eligibility factor for projects in these areas is administratively established to be equal to 1.
(7) For flood control projects sponsored by Native American tribes or villages, the EF shall be calculated using information on tribe or village income as a replacement factor for both the area and state factor (that is multiply the replacement income factor by both b
(c)
(1) When EF ≥ 1, non-Federal cost-share = BBF
(2) For structural projects covered by section 103(a), when 0 < EF < 1:
(i) If LERRD equals or exceeds 45 percent:
(ii) If LERRD exceeds 20 percent but is less than 45 percent:
(iii) If LERRD is less than 20 percent:
(3) For non-structural projects covered by section 103(b), when 0 < EF < 1:
(4) In no case however, can the non-Federal share be less than five percent, even if the calculation made in § 241.5(c) (1), (2), or (3) results in a smaller number.
(5)
(d) Additional consideration for high cost projects. For any project where the normal non-Federal share exceeds 35 percent, and the per capita non-Federal cost (
(a) Whenever a project's Eligibility Factor exceeds zero, the project sponsor will be permitted to defer a portion of its share of flood control costs. The maximum allowable amount deferred equals the total non-Federal share less (for structural projects) five percent of total project costs and less (for all projects) any amounts for LERRD paid for or acquired by the sponsor prior to the time the PCA is signed. If for example, the non-Federal share of a structural project = 35.0 percent (after the ability to pay adjustment, if any) of which 10 percent is LERRD already paid for by the local sponsor, the maximum allowable amount to be deferred = 20 percent of project flood control costs (35 less the 5 percent cash requirements, less the 10 percent LERRD already acquired). Deferred payments at the option of the sponsor will be allowed regardless of the outcome of the benefits test described in § 241.5(a) whenever the Eligibility Factor exceeds zero.
(b) When EF ≥ 1, the project sponsor may defer as much as the maximum allowable amount as described in § 241.6(a).
(c) When 0 < EF < 1, the sponsor may defer a fraction of the maximum allowable amount described in § 241.6(a), where the fraction equals the Eligibility Factor expressed to three decimal places. Continuing the example described in § 241.6(a), if EF = .712, total allowed deferral equals .712 × 20 percent = 14.2 percent of total project costs.
(d) The deferred payment can be made in equal installments over any period of time selected by the non-Federal sponsor, provided that all repayments are made between the end of construction and thirty years thereafter. The amount repaid shall include interest during the repayment period as well as interest for the appropriate portion of the construction period for any amounts deferred prior to the end of construction. The rate of interest shall be determined in accordance with the provisions of section 106 of Pub. L. 99-662, 33 U.S.C. 2216.
(a) A preliminary ability to pay test will be applied during the study phase of any proposed project. If the ability to pay cost-share is lower than the standard share, the revised estimated cost-share will be used for budgetary and other planning purposes.
(b) The official application of the ability to pay test will be made at the time the Project Cooperation Agreement (PCA) between the Corps of Engineers and the Non-Federal sponsor is signed. For structural flood control projects, the standard level of cost-sharing will not be known until the end of the project (since the standard level as specified in section 103(a), 33 U.S.C. 2213, includes LERRD). In this case, if the Eligibility Factor is greater than zero but less than one, the ability to pay non-Federal share will be determined using estimated costs.
(c) The PCA for all projects subject to the ability to pay test will include a “whereas” clause indicating the results of the test. If the project is eligible for a lower non-Federal share:
(1) The revised share will be specified in the PCA (there will be no recalculation of this share once the PCA is signed).
(2) An exhibit attached to the Project Cooperation Agreement (PCA) will include the Benefits Based Floor (BBF) determined in § 241.5(a): the Eligibility Factor (EF) determined in § 241.5(b): If the Eligibility Factor is greater than zero but less than one, the estimated standard non-Federal share; the formula used in determining the ability to pay share as described in § 241.5(c)(1) through (c)(4); and a display of the non-Federal cost share under the high cost criteria described in § 241.5(d).
(d) If at the time of project completion, the standard non-Federal share based on actual costs is less than the ability to pay share specified in the PCA, the standard share will apply.
(e)
(2) The non-Federal sponsor will be required to provide a cash payment equal to the minimum of five percent of estimated project costs, regardless of the outcome of the ability to pay test, unless any or all of the five percent cash requirement is waived by application of the high cost criteria described in § 241.5(d). The project sponsor shall make cash payments during construction at a rate such that the amount of non-Federal payments in each year, as a percentage of total non-Federal cash payments, equals the
(f) For non-structural projects, reductions in the non-Federal cost-share as a result of the ability to pay test will not affect the procedures for determining the non-Federal and Federal payment schedules. For non-structural projects, no specific cash payments during construction are required by law.
Section 321 of Pub. L. 101-640, 74 Stat. 500 (33 U.S.C. 709a).
This part gives general instructions on the implementation of section 321 of Public Law 101-640, 74 Stat. 500 (33 U.S.C. 709a) as it applies to the use of a Fee Schedule for recovering the cost of providing Flood Plain Management Services to Federal agencies and private persons.
This part applies to all HQUSACE elements, Major Subordinate Commands, and District Commands of the Corps of Engineers having Civil Works responsibilities.
The references in paragraphs (b) and (c) of this section may be obtained from USACE Pub. Depot, CEIM-SP-D, 2803 52d Avenue, Hyattsville, MD 20781-1102.
(a) Section 321, Public Law 101-640, 74 Stat. 500 (33 U.S.C. 709a).
(b) Corps of Engineers Engineering Regulation 1105-2-100, Planning Guidance Notebook.
(c) Corps of Engineers Engineering Pamphlet 37-1-4, Cost of Doing Business.
As used in this part:
(a) The Corps of Engineers Flood Plain Management Services Program provides a wide range of flood plain and related assistance upon request. Depending on the complexity of the request, either a nonnegotiated Fee Schedule or a negotiated agreement will be used to recover the cost of services provided to Federal agencies and private persons. This part involves only the nonnegotiated Fee Schedule.
(b) State, regional, or local governments or other non-Federal public agencies will be provided Flood Plain Management Services without charge.
(a)
(b)
(1) Level 1 includes the provision of basic information from readily available data that does not require technical evaluation or documentation and is transmitted by form letter to the customer.
(2) Level 2 includes the provision of information from readily available data that requires minimal technical evaluation and is transmitted by form letter to the customer.
(3) Level 3 includes the provision of information that requires some file search, a brief technical evaluation, and documentation of results by a form letter or brief composed letter to the customer.
(4) Level 4 includes the provision of information and assistance that requires moderate file search, a brief technical evaluation, and documentation of results in a composed letter to the customer.
(5) Level 5 includes the provision of information and assistance that requires significant file search or retrieval of archived data, a moderate technical evaluation, and documentation of results in a brief letter report to the customer.
(c)
(d)
(e)
(f)
5 U.S.C. 301; 33 U.S.C. 1, 409, 411-415; 10 U.S.C. 3012.
This part describes administrative procedures and policy used by the Corps of Engineers in exercising its authority for wreck removal. Procedures are intended to insure that the impacts of obstructions are minimized, while recognizing certain rights of owners, operators and lessees.
(a) These procedures apply to the removal of wrecks or other obstructions within the navigable waters of the United States, as defined in part 329 of this chapter.
(b) This part does not apply to the summary removal or destruction of a vessel by the Coast Guard under authority of the Clean Water Act (33 U.S.C. 1321), or to any removal actions involving obstructive bridges which are subject to separate regulation under part 114 of this title.
(c) For vessels which were sunk or wrecked prior to November 17, 1986, the statutory obligation to remove belongs solely to the owner (not the operator or lessee), and the owner's obligation to reimburse the U.S. Treasury for federal removal is limited to cases of voluntary or careless sinking.
(a)
(b)
(c)
(d)
(e)
District Engineers may undertake removal without prior approval of the Chief of Engineers provided the cost does not exceed $100,000. Removals estimated to cost above $100,000 require advance approval of the Director of Civil Works.
(a) Upon receiving a report of a wreck or other obstruction, District
(b) Factors to be considered, as a minimum, include:
(1) Location of the obstruction in relation to the navigable channel and other navigational traffic patterns.
(2) Navigational difficulty in the vicinity of the obstruction.
(3) Clearance or depth of water over the obstruction, fluctuation of water level, and other hydraulic characteristics in the vicinity.
(4) Type and density of commercial and recreational vessel traffic, or other marine activity, in the vicinity of the obstruction.
(5) Physical characteristics of the obstruction, including cargo, if any.
(6) Possible movement of the obstruction.
(7) Location of the obstruction in relation to existing aids to navigation.
(8) Prevailing and historical weather conditions.
(9) Length of time the obstruction has been in existence.
(10) History of vessel accidents involving the obstruction.
(a)
(b)
(1) No action.
(2) Charting.
(3) Broadcast notice to mariners and publication of navigational safety information.
(4) Marking.
(5) Redefinition of navigational area (e.g., channel, fairway, anchorage, etc.).
(6) Removal.
(a)
(b)
(c)
When the owner or responsible party has been identified, and refuses or fails to take prompt action toward removal, the District Engineer may seek a judgment by the district court requiring removal.
(a)
(1) Marking is accomplished promptly and is maintained,
(2) The plan for removal and disposal is reasonable and acceptable to the District Engineer,
(3) Removal operations do not unreasonably interfere with navigation,
(4) All conditions of the Corps of Engineers permit are met, and
(5) Removal operations are pursued diligently.
(b)
(a)
(1) Affirmative action on the part of the owner declaring intention to abandon, or
(2) Failure to commence immediate removal of the obstruction and prosecute such removal diligently.
(b)
(c)
(d)
(e)
(f)
(a)
(1) A determination has been made, in consultation with the Coast Guard, that the obstruction is a hazard to navigation,
(2) The District Engineer and the Coast Guard agree on a course of action which includes the need for removal (or, if a conflict exists, the need for removal has been resolved at higher level),
(3) The District Engineer has made a reasonable attempt to identify the owner, operator, or lessee, and
(4) Abandonment of the wreck or obstruction has been established.
(b)
(1) The obstruction impedes or stops navigation, or
(2) The obstruction poses an immediate threat to life, property, or a structure that facilitates navigation.
(a)
(b)
The Corps of Engineers will seek reimbursement from the owner, operator, or lessee, if identified, for all removal and disposal costs in excess of the value of the recovered vessel (or other obstruction) and cargo.
See § 263.13.
This regulation provides policies and procedures for seven legislative authorities under which the Secretary of the Army, acting through the Chief of Engineers, is authorized to plan, design and construct certain types of water resource improvements without specific Congressional authorization.
This regulation is applicable to all OCE elements and all field operating agencies having Civil Works responsibilities. This regulation is effective December 1, 1975, as published in the
(a) ER 11-2-201, Civil Works Activities, Funding, Work Allowances and Transfers.
(b) ER 405-2-680 Local Cooperation Projects.
(c) ER 1105-2-10 Intensive Management.
(d) ER 1105-2-402 Organization and General Content of Feasibility Reports.
(e) ER 1105-2-403 Format and Appearance of Feasibility Reports.
(f) ER 1105-2-502 Public Meetings (33 CFR 209.405).
(g) ER 1105-2-507 Preparation and Coordination of Environmental Statements (33 CFR 209.410).
(h) ER 1105-2-800 Public Involvement: General Policies (33 CFR 380).
(i) ER 1105-2-811 A-95 Clearinghouse Coordination (33 CFR 384).
(j) ER 1110-2-1150 Post-Authorization Studies.
(k) ER 1165-2-18 Reimbursement for Advance Non-Federal Participation in Civil Works Projects.
The Continuing Authorities Program (hereafter referred to as the “Program”), consists of the following legislative authorities, which are reproduced and accompanied by policy interpretation in subparts B, C and D of this part.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
Work funded under this Program must meet the requirements of Federal interest and Corps responsibility set forth in one of the legislative authorities referenced in § 263.13. Any project recommended must be justified under established Federal planning criteria, must be complete in itself and must not obligate the Federal government to future work except for those cases in which maintenance by the Federal government is provided by applicable provisions of general law. Eligibility is not permitted for the following:
(a)
(b)
(c)
(a)
(b)
(1)
(2)
(3)
(4)
(5)
(c)
(1)
(2)
(i) The criteria for Division Engineer approval for initiating a feasibility study are: there is a Federal interest in the problem identified in the Recon, there exists solutions for which Federal participation may be justified under one of the Program authorities, there are existing non-Federal entities which are legally and financially capable of satisfying the typical local cooperation requirements for such solutions, and a feasibility study can be accomplished at a reasonable cost compared to the prospective benefits from solving the problems identified in the Recon.
(ii) Where a significant question arises concerning the Federal interest in a problem, the applicability of one of the Program authorities, or other
(iii) The feasibility study should complete the plan formulation process, including the selection of a plan. The study should be terminated if any of the above criteria are not satisfied, if there is a lack of public support, or in the case of obtaining local assurances, that a reasonable length of time (as determined by the reporting officer) has passed without satisfactory assurances from local interests. (See also (§ 263.17(e)(5)).
(3)
(d)
(e)
(f)
(1)
(2)
(g)
(h)
(i)
(j)
(1) Reporting officers shall at least annually review approved projects on which construction has not been initiated and shall determine if such projects should remain on the backlog awaiting construction funds. A recommendation for withdrawal of project approval shall be based on the following criteria:
(i) Local interests are unwilling or unable to provide the necessary local cooperation,
(ii) The project is no longer considered the best solution to the problems of the area, considering economic, social, and environmental factors, or
(iii) The project is no longer justified under applicable Federal planning criteria.
(2) Findings which indicate that the project should remain in the backlog shall not be reported to OCE. Recommendations for withdrawal of project approval shall be transmitted to DAEN-CWP-E, C, or W, or DAEN-CWO, depending on the project authority.
(i) Recommendations shall be coordinated with local, State and Federal interests consistent with Corps public involvement objectives, prior to transmittal to OCE.
(ii) Recommendations shall be accompanied by a brief Project Information Sheet, as required under procedures for recommending project deauthorization under section 12, Pub. L. 93-251.
(3) Reporting officers shall notify appropriate local, State and Congressional interests of any final action taken by OCE on recommendations for withdrawal of project approval.
(4) As in the case of project approval, withdrawal of approval may be accomplished by the Director of Civil Works, for the Chief of Engineers.
(a)
(b)
(c)
This paragraph prescribes procedures to be followed from the initiation of a Recon to completion of construction of a project. Division Engineers are to establish milestones as deemed appropriate, in accordance with ER 1105-2-10. Unless otherwise stated, all correspondence with OCE relating to the procedures in this paragraph will be addressed to HQDA (DAEN-CWP-E, C or W) WASH DC 20314 or HQDA (DAEN-CWO) WASH DC 20314, depending on the study authority, as provided for in § 263.16(a).
(a)
(b)
(1) Once the Recon is completed, no further work may be accomplished without a work allowance and allotment from OCE.
(2) The recommendations from a Recon may be released by reporting officers to interested parties after action has been taken by the Division Engineer on the Recon report.
(3) In the case of emergencies under Section 14 or 3 Authorities, the Division Engineer may approve a Recon Report for immediate transmittal to OCE (in five copies) for approval and funding of recommended work. In such cases, the Chief of Engineers may approve exceptions to the requirements stated in paragraphs (e)(2) through (e)(5) of this section, as deemed advisable in the public interest.
(4) Except as provided in paragraph (b)(3) of this section, or when the Division Engineer desires OCE views, Recon reports will be transmitted to OCE for information only (in two copies).
(c)
(d)
(e)
(1)
(2)
(3)
(4)
(5)
(i) The reporting officer shall review draft local cooperation and repayment agreements with affected non-Federal interests, advising them of currently estimated costs, anticipated timing of costs, all typical provisions of the agreement or contract, and the timing of process of entering into a final, signed agreement or contract.
(ii) The letter of intent shall include verbatim all local cooperation requirements set forth in the Detailed Project Report, or the Recon report, if utilized for project approval; shall state that a review has been made of draft agreements or contracts; shall indicate an understanding of when final project costs are to be determined by the reporting officer; and shall include the following statement:
(iii) The letter of intent shall be signed or cosigned by the chief legal officer of the political subdivision furnishing the letter to the reporting officer. When a State or a department thereof is to be the sponsor, the Attorney General of that State is the approving authority.
(f)
(2) If the feasibility study results in a DPR, ten (10) copies of the report, and related documentation required by § 263.15(e), will be transmitted with recommendations of the Division, Engineer to DAEN-CWP or DAEN-CWO, depending on the study authority (reference § 263.16(a)). Exceptions to the requirements of paragraph (e) of this section should be noted in the letter of transmittal. In the review of a DPR, Division Engineers may refer any major disagreements with reporting officers on planning matters to DAEN-CWP-E, C or W, or on technical engineering matters to DAEN-CWE-B, for resolution prior to release of public notice and submittal of the final report to OCE.
(3) Upon submittal of a Detailed Project Report to OCE, the District Engineer shall release a public notice informing the public of the proposed action. This requirement may be accomplished by the Division Engineer, at his discretion. The notice need not invite comments but will include the address of the District and Division Engineer in the event that interested parties desire to request further information or comment on the recommendations. Public notices are not required when a feasibility study is terminated without submittal of a DPR (paragraph (f)(1) of this section), or when a Recon report is submitted to OCE for project approval (paragraph (b)(3) of this section).
(g)
(h)
(i)
(j)
(k)
(1) As required by ER 405-2-680, requirements of local cooperation are to be stated in the agreement verbatim from the approved project document. Any deviation shall be submitted to DAEN-CWP for approval by the Director of Civil Works, for the Chief of Engineers, prior to the reporting officer obtaining signatures on the agreement.
(2) After OCE approval of the agreement, a work allowance will be issued by DAEN-CWP or DAEN-CWO depending on the Program authority, based on availability of funds.
(l)
(1) Notify DAEN-CWO and DAEN-CWP-A by letter, including a brief description of the completed project, the estimated requirements for operation and maintenance (Federal and non-Federal), the final Federal and non-Federal project costs, and the date on which the project was considered operational.
(2) Notify local interests that project construction has been completed and inform them of their operation and maintenance responsibilities and the operational characteristics of the project.
To provide a Program responsive to local needs, the following target (maximum) completion time objectives are established and should be used to the extent feasible, in scheduling work and programming funds. Shortening of these objectives is encouraged for specific studies and projects when appropriate. However, high standards of planning, design and construction are not to be sacrificed. Attainment of completion-time objectives through intensive management is to be a major concern for those elements and individuals given Program management responsibilities in § 263.16 of this regulation.
(a) The Detailed Project Report serves a dual purpose: the report serves both as basis for approval of a project for construction by the Chief of Engineers and it serves as a basis for preparation of plans and specifications. (See exception for emergencies, § 263.17(b)(3)). The main report should reflect the plan formulation, generally in accordance with ER 1105-2-402 and ER 1105-2-403. A Design Appendix will be provided as appropriate, for more detailed information on the development of the plan, or elements of the selected plan, recommended for implementation as a Federal project by the Corps of Engineers. The Design Appendix of the report will generally meet the requirements of ER 1110-2-1150, as it pertains to Phase II AE&D studies for projects specifically authorized by Congress, except that it need not duplicate material on plan formulation covered in the main report. Other appendixes should be included as required.
(b) It is anticipated that DPR's submitted for projects under Section 208 Authority will be less extensive than reports submitted under Sections 205, 107, 103 and 111 Authorities, and that DPR's submitted for projects under Section 14 Authority will be further abbreviated due to simplicity of the project. The important point is that the planning process should be generally considered the same for studies conducted under all Program authorities; the plan formulation portion of the DPR should reflect this process and the rationale for arriving at the selected plan and recommendations for Federal participation.
(c) The level of detail and extent of engineering work reflected in the Design Appendix must be sufficient to proceed directly to plans and specifications. In the event that the need arrises for feature design memoranda on selected aspects of the project, such requirements should be identified in the letter of transmittal accompanying the DPR when submitted to OCE.
(a)
(b)
(c)
(d)
(a)
(a) The Secretary of the Army is authorized to allot from any appropriations hereafter made for rivers and harbors not to exceed $25,000,000 for any one fiscal year for the construction of small river and harbor improvement projects not specifically authorized by Congress which will result in substantial benefits to navigation and which can be operated consistently with appropriate and economic use of the waters of the Nation for other purposes, when in the opinion of the Chief of Engineers such work is advisable, if benefits are in excess of the costs.
(b) Not more than $2,000,000 shall be allotted for the construction of a project under this section at any single locality and the amount allotted shall be sufficient to complete the Federal participation in the project under this section.
(c) Local interests shall provide without cost to the United States all necessary lands, easements and rights-of-way for all projects to be constructed under the authority of this section. In addition, local interests may be required to hold and save the United States free from damages that may result from the construction and maintenance of the project, and may be required to provide such additional local cooperation as the Chief of Engineers deems appropriate. A State, county, municipality or other responsible local entity shall give assurance satisfactory to the Chief of Engineers that such conditions of cooperation as are required will be accomplished.
(d) Non-Federal interests may be required to share in the cost of the project to the extent that the Chief of Engineers deems that such cost should not be borne by the Federal Government in view of the recreational or otherwise special or local nature of the project benefits.
(e) Each project for which money is allotted under this section shall be complete in itself and not commit the United States to any additional improvement to insure its successful operation other than routine maintenance, and except as may result from the normal procedure apply to projects authorized after submission of survey reports and projects constructed under the authority of this section shall be considered as authorized projects.
(f) This section shall apply to, but not be limited to, the provision of low water access navigation channels from the existing channel of the Mississippi River to harbor areas heretofore or now established and located along the Mississippi River.
(b)
(c)
(d)
(a)
The Secretary of the Army is hereby authorized to allot not to exceed $300,000 from any appropriations made prior to or after March 2, 1945, for any one fiscal year for improvement of rivers and harbors, for removing accumulated snags and other debris, and for protection, clearing and straightening channels in navigable harbors and navigable streams and tributaries thereof, when in the opinion of the Chief of Engineers such work is advisable in the interest of navigation or flood control.
(b)
(2)
(i)
(ii)
(iii)
(c)
(a)
The Secretary of the Army is authorized to allot from any appropriations heretofore or hereafter made for flood control, not to exceed $30,000,000 for any one fiscal year, for the construction of small projects for flood control and related purposes not specifically authorized by Congress, which come within the provisions of Section 1 of the Flood Control Act of June 22, 1936, when in the opinion of the Chief of Engineers such work is advisable. The amount allotted for a project shall be sufficient to complete Federal participation in the project. Not more than $2,000,000 shall be allotted under this section for a project at any single locality, except that not more than $3,000,000 shall be allotted under this section for a project at a single locality if such project protects an area which has been declared to be a major disaster area pursuant to the Disaster Relief Act of 1966 or the Disaster Relief Act of 1970 in the five-year period immediately preceding the date the Chief of Engineers deems such work advisable. The provisions of local cooperation specified in Section 3 of the Flood Control Act of June 22, 1936, as amended, shall apply. The work shall be complete in itself and not commit the United States to any additional
(b)
(c)
(d)
(e)
(a)
The Secretary of the Army is authorized to allot not to exceed $5,000,000 from any appropriations heretofore or hereafter made for any one fiscal year for flood control, for removing accumulated snags and other debris, and clearing and straightening of the channels in navigable streams and tributaries thereof, when in the opinion of the Chief of Engineers such work is advisable in the interest of flood control:
(b)
(c)
(a)
The Secretary of the Army is authorized to allot from any appropriations heretofore or hereinafter made for flood control, not to exceed $10,000,000 per year, for the construction, repair, restoration, and modification of emergency streambank and shoreline protection works to prevent damage to highways, bridge approaches, public works, churches, hospitals, schools, and other nonprofit public services, when in the opinion of the Chief of Engineers such work is advisable:
(b)
(1) Work under this authority is not limited in engineering scope but the design must be an integrally complete within itself project that does not require additional work for effective and successful operation. The cost limitation on Federal participation may require that local interests supplement the Federal funds, so that combined Federal and local efforts will produce a complete, useful improvement.
(2) Reporting officers must be satisfied that the protection of eligible public works and non-profit public services are justified on the basis of the National Economic Development and Environmental Quality objectives.
(c)
(2) “Churches, hospitals, schools” includes churches, and public and private non-profit hospitals and schools.
(3) “Non-profit public services” are considered to be facilities or structures which serve the general public and are not intended to earn a profit. Although they may be publicly used, privately owned, profit-making facilities located along streambanks or shore lines are not eligible for protection.
(4) “Shoreline” includes, but is not limited to, oceans, gulfs, and the Great Lakes.
(d)
(a)
The Secretary of the Army is authorized to undertake construction of small shore and beach restoration and protection projects not specifically authorized by Congress, which otherwise comply with Section 1 of this Act, when he finds that such work is advisable, and he is further authorized to allot from any appropriations hereafter made for civil works, not to exceed $25,000,000 for any one fiscal year for the Federal share of the costs of construction of such projects:
(b)
(c)
(a)
The Secretary of the Army, acting through the Chief of Engineers is authorized to investigate, study, and construct projects for the prevention or mitigation of shore damages attributable to Federal navigation works. The cost of installing, operation and maintaining shall be borne entirely by the United States. No such projects shall be constructed without specific authorization by Congress if the estimated first cost exceeds $1,000,000.
(b)
(2)
(3)
(c)
(i) For construction of works for prevention or mitigation of shore damages such as those caused by river bank erosion or vessel generated wave wash.
(ii) To modify navigation projects authorized, but not constructed, that contain features for prevention or mitigation of shore damages or to change the responsibility for maintenance or to modify portions of constructed navigation projects that contain features for prevention or mitigation of shore damages.
(iii) For prevention or mitigation of shore damages caused by non-Federal navigation projects.
(iv) To construct, maintain, modify or change the cost sharing of authorized beach erosion or combined beach erosion and hurricane protection projects, or portions thereof, located adjacent to Federal navigation projects. Except, when it is determined that shore damage to a portion of an authorized beach erosion project is attributable to the navigation project, mitigation measures may be accomplished under this authority, only to the extent of damages that can be directly identified and attributed to the navigation project.
(2) Where the erosion attributable to the Federal navigation project consists of only a portion of the total erosion problem in a specific area and cannot be considered as a separable reach for effective mitigation measures then a section 111 project cannot be considered for authorization unless,
(i) There is an authorized beach erosion control or combined beach and hurricane protection project for the area with which the section 111 mitigation measures could be combined to become effective, or
(ii) A general study of the entire problem area is made and leads to the development of an authorized beach erosion control project, (specific authority must be obtained to conduct a general study of the entire problem area) or
(iii) Local interests indicate a willingness to have the erosion problem outside the scope of section 111 remedied at local cost.
(d)
(e)
(1) Determine whether or not Federal navigation works are responsible for causing or contributing to the erosion problem.
(2) Determine the extent of the area affected by the navigation works.
(3) Determine total area experiencing significant erosion.
(4) Determine the approximate percentage of the total erosion problem in a specific area that is attributable to the navigation works.
(5) Recommend whether further study of the specific area affected by the Federal navigation works is justified and whether study of the entire area is desirable.
(f)
(g)
(1) The navigation project has been determined to be the cause of the damage.
(2) Analysis based on sound engineering and economic principles clearly demonstrates the feasibility of the proposed work.
(h)
(ii) If the work recommended is a combination of mitigation under section 111 and restoration of beaches eroded due to other causes and there is no authorized beach erosion project, mitigation work under section 111 will be 100 percent Federal and the remaining work will be 100 percent local.
(iii) If the work recommended in the report is a combination of mitigation under section 111 and the restoration of beaches under an authorized beach erosion project or combination beach erosion-hurricane protection project, the mitigation work under section 111 will be 100 percent Federal and the remainder in accordance with the cost sharing procedures as specified in project authorization documents.
(2)
(ii) If the work is a combination of mitigation under section 111 and restoration of beaches eroded due to other causes, and there is no authorized beach erosion project, maintenance costs will be shared in the same proportion as recommended for initial construction,
(iii) If the work is a combination of mitigation under section 111 and an authorized beach erosion control project or combination beach erosion-hurricane protection project, the Federal maintenance cost for the mitigation work under section 111 will be in the same proportion as the damage attributed to the Federal navigation work is to the total damage. For the remaining work the cost sharing procedures of the authorized beach erosion or combined beach erosion-hurricane protection project will apply.
(i)
(2) Where section 111 projects are to be accomplished in conjunction with other works (§ 263.15(a)(2)) local interests will be required to furnish assurance of local cooperation similar to those required for regularly authorized projects for their assigned portion of the work.
(3) Where section 111 projects are to be accomplished in conjunction with authorized projects, the requirements of local cooperation specified in the authorizing document or report will apply.
1.
2.
a.
b.
c.
3.
a.
b.
c.
d.
Sec. 302, Title III, Pub. L. 89-298, River and Harbor Act of 1965 (33 U.S.C. 610), October 27, 1965.
This regulation prescribes policies, procedures and guidelines for research, planning and operations for the Aquatic Plant Control Program under authority of section 302 of the Rivers and Harbors Act of 1965.
This regulation is applicable to all OCE elements and all field operating agencies having civil works responsibilities.
(a) Section 302, Pub. L. 89-298, (79 Stat. 1092), Rivers and Harbors Act of 1965, (Appendix A).
(b) Pub. L. 92-516, Federal Insecticide, Fungicide and Rodenticide Act of 1972, (86 Stat. 973), 21 October 1972.
(c) 40 CFR 180, Tolerances and exemptions from tolerances for pesticide chemicals, 2,4-D, subpart C (F) 16 December 1975.
(d) Pub. L. 91-596, Occupational Safety and Health Act of 1970, (84 Stat. 1609, 29 U.S.C. 668), 29 December 1970.
(e) 29 CFR 1960, Safety and Health Provisions for Federal Employees,
(f) ER 11-2-240, “Civil Works Activities, Construction and Design.”
(g) ER 70-2-3, “Civil Works Research and Development Management System.”
(h) ER 1105-2-507, “Preparation and Coordination of Environmental Statements.” (33 CFR 209.410)
(i) ER 1105-2-811.
(a)
(b)
(c)
(d)
(e)
(i) The problem and practical measures of improvement are of such nature that there is a clear and definite Federal interest warranting Federal participation under the purview of this special authority.
(ii) The proposed work will result in an independent and complete-within-itself project.
(iii) Analysis based on sound economic principles clearly demonstrates that the project will provide information and/or control of aquatic plants.
(iv) Each separable element of the project, as well as the entire project, is economically justified.
(v) Local interests are legally and financially able and willing to meet fully all requirements of local cooperation.
(2) Recommendations for preparation of a detailed planning report for new work on a new problem in a District or Division where control of other aquatic plant problems is currently underway should consider whether such new work represents an equal or higher priority of need for allocation of funds in the same State. Projects will not be recommended which produce undesirable short-term or long-term damage to the human or natural environment.
Investigation of new problems and/or additional control operations not covered by previously approved plans will begin with preparation of a preliminary report based on reconnaissance-type investigations. If it is determined that further planning of a more detailed nature is warranted, approval of a reconnaissance report by HQDA (DAEN-CWO-R) Washington, D.C. 20314 will be followed by further investigations. Normally, a detailed State design memorandum encompassing all aspects of the problem and a proposed plan of action for dealing with it will be prepared.
(a)
(1)
(2)
(b)
(c)
(1) The work involved is not the type normally provided by local entities or private interests as a local responsibility.
(2) The cost of control operation will be shared between the Federal Government (70 percent) and the State receiving the benefit (30 percent).
(3) The actual control operation can be done by Federal, State, and/or private company facilities, under agreements specifying the details and standards of work to be performed.
(4) Consideration will be given in the planning procedure to include physical, chemical and biological methods of control. Priority will be given to biological systems where feasible.
(d)
Reporting officers will prepare and submit to DAEN-CWO-R a detailed description of anticipated Aquatic Plant
Operational activities will be conducted by reporting officers in accordance with approved annual work plans and State design memoranda. Questions should be referred to HQDA (DAEN-CWO-R) WASH DC 20314.
(a)
(b)
The Aquatic Plant Control Program is a continuing activity funded under Construction, General, subject to monetary limitations of $5,000,000 on annual appropriations authorized for the program. Recommendations and supporting data will be submitted in accordance with ER 11-2-240. The amounts requested should be the minimum requirements for the purpose of the authorized program to meet essential needs and should be within the Division's capability to utilize within the budget year taking into account the foreseeable availability of local funds to meet cost-sharing requirements for control operations.
Procedures prescribed under § 384.15 of Chapter II will be observed.
Section 104 of the Rivers and Harbors Act, approved 3 July 1958 (72 Stat. 297, 300), as amended by section 104 of the Rivers and Harbors Act of 1962 (76 Stat. 1173, 1180), and as amended by section 302 of the Rivers and Harbors Act, approved 27 October 1965 (79 Stat. 1092) states as follows:
(b) There are authorized to be appropriated such amounts not in excess of $5,000,000 annually, as may be necessary to carry out the provisions of this section. Any such funds employed for control operations shall be allocated by the Chief of Engineers on a priority basis, based upon the urgency and need of each area, and the availability of local funds.
1. Location and brief description of problem area if necessary for understanding environmental factors, including a suitable map (appendix).
2. Statement of problem with brief description of physical factors pertaining thereto, including identification by common and scientific name of the plant or plants concerned, origin of infestation and likely source of reinfestation; extent of infestation including estimated surface area, depth or density; nature of physical and economic
3. Preliminary plan of procedure, if any, for control operations or engineering works, including control methods, materials, equipment and procedures that may be employed. If sufficient information is not available to outline a preliminary plan for operation control, the report should include a brief statement of the special problems in control methods that need to be resolved before detailed planning can be undertaken.
4. Preliminary project cost estimates broken down into planning and operation costs for Federal and non-Federal budgeting. The report should present sufficient data concerning cost estimates for review by item and unit price.
5. Preliminary economic evaluation with approximation of benefits and brief summary of supporting data classified as general or local.
6. Discussion of availability of authority for State participation in the program, the interest of State agencies in such participation, and the likelihood of State funds being available for cost-sharing required for any control operations.
7. Cost estimate for subsequent preparation of a detailed planning report, and estimated length of time to complete after receipt of funds, and schedule of funding by fiscal years.
1. Description of the problem.
a.
b.
c.
d.
e.
f. Possible cumulative effects of the proposed action in relation to other Federal or non-Federal pesticides application in the treatment area.
g.
2. Program accomplishments:
a.
b. Monitoring accomplishment level.
3. Identification of each chemical:
a.
b.
c.
4. Application:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
5. Alternative measures: Discuss details of alternative methods of control.
1.
2.
3.
4.
a.
b.
5.
6.
1. Follow the label on each container before using the contents. The manufacturers are required by law to list recommendations and precautions.
2. Weather conditions are important. Winds could carry toxic sprays and dusts to areas not under your control, causing accidental poisoning to the public or domestic animals.
3. Smoking is not permitted while herbicides are being handled.
4. All herbicides must be handled in well ventilated areas to minimize inhalation of toxic vapors.
5. Shower and washing facilities must be near herbicides mixing areas.
6. Any contamination of the skin, particularly with liquid concentrations or solutions, must be immediately washed off with detergent and water.
7. Protective clothing is used in conjunction with respiratory protective devices to prevent skin contact and inhalation of herbicides. Recommended articles of protective clothing are rubber aprons, coveralls, chemical splash goggles, safety shoes and hard hats. A lightweight water and chemical resistant throw away type protective clothing that is impervious to herbicides is now available. In warm geographical areas this type of lightweight protective clothing would be beneficial in reducing physical stress to applicators. Additional protection is afforded by protective skin cream.
8. Clothing contaminated by spillage must be removed immediately and thoroughly laundered before wearing. Special care is required to prevent contamination of the inside of gloves.
9. Approved respirators must be worn while herbicides are being mixed, and when dusts or liquids are being handled or sprayed. Care should be exercised when selecting the respirator type to insure that it is designated specifically for the substance to be used. Each canister must be labeled and approved by the Bureau of Mines or HEW (NIOSH). Filters or canisters must be changed after 8 hours use and more often if odor of the herbicide is detected. (Always have extra cartridges available when needed.)
10. Herbicide storage, mixing and formulation facilities.
a. All herbicides must be stored in a dry, well ventilated, separate room, building or covered area not accessible to authorized personnel or the public and placed under lock and key.
b. Identification signs should be placed on rooms, buildings, and fences to advise of the contents and warn of their hazardous nature.
c. Where applicable, label the outside of each storage with the “Danger,” “Poison,” and “Pesticide Storage” signs.
d. Fire extinguishers must be installed near door of material storage room. Diluted oil based herbicides are flammable and must be stored separate from other materials.
e. All herbicide storage, mixing and formulation areas must have adequate ventilation in order to reduce inhalation of toxic vapors. Sparkproof lighting fixtures should be installed in closed storage areas to eliminate ignition hazards.
11. Empty herbicide containers must be disposed of properly. Do not burn them. When herbicides or defoliants volatize, the resulting vapors may be poisonous to humans, and they may damage nearby plants, crops or shrubbery; also, herbicides or defoliants containing chlorates may be a serious fire hazard when heated.
12. Glass herbicide containers should be disposed of by breaking. Chop holes in top, bottom, and sides of metal containers or crush them so they cannot collect water or be reused. After breaking or puncturing them, bury the containers at least 18 inches deep in an isolated area provided for this purpose, away from water supplies or high water tables. Records to locate such buried herbicides within the landfill site should be maintained. Post warning signs.
13. Safety programs developed for the safe handling and mixing of toxic chemicals should be coordinated with the Safety Office prior to implementation.
Pub. L. 92-516, Federal Insecticide, Fungicide and Rodenticide Act of 1972 (86 Stat. 973, 21 Oct 72, 40 CFR part 171, Federal Certification of Pesticide Applicators.
The purpose of this regulation is to assign responsibilities and prescribe procedures concerning the use of chemicals in the Corps pest control program at all civil works projects. It also presents guidance for the preparation and submission of an annual pest control summary report.
This regulation is applicable to all OCE elements and all field operating agencies having Civil Works responsibilities.
(a) Pub. L. 92-516, Federal Insecticide, Fungicide and Rodenticide Act of 1972 (86 Stat. 973), 21 October 1972.
(b) Pub. L. 91-596, Occupational Safety and Health Act of 1970 (84 Stat. 1609, 29 U.S.C. 668) 29 December 1970.
(c) Medical Surveillance Guide, U.S. Army Environmental Hygiene Agency, January 1975.
(d) Guide for the Medical Surveillance of Pest Controllers, U.S. Army Environmental Hygiene Agency, March 1976, as amended.
(e) Pesticide Applicator Training Manual, Cornell University, Ithaca, New York, September 1974.
(f) Plan for Certification of Pesticide Applicators, DOD, June 1976.
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
Under the provisions of Section 4, Pub. L. 92-516, the Environmental Protection Agency is responsible for Federal certification of pesticide applicators through its development of a single Government Agency Plan (GAP). By letter dated December 30, 1976, the Administrator of the Environmental Protection Agency has stated that Federal certification will no longer be undertaken pursuant to a single GAP. The Department of Defense has developed an Agency Plan for certification of its pesticide applicators which has been approved in principle and concept. It has been determined that the DOD Agency Plan satisfies the training requirements for certification of Civil Works personnel. Pending final approval of the DOD Agency Plan, all Corps of Engineers pesticide applicators will be certified in accordance with the criteria described in this regulation by issue of a certificate of training and competency (DA Form 87, 1 Sep 54), signed by the Training Officer and the Division Engineer.
(a)
(b)
(a) Programs approved in § 274.6(b) must be those as described on the pesticide label. Pesticide uses which are different from the registered use, require amendment of the label, approved by the Environmental Protection Agency. Data requirements for this use must be supplied before an amendment will be made by the Agency. Substantial time and effort are required for such action.
(b) If an unexpected outbreak of a pest requires control measures which are not according to the registered use, such control effort is viewed as an emergency measure and may be undertaken at the discretion of the Division Engineer. An emergency will be deemed to exist when:
(1) A pest outbreak has or is about to occur and no pesticide registered for the particular use, or alternative method of control, is available to eradicate or control the pest.
(2) Significant economic or health problems will occur without the use of the pesticide.
(3) The time available from discovery or prediction of the pest outbreak is insufficient for a pesticide to be registered for the particular use. In determining whether an emergency condition exists, the Administrator will also give consideration to such additional facts requiring the use of Section 18 § 274.3(a) as are presented by the applicant.
(c) Emergency operations should be documented by a request for a specific exemption, prepared by the District and forwarded through channels to HQDA (DAEN-CWO-R) WASH DC 20314 for transmittal to EPA.
(1) Each specific exemption must be requested in writing, by the head of the Federal agency or the Governor of the State involved, or other official designee, addressed to the Administator, setting forth the following information:
(i) The nature, scope and frequency of the emergency.
(ii) A description of the pest known to occur, the places or times it may be likely to occur and the estimated time when treatment must be commenced to be effective.
(iii) Whether a pesticide registered for the particular use, or other method of eradicating or controlling the pest, is available to meet the emergency, and the basis for such determination.
(iv) A listing of the pesticide or pesticides the agency proposes to use in the event of an outbreak.
(v) Description of the nature of the program for eradication or control. Such description should include:
(A) Quantity of the pesticide expected to be applied;
(B) Specific Area or place of application;
(C) Method of application;
(D) Duration of application;
(E) Qualifications of personnel involved in such application.
(vi) Statement of economic benefits and losses anticipated with and without the exemption and under reasonable alternatives.
(vii) Analysis of possible adverse effects on man and the environment. If an Environmental Impact Statement has been prepared by an agency, in accordance with that agency's regulations implementing the National Environmental Policy Act of 1969, and is relevant to the above, it shall be submitted with the application.
(viii) Such exemptions, if granted, are valid only for the specific situation involved and are subject to such restrictions as the Administrator may prescribe in granting the exemption. Such restrictions may include, among others, limitations on the quantity of the pesticide to be used, the conditions under which the pesticide may be applied, restrictions as to the person who may apply the pesticide and the type of monitoring activities which should be conducted. Within one year of the granting of the exemption, a summary report on what action was taken to meet the emergency and on the outcome of such action, must be forwarded to HQDA (DAEN-CWO-R) WASH DC 20314, for forwarding to EPA.
(2) [Reserved]
1. Follow the label on each container before using the contents. The manufacturers are required by law to list recommendations and precautions.
2. Weather conditions are important. Winds could carry toxic sprays and dusts to areas not under your control, causing accidental poisoning to the public or domestic animals.
3. Smoking is not permitted while pesticides are being handled.
4. All pesticides must be handled in well-vetilated areas to minimize inhalation of toxic vapors.
5. Shower and washing facilities must be near pesticide mixing areas.
6. Any contamination of skin, particularly with liquid concentrations or solutions, must be immediately washed off with detergent and water.
7. Protective clothing is used in conjunction with respiratory protective devised to prevent skin contact and inhalation of pesticides. Recommended articles of protective clothing are rubber aprons, coveralls, chemical splash goggles, safety shoes, and hard hats. A lightweight water and chemical resistant throw away type protective clothing that is impervious to herbicides is now available. In warm geographical areas this type of lightweight protective clothing would be
8. Clothing contaminated by spillage must be removed immediately and thoroughly laundered before wearing. Special care is required to prevent contamination of the inside of gloves.
9. Approved respirators must be worn while pesticides are being mixed, and when dusts or liquids are being handled or sprayed. Care should be exercised when selecting the respirator type to insure that it is designated specifically for the substance to be used. Each respirator must be labeled and approved by the U.S. Department of Agriculture or NIOSH. Filters or canisters must be changed after 8 hours use and more often if odor of the pesticide is detected. (Always have extra cartridges available when needed).
10. Pesticide storage, mixing, and formulation facilities:
(a) All pesticides must be stored in a dry, well ventilated, separate room, building, or covered area not accessible to unauthorized personnel or the public and placed under lock and key.
(b) Identification signs should be placed on rooms, buildings, and fences to advise of the contents and warn of their hazardous nature.
(c) Where applicable, the outside of each storage area should be labeled with “Danger,” “Poison,” and “Pesticide Storage” signs.
(d) Fire extinguishers must be installed near the door of materiel storage rooms. Diluted oil based pesticides are flammable and must be stored separate from other materials.
(e) All pesticide storage, mixing, and formulation areas must have adequate ventilation in order to reduce inhalation of toxic vapors. Sparkproof lighting fixtures should be installed in closed storage areas to eliminate ignition hazards.
11. Empty pesticide containers must be disposed of properly. Do not burn them. When herbicides or defoliants volatilize the resulting vapors may be poisonous to humans, and they may damage nearby plants, crops, or shrubbery; also, pesticides or defoliants containing chlorates may be a serious fire hazard when heated.
12. Glass pesticide containers should be disposed of by breaking. Chop holes in top, bottom, and sides of metal containers or crush them so they cannot collect water or be reused. After breaking or puncturing them, bury the containers at least 18 inches deep in an isolated area provided for this purpose, away from water supplies or high water tables. Records to locate such buried pesticides within the landfill site should be maintained. Post warning signs.
13. Safety programs developed for the safe handling and mixing of toxic chemicals should be coordinated with the Safety Office prior to implementation.
Sec. 134a, Pub. L. 94-587, 90 Stat. 2928.
This establishes policy guidelines and procedures for Corps of Engineers application of the provisions of section 134a of Pub. L. 94-587.
Policies and procedures contained herein apply to all elements and field operating agencies of the Corps of Engineers having Civil Works responsibilities.
Section 134a authorizes and directs institution of a procedure for certification, at the request of local interests, that particular improvements for flood control to be locally constructed can reasonably be expected to be compatible with a specific, potential Federal project under study. Local interests may proceed to construct such certified compatible improvements at local expense with the understanding that such improvements can be expected to be included in the scope of the Federal project, if later authorized, both for the purposes of analyzing the costs and benefits of the project and assessing the local participation in the costs of such project. This legislative authority ceases to be in effect after December 31, 1977.
Discussion of this legislation is contained in the reports by the Senate Committee on Public Works and the House Committee on Public Works and Transportation which accompanied S. 3823, the Water Resources Development Act of 1976 (Pub. L. 94-587). These reports make clear that Congress intended to encourage local communities to assume responsibility and accelerate local cooperation in reducing urban flooding dangers without committing the United States to any future Federal expenditure. The Senate Committee report noted that some communities might be reluctant to undertake compatible local flood control measures for fear that the local work would jeopardize the potentially favorable cost-benefit ratio of a prospective Federal project. The Act authorizes establishing a procedure for certification of certain local improvements undertaken for the purpose of flood control. Cost assignable to that part of the local improvement that would constitute an integral part of a prospective Federal plan would be eligible to be recommended for credit toward required local cooperation. The Senate Committee report specifically stated that:
* * * This flexibility should in no way be interpreted as a Federal assurance of late approval of any project. While it is in no way a Federal commitment, this provision assures the city that the work it undertakes, once certified, will not be removed from the cost-benefit analysis. and it assures the city that such local work will be credited toward the local costs of cooperation, should the project be later authorized. This will not, however, qualify the community for any cash refunds. If the local costs on such certified work exceed the local share, when later computed, the local government must assume that extra cost. * * *
(a) This provision will be applied only at locations where a congressionally authorized study is underway or where the study report has been forwarded for Executive Branch review or for consideration by Congress. If a study is underway, the District Engineer must have held the final public meeting and filed a draft EIS with CEQ prior to certification. Certification will be in response to a specific request from a State, city, municipality or public agency that is the prospective local sponsoring agency for the contemplated Federal plan under study.
(b) Work eligible for certification shall be limited to that part of the local improvement directly related to a flood control purpose.
(c) Only local work commenced after certification shall be eligible for certification except for local engineering work noted below in § 276.6(e). The work proposed for certification must meet the following requirements: The work will be separately useful even if the Federal Government does not authorize and construct the contemplated project; the work to be accomplished by the non-Federal entity will not create a potential hazard; certification of the proposal will be in the general public interest.
(d) Costs assigned to that part of the local improvement that would constitute an integral part of the prospective recommended Federal plan can be included for credit toward required local cooperation. The amount creditable shall equal the expenditures made by the non-Federal entity for work that would have been accomplished at Federal expense if the entire project were carried out by the Corps of Engineers. However, credit will not exceed the amount the District Engineer considers a reasonable estimate of the reduction in Federal expenditures resulting from the local work. Costs of subsequent maintenance will not be credited. In the event that the local construction work is financed by a Federal non-reimbursable grant or Federal funds from other Federal sources, the amount creditable against future local cooperation requirements shall be reduced by a commensurate amount. However, there will be no corresponding reduction in the benefits credited for the local improvement.
(e) Local interests are responsible for developing all necessary engineering plans and specifications for the work they propose to undertake. However, those non-Federal engineering costs and overhead costs directly attributable to the creditable part of local work may be included in the amount credited.
(a) Non-Federal entities desiring certification credit under the provisions of section 134a of Pub. L. 94-587 should confer with the District Engineer and submit a written application to him. The application will include full description of planned work, plans, sketches, and similar engineering data and information sufficient to permit analysis of the local proposal.
(b) The District Engineer shall review the engineering adequacy of the local proposal and its relation to the possible selected Federal Plan and determine what part of the proposed local improvement would be eligible for certification. Prior to certification, the District Engineer will obtain the concurrence—through the Division Engineer and the Chief of Engineers—of the Assistant Secretary of the Army (Civil Works) by forwarding a copy of the draft survey report and providing information on:
(1) Coordination with local interests including results of public meetings and circulation of the draft EIS.
(2) Basis for concluding the local plan is appropriate in relation to the prospective Federal plan.
(3) Total estimated cost of creditable work.
(4) The urgency for proceeding with the local plan.
(c) The District Engineer shall reply by letter stating to the local applicant what local work and costs can reasonably be expected to be creditable under the provisions of section 134a. This letter shall be the certification contemplated under section 134a. The certification shall include the following conditions:
(1) Issuance of certification shall not be interpreted as a Federal assurance regarding later approval of any project nor shall it commit the United States to any type of reimbursement if a Federal project is not undertaken.
(2) Issuance of the certification does not eliminate the need for compliance with other Federal, State, and local requirements, including any requirements for permits, Environmental Impact Statements, etc.
(3) If the improvement proposed by the non-Federal entity includes work that will not become a part of the Federal project, the means of determining the part eligible for reimbursement shall be fully defined.
(4) Certification shall expire 3 years after the date of certification if the non-Federal entity has not commenced the work contemplated by the certification.
(d) The non-Federal entity will notify the District Engineer when work commences. The District Engineer will conduct periodic and final inspections. Upon completion of local work, local interests shall provide the District Engineer details of the work accomplished and the actual costs directly associated therewith. The District Engineer shall audit claimed costs to a certain and confirm those costs properly creditable and shall inform the non-Federal entity of the audit results.
(e) During further Corps studies, the local work actually accomplished that would constitute a legitimate part of the overall recommended Federal project may be incorporated within any plan later recommended for authorization. It shall be permissible to include the accepted costs of such certified local improvement and the flood control benefits properly attributable thereto in the benefit-cost computations for the recommended plan.
(f) If the Corps report recommends Federal authorization of a plan that incorporates credit for local work certified under section 134a, the report shall include a specific recommendation to cover this credit and shall provide full identification and description of the local work for which such credit is recommended.
(g) The District Engineer shall submit a copy of his certification letter and notification of creditable costs of completed work to the Assistant Secretary of the Army (Civil Works) through the Division Engineer and the Chief of Engineers.
(h) All justification sheets supporting new start recommendations for Advance Engineering and Design or Construction projects will include information on certification activities in the paragraph on local cooperation. The information should include but not be limited to date of certification, work completion, description and cost of credit work.
The legislation specifies that this authority shall cease to be in effect after December 31, 1977. No requests for certification will be processed after that date. To be eligible for credit, proposals for local work must have been certified by the District Engineer no later than December 31, 1977. There is no requirement that the local improvement be initiated or accomplished by that date.
Sec. 2, River and Harbor Act of 1920, 41 Stat. 1009, June 5, 1920; 33 U.S.C. 547.
This regulation provides policies and guidelines for the apportionment of bridge alteration costs required in connection with navigation improvements recommended in reports transmitted to the Chief of Engineers for approval or submitted to Congress for authorization.
This regulation applies to all HQUSACE elements and all USACE Commands having Civil Works responsibilities. For bridges altered under U.S. Coast Guard authority pursuant to the Truman-Hobbs Act (33 U.S.C. 511-524), the U.S. Coast Guard regulations codified at 33 CFR part 116 apply.
(a) Section 6, Pub. L. 647, 67th Congress, 21 June 1940, as amended (33 U.S.C. 516). (Appendix A).
(b) Section 6, Pub. L. 89-670, Department of Transportation Act, 15 October 1966 (49 U.S.C. 1655).
(c) Coast Guard reference: COMDT (G-OPT-3), Exemplification-Principles of Apportionment of Cost for Alteration of Obstructive Bridges under the Provisions of Act of Congress June 21, 1940 (as amended); File No. 16592.
(d) ER 1105-2-100.
(e) EP 1165-2-2 Appendix C.
The following definitions are applicable to this regulation:
(a)
(b)
(c)
(d)
Pub. L. 647 as amended, (33 U.S.C. 511-523) commonly referred to as the “Truman-Hobbs Act” provides for the alteration of railroad and highway bridges when found unreasonably obstructive to navigation. Section 6 of that Act establishes policies for the apportionment of such bridge alteration costs. Public Law 89-670, transferred to the Secretary of Transportation from the Secretary of the Army the responsibility for administration of the Act. Pursuant to this responsibility, the Secretary of Transportation has established implementing procedures based on those previously adopted and utilized by the Chief of Engineers prior to 15 October 1966. This regulation adapts these cost apportionment procedures, found in reference § 277.3(c), to Corps of Engineers planning.
(a) The cost apportionment principles of 33 U.S.C. 516 are applicable to the costs of bridge alterations recommended by reporting officers in the interest of navigation during preauthorization planning, including studies conducted under the Continuing Authorities Program.
(b) The bridge owner shall bear such part of the cost as is attributable to the direct and special benefits which will accrue to the bridge owner as a result of the alteration, including the expectable savings in repair or maintenance costs. That part of the cost attributable to the requirements of railroad or highway traffic shall also be borne by the bridge owner, to include any expenditure for increased carrying capacity of the bridge, and such proportion of the actual capital cost of the old bridge as the used service life bears to the total estimated service life.
(c) In general, the Federal government's participation in the cost of a bridge alteration shall be limited to providing a functional facility equal in every respect, as near as possible, to the existing facility, while also providing navigational clearances required to meet the anticipated and reasonable needs of navigation.
(d) If the bridge owner or other local interests desire improvements or modifications in the new bridge design for reasons other than that required by the navigation improvement project, the reporting officer may recommend such improvements if such local interests provide necessary assurances to pay the costs apportioned to them.
(e) In the case of small boat harbors and channels, the costs of bridge alterations, strictly for recreation navigation shall be apportioned in accordance with the procedures provided in this regulation. Bridge alteration costs associated with small boat harbors and channels and not apportioned to the bridge owner by the procedures in this regulation, shall be cost shared on the basis of 50 percent Federal and 50 percent non-Federal, the same as the costs of other general navigation facilities.
(f) Reporting officers shall obtain letters of intent from local interests for non-Federal costs apportioned under the provisions of this regulation, in accordance with established procedures for preauthorization feasibility studies. If such letters cannot be obtained from the bridge owner, the reporting officers shall then include in their report a statement that the cost of such alterations shall be borne by the bridge owner or, in the alternative, be apportioned between the bridge owner and the Government as provided under the principles of Section 6 of the Truman-Hobbs Act (33 USC 516).
In accordance with an agreement signed by the Chief of Engineers on 18 April 1973 (EP 1165-2-2), reporting officers shall consult with the Coast Guard on contemplated and recommended navigation improvements which involve the consideration of bridge alterations. Determination of navigational requirements for horizontal and vertical clearances of bridges across navigable waters is a responsibility of the Coast Guard. The Chief of Engineers shall coordinate preauthorization feasibility reports, which include recommended bridge alterations, with the Commandant, U.S. Coast Guard.
This paragraph provides the procedures for apportionment of costs of bridge alterations, as established by the U.S. Coast Guard (reference § 277.3(c)) and adapted for use in Corps planning and construction programs. A sample apportionment of the cost of a hypothetical bridge alteration is provided in Appendix B.
(a)
(b)
(c)
(2)
(3)
(4)
(i) Access roads.
(ii) Concrete or stone finish of embankment slopes instead of seeding.
(iii) Water proofing and skid-resistant epoxy finish of masonry surfaces.
(iv) Steel or concrete spans instead of timber trestle.
(v) Ballasted deck instead of open deck.
(vi) Trainman's walkways and sidewalks.
(vii) Elevators costing more than stairways.
(viii) Materials of greater thickness or heavier weight than supported by design requirements.
(ix) Exotic materials for machinery and operator's house, including tinted and insulated windows.
(x) Heaters and insulation in the machinery house.
(xi) Operator's house furnishings, air-conditioners, water coolers, and medicine cabinets.
(xii) Hydraulic jacks for counterweight support.
(xiii) Fourth coat of paint, and exotic paint systems.
(xiv) Brass pipe and high alloy steel conduits.
(xv) Floodlights and metallic vapor arc lights.
(xvi) Spare parts.
(xvii) Lubricants and lubrication equipment, and tools in excess of minimum requirements.
(d)
(2) Expectable savings in repair costs is that amount which the bridge owner will not have to pay to restore his bridge, which may be in a damaged condition or may be dilapidated, since the bridge is being altered or removed as a part of the contemplated navigation improvement.
(e)
(1) Increased navigational clearances for the benefit of land traffic.
(2) Wider roadbed.
(3) Additional traffic lanes or track.
(4) Medians and wider traffic lanes.
(5) Increased train clearances and spacing of tracks.
(6) Larger cross and bridge ties.
(7) New and heavier rail and expansion joint devices.
(8) Additional signaling and communications systems.
(9) Additional right-of-way.
(f)
(g)
(2) For railroad bridges service life, figures of 100 years for substructure, 70 years for superstructure, 37 years for treated timber, 35 years for automatic signals, 20 years for main rail, 30 years for siding rail, and 20 years for crossties and bridge ties are considered to be reasonable and will be used in computing the bridge owner's liability. The service life of the operator's house and machinery house, including machinery, is considered to expire with the removal of the superstructure. For timber structures which have been in existence for more than 50 percent of their estimated service life, the expired service life is held usually at 50 percent providing the structure has been adequately maintained and is in a good state of repair.
(3) The service life of highway bridges, except for certain long span
(4) The foregoing service life figures are not to be used arbitrarily, but as a basis for a fair judgment of the service life considering all other factors that pertain in any particular case.
At the time the Secretary*
*Secretary of Transportation.
Following is the interpretation of the principles as applied to the alteration of a hypothetical highway—railroad bridge across Blank River between City A and City B.
The existing double deck swing span will be replaced with a new double deck lift span affording a horizontal navigation opening of 250 feet clear width between piers normal to the navigation channel and a vertical clearance of 125 feet above mean high water in the raised position.
This value is deducted from the original cost to determine the actual capital cost (Table VII). It is also deducted from the Total Estimated Cost of Alteration Project to determine the cost to be apportioned.
A fixed charge such as engineering, design and inspection costs, realtor's and counsel's fees, and bridge owner's administrative expenses is an undistributed cost shared in the ratio that each party shares the cost of construction less fixed charges. In computing the bridge owner's share of the fixed charges, all other financial liabilities assigned to the bridge owner shall be included in the computation. (Table II).
Section 6 of the Act provides that in the event the alteration or relocation of any bridge may be desirable for the reason that the bridge unreasonably obstructs navigation, but also for some other reason, the Secretary may require equitable contribution
The new bridge is designed for increased loading and width greater than that of the old bridge. Therefore, the estimated annual maintenance cost was based on a hypothetical bridge designed, but not constructed, for the same loading and width as the old bridge but with increased clearances as required to meet the needs of waterborne navigation, and not on the estimated annual maintenance cost of the new bridge. The savings in repair costs represents a savings to the bridge owner who will not have to restore the bridge that was recently damaged since it is being altered as a part of a proposed navigation improvement.
The old bridge carries a highway deck on the upper level consisting of a roadway 18 feet wide (no sidewalks) and a railway deck on the lower level with 110-lb. rails. The new bridge will carry a highway deck on the upper level consisting of one 28-foot roadway and two 5-foot sidewalks, and the railway deck will have new 130-lb. rails. In addition, the railway deck will be paved to carry highway traffic. Thus, the bridge may be kept in an intermediate raised position when not being used by railway traffic to pass small-boat traffic without delaying highway traffic. City A also desires to provide additional highway approaches and right-of-way to connect a nearby secondary road with the new bridge.
The highway deck of the old bridge was designed for a live loading equivalent to AASHO H15-44 and the railway deck for live loading of Cooper E 45. The highway deck of the new bridge will be designed for live loading AASHO HS20-44, and the railway deck will be designed for live loading of Cooper E 60. Accordingly, the bridge owner will pay the additional cost for the increased carrying capacity of the new bridge.
The structure of the old bridge was completed in 1908 and the superstructure completed in 1909. For this hypothetical example it was assumed the bridge would be replaced in 1970.
8. The following is an explanation of the procedure for determining the tabulation of proportionate shares of costs to be borne by the United States and the bridge owner presented in Table B.
(1) Cost of alteration to be apportioned is the total estimated cost of the project (excluding contingencies) less salvage value (§ 277.8(b)), less contribution by third party, if applicable (§ 277.8c(3)).
(2) Share to be borne by the bridge owner is the sum of the direct and special benefits (§ 277.8(c)) expectable savings in repair or maintenane costs (paragraph 8d), costs attributable to requirements of railway and highway traffic (§ 277.8(e)), expenditure for increased carrying capacity (§ 277.8(f)) and expired service life of old bridge (§ 277.8(g))
(3) Share to be borne by the United States is the difference between the cost of alteration to be apportioned and the share to be borne by the bridge owner.
(4) The exact amount of costs to be borne by the bridge owner will be determined upon completion of the project.
(5) Contingencies may be included in the total shares to be borne by both the United States and the bridge owner.
Pub. L. 89-72, Federal Water Project Recreation Act, 79 Stat. 213
This regulation provides policy and guidance for establishing resource use objectives for all Civil Works water resource projects during Phase I/Phase II
This regulation is applicable to all OCE elements and all field operating agencies having Civil Works responsibilities.
(a) Pub. L. 89-72, “Federal Water Project Recreation Act,” July 9, 1965 (79 Stat. 213
(b) ER 1105-2-200, Multiobjective Planning Framework (33 CFR part 290).
For the purposes of this regulation:
(a)
(b)
(c)
(d)
(a) It is the policy of the Chief of Engineers that all water resource projects administered by the Corps will have established a set of resource use objectives. These objectives will be based upon the expressed preferences of the residents of the region served (social option) and will be in keeping with the capabilities of the natural and man-made resources of the specific project (resource option). A regional analysis is required to tailor each project to serve expressed preferences within its resource capabilities and consistent with Federal laws and administrative cost-sharing policy. Preparation of regional studies and establishment of these objectives will utilize an interdisciplinary team with leadership by planning, and participation from engineering, design, real estate, and operations elements. Each project will emphasize those specific resource use objectives determined, through public participation, to achieve the greatest overall public benefit. Subsequent aspects of planning, development, and management for the specific project will be directed to achieving the approved resource use objectives.
(b) The implementation of this policy requires that the public be fully involved in the regional studies and development of resource use objectives and management plans for each specific water resource project, including at least one public meeting. The establishment of resource use objective may be addressed at a general public meeting held for the project if adequate discussion can be achieved. If not, the district engineer should conduct a separate meeting for this purpose.
The process of determining resource use objectives flows through three overlapping steps and considers three main sets of data. Figure 1 presents an overview of this process.
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(b)
(a) Resource use objectives through development and management programs will be incorporated into Phase I, and Phase II General Design Memoranda and Master Plans for authorized and completed water resource projects (report requirements depend on AE&D status of project). The establishment of resource use objectives for projects formulated under the part 290 of this chapter planning process should not require a great deal of additional effort to bring them in compliance with this regulation. However, more effort may be required for completed projects with existing use patterns and constructed facilities.
(b) Regional studies are prerequisite to effective project planning for establishment of resource use objectives. Division engineers are responsible for issuing criteria and instructions, for use by district engineers, on establishing regional boundaries, conduct of regional studies and content and format of report requirements. As a minimum, one criteria to consider is that a regional boundary could be formed by double the estimated distance from the centroids of population located within the market area of any operating project. Regional boundaries need not be restricted either to States or to District hydrologic boundaries. In those cases where a region may cross District boundaries, division engineers will establish administrative responsibility. District engineers are responsible for preparation of districtwide regional boundary plans, scheduling of study efforts, and report preparation. Boundary plans, study schedules and reports shall be submitted for approval in accordance with instructions issued by the division engineer. Four copies of the approved regional boundary plan and regional study report will be furnished to HQDA (DAEN-CWP-P), WASH DC 20314 for comment, in accordance with procedures given in ER 1110-2-1150. Investigations and report preparation for regional studies may be accomplished with funds from Operation and Maintenance General appropriations programmed for preparation of individual project Master Plans. Through implementation of the regional analysis approach, it is expected that an overall savings in individual Master Plan preparation can be realized. In any event, it is not expected that the overall program cost will increase.
(c) District engineers will incorporate the establishment of resource use objectives into the on-going Master Plan preparation process. Those Master Plans currently being prepared or updated and not substantially completed should be modified to reflect this policy. Those projects with high quality resources and/or conflicts between use and current resource management should be given a high priority so that redirection of facility development and management programs can be implemented as soon as possible.
Division engineers will review the Districts Master Plan priority schedule and monitor regional studies and Master Plan preparation to insure timely compliance on development of resource use objectives. Future budget submissions and expenditures of construction and operation and maintenance funds will be reviewed by division engineers as to their relationship to the approved resource use objectives and management implementation. Questions and requests for technical assistance concerning implementation of the concept and guidance set forth in this regulation may be directed to HQDA (DAEN-CWP-P) WASH DC 20314 or DAEN-CWO-R.
This appendix presents some example resource use objectives that might be derived for a water resource project. They are presented for illustrative purposes only and are not intended to represent any specific project or the full range of objectives that could be developed.
The following sample resource use objectives reflect what could result from a detailed analysis and evaluation of the resources on the project, the resources and opportunity in the general region, and the needs of the public. Each objective has a brief discussion on why that particular objective would be selected.
(Discussion) The analysis of regional and site specific factors indicates that this project with its small water surface and excellent water quality is not suitable for power boating; is in a suburban area with housing developments already adjacent to the project boundaries or presently planned; the natural resources have already been extensively disturbed; the soil conditions would be susceptive to extensive landscaping and could withstand high levels of public use; the water quality and waterland form characteristics are ideal for swimming and wading; there is currently a deficiency in available lake swimming, open space and day use activity facilities in the going market
(Discussion) The analysis of pertinent factors indicates that there exists a high demand for warm water fishing; that the water quality and other necessary environmental factors are present which would support a warm water fishery; that modified reservoir clearing, water level management and provision for fish shelters would provide necessary inputs for improved fish production; that some zoning on boat usage in certain embayments will decrease the conflicts between fishing and boating; and that current state fishery programs will provide assistance and the necessary technical advice.
(Discussion) The analysis of pertinent factors indicates that high intensity recreation use demand can be satisfied at other areas on the project; the soil in the wash would be highly susceptible to erosion if the vegetation were removed; soil compaction would cause loss of ground cover; trails can be designed to avoid drainage and erosion problems; unique associations of vegetation exist in the wash; the nearest vehicle access point is one mile from the site; during public meetings local environmental groups have expressed an interest to preserve the area for educational purposes; there is a large population base within two hours drive of the project; two local universities have volunteered to administer the area in conjunction with their environmental course work and related work; and the County is zoning the adjacent land to protect the watershed of the Wash.
(Discussion) The analysis of regional and site factors indicate that this project with its small water surface and lack of scenic qualities does not experience much local use. A heavily traveled Interstate Highway with an interchange is within a quarter mile of the project boundary. The location of this project is such that it is within a days travel from major recreation areas; the soil conditions are suitable for high density public use and there is a deficiency of transient camping along this portion of the Interstate.
(Discussion) The analysis of regional and site factors indicate that this project with its outstanding scenic qualities and its location, is suitable for destination or vacation type recreation activities. Private interest have expressed desires to provide sophisticated lodging and camping facilities together with other recreation development to provide for a diversity of recreation activities.
(Discussion) The analysis of pertinent factors indicates that high intensity recreation use demand can be satisfied at other areas on the project. The archeological (historical) site is one of the few sites that has not been destroyed over the years. The local archeological (historical) society has expressed an interest during public meeting in preserving and interpreting the site as part of their society program.
33 U.S.C. 401
(a)
(2) The Corps is a highly decentralized organization. Most of the authority for administering the regulatory program has been delegated to the thirty-six district engineers and eleven division engineers. A district engineer's
(3) The Corps seeks to avoid unnecessary regulatory controls. The general permit program described in 33 CFR parts 325 and 330 is the primary method of eliminating unnecessary federal control over activities which do not justify individual control or which are adequately regulated by another agency.
(4) The Corps is neither a proponent nor opponent of any permit proposal. However, the Corps believes that applicants are due a timely decision. Reducing unnecessary paperwork and delays is a continuing Corps goal.
(5) The Corps believes that state and federal regulatory programs should complement rather than duplicate one another. The Corps uses general permits, joint processing procedures, interagency review, coordination, and authority transfers (where authorized by law) to reduce duplication.
(6) The Corps has authorized its district engineers to issue formal determinations concerning the applicability of the Clean Water Act or the Rivers and Harbors Act of 1899 to activities or tracts of land and the applicability of general permits or statutory exemptions to proposed activities. A determination pursuant to this authorization shall constitute a Corps final agency action. Nothing contained in this section is intended to affect any authority EPA has under the Clean Water Act.
(b)
(1) Dams or dikes in navigable waters of the United States (part 321);
(2) Other structures or work including excavation, dredging, and/or disposal activities, in navigable waters of the United States (part 322);
(3) Activities that alter or modify the course, condition, location, or capacity of a navigable water of the United States (part 322);
(4) Construction of artificial islands, installations, and other devices on the outer continental shelf (part 322);
(5) Discharges of dredged or fill material into waters of the United States (part 323);
(6) Activities involving the transportation of dredged material for the purpose of disposal in ocean waters (part 324); and
(7) Nationwide general permits for certain categories of activities (part 330).
(c)
(d)
(a) Section 9 of the Rivers and Harbors Act, approved March 3, 1899 (33 U.S.C. 401) (hereinafter referred to as section 9), prohibits the construction of any dam or dike across any navigable water of the United States in the absence of Congressional consent and approval of the plans by the Chief of Engineers and the Secretary of the Army. Where the navigable portions of the waterbody lie wholly within the limits of a single state, the structure may be built under authority of the legislature of that state if the location and plans or any modification thereof are approved by the Chief of Engineers and by the Secretary of the Army. The instrument of authorization is designated a permit (See 33 CFR part 321.) Section 9 also pertains to bridges and causeways but the authority of the Secretary of the Army and Chief of Engineers with respect to bridges and causeways was transferred to the Secretary of Transportation under the Department of Transportation Act of October 15, 1966 (49 U.S.C. 1155g(6)(A)). A DA permit pursuant to section 404 of the Clean Water Act is required for the discharge of dredged or fill material into waters of the United States associated with bridges and causeways. (See 33 CFR part 323.)
(b) Section 10 of the Rivers and Harbors Act approved March 3, 1899, (33 U.S.C. 403) (hereinafter referred to as section 10), prohibits the unauthorized obstruction or alteration of any navigable water of the United States. The construction of any structure in or over any navigable water of the United States, the excavating from or depositing of material in such waters, or the accomplishment of any other work affecting the course, location, condition, or capacity of such waters is unlawful unless the work has been recommended by the Chief of Engineers and authorized by the Secretary of the Army. The instrument of authorization is designated a permit. The authority of the Secretary of the Army to prevent obstructions to navigation in navigable waters of the United States was extended to artificial islands, installations, and other devices located on the seabed, to the seaward limit of the outer continental shelf, by section 4(f) of the Outer Continental Shelf Lands Act of 1953 as amended (43 U.S.C. 1333(e)). (See 33 CFR part 322.)
(c) Section 11 of the Rivers and Harbors Act approved March 3, 1899, (33 U.S.C. 404), authorizes the Secretary of the Army to establish harbor lines channelward of which no piers, wharves, bulkheads, or other works
(d) Section 13 of the Rivers and Harbors Act approved March 3, 1899, (33 U.S.C. 407), provides that the Secretary of the Army, whenever the Chief of Engineers determines that anchorage and navigation will not be injured thereby, may permit the discharge of refuse into navigable waters. In the absence of a permit, such discharge of refuse is prohibited. While the prohibition of this section, known as the Refuse Act, is still in effect, the permit authority of the Secretary of the Army has been superseded by the permit authority provided the Administrator, Environmental Protection Agency (EPA), and the states under sections 402 and 405 of the Clean Water Act, (33 U.S.C. 1342 and 1345). (See 40 CFR parts 124 and 125.)
(e) Section 14 of the Rivers and Harbors Act approved March 3, 1899, (33 U.S.C. 408), provides that the Secretary of the Army, on the recommendation of the Chief of Engineers, may grant permission for the temporary occupation or use of any sea wall, bulkhead, jetty, dike, levee, wharf, pier, or other work built by the United States. This permission will be granted by an appropriate real estate instrument in accordance with existing real estate regulations.
(f) Section 404 of the Clean Water Act (33 U.S.C. 1344) (hereinafter referred to as section 404) authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits, after notice and opportunity for public hearing, for the discharge of dredged or fill material into the waters of the United States at specified disposal sites. (See 33 CFR part 323.) The selection and use of disposal sites will be in accordance with guidelines developed by the Administrator of EPA in conjunction with the Secretary of the Army and published in 40 CFR part 230. If these guidelines prohibit the selection or use of a disposal site, the Chief of Engineers shall consider the economic impact on navigation and anchorage of such a prohibition in reaching his decision. Furthermore, the Administrator can deny, prohibit, restrict or withdraw the use of any defined area as a disposal site whenever he determines, after notice and opportunity for public hearing and after consultation with the Secretary of the Army, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreational areas. (See 40 CFR part 230).
(g) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) (hereinafter referred to as section 103), authorizes the Secretary of the Army, acting through the Chief of Engineers, to issue permits, after notice and opportunity for public hearing, for the transportation of dredged material for the purpose of disposal in the ocean where it is determined that the disposal will not unreasonably degrade or endanger human health, welfare, or amenities, or the marine environment, ecological systems, or economic potentialities. The selection of disposal sites will be in accordance with criteria developed by the Administrator of the EPA in consultation with the Secretary of the Army and published in 40 CFR parts 220 through 229. However, similar to the EPA Administrator's limiting authority cited in paragraph (f) of this section, the Administrator can prevent the issuance of a permit under this authority if he finds that the disposal of the material will result in an unacceptable adverse impact on municipal water supplies, shellfish beds, wildlife, fisheries, or recreational areas. (See 33 CFR part 324).
(a) Section 401 of the Clean Water Act (33 U.S.C. 1341) requires any applicant for a federal license or permit to conduct any activity that may result in a discharge of a pollutant into waters of the United States to obtain a certification from the State in which the discharge originates or would originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the affected
(b) Section 307(c) of the Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1456(c)), requires federal agencies conducting activities, including development projects, directly affecting a state's coastal zone, to comply to the maximum extent practicable with an approved state coastal zone management program. Indian tribes doing work on federal lands will be treated as a federal agency for the purpose of the Coastal Zone Management Act. The Act also requires any non-federal applicant for a federal license or permit to conduct an activity affecting land or water uses in the state's coastal zone to furnish a certification that the proposed activity will comply with the state's coastal zone management program. Generally, no permit will be issued until the state has concurred with the non-federal applicant's certification. This provision becomes effective upon approval by the Secretary of Commerce of the state's coastal zone management program. (See 15 CFR part 930.)
(c) Section 302 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (16 U.S.C. 1432), authorizes the Secretary of Commerce, after consultation with other interested federal agencies and with the approval of the President, to designate as marine sanctuaries those areas of the ocean waters, of the Great Lakes and their connecting waters, or of other coastal waters which he determines necessary for the purpose of preserving or restoring such areas for their conservation, recreational, ecological, or aesthetic values. After designating such an area, the Secretary of Commerce shall issue regulations to control any activities within the area. Activities in the sanctuary authorized under other authorities are valid only if the Secretary of Commerce certifies that the activities are consistent with the purposes of Title III of the Act and can be carried out within the regulations for the sanctuary.
(d) The National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) declares the national policy to encourage a productive and enjoyable harmony between man and his environment. Section 102 of that Act directs that “to the fullest extent possible: (1) The policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and
(2) All agencies of the Federal Government shall * * * insure that presently unquantified environmental amenities and values may be given appropriate consideration in decision-making along with economic and technical considerations * * *”. (See Appendix B of 33 CFR part 325.)
(e) The Fish and Wildlife Act of 1956 (16 U.S.C. 742a,
(f) The Federal Power Act of 1920 (16 U.S.C. 791a
(g) The National Historic Preservation Act of 1966 (16 U.S.C. 470) created the Advisory Council on Historic Preservation to advise the President and Congress on matters involving historic preservation. In performing its function the Council is authorized to review and comment upon activities licensed by the Federal Government which will have an effect upon properties listed in the National Register of Historic Places, or eligible for such listing. The concern of Congress for the preservation of significant historical sites is also expressed in the Preservation of Historical and Archeological Data Act of 1974 (16 U.S.C. 469
(h) The Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701
(i) The Endangered Species Act (16 U.S.C. 1531
(j) The Deepwater Port Act of 1974 (33 U.S.C. 1501
(k) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361
(l) Section 7(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1278
(m) The Ocean Thermal Energy Conversion Act of 1980, (42 U.S.C. section 9101
(n) Section 402 of the Clean Water Act authorizes EPA to issue permits under procedures established to implement the National Pollutant Discharge Elimination System (NPDES) program. The administration of this program can be, and in most cases has been, delegated to individual states. Section 402(b)(6) states that no NPDES permit will be issued if the Chief of Engineers, acting for the Secretary of the Army and after consulting with the U.S. Coast Guard, determines that navigation and anchorage in any navigable water will be substantially impaired as a result of a proposed activity.
(o) The National Fishing Enhancement Act of 1984 (Pub. L. 98-623) provides for the development of a National Artificial Reef Plan to promote and facilitate responsible and effective efforts to establish artificial reefs. The Act establishes procedures to be followed by the Corps in issuing DA permits for artificial reefs. The Act also establishes the liability of the permittee and the United States. The Act further creates a civil penalty for violation of any provision of a permit issued for an artificial reef.
The following policies shall be applicable to the review of all applications for DA permits. Additional policies specifically applicable to certain types of activities are identified in 33 CFR parts 321 through 324.
(a)
(2) The following general criteria will be considered in the evaluation of every application:
(i) The relative extent of the public and private need for the proposed structure or work:
(ii) Where there are unresolved conflicts as to resource use, the practicability of using reasonable alternative locations and methods to accomplish the objective of the proposed structure or work; and
(iii) The extent and permanence of the beneficial and/or detrimental effects which the proposed structure or work is likely to have on the public and private uses to which the area is suited.
(3) The specific weight of each factor is determined by its importance and relevance to the particular proposal. Accordingly, how important a factor is and how much consideration it deserves will vary with each proposal. A specific factor may be given great weight on one proposal, while it may not be present or as important on another. However, full consideration and appropriate weight will be given to all comments, including those of federal, state, and local agencies, and other experts on matters within their expertise.
(b)
(2) Wetlands considered to perform functions important to the public interest include:
(i) Wetlands which serve significant natural biological functions, including food chain production, general habitat and nesting, spawning, rearing and resting sites for aquatic or land species;
(ii) Wetlands set aside for study of the aquatic environment or as sanctuaries or refuges;
(iii) Wetlands the destruction or alteration of which would affect detrimentally natural drainage characteristics, sedimentation patterns, salinity distribution, flushing characteristics, current patterns, or other environmental characteristics;
(iv) Wetlands which are significant in shielding other areas from wave action, erosion, or storm damage. Such wetlands are often associated with barrier beaches, islands, reefs and bars;
(v) Wetlands which serve as valuable storage areas for storm and flood waters;
(vi) Wetlands which are ground water discharge areas that maintain minimum baseflows important to aquatic resources and those which are prime natural recharge areas;
(vii) Wetlands which serve significant water purification functions; and
(viii) Wetlands which are unique in nature or scarce in quantity to the region or local area.
(3) Although a particular alteration of a wetland may constitute a minor change, the cumulative effect of numerous piecemeal changes can result in a major impairment of wetland resources. Thus, the particular wetland site for which an application is made
(4) No permit will be granted which involves the alteration of wetlands identified as important by paragraph (b)(2) of this section or because of provisions of paragraph (b)(3), of this section unless the district engineer concludes, on the basis of the analysis required in paragraph (a) of this section, that the benefits of the proposed alteration outweigh the damage to the wetlands resource. In evaluating whether a particular discharge activity should be permitted, the district engineer shall apply the section 404(b)(1) guidelines (40 CFR part 230.10(a) (1), (2), (3)).
(5) In addition to the policies expressed in this subpart, the Congressional policy expressed in the Estuary Protection Act, Pub. L. 90-454, and state regulatory laws or programs for classification and protection of wetlands will be considered.
(c)
(d)
(e)
(f)
(g)
(1) An inherent aspect of property ownership is a right to reasonable private use. However, this right is subject to the rights and interests of the public in the navigable and other waters of the United States, including the federal navigation servitude and federal regulation for environmental protection.
(2) Because a landowner has the general right to protect property from erosion, applications to erect protective structures will usually receive favorable consideration. However, if the protective structure may cause damage to the property of others, adversely affect public health and safety, adversely impact floodplain or wetland values, or otherwise appears contrary to the public interest, the district engineer will so advise the applicant and inform him of possible alternative methods of protecting his property. Such advice will be given in terms of general guidance only so as not to compete with private engineering firms nor require undue use of government resources.
(3) A riparian landowner's general right of access to navigable waters of the United States is subject to the similar rights of access held by nearby riparian landowners and to the general public's right of navigation on the water surface. In the case of proposals which create undue interference with access to, or use of, navigable waters, the authorization will generally be denied.
(4) Where it is found that the work for which a permit is desired is in navigable waters of the United States (see 33 CFR part 329) and may interfere with an authorized federal project, the applicant should be apprised in writing of the fact and of the possibility that a federal project which may be constructed in the vicinity of the proposed work might necessitate its removal or reconstruction. The applicant should also be informed that the United States will in no case be liable for any damage or injury to the structures or work authorized by Sections 9 or 10 of the Rivers and Harbors Act of 1899 or by section 404 of the Clean Water Act which may be caused by, or result from, future operations undertaken by the Government for the conservation or improvement of navigation or for other purposes, and no claims or right to compensation will accrue from any such damage.
(5) Proposed activities in the area of a federal project which exists or is under construction will be evaluated to insure that they are compatible with the purposes of the project.
(6) A DA permit does not convey any property rights, either in real estate or material, or any exclusive privileges. Furthermore, a DA permit does not authorize any injury to property or invasion of rights or any infringement of Federal, state or local laws or regulations. The applicant's signature on an application is an affirmation that the
(h)
(i)
(j)
(2) The primary responsibility for determining zoning and land use matters rests with state, local and tribal governments. The district engineer will normally accept decisions by such governments on those matters unless there are significant issues of overriding national importance. Such
(3) A proposed activity may result in conflicting comments from several agencies within the same state. Where a state has not designated a single responsible coordinating agency, district engineers will ask the Governor to express his views or to designate one state agency to represent the official state position in the particular case.
(4) In the absence of overriding national factors of the public interest that may be revealed during the evaluation of the permit application, a permit will generally be issued following receipt of a favorable state determination provided the concerns, policies, goals, and requirements as expressed in 33 CFR parts 320-324, and the applicable statutes have been considered and followed: e.g., the National Environmental Policy Act; the Fish and Wildlife Coordination Act; the Historical and Archeological Preservation Act; the National Historic Preservation Act; the Endangered Species Act; the Coastal Zone Management Act; the Marine Protection, Research and Sanctuaries Act of 1972, as amended; the Clean Water Act, the Archeological Resources Act, and the American Indian Religious Freedom Act. Similarly, a permit will generally be issued for Federal and Federally-authorized activities; another federal agency's determination to proceed is entitled to substantial consideration in the Corps' public interest review.
(5) Where general permits to avoid duplication are not practical, district engineers shall develop joint procedures with those local, state, and other Federal agencies having ongoing permit programs for activities also regulated by the Department of the Army. In such cases, applications for DA permits may be processed jointly with the state or other federal applications to an independent conclusion and decision by the district engineer and the appropriate Federal or state agency. (See 33 CFR 325.2(e).)
(6) The district engineer shall develop operating procedures for establishing official communications with Indian Tribes within the district. The procedures shall provide for appointment of a tribal representative who will receive all pertinent public notices, and respond to such notices with the official tribal position on the proposed activity. This procedure shall apply only to those tribes which accept this option. Any adopted operating procedures shall be distributed by public notice to inform the tribes of this option.
(k)
(l)
(i) Water resources values (natural moderation of floods, water quality maintenance, and groundwater recharge);
(ii) Living resource values (fish, wildlife, and plant resources);
(iii) Cultural resource values (open space, natural beauty, scientific study, outdoor education, and recreation); and
(iv) Cultivated resource values (agriculture, aquaculture, and forestry).
(2) Although a particular alteration to a floodplain may constitute a minor change, the cumulative impact of such changes may result in a significant degradation of floodplain values and functions and in increased potential for harm to upstream and downstream activities. In accordance with the requirements of Executive Order 11988, district engineers, as part of their public interest review, should avoid to the extent practicable, long and short term significant adverse impacts associated with the occupancy and modification of
(3) In accordance with Executive Order 11988, the district engineer should avoid authorizing floodplain developments whenever practicable alternatives exist outside the floodplain. If there are no such practicable alternatives, the district engineer shall consider, as a means of mitigation, alternatives within the floodplain which will lessen any significant adverse impact to the floodplain.
(m)
(n)
(o)
(2) The policy of considering harbor lines as guidance for assessing impacts on navigation continues.
(3) Protection of navigation in all navigable waters of the United States continues to be a primary concern of the federal government.
(4) District engineers should protect navigational and anchorage interests in connection with the NPDES program by recommending to EPA or to the state, if the program has been delegated, that a permit be denied unless appropriate conditions can be included to avoid any substantial impairment of navigation and anchorage.
(p)
(q)
(r)
(i) Project modifications to minimize adverse project impacts should be discussed with the applicant at pre-application meetings and during application processing. As a result of these discussions and as the district engineer's evaluation proceeds, the district engineer may require minor project modifications. Minor project modifications are those that are considered feasible (cost, constructability, etc.) to the applicant and that, if adopted, will result in a project that generally meets the applicant's purpose and need. Such modifications can include reductions in scope and size; changes in construction methods, materials or timing; and operation and maintenance practices or other similar modifications that reflect a sensitivity to environmental quality within the context of the work proposed. For example, erosion control features could be required on a fill project to reduce sedimentation impacts or a pier could be reoriented to minimize navigational problems even though those projects may satisfy all legal requirements (paragraph (r)(1)(ii) of this section) and the public interest review test (paragraph (r)(1)(iii) of this section) without such modifications.
(ii) Further mitigation measures may be required to satisfy legal requirements. For Section 404 applications, mitigation shall be required to ensure that the project complies with the 404(b)(1) Guidelines. Some mitigation measures are enumerated at 40 CFR 230.70 through 40 CFR 230.77 (Subpart H of the 404(b)(1) Guidelines).
(iii) Mitigation measures in addition to those under paragraphs (r)(1) (i) and (ii) of this section may be required as a result of the public interest review process. (See 33 CFR 325.4(a).) Mitigation should be developed and incorporated within the public interest review process to the extent that the mitigation is found by the district engineer to be reasonable and justified. Only those measures required to ensure that the project is not contrary to the public interest may be required under this subparagraph.
(2) All compensatory mitigation will be for significant resource losses which are specifically identifiable, reasonably likely to occur, and of importance to the human or aquatic environment. Also, all mitigation will be directly related to the impacts of the proposal, appropriate to the scope and degree of those impacts, and reasonably enforceable. District engineers will require all forms of mitigation, including compensatory mitigation, only as provided in paragraphs (r)(1) (i) through (iii) of this section. Additional mitigation may be added at the applicants' request.
33 U.S.C. 401.
This regulation prescribes, in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with
For the purpose of this regulation, the following terms are defined:
(a) The term
(b) The term
The following additional special policies and procedures shall be applicable to the evaluation of permit applications under this regulation:
(a) The Assistant Secretary of the Army (Civil Works) will decide whether DA authorization for a dam or dike in an interstate navigable water of the United States will be issued, since this authority has not been delegated to the Chief of Engineers. The conditions to be imposed in any instrument of authorization will be recommended by the district engineer when forwarding the report to the Assistant Secretary of the Army (Civil Works), through the Chief of Engineers.
(b) District engineers are authorized to decide whether DA authorization for a dam or dike in an intrastate navigable water of the United States will be issued (see 33 CFR 325.8).
(c) Processing a DA application under section 9 will not be completed until the approval of the United States Congress has been obtained if the navigable water of the United States is an interstate waterbody, or until the approval of the appropriate state legislature has been obtained if the navigable water of the United States is an intrastate waterbody (
33 U.S.C. 403.
This regulation prescribes, in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with the review of applications for Department of the Army (DA) permits to authorize certain structures or work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) (hereinafter referred to as section 10). See 33 CFR 320.2(b). Certain structures or work in or affecting navigable waters of the United States are also regulated under other authorities of the DA. These include discharges of dredged or fill material into waters of
For the purpose of this regulation, the following terms are defined:
(a) The term
(b) The term
(c) The term
(d) The term
(e) The term
(f) The term
(1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or
(2) The general permit would result in avoiding unnecessary duplication of the regulatory control exercised by another Federal, state, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal. (See 33 CFR 325.2(e) and 33 CFR part 330.)
(g) The term
(a)
(b)
(c)
(2) Congress has delegated to the Secretary of the Army in section 10 the duty to authorize or prohibit certain work or structures in navigable waters of the United States, upon recommendation of the Chief of Engineers. The general legislation by which Federal agencies are enpowered to act generally is not considered to be sufficient authorization by Congress to satisfy the purposes of section 10. If an agency asserts that it has Congressional authorization meeting the test of section 10 or would otherwise be exempt from the provisions of section 10, the legislative history and/or provisions of the Act should clearly demonstrate that Congress was approving the exact location and plans from which Congress could have considered the effect on navigable waters of the United States or that Congress intended to exempt that agency from the requirements of section 10. Very often such legislation reserves final approval of plans or construction for the Chief of Engineers. In such cases evaluation and authorization under this regulation are limited by the intent of the statutory language involved.
(3) The policy provisions set out in 33 CFR 320.4(j) relating to state or local certifications and/or authorizations, do not apply to work or structures undertaken by Federal agencies, except where compliance with non-Federal authorization is required by Federal law or Executive policy, e.g., section 313 and section 401 of the Clean Water Act.
(a) Activities that were commenced or completed shoreward of established Federal harbor lines before May 27, 1970 (see 33 CFR 320.4(o)) do not require section 10 permits; however, if those activities involve the discharge of dredged or fill material into waters of the United States after October 18, 1972, a section 404 permit is required. (See 33 CFR part 323.)
(b) Pursuant to section 154 of the Water Resource Development Act of 1976 (Pub. L. 94-587), Department of the Army permits are not required under section 10 to construct wharves and piers in any waterbody, located entirely within one state, that is a navigable water of the United States solely on the basis of its historical use to transport interstate commerce.
The Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny section 10 permits. The following additional special policies and procedures shall also be applicable to the evaluation of permit applications under this regulation.
(a)
(b)
(i) The enhancement of fishery resources to the maximum extent practicable;
(ii) The facilitation of access and utilization by United States recreational and commercial fishermen;
(iii) The minimization of conflicts among competing uses of the navigable waters or waters overlying the outer continental shelf and of the resources in such waters;
(iv) The minimization of environmental risks and risks to personal health and property;
(v) Generally accepted principles of international law; and
(vi) the prevention of any unreasonable obstructions to navigation. If the district engineer decides that the applicant's provisions are not consistent with these standards, he shall deny the permit. If the district engineer decides that the provisions are consistent with these standards, and if he decides to issue the permit after the public interest review, he shall make the provisions part of the permit.
(2) In addition, the district engineer will consider the National Artificial Reef Plan developed pursuant to section 204 of the National Fishing Enhancement Act of 1984, and if he decides to issue the permit, will notify the Secretary of Commerce of any need to deviate from that plan.
(3) The district engineer will comply with all coordination provisions required by a written agreement between the DOD and the Federal agencies relative to artificial reefs. In addition, if the district engineer decides that further consultation beyond the normal public commenting process is required to evaluate fully the proposed artificial reef, he may initiate such consultation with any Federal agency, state or local government, or other interested party.
(4) The district engineer will issue a permit for the proposed artificial reef only if the applicant demonstrates, to the district engineer's satisfaction, that the title to the artificial reef construction material is unambiguous, that responsibility for maintenance of the reef is clearly established, and that he has the financial ability to assume liability for all damages that may arise with respect to the proposed artificial reef. A demonstration of financial responsibility might include evidence of insurance, sponsorship, or available assets.
(i) A person to whom a permit is issued in accordance with these regulations and any insurer of that person shall not be liable for damages caused by activities required to be undertaken under any terms and conditions of the permit, if the permittee is in compliance with such terms and conditions.
(ii) A person to whom a permit is issued in accordance with these regulations and any insurer of that person shall be liable, to the extent determined under applicable law, for damages to which paragraph (i) does not apply.
(iii) Any person who has transferred title to artificial reef construction materials to a person to whom a permit is issued in accordance with these regulations shall not be liable for damages arising from the use of such materials in an artificial reef, if such materials meet applicable requirements of the plan published under section 204 of the National Artificial Reef Plan, and are not otherwise defective at the time title is transferred.
(c)
(2) A permit for the dredging of a channel, slip, or other such project for navigation may also authorize the periodic maintenance dredging of the project. Authorization procedures and limitations for maintenance dredging shall be as prescribed in 33 CFR 325.6(e). The permit will require the permittee to give advance notice to the district engineer each time maintenance dredging is to be performed. Where the maintenance dredging involves the discharge of dredged material into waters of the United States or the transportation of dredged material for the purpose of dumping it in ocean waters, the procedures in 33 CFR parts 323 and 324 respectively shall also be followed.
(d)
(2) Floating structures for small recreational boats or other recreational purposes in lakes controlled by the Corps of Engineers under a resource manager are normally subject to permit authorities cited in § 322.3, of this section, when those waters are regarded as navigable waters of the United States. However, such structures will not be authorized under this regulation but will be regulated under applicable regulations of the Chief of Engineers published in 36 CFR 327.19 if the land surrounding those lakes is under complete Federal ownership. District engineers will delineate those portions of the navigable waters of the United States where this provision is applicable and post notices of this designation in the vicinity of the lake resource manager's office.
(e)
(f)
(g)
(h)
(2) Applications for permits for the construction, operation, maintenance, or connection at the borders of the United States of facilities for the transmission of electric energy between the United States and a foreign country, or for the exportation or importation of natural gas to or from a foreign country, must be made to the Secretary of Energy. (Executive Order 10485, September 3, 1953, 16 U.S.C. 824(a)(e), 15 U.S.C. 717(b), as amended by Executive Order 12038, February 3, 1978, and 18 CFR parts 32 and 153).
(3) Applications for the landing or operation of submarine cables must be made to the Federal Communications Commission. (Executive Order 10530, May 10, 1954, 47 U.S.C. 34 to 39, and 47 CFR 1.766).
(4) The Secretary of State is to receive applications for permits for the construction, connection, operation, or maintenance, at the borders of the United States, of pipelines, conveyor belts, and similar facilities for the exportation or importation of petroleum products, coals, minerals, or other products to or from a foreign country; facilities for the exportation or importation of water or sewage to or from a foreign country; and monorails, aerial cable cars, aerial tramways, and similar facilities for the transportation of persons and/or things, to or from a foreign country. (Executive Order 11423, August 16, 1968).
(5) A DA permit under section 10 of the Rivers and Harbors Act of 1899 is also required for all of the above facilities which affect the navigable waters of the United States, but in each case in which a permit has been issued as provided above, the district engineer, in evaluating the general public interest, may consider the basic existence and operation of the facility to have been primarily examined and permitted as provided by the Executive Orders. Furthermore, in those cases where the construction, maintenance, or operation at the above facilities involves the discharge of dredged or fill material in waters of the United States
(i)
(2) The following minimum clearances are required for aerial electric power transmission lines crossing navigable waters of the United States. These clearances are related to the clearances over the navigable channel provided by existing fixed bridges, or the clearances which would be required by the U.S. Coast Guard for new fixed bridges, in the vicinity of the proposed power line crossing. The clearances are based on the low point of the line under conditions which produce the greatest sag, taking into consideration temperature, load, wind, length or span, and type of supports as outlined in the National Electrical Safety Code.
(3) Clearances for communication lines, stream gaging cables, ferry cables, and other aerial crossings are usually required to be a minimum of ten feet above clearances required for bridges. Greater clearances will be required if the public interest so indicates.
(4) Corps of Engineer regulation ER 1110-2-4401 prescribes minimum vertical clearances for power and communication lines over Corps lake projects. In instances where both this regulation and ER 1110-2-4401 apply, the greater minimum clearance is required.
(j)
(2) The FAA must be notified by an applicant whenever he proposes to establish or operate a seaplane base. The FAA will study the proposal and advise the applicant, district engineer, and other interested parties as to the effects of the proposal on the use of airspace. The district engineer will, therefore, refer any objections regarding the effect of the proposal on the use of airspace to the FAA, and give due consideration to its recommendations when evaluating the general public interest.
(3) If the seaplane base would serve air carriers licensed by the Department of Transportation, the applicant must receive an airport operating certificate from the FAA. That certificate reflects a determination and conditions relating to the installation, operation, and maintenance of adequate air navigation facilities and safety equipment. Accordingly, the district engineer may, in evaluating the general public interest, consider such matters to have been primarily evaluated by the FAA.
(4) For regulations pertaining to seaplane landings at Corps of Engineers projects, see 36 CFR 327.4.
(k)
(l)
(1) The Department of the Army will grant no permits for the erection of structures in areas designated as fairways, except that district engineers may permit anchors and attendant cables or chains for floating or semisubmersible drilling rigs to be placed within a fairway provided the following conditions are met:
(i) The purpose of such anchors and attendant cables or chains as used in this section is to stabilize floating production facilities or semisubmersible drilling rigs which are located outside the boundaries of the fairway.
(ii) In water depths of 600 feet or less, the installation of anchors and attendant cables or chains within fairways must be temporary and shall be allowed to remain only 120 days. This period may be extended by the district engineer provided reasonable cause for such extension can be shown and the extension is otherwise justified. In water depths greater than 600 feet, time restrictions on anchors and attendant cables or chains located within a fairway, whether temporary or permanent, shall not apply.
(iii) Drilling rigs must be at least 500 feet from any fairway boundary or whatever distance necessary to insure that minimnum clearance over an anchor line within a fairway will be 125 feet.
(iv) No anchor buoys or floats or related rigging will be allowed on the surface of the water or to a depth of 125 feet from the surface, within the fairway.
(v) Drilling rigs may not be placed closer than 2 nautical miles of any other drilling rig situated along a fairway boundary, and not closer than 3 nautical miles to any drilling rig located on the opposite side of the fairway.
(vi) The permittee must notify the district engineer, Bureau of Land Management, Mineral Management Service, U.S. Coast Guard, National Oceanic and Atmospheric Administration and the U.S. Navy Hydrographic Office of the approximate dates (commencenent and completion) the anchors will be in place to insure maximum notification to mariners.
(vii) Navigation aids or danger markings must be installed as required by the U.S. Coast Guard.
(2) District engineers may grant permits for the erection of structures within an area designated as an anchorage area, but the number of structures will be limited by spacing, as follows: The center of a structure to be erected shall be not less than two (2) nautical miles from the center of any existing structure. In a drilling or production complex, associated structures shall be as close together as practicable having due consideration for the safety factors involved. A complex of associated structures, when connected by walkways, shall be considered one structure for the purpose of spacing. A vessel fixed in place by moorings and used in conjunction with the associated structures of a drilling or production complex, shall be considered an attendant vessel and its extent shall include its moorings. When a drilling or production complex includes an attendant vessel and the complex extends more than five hundred (500) yards from the center or the complex, a structure to be erected shall be not closer than two (2) nautical miles from the near outer limit of the complex. An underwater completion installation in and anchorage area shall be considered a structure and shall be marked with a
33 U.S.C. 1344.
This regulation prescribes, in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices, and procedures to be followed by the Corps of Engineers in connection with the review of applications for DA permits to authorize the discharge of dredged or fill material into waters of the United States pursuant to section 404 of the Clean Water Act (CWA) (33 U.S.C. 1344) (hereinafter referred to as section 404). (See 33 CFR 320.2(g).) Certain discharges of dredged or fill material into waters of the United States are also regulated under other authorities of the Department of the Army. These include dams and dikes in navigable waters of the United States pursuant to section 9 of the Rivers and Harbors Act of 1899 (33 U.S.C. 401; see 33 CFR part 321) and certain structures or work in or affecting navigable waters of the United States pursuant to section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403; see 33 CFR part 322). A DA permit will also be required under these additional authorities if they are applicable to activities involving discharges of dredged or fill material into waters of the United States. Applicants for DA permits under this part should refer to the other cited authorities and implementing regulations for these additional permit requirements to determine whether they also are applicable to their proposed activities.
For the purpose of this part, the following terms are defined:
(a) The term
(b) The term
(c) The term
(d)(1) Except as provided below in paragraph (d)(2), the term
(i) The addition of dredged material to a specified discharge site located in waters of the United States;
(ii) The runoff or overflow from a contained land or water disposal area; and
(iii) Any addition, including redeposit other than incidential 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) The term
(i) Discharges of pollutants into waters of the United States resulting
(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.
(3) 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 United States as defined in paragraphs (d)(4) and (d)(5) of this section; 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 (d)(4) and (d)(5) of this section. 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 33 CFR 323.4 for discharges that do not required permits.
(4) For purposes of this section, an activity associated with a discharge of dredged material destroys an area of waters of the United States if it alters the area in such a way that it would no longer be a water of the United States.
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.
(5) For purposes of this section, an activity associated with a discharge of dredged material degrades an area of waters of the United States if it has more than a
(e)(1) Except as specified in paragraph (e)(3) of this section, the term fill material means material placed in waters of the United States where the material has the effect of:
(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.
(f) The term
(g) The term
(h) The term
(1) Those activities are substantially similar in nature and cause only minimal individual and cumulative environmental impacts; or
(2) The general permit would result in avoiding unnecessary duplication of regulatory control exercised by another Federal, State, or local agency provided it has been determined that the environmental consequences of the action are individually and cumulatively minimal. (See 33 CFR 325.2(e) and 33 CFR part 330.)
(a)
(b)
(c)
(2) Placement of pilings in waters of the United States that does not have or would not have the effect of a discharge of fill material shall not require a section 404 permit. Placement of pilings for linear projects, such as bridges, elevated walkways, and powerline structures, generally does not have the effect of a discharge of fill material. Furthermore, placement of pilings in waters of the United States for piers, wharves, and an individual house on stilts generally does not have the effect of a discharge of fill material. All pilings, however, placed in the
(a)
(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 (a)(1)(iii) of this section.
(ii) To fall under this exemption, the activities specified in paragraph (a)(1)(i) of this section must be part of an established (
(iii)(A)
(B)
(C)(
(
(
(
(
(
(D)
(E)
(2) Maintenance, including emergency reconstruction of recently damaged parts, of currently serviceable structures such as dikes, dams, levees, groins, riprap, breakwaters, causeways, bridge abutments or approaches, and transportation structures. Maintenance does not include any modification that changes the character, scope, or size of the original fill design. Emergency reconstruction must occur within a reasonable period of time after damage occurs in order to qualify for this exemption.
(3) Construction or maintenance of farm or stock ponds or irrigation ditches, or the maintenance (but not construction) of drainage ditches. Discharges associated with siphons, pumps, headgates, wingwalls, weirs, 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 U.S. The term “construction site” refers to
(5) Any activity with respect to which a State has an approved program under section 208(b)(4) of the CWA which meets the requirements of sections 208(b)(4) (B) and (C).
(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. These BMPs which must be applied to satisfy this provision shall include those detailed BMPs described in the State's approved program description pursuant to the requirements of 40 CFR 233.22(i), and shall also 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 U.S. shall be held to the minimum feasible number, width, and total length consistent with the purpose of specific farming, silvicultural or mining operations, and local topographic and climatic conditions;
(ii) All roads, temporary or permanent, shall be located sufficiently far from streams or other water bodies (except for portions of such roads which must cross water bodies) to minimize discharges of dredged or fill material into waters of the U.S.;
(iii) The road fill shall be bridged, culverted, or otherwise designed to prevent the restriction of expected flood flows;
(iv) The fill shall be properly stabilized and maintained during and following construction to prevent erosion;
(v) Discharges of dredged or fill material into waters of the United States to construct a road fill shall be made in a manner that minimizes the encroachment of trucks, tractors, bulldozers, or other heavy equipment within waters of the United States (including adjacent wetlands) that lie outside the lateral boundaries of the fill itself;
(vi) In designing, constructing, and maintaining roads, vegetative disturbance in the waters of the U.S. shall be kept to a minimum;
(vii) The design, construction and maintenance of the road crossing shall not disrupt the migration or other movement of those species of aquatic life inhabiting the water body;
(viii) Borrow material shall be taken from upland sources whenever feasible;
(ix) The discharge shall not take, or jeopardize the continued existence of, a threatened or endangered species as defined under the Endangered Species Act, or adversely modify or destroy the critical habitat of such species;
(x) Discharges into breeding and nesting areas for migratory waterfowl, spawning areas, and wetlands shall be avoided if practical alternatives 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.
(b) If any discharge of dredged or fill material resulting from the activities listed in paragraphs (a) (1) through (6) of this section contains any toxic pollutant listed under section 307 of the CWA such discharge shall be subject to any applicable toxic effluent standard or prohibition, and shall require a section 404 permit.
(c) Any discharge of dredged or fill material into waters of the United
(d) Federal projects which qualify under the criteria contained in section 404(r) of the CWA are exempt from section 404 permit requirements, but may be subject to other State or Federal requirements.
Section 404(h) of the CWA allows the Administrator of the Environmental Protection Agency (EPA) to transfer administration of the section 404 permit program for discharges into certain waters of the United States to qualified States. (The program cannot be transferred for those waters which are presently used, or are susceptible to use in their natural condition or by reasonable improvement as a means to transport interstate or foreign commerce shoreward to their ordinary high water mark, including all waters which are subject to the ebb and flow of the tide shoreward to the high tide line, including wetlands adjacent thereto). See 40 CFR parts 233 and 124 for procedural regulations for transferring section 404 programs to States. Once a State's 404 program is approved and in effect, the Corps of Engineers will suspend processing of section 404 applications in the applicable waters and will transfer pending applications to the State agency responsible for administering the program. District engineers will assist EPA and the States in any way practicable to effect transfer and will develop appropriate procedures to ensure orderly and expeditious transfer.
(a) The Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny section 404 permits. The district engineer will review applications for permits for the discharge of dredged or fill material into waters of the United States in accordance with guidelines promulgated by the Administrator, EPA, under authority of section 404(b)(1) of the CWA. (see 40 CFR part 230.) Subject to consideration of any economic impact on navigation and anchorage pursuant to section 404(b)(2), a permit will be denied if the discharge that would be authorized by such a permit would not comply with the 404(b)(1) guidelines. If the district engineer determines that the proposed discharge would comply with the 404(b)(1) guidelines, he will grant the permit unless issuance would be contrary to the public interest.
(b) The Corps will not issue a permit where the regional administrator of EPA has notified the district engineer and applicant in writing pursuant to 40 CFR 231.3(a)(1) that he intends to issue a public notice of a proposed determination to prohibit or withdraw the specification, or to deny, restrict or withdraw the use for specification, of any defined area as a disposal site in accordance with section 404(c) of the Clean Water Act. However the Corps will continue to complete the administrative processing of the application while the section 404(c) procedures are underway including completion of final coordination with EPA under 33 CFR part 325.
33 U.S.C. 1413.
This regulation prescribes in addition to the general policies of 33 CFR part 320 and procedures of 33 CFR part 325, those special policies, practices and procedures to be followed by the Corps of Engineers in connection with the review of applications for Department of the Army (DA) permits to authorize the transportation of dredged material by vessel or other vehicle for the purpose of dumping it in ocean waters at dumping sites designated under 40 CFR part 228 pursuant to section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (33 U.S.C. 1413) (hereinafter referred to as section 103). See 33 CFR 320.2(h). Activities involving the transportation of dredged material for the purpose of dumping in the ocean waters also require DA permits under Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403) for the dredging in navigable waters of the United States. Applicants for DA permits under this part should also refer to 33 CFR part 322 to satisfy the requirements of Section 10.
For the purpose of this regulation, the following terms are defined:
(a) The term
(b) The term
(c) The term
(a)
(b)
(2) The policy provisions set out in 33 CFR 320.4(j) relating to state or local authorizations do not apply to work or structures undertaken by Federal agencies, except where compliance with non-Federal authorization is required by Federal law or Executive policy. Federal agencies are responsible for conformance with such laws and policies. (See EO 12088, October 18, 1978.) Federal agencies are not required to obtain and provide certification of compliance with effluent limitations and water quality standards from state or interstate water pollution control agencies in connection with activities involving the transport of dredged material for dumping into ocean waters beyond the territorial sea.
The Secretary of the Army has delegated to the Chief of Engineers the authority to issue or deny section 103 permits. The following additional procedures shall also be applicable under this regulation.
(a)
(b)
(c)
(1) The district engineer will determine whether there is an economically feasible alternative method or site available other than the proposed ocean disposal site. If there are other feasible alternative methods or sites available, the district engineer will evaluate them in accordance with 33 CFR parts 320, 322, 323, and 325 and this part, as appropriate.
(2) If the district engineer determines that there is no economically feasible alternative method or site available, and the proposed project is otherwise found to be not contrary to the public interest, he will so advise the Regional Administrator setting forth his reasons for such determination. If the Regional Administrator has not removed his objection within 15 days, the district engineer will submit a report of his determination to the Chief of Engineers for further coordination with the Administrator, EPA, and decision. The report forwarding the case will contain the analysis of whether there are other economically feasible methods or sites available to dispose of the dredged material.
(d)
33 U.S.C. 401
(a)
(b)
(c)
(d)
(2) All activities which the applicant plans to undertake which are reasonably related to the same project and for which a DA permit would be required should be included in the same permit application. District engineers should reject, as incomplete, any permit application which fails to comply with this requirement. For example, a permit application for a marina will include dredging required for access as
(3) If the activity would involve dredging in navigable waters of the United States, the application must include a description of the type, composition and quantity of the material to be dredged, the method of dredging, and the site and plans for disposal of the dredged material.
(4) If the activity would include the discharge of dredged or fill material into the waters of the United States or the transportation of dredged material for the purpose of disposing of it in ocean waters the application must include the source of the material; the purpose of the discharge, a description of the type, composition and quantity of the material; the method of transportation and disposal of the material; and the location of the disposal site. Certification under section 401 of the Clean Water Act is required for such discharges into waters of the United States.
(5) If the activity would include the construction of a filled area or pile or float-supported platform the project description must include the use of, and specific structures to be erected on, the fill or platform.
(6) If the activity would involve the construction of an impoundment structure, the applicant may be required to demonstrate that the structure complies with established state dam safety criteria or that the structure has been designed by qualified persons and, in appropriate cases, independently reviewed (and modified as the review would indicate) by similiarly qualified persons. No specific design criteria are to be prescribed nor is an independent detailed engineering review to be made by the district engineer.
(7) For activities involving discharges of dredged or fill material into waters of the United States, the application must include a statement describing how impacts to waters of the United States are to be avoided and minimized. The application must also include either a statement describing how impacts to waters of the United States are to be compensated for or a statement explaining why compensatory mitigation should not be required for the proposed impacts. (See § 332.4(b)(1) of this chapter.)
(8)
(9) If the activity would involve the construction or placement of an artificial reef, as defined in 33 CFR 322.2(g), in the navigable waters of the United States or in the waters overlying the outer continental shelf, the application must include provisions for siting, constructing, monitoring, and managing the artificial reef.
(10)
(e)
(f)
(a)
(2) Within 15 days of receipt of an application the district engineer will either determine that the application is complete (see 33 CFR 325.1(d)(9) and issue a public notice as described in § 325.3 of this part, unless specifically exempted by other provisions of this regulation or that it is incomplete and notify the applicant of the information necessary for a complete application. The district engineer will issue a supplemental, revised, or corrected public notice if in his view there is a change in the application data that would affect the public's review of the proposal.
(3) The district engineer will consider all comments received in response to the public notice in his subsequent actions on the permit application. Receipt of the comments will be acknowledged, if appropriate, and they will be made a part of the administrative record of the application. Comments received as form letters or petitions may be acknowledged as a group to the person or organization responsible for the form letter or petition. If comments relate to matters within the special expertise of another federal agency, the district engineer may seek the advice of that agency. If the district engineer determines, based on comments received, that he must have the views of the applicant on a particular issue to make a public interest determination, the applicant will be given the opportunity to furnish his views on such issue to the district engineer (see § 325.2(d)(5)). At the earliest practicable time other substantive comments will be furnished to the applicant for his information and any views he may wish to offer. A summary of the comments, the actual letters or portions thereof, or representative comment letters may be furnished to the applicant. The applicant may voluntarily elect to contact objectors in an attempt to resolve objections but will not be required to do so. District engineers will ensure that all parties are informed that the Corps alone is responsible for reaching a decision on the merits of any application. The district engineer may also offer Corps regulatory staff to be present at meetings between applicants and objectors, where appropriate, to provide information on the process, to
(4) The district engineer will follow Appendix B of 33 CFR part 230 for environmental procedures and documentation required by the National Environmental Policy Act of 1969. A decision on a permit application will require either an environmental assessment or an environmental impact statement unless it is included within a categorical exclusion.
(5) The district engineer will also evaluate the application to determine the need for a public hearing pursuant to 33 CFR part 327.
(6) After all above actions have been completed, the district engineer will determine in accordance with the record and applicable regulations whether or not the permit should be issued. He shall prepare a statement of findings (SOF) or, where an EIS has been prepared, a record of decision (ROD), on all permit decisions. The SOF or ROD shall include the district engineer's views on the probable effect of the proposed work on the public interest including conformity with the guidelines published for the discharge of dredged or fill material into waters of the United States (40 CFR part 230) or with the criteria for dumping of dredged material in ocean waters (40 CFR parts 220 to 229), if applicable, and the conclusions of the district engineer. The SOF or ROD shall be dated, signed, and included in the record prior to final action on the application. Where the district engineer has delegated authority to sign permits for and in his behalf, he may similarly delegate the signing of the SOF or ROD. If a district engineer makes a decision on a permit application which is contrary to state or local decisions (33 CFR 320.4(j) (2) & (4)), the district engineer will include in the decision document the significant national issues and explain how they are overriding in importance. If a permit is warranted, the district engineer will determine the special conditions, if any, and duration which should be incorporated into the permit. In accordance with the authorities specified in § 325.8 of this part, the district engineer will take final action or forward the application with all pertinent comments, records, and studies, including the final EIS or environmental assessment, through channels to the official authorized to make the final decision. The report forwarding the application for decision will be in a format prescribed by the Chief of Engineers. District and division engineers will notify the applicant and interested federal and state agencies that the application has been forwarded to higher headquarters. The district or division engineer may, at his option, disclose his recommendation to the news media and other interested parties, with the caution that it is only a recommendation and not a final decision. Such disclosure is encouraged in permit cases which have become controversial and have been the subject of stories in the media or have generated strong public interest. In those cases where the application is forwarded for decision in the format prescribed by the Chief of Engineers, the report will serve as the SOF or ROD. District engineers will generally combine the SOF, environmental assessment, and findings of no significant impact (FONSI), 404(b)(1) guideline analysis, and/or the criteria for dumping of dredged material in ocean waters into a single document.
(7) If the final decision is to deny the permit, the applicant will be advised in writing of the reason(s) for denial. If the final decision is to issue the permit and a standard individual permit form will be used, the issuing official will forward the permit to the applicant for signature accepting the conditions of the permit. The permit is not valid until signed by the issuing official. Letters of permission require only the signature of the issuing official. Final action on the permit application is the signature on the letter notifying the applicant of the denial of the permit or signature of the issuing official on the authorizing document.
(8) The district engineer will publish monthly a list of permits issued or denied during the previous month. The list will identify each action by public notice number, name of applicant, and
(9) Copies of permits will be furnished to other agencies in appropriate cases as follows:
(i) If the activity involves the construction of artificial islands, installations or other devices on the outer continental shelf, to the Director, Defense Mapping Agency, Hydrographic Center, Washington, DC 20390 Attention, Code NS12, and to the National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282.
(ii) If the activity involves the construction of structures to enhance fish propagation (e.g., fishing reefs) along the coasts of the United States, to the Defense Mapping Agency, Hydrographic Center and National Ocean Service as in paragraph (a)(9)(i) of this section and to the Director, Office of Marine Recreational Fisheries, National Marine Fisheries Service, Washington, DC 20235.
(iii) If the activity involves the erection of an aerial transmission line, submerged cable, or submerged pipeline across a navigable water of the United States, to the National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282.
(iv) If the activity is listed in paragraphs (a)(9) (i), (ii), or (iii) of this section, or involves the transportation of dredged material for the purpose of dumping it in ocean waters, to the appropriate District Commander, U.S. Coast Guard.
(b)
(i) The public notice for such activity, which will contain a statement on certification requirements (see § 325.3(a)(8)), will serve as the notification to the Administrator of the Environmental Protection Agency (EPA) pursuant to section 401(a)(2) of the Clean Water Act. If EPA determines that the proposed discharge may affect the quality of the waters of any state other than the state in which the discharge will originate, it will so notify such other state, the district engineer, and the applicant. If such notice or a request for supplemental information is not received within 30 days of issuance of the public notice, the district engineer will assume EPA has made a negative determination with respect to section 401(a)(2). If EPA determines another state's waters may be affected, such state has 60 days from receipt of EPA's notice to determine if the proposed discharge will affect the quality of its waters so as to violate any water quality requirement in such state, to notify EPA and the district engineer in writing of its objection to permit issuance, and to request a public hearing. If such occurs, the district engineer will hold a public hearing in the objecting state. Except as stated below, the hearing will be conducted in accordance with 33 CFR part 327. The issues to be considered at the public hearing will be limited to water quality impacts. EPA will submit its evaluation and recommendations at the hearing with respect to the state's objection to permit issuance. Based upon the recommendations of the objecting state, EPA, and any additional evidence presented at the hearing, the district engineer will condition the permit, if issued, in such a manner as may be necessary to insure compliance with applicable water quality requirements. If the imposition of conditions cannot, in the district engineer's opinion, insure such compliance, he will deny the permit.
(ii) No permit will be granted until required certification has been obtained or has been waived. A waiver may be explicit, or will be deemed to occur if the certifying agency fails or refuses to act on a request for certification within sixty days after receipt
(2)
(i) If the applicant is a federal agency, and the application involves a federal activity in or affecting the coastal zone, the district engineer shall forward a copy of the public notice to the agency of the state responsible for reviewing the consistency of federal activities. The federal agency applicant shall be responsible for complying with the CZM Act's directive for ensuring that federal agency activities are undertaken in a manner which is consistent, to the maximum extent practicable, with approved CZM Programs. (See 15 CFR part 930.) If the state coastal zone agency objects to the proposed federal activity on the basis of its inconsistency with the state's approved CZM Program, the district engineer shall not make a final decision on the application until the disagreeing parties have had an opportunity to utilize the procedures specified by the CZM Act for resolving such disagreements.
(ii) If the applicant is not a federal agency and the application involves an activity affecting the coastal zone, the district engineer shall obtain from the applicant a certification that his proposed activity complies with and will be conducted in a manner that is consistent with the approved state CZM Program. Upon receipt of the certification, the district engineer will forward a copy of the public notice (which will include the applicant's certification statement) to the state coastal zone agency and request its concurrence or objection. If the state agency objects to the certification or issues a decision indicating that the proposed activity requires further review, the district engineer shall not issue the permit until the state concurs with the certification statement or the Secretary of Commerce determines that the proposed activity is consistent with the purposes of the CZM Act or is necessary in the interest of national security. If the state agency fails to concur or object to a certification statement within six months of the state agency's receipt of the certification statement, state agency concurrence with the certification statement shall be conclusively presumed. District engineers will seek agreements with state CZM agencies that the agency's failure to provide comments during the public notice comment period will be considered as a concurrence with the certification or waiver of the right to concur or non-concur.
(iii) If the applicant is requesting a permit for work on Indian reservation lands which are in the coastal zone, the district engineer shall treat the application in the same manner as prescribed for a Federal applicant in paragraph (b)(2)(i) of this section. However, if the applicant is requesting a permit on non-trust Indian lands, and the state CZM agency has decided to assert jurisdiction over such lands, the district engineer shall treat the application in the same manner as prescribed for a non-Federal applicant in paragraph (b)(2)(ii) of this section.
(3)
(4)
(5)
(c) [Reserved]
(d)
(1) The public notice will be issued within 15 days of receipt of all information required to be submitted by the applicant in accordance with paragraph 325.1.(d) of this part.
(2) The comment period on the public notice should be for a reasonable period of time within which interested parties may express their views concerning the permit. The comment period should not be more than 30 days nor less than 15 days from the date of the notice. Before designating comment periods less than 30 days, the district engineer will consider: (i) Whether the proposal is routine or noncontroversial,
(ii) Mail time and need for comments from remote areas,
(iii) Comments from similar proposals, and
(iv) The need for a site visit. After considering the length of the original comment period, paragraphs (a)(2) (i) through (iv) of this section, and other pertinent factors, the district engineer may extend the comment period up to an additional 30 days if warranted.
(3) District engineers will decide on all applications not later than 60 days after receipt of a complete application, unless (i) precluded as a matter of law or procedures required by law (see below),
(ii) The case must be referred to higher authority (see § 325.8 of this part),
(iii) The comment period is extended,
(iv) A timely submittal of information or comments is not received from the applicant,
(v) The processing is suspended at the request of the applicant, or
(vi) Information needed by the district engineer for a decision on the application cannot reasonably be obtained within the 60-day period. Once the cause for preventing the decision from being made within the normal 60-
(4) Once the district engineer has sufficient information to make his public interest determination, he should decide the permit application even though other agencies which may have regulatory jurisdiction have not yet granted their authorizations, except where such authorizations are, by federal law, a prerequisite to making a decision on the DA permit application. Permits granted prior to other (non-prerequisite) authorizations by other agencies should, where appropriate, be conditioned in such manner as to give those other authorities an opportunity to undertake their review without the applicant biasing such review by making substantial resource commitments on the basis of the DA permit. In unusual cases the district engineer may decide that due to the nature or scope of a specific proposal, it would be prudent to defer taking final action until another agency has acted on its authorization. In such cases, he may advise the other agency of his position on the DA permit while deferring his final decision.
(5) The applicant will be given a reasonable time, not to exceed 30 days, to respond to requests of the district engineer. The district engineer may make such requests by certified letter and clearly inform the applicant that if he does not respond with the requested information or a justification why additional time is necessary, then his application will be considered withdrawn or a final decision will be made, whichever is appropriate. If additional time is requested, the district engineer will either grant the time, make a final decision, or consider the application as withdrawn.
(6) The time requirements in these regulations are in terms of calendar days rather than in terms of working days.
(e)
(1)
(i) In those cases subject to section 10 of the Rivers and Harbors Act of 1899 when, in the opinion of the district engineer, the proposed work would be minor, would not have significant individual or cumulative impacts on environmental values, and should encounter no appreciable opposition.
(ii) In those cases subject to section 404 of the Clean Water Act after:
(A) The district engineer, through consultation with Federal and state fish and wildlife agencies, the Regional Administrator, Environmental Protection Agency, the state water quality certifying agency, and, if appropriate, the state Coastal Zone Management Agency, develops a list of categories of activities proposed for authorization under LOP procedures;
(B) The district engineer issues a public notice advertising the proposed list and the LOP procedures, requesting comments and offering an opportunity for public hearing; and
(C) A 401 certification has been issued or waived and, if appropriate, CZM consistency concurrence obtained or presumed either on a generic or individual basis.
(2)
(3)
(4)
(a)
(1) Applicable statutory authority or authorities;
(2) The name and address of the applicant;
(3) The name or title, address and telephone number of the Corps employee from whom additional information concerning the application may be obtained;
(4) The location of the proposed activity;
(5) A brief description of the proposed activity, its purpose and intended use, so as to provide sufficient information concerning the nature of the activity
(6) 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;
(7) If the proposed activity would occur in the territorial seas or ocean waters, a description of the activity's relationship to the baseline from which the territorial sea is measured;
(8) A list of other government authorizations obtained or requested by the applicant, including required certifications relative to water quality, coastal zone management, or marine sanctuaries;
(9) If appropriate, a statement that the activity is a categorical exclusion for purposes of NEPA (see paragraph 7 of Appendix B to 33 CFR part 230);
(10) A statement of the district engineer's current knowledge on historic properties;
(11) A statement of the district engineer's current knowledge on endangered species (see § 325.2(b)(5));
(12) A statement(s) on evaluation factors (see § 325.3(c));
(13) Any other available information which may assist interested parties in evaluating the likely impact of the proposed activity, if any, on factors affecting the public interest;
(14) The comment period based on § 325.2(d)(2);
(15) A statement that any person may request, in writing, within the comment period specified in the notice, that a public hearing be held to consider the application. Requests for public hearings shall state, with particularity, the reasons for holding a public hearing;
(16) For non-federal applications in states with an approved CZM Plan, a statement on compliance with the approved Plan; and
(17) In addition, for section 103 (ocean dumping) activities:
(i) The specific location of the proposed disposal site and its physical boundaries;
(ii) A statement as to whether the proposed disposal site has been designated for use by the Administrator, EPA, pursuant to section 102(c) of the Act;
(iii) If the proposed disposal site has not been designated by the Administrator, EPA, a description of the characteristics of the proposed disposal site and an explanation as to why no previously designated disposal site is feasible;
(iv) A brief description of known dredged material discharges at the proposed disposal site;
(v) Existence and documented effects of other authorized disposals that have been made in the disposal area (e.g., heavy metal background reading and organic carbon content);
(vi) An estimate of the length of time during which disposal would continue at the proposed site; and
(vii) Information on the characteristics and composition of the dredged material.
(b)
(c)
(1) Except as provided in paragraph (c)(3) of this section, the following will be included:
“The decision whether to issue a permit will be based on an evaluation of the probable impact including cumulative impacts of the proposed activity on the public interest. That decision will reflect the national concern for both protection and utilization of important resources. The benefit which reasonably may be expected to accrue from the proposal must be balanced against its reasonably foreseeable detriments. All factors which may be relevant to the proposal will be considered including the cumulative effects thereof; among those are conservation, economics, aesthetics, general environmental concerns, wetlands, historic properties, fish and wildlife values, flood hazards, floodplain values, land use, navigation, shoreline erosion and accretion, recreation, water supply and conservation, water quality, energy needs, safety, food and fiber production, mineral needs, considerations of property ownership and, in general, the needs and welfare of the people.”
(2) If the activity would involve the discharge of dredged or fill material into the waters of the United States or the transportation of dredged material for the purpose of disposing of it in ocean waters, the public notice shall also indicate that the evaluation of the inpact of the activity on the public interest will include application of the guidelines promulgated by the Administrator, EPA, (40 CFR part 230) or of the criteria established under authority of section 102(a) of the Marine Protection, Research and Sanctuaries Act of 1972, as amended (40 CFR parts 220 to 229), as appropriate. (See 33 CFR parts 323 and 324).
(3) In cases involving construction of artificial islands, installations and other devices on outer continental shelf lands which are under mineral lease from the Department of the Interior, the notice will contain the following statement: “The decision as to whether a permit will be issued will be based on an evaluation of the impact of the proposed work on navigation and national security.”
(d)
(2) In addition to the general distribution of public notices cited above, notices will be sent to other addressees in appropriate cases as follows:
(i) If the activity would involve structures or dredging along the shores of the seas or Great Lakes, to the Coastal Engineering Research Center, Washington, DC 20016.
(ii) If the activity would involve construction of fixed structures or artificial islands on the outer continental shelf or in the territorial seas, to the Assistant Secretary of Defense (Manpower, Installations, and Logistics (ASD(MI&L)), Washington, DC 20310; the Director, Defense Mapping Agency (Hydrographic Center) Washington, DC 20390, Attention, Code NS12; and the National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282, and to affected military installations and activities.
(iii) If the activity involves the construction of structures to enhance fish propagation (e.g., fishing reefs) along the coasts of the United States, to the Director, Office of Marine Recreational Fisheries, National Marine Fisheries Service, Washington, DC 20235.
(iv) If the activity involves the construction of structures which may affect aircraft operations or for purposes associated with seaplane operations, to the Regional Director of the Federal Aviation Administration.
(v) If the activity would be in connection with a foreign-trade zone, to the Executive Secretary, Foreign-Trade Zones Board, Department of Commerce, Washington, DC 20230 and to the appropriate District Director of Customs as Resident Representative, Foreign-Trade Zones Board.
(3) It is presumed that all interested parties and agencies will wish to respond to public notices; therefore, a lack of response will be interpreted as meaning that there is no objection to the proposed project. A copy of the public notice with the list of the addresses to whom the notice was sent will be included in the record. If a question develops with respect to an activity for which another agency has responsibility and that other agency has not responded to the public notice, the district engineer may request its comments. Whenever a response to a public notice has been received from a member of Congress, either in behalf of a constitutent or himself, the district engineer will inform the member of Congress of the final decision.
(4) District engineers will update public notice mailing lists at least once every two years.
(a) District engineers will add special conditions to Department of the Army permits when such conditions are necessary to satisfy legal requirements or to otherwise satisfy the public interest requirement. Permit conditions will be directly related to the impacts of the proposal, appropriate to the scope and degree of those impacts, and reasonably enforceable.
(1) Legal requirements which may be satisfied by means of Corps permit conditions include compliance with the 404(b)(1) guidelines, the EPA ocean dumping criteria, the Endangered Species Act, and requirements imposed by conditions on state section 401 water quality certifications.
(2) Where appropriate, the district engineer may take into account the existence of controls imposed under other federal, state, or local programs which would achieve the objective of the desired condition, or the existence of an enforceable agreement between the applicant and another party concerned with the resource in question, in determining whether a proposal complies with the 404(b)(1) guidelines, ocean dumping criteria, and other applicable statutes, and is not contrary to the public interest. In such cases, the Department of the Army permit will be conditioned to state that material changes in, or a failure to implement and enforce such program or agreement, will be grounds for modifying, suspending, or revoking the permit.
(3) Such conditions may be accomplished on-site, or may be accomplished off-site for mitigation of significant losses which are specifically identifiable, reasonably likely to occur, and of importance to the human or aquatic environment.
(b) District engineers are authorized to add special conditions, exclusive of paragraph (a) of this section, at the applicant's request or to clarify the permit application.
(c) If the district engineer determines that special conditions are necessary to insure the proposal will not be contrary to the public interest, but those conditions would not be reasonably implementable or enforceable, he will deny the permit.
(d)
(a)
(2) The general conditions included in ENG Form 1721 are normally applicable to all permits; however, some conditions may not apply to certain permits and may be deleted by the issuing officer. Special conditions applicable to
(b)
(2)
(c)
(2)
(3)
(d)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(c)
(d)
(e)
(a)
(b)
(1) When a referral is required by a written agreement between the head of a Federal agency and the Secretary of the Army;
(2) When the recommended decision is contrary to the written position of the Governor of the state in which the work would be performed;
(3) When there is substantial doubt as to authority, law, regulations, or policies applicable to the proposed activity;
(4) When higher authority requests the application be forwarded for decision; or
(5) When the district engineer is precluded by law or procedures required by law from taking final action on the application (e.g. section 9 of the Rivers and Harbors Act of 1899, or territorial sea baseline changes).
(c)
(1) When a referral is required by a written agreement between the head of a Federal agency and the Secretary of the Army;
(2) When there is substantial doubt as to authority, law, regulations, or policies applicable to the proposed activity;
(3) When higher authority requests the application be forwarded for decision; or
(4) When the division engineer is precluded by law or procedures required by law from taking final action on the application.
District engineers are authorized to determine the area defined by the terms “navigable waters of the United States” and “waters of the United States” except:
(a) When a determination of navigability is made pursuant to 33 CFR 329.14 (division engineers have this authority); or
(b) When EPA makes a section 404 jurisdiction determination under its authority.
The district engineer will establish and maintain a program to assure that potential applicants for permits are informed of the requirements of this regulation and of the steps required to obtain permits for activities in waters of the United States or ocean waters. Whenever the district engineer becomes aware of plans being developed by either private or public entities which might require permits for implementation, he should advise the potential applicant in writing of the statutory requirements and the provisions of this regulation. Whenever the district engineer is aware of changes in Corps of Engineers regulatory jurisdiction, he will issue appropriate public notices.
The term “you” and its derivatives, as used in this permit, means the permittee or any future transferee. The term “this office” refers to the appropriate district or division office of the Corps of Engineers having jurisdiction over the permitted activity or the appropriate official of that office acting under the authority of the commanding officer.
You are authorized to perform work in accordance with the terms and conditions specified below.
Project Description: (Describe the permitted activity and its intended use with references to any attached plans or drawings that are considered to be a part of the project description. Include a description of the types and quantities of dredged or fill materials to be discharged in jurisdictional waters.)
Project Location: (Where appropriate, provide the names of and the locations on the waters where the permitted activity and any off-site disposals will take place. Also, using name, distance, and direction, locate the permitted activity in reference to a nearby landmark such as a town or city.)
Permit Conditions:
General Conditions:
1. The time limit for completing the work authorized ends on ______. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached.
2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification of this permit from this office, which may require restoration of the area.
3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places.
4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization.
5. If a conditioned water quality certification has been issued for your project, you must comply with the conditions specified in the certification as special conditions to this permit. For your convenience, a copy of the certification is attached if it contains such conditions.
6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished in accordance with the terms and conditions of your permit.
Special Conditions: (Add special conditions as required in this space with reference to a continuation sheet if necessary.)
Further Information:
1. Congressional Authorities: You have been authorized to undertake the activity described above pursuant to:
() Section 10 of the Rivers and Harbors Act of 1899 (33 U.S.C. 403).
() Section 404 of the Clean Water Act (33 U.S.C. 1344).
() Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413).
2. Limits of this authorization.
a. This permit does not obviate the need to obtain other Federal, state, or local authorizations required by law.
b. This permit does not grant any property rights or exclusive privileges.
c. This permit does not authorize any injury to the property or rights of others.
d. This permit does not authorize interference with any existing or proposed Federal project.
3. Limits of Federal Liability. In issuing this permit, the Federal Government does not assume any liability for the following:
a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes.
b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest.
c. Damages to persons, property, or to other permitted or unpermitted activities or structures caused by the activity authorized by this permit.
d. Design or construction deficiencies associated with the permitted work.
e. Damage claims associated with any future modification, suspension, or revocation of this permit.
4. Reliance on Applicant's Data: The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided.
5. Reevaluation of Permit Decision. This office may reevaluate its decision on this permit at any time the circumstances warrant. Circumstances that could require a reevaluation include, but are not limited to, the following:
a. You fail to comply with the terms and conditions of this permit.
b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above).
c. Significant new information surfaces which this office did not consider in reaching the original public interest decision.
Such a reevaluation may result in a determination that it is appropriate to use the
6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corps will normally give favorable consideration to a request for an extension of this time limit.
Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit.
This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below.
When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below.
B. Special Conditions. No special conditions will be preprinted on the permit form. The following and other special conditions should be added, as appropriate, in the space provided after the general conditions or on a referenced continuation sheet:
1. Your use of the permitted activity must not interfere with the public's right to free navigation on all navigable waters of the United States.
2. You must have a copy of this permit available on the vessel used for the authorized transportation and disposal of dredged material.
3. You must advise this office in writing, at least two weeks before you start maintenance dredging activities under the authority of this permit.
4. You must install and maintain, at your expense, any safety lights and signals prescribed by the United States Coast Guard (USCG), through regulations or otherwise, on your authorized facilities. The USCG may be reached at the following address and telephone number:
5. The condition below will be used when a Corps permit authorizes an artificial reef, an aerial transmission line, a submerged cable or pipeline, or a structure on the outer continental shelf.
National Ocean Service (NOS) has been notified of this authorization. You must notify NOS and this office in writing, at least two weeks before you begin work and upon completion of the activity authorized by this permit. Your notification of completion must include a drawing which certifies the location and configuration of the completed activity (a certified permit drawing may be used). Notifications to NOS will be sent to the following address: National Ocean Service, Office of Coast Survey, N/CS261, 1315 East West Highway, Silver Spring, Maryland 20910-3282.
6. The following condition should be used for every permit where legal recordation of the permit would be reasonably practicable and recordation could put a subsequent purchaser or owner of property on notice of permit conditions.
You must take the actions required to record this permit with the Registrar of Deeds or other appropriate official charged with the responsibility for maintaining records of title to or interest in real property.
1.
2.
3.
4.
5.
6.
(1) Fixed or floating small private piers, small docks, boat hoists and boathouses.
(2) Minor utility distribution and collection lines including irrigation;
(3) Minor maintenance dredging using existing disposal sites;
(4) Boat launching ramps;
(5) All applications which qualify as letters of permission (as described at 33 CFR 325.5(b)(2)).
b.
7.
b.
(2) The district engineer is considered to have control and responsibility for portions of the project beyond the limits of Corps jurisdiction where the Federal involvement is sufficient to turn an essentially private action into a Federal action. These are cases where the environmental consequences of the larger project are essentially products of the Corps permit action.
Typical factors to be considered in determining whether sufficient “control and responsibility” exists include:
(i) Whether or not the regulated activity comprises “merely a link” in a corridor type project (e.g., a transportation or utility transmission project).
(ii) Whether there are aspects of the upland facility in the immediate vicinity of the regulated activity which affect the location and configuration of the regulated activity.
(iii) The extent to which the entire project will be within Corps jurisdiction.
(iv) The extent of cumulative Federal control and responsibility.
A. Federal control and responsibility will include the portions of the project beyond the limits of Corps jurisdiction where the cumulative Federal involvement of the Corps and other Federal agencies is sufficient to grant legal control over such additional portions of the project. These are cases where the environmental consequences of the additional portions of the projects are essentially products of Federal financing, assistance, direction, regulation, or approval (not including funding assistance solely in the form of general revenue sharing funds, with no Federal agency control over the subsequent use of such funds, and not including judicial or administrative civil or criminal enforcement actions).
B. In determining whether sufficient cumulative Federal involvement exists to expand the scope of Federal action the district engineer should consider whether other Federal agencies are required to take Federal action under the Fish and Wildlife Coordination Act (16 U.S.C. 661
C. The district engineer should also refer to paragraphs 8(b) and 8(c) of this appendix for guidance on determining whether it should be the lead or a cooperating agency in these situations.
These factors will be added to or modified through guidance as additional field experience develops.
(3)
Similarly, if an applicant seeks a DA permit to fill waters or wetlands on which other construction or work is proposed, the control and responsibility of the Corps, as well as its overall Federal involvement would extend to the portions of the project to be located on the permitted fill. However, the NEPA review would be extended to the entire project, including portions outside waters of the United States, only if sufficient Federal control and responsibility over the entire project is determined to exist; that is, if the regulated activities, and those activities involving regulation, funding, etc. by other Federal agencies, comprise a substantial portion of the overall project. In any case, once the scope of analysis has been defined, the NEPA analysis for that action should include direct, indirect and cumulative impacts on all Federal interests within the purview of the NEPA statute. The district engineer should, whenever practicable, incorporate by reference and rely upon the reviews of other Federal and State agencies.
For those regulated activities that comprise merely a link in a transportation or utility transmission project, the scope of analysis should address the Federal action,
For example, a 50-mile electrical transmission cable crossing a 1 1/4 mile wide river that is a navigable water of the United States requires a DA permit. Neither the origin and destination of the cable nor its route to and from the navigable water, except as the route applies to the location and configuration of the crossing, are within the control or responsibility of the Corps of Engineers. Those matters would not be included in the scope of analysis which, in this case, would address the impacts of the specific cable crossing.
Conversely, for those activities that require a DA permit for a major portion of a transportation or utility transmission project, so that the Corps permit bears upon the origin and destination as well as the route of the project outside the Corps regulatory boundaries, the scope of analysis should include those portions of the project outside the boundaries of the Corps section 10/404 regulatory jurisdiction. To use the same example, if 30 miles of the 50-mile transmission line crossed wetlands or other “waters of the United States,” the scope of analysis should reflect impacts of the whole 50-mile transmission line.
For those activities that require a DA permit for a major portion of a shoreside facility, the scope of analysis should extend to upland portions of the facility. For example, a shipping terminal normally requires dredging, wharves, bulkheads, berthing areas and disposal of dredged material in order to function. Permits for such activities are normally considered sufficient Federal control and responsibility to warrant extending the scope of analysis to include the upland portions of the facility.
In all cases, the scope of analysis used for analyzing both impacts and alternatives should be the same scope of analysis used for analyzing the benefits of a proposal.
8.
b.
c.
When the Corps is a cooperating agency because of a regulatory responsibility, the district engineer should, in accordance with 40 CFR 1501.6(b)(4), “make available staff support at the lead agency's request” to enhance the latter's interdisciplinary capability provided the request pertains to the Corps regulatory action covered by the EIS, to the extent this is practicable. Beyond this, Corps staff support will generally be made available to the lead agency to the extent practicable within its own responsibility and available resources. Any assistance to a lead agency beyond this will normally be by written agreement with the lead agency providing for the Corps expenses on a cost reimbursable basis. If the district engineer believes a public hearing should be held and another agency is lead agency, the district engineer should request such a hearing and provide his reasoning for the request. The district engineer should suggest a joint hearing and offer to take an active part in the hearing and ensure coverage of the Corps concerns.
d.
e.
f.
(1) The district engineer may prepare an EIS, or may obtain information needed to prepare an EIS, either with his own staff or by contract. In choosing a contractor who reports directly to the district engineer, the procedures of 40 CFR 1506.5(c) will be followed.
(2) Information required for an EIS also may be furnished by the applicant or a consultant employed by the applicant. Where this approach is followed, the district engineer will (i) advise the applicant and/or his consultant of the Corps information requirements, and (ii) meet with the applicant and/
The applicant and/or his consultant may accept or reject the district engineer's guidance. The district engineer, however, may after specifying the information in contention, require the applicant to resubmit any previously submitted data which the district engineer considers inadequate or inaccurate. In all cases, the district engineer should document in the record the Corps independent evaluation of the information and its accuracy, as required by 40 CFR 1506.5(a).
g.
h.
9.
b.
(b) The “person at the agency who can supply further information” (40 CFR 1502.11(c) is the project manager handling that permit application.
(c) The cover sheet should identify the EIS as a Corps permit action and state the authorities (sections 9, 10, 404, 103, etc.) under which the Corps is exerting its jurisdiction.
(2)
(3)
(4)
(5)
(a) Only reasonable alternatives need be considered in detail, as specified in 40 CFR 1502.14(a). Reasonable alternatives must be those that are feasible and such feasibility must focus on the accomplishment of the underlying purpose and need (of the applicant or the public) that would be satisfied by the proposed Federal action (permit issuance). The alternatives analysis should be thorough enough to use for both the public interest review and the 404(b)(1) guidelines (40 CFR part 230) where applicable. Those alternatives that are unavailable to the applicant, whether or not they require Federal action (permits), should normally be included in the analysis of the no-Federal-action (denial) alternative. Such alternatives should be evaluated only to the extent necessary to allow a complete and objective evaluation of the public interest and a fully informed decision regarding the permit application.
(b) The “no-action” alternative is one which results in no construction requiring a Corps permit. It may be brought by (1) the applicant electing to modify his proposal to eliminate work under the jurisdiction of the Corps or (2) by the denial of the permit. District engineers, when evaluating this alternative, should discuss, when appropriate, the consequences of other likely uses of a project site, should the permit be denied.
(c) The EIS should discuss geographic alternatives, e.g., changes in location and other site specific variables, and functional alternatives, e.g., project substitutes and design modifications.
(d) The Corps shall not prepare a cost-benefit analysis for projects requiring a Corps permit. 40 CFR 1502.23 states that the weighing of the various alternatives need not be displayed in a cost-benefit analysis and “* * * should not be when there are important qualitative considerations.” The EIS should, however, indicate any cost considerations that are likely to be relevant to a decision.
(e) Mitigation is defined in 40 CFR 1508.20, and Federal action agencies are directed in 40 CFR 1502.14 to include appropriate mitigation measures. Guidance on the conditioning of permits to require mitigation is in 33 CFR 320.4(r) and 325.4. The nature and extent of mitigation conditions are dependent on the results of the public interest review in 33 CFR 320.4.
(6)
(7)
(8)
(9)
(10)
(11)
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
21.
a.
b.
c.
d. The term “criteria for inclusion in the National Register” refers to the criteria published by the Department of Interior at 36 CFR 60.4.
e. An “effect” on a “designated historic property” occurs when the undertaking may alter the characteristics of the property that qualified the property for inclusion in the National Register. Consideration of effects on “designated historic properties” includes indirect effects of the undertaking. The criteria for effect and adverse effect are described in Paragraph 15 of this appendix.
f. The term “undertaking” as used in this appendix means the work, structure or discharge that requires a Department of the Army permit pursuant to the Corps regulations at 33 CFR 320-334.
g. Permit area.
(1) The term “permit area” as used in this appendix means those areas comprising the waters of the United States that will be directly affected by the proposed work or structures and uplands directly affected as a result of authorizing the work or structures. The following three tests must all be satisfied for an activity undertaken outside the waters of the United States to be included within the “permit area”:
(i) Such activity would not occur but for the authorization of the work or structures within the waters of the United States;
(ii) Such activity must be integrally related to the work or structures to be authorized within waters of the United States. Or, conversely, the work or structures to be authorized must be essential to the completeness of the overall project or program; and
(iii) Such activity must be directly associated (first order impact) with the work or structures to be authorized.
(2) For example, consider an application for a permit to construct a pier and dredge an access channel so that an industry may be established and operated on an upland area.
(i) Assume that the industry requires the access channel and the pier and that without such channel and pier the project would not be feasible. Clearly then, the industrial site, even though upland, would be within the “permit area.” It would not be established “but for” the access channel and pier; it also is integrally related to the work and structure to be authorized; and finally it is directly associated with the work and structure to be authorized. Similarly, all three tests are satisfied for the dredged material disposal site and it too is in the “permit area” even if located on uplands.
(ii) Consider further that the industry, if established, would cause local agencies to extend water and sewer lines to service the area of the industrial site. Assume that the extension would not itself involve the waters of the United States and is not solely the result of the industrial facility. The extensions would not be within the “permit area” because they would not be directly associated with the work or structure to be authorized.
(iii) Now consider that the industry, if established, would require increased housing for its employees, but that a private developer would develop the housing. Again, even if the housing would not be developed but for the authorized work and structure, the housing would not be within the permit area because it would not be directly associated with or integrally related to the work or structure to be authorized.
(3) Consider a different example. This time an industry will be established that requires no access to the navigable waters for its operation. The plans for the facility, however, call for a recreational pier with an access channel. The pier and channel will be used for the company-owned yacht and employee recreation. In the example, the industrial site is not included within the permit area. Only areas of dredging, dredged material disposal, and pier construction would be within the permit area.
(4) Lastly, consider a linear crossing of the waters of the United States; for example, by a transmission line, pipeline, or highway.
(i) Such projects almost always
(ii) Accordingly, in the case of the linear crossing, the permit area shall extend in either direction from the crossing to that point at which alternative alignments leading to reasonable alternative locations for the crossing can be considered and evaluated. Such a point may often coincide with the physical feature of the waterbody to be crossed, for example, a bluff, the limit of the flood plain, a vegetational change, etc., or with a jurisdictional feature associated with the waterbody, for example, a zoning change, easement limit, etc., although such features should not be controlling in selecting the limits of the permit area.
This appendix establishes the procedures to be followed by the U.S. Army Corps of Engineers (Corps) to fulfill the requirements set forth in the National Historic Preservation Act (NHPA), other applicable historic preservation laws, and Presidential directives as they relate to the regulatory program of the Corps of Engineers (33 CFR parts 320-334).
a. The district engineer will take into account the effects, if any, of proposed undertakings on historic properties both within and beyond the waters of the U.S. Pursuant to section 110(f) of the NHPA, the district engineer, where the undertaking that is the subject of a permit action may directly and adversely affect any National Historic Landmark, shall, to the maximum extent possible, condition any issued permit as may be necessary to minimize harm to such landmark.
b. In addition to the requirements of the NHPA, all historic properties are subject to consideration under the National Environmental Policy Act, (33 CFR part 325, appendix B), and the Corps' public interest review requirements contained in 33 CFR 320.4. Therefore, historic properties will be included as a factor in the district engineer's decision on a permit application.
c. In processing a permit application, the district engineer will generally accept for Federal or Federally assisted projects the Federal agency's or Federal lead agency's compliance with the requirements of the NHPA.
d. If a permit application requires the preparation of an Environmental Impact Statement (EIS) pursuant to the National Environmental Policy Act, the draft EIS will contain the information required by paragraph 9.a. below. Furthermore, the SHPO and the ACHP will be given the opportunity to participate in the scoping process and to comment on the Draft and Final EIS.
e. During pre-application consultations with a prospective applicant the district engineer will encourage the consideration of
f. This appendix is organized to follow the Corps standard permit process and to indicate how historic property considerations are to be addressed during the processing and evaluating of permit applications. The procedures of this Appendix are not intended to diminish the full consideration of historic properties in the Corps regulatory program. Rather, this appendix is intended to provide for the maximum consideration of historic properties within the time and jurisdictional constraints of the Corps regulatory program. The Corps will make every effort to provide information on historic properties and the effects of proposed undertakings on them to the public by the public notice within the time constraints required by the Clean Water Act. Within the time constraints of applicable laws, executive orders, and regulations, the Corps will provide the maximum coordination and comment opportunities to interested parties especially the SHPO and ACHP. The Corps will discuss with and encourage the applicant to avoid or minimize effects on historic properties. In reaching its decisions on permits, the Corps will adhere to the goals of the NHPA and other applicable laws dealing with historic properties.
a. Upon receipt of a completed permit application, the district engineer will consult district files and records, the latest published version(s) of the National Register, lists of properties determined eligible, and other appropriate sources of information to determine if there are any designated historic properties which may be affected by the proposed undertaking. The district engineer will also consult with other appropriate sources of information for knowledge of undesignated historic properties which may be affected by the proposed undertaking. The district engineer will establish procedures (e.g., telephone calls) to obtain supplemental information from the SHPO and other appropriate sources. Such procedures shall be accomplished within the time limits specified in this appendix and 33 CFR part 325.
b. In certain instances, the nature, scope, and magnitude of the work, and/or structures to be permitted may be such that there is little likelihood that a historic property exists or may be affected. Where the district engineer determines that such a situation exists, he will include a statement to this effect in the public notice. Three such situations are:
(1) Areas that have been extensively modified by previous work. In such areas, historic properties that may have at one time existed within the permit area may be presumed to have been lost unless specific information indicates the presence of such a property (e.g., a shipwreck).
(2) Areas which have been created in modern times. Some recently created areas, such as dredged material disposal islands, have had no human habitation. In such cases, it may be presumed that there is no potential for the existence of historic properties unless specific information indicates the presence of such a property.
(3) Certain types of work or structures that are of such limited nature and scope that there is little likelihood of impinging upon a historic property even if such properties were to be present within the affected area.
c. If, when using the pre-application procedures of 33 CFR 325.1(b), the district engineer believes that a designated historic property may be affected, he will inform the prospective applicant for consideration during project planning of the potential applicability of the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716). The district engineer will also inform the prospective applicant that the Corps will consider any effects on historic properties in accordance with this appendix.
d. At the earliest practical time the district engineer will discuss with the applicant measures or alternatives to avoid or minimize effects on historic properties.
a. Except as specified in subparagraph 4.c., the district engineer's current knowledge of the presence or absence of historic properties and the effects of the undertaking upon these properties will be included in the public notice. The public notice will be sent to the SHPO, the regional office of the National Park Service (NPS), certified local governments (see paragraph (1.c.) and Indian tribes, and interested citizens. If there are designated historic properties which reasonably may be affected by the undertaking or if there are undesignated historic properties within the affected area which the district engineer reasonably expects to be affected by the undertaking and which he believes meet the criteria for inclusion in the National Register, the public notice will also be sent to the ACHP.
b. During permit evaluation for newly designated historic properties or undesignated historic properties which reasonably may be affected by the undertaking and which have been newly identified through the public interest review process, the district engineer will immediately inform the applicant, the SHPO, the appropriate certified local government and the ACHP of the district engineer's current knowledge of the effects of the undertaking upon these properties. Commencing from the date of the district engineer's letter, these entities will be given 30 days to submit their comments.
c. Locational and sensitive information related to archeological sites is excluded from
a. When initial review, addition submissions by the applicant, or response to the public notice indicates the existence of a potentially eligible property, the district engineer shall examine the pertinent evidence to determine the need for further investigation. The evidence must set forth specific reasons for the need to further investigate within the permit area and may consist of:
(1) Specific information concerning properties which may be eligible for inclusion in the National Register and which are known to exist in the vicinity of the project; and
(2) Specific information concerning known sensitive areas which are likely to yield resources eligible for inclusion in the National Register, particularly where such sensitive area determinations are based upon data collected from other, similar areas within the general vicinity.
b. Where the scope and type of work proposed by the applicant or the evidence presented leads the district engineer to conclude that the chance of disturbance by the undertaking to any potentially eligible historic property is too remote to justify further investigation, he shall so advise the reporting party and the SHPO.
c. If the district engineer's review indicates that an investigation for the presence of potentially eligible historic properties on the upland locations of the permit area (see paragraph 1.g.) is justified, the district engineer will conduct or cause to be conducted such an investigation. Additionally, if the notification indicates that a potentially eligible historic property may exist within waters of the U.S., the district engineer will conduct or cause to be conducted an investigation to determine whether this property may be eligible for inclusion in the National Register. Comments or information of a general nature will not be considered as sufficient evidence to warrant an investigation.
d. In addition to any investigations conducted in accordance with paragraph 6.a. above, the district engineeer may conduct or cause to be conducted additional investigations which the district engineer determines are essential to reach the public interest decision . As part of any site visit, Corps personnel will examine the permit area for the presence of potentially eligible historic properties. The Corps will notify the SHPO, if any evidence is found which indicates the presence of potentially eligible historic properties.
e. As determined by the district engineer, investigations may consist of any of the following: further consultations with the SHPO, the State Archeologist, local governments, Indian tribes, local historical and archeological societies, university archeologists, and others with knowledge and expertise in the identification of historical, archeological, cultural and scientific resources; field examinations; and archeological testing. In most cases, the district engineer will require, in accordance with 33 CFR 325.1(e), that the applicant conduct the investigation at his expense and usually by third party contract.
f. The Corps of Engineers' responsibilities to seek eligibility determinations for potentially eligible historic properties is limited to resources located within waters of the U.S. that are directly affected by the undertaking. The Corps responsibilities to identify potentially eligible historic properties is limited to resources located within the permit area that are directly affected by related upland activities. The Corps is not responsible for identifying or assessing potentially eligible historic properties outside the permit area, but will consider the effects of undertakings on any known historic properties that may occur outside the permit area.
a. For a historic property within waters of the U.S. that will be directly affected by the undertaking the district engineer will, for the purposes of this Appendix and compliance with the NHPA:
(1) Treat the historic property as a “designated historic property,” if both the SHPO and the district engineer agree that it is eligible for inclusion in the National Register; or
(2) Treat the historic property as not eligible, if both the SHPO and the district engineer agree that it is not eligible for inclusion in the National Register; or
(3) Request a determination of eligibility from the Keeper of the National Register in accordance with applicable National Park Service regulations and notify the applicant, if the SHPO and the district engineer disagree or the ACHP or the Secretary of the Interior so request. If the Keeper of the National Register determines that the resources are not eligible for listing in the National Register or fails to respond within 45 days of receipt of the request, the district engineer may proceed to conclude his action on the permit application.
b. For a historic property outside of waters of the U.S. that will be directly affected by the undertaking the district engineer will, for the purposes of this appendix and compliance with the NHPA:
(1) Treat the historic property as a “designated historic property,” if both the SHPO and the district engineer agree that it is eligible for inclusion in the National Register; or
(2) Treat the historic property as not eligible, if both the SHPO and the district engineer agree that it is not eligible for inclusion in the National Register; or
(3) Treat the historic property as not eligible unless the Keeper of the National Register determines it is eligible for or lists it on the National Register. (See paragraph 6.c. below.)
c. If the district engineer and the SHPO do not agree pursuant to paragraph 6.b.(1) and the SHPO notifies the district engineer that it is nominating a potentially eligible historic property for the National Register that may be affected by the undertaking, the district engineer will wait a reasonable period of time for that determination to be made before concluding his action on the permit. Such a reasonable period of time would normally be 30 days for the SHPO to nominate the historic property plus 45 days for the Keeper of the National Register to make such determination. The district engineer will encourage the applicant to cooperate with the SHPO in obtaining the information necessary to nominate the historic property.
a.
b.
c.
d.
At any time during permit processing, the district engineer may consult with the involved parties to discuss and consider possible alternatives or measures to avoid or minimize the adverse effects of a proposed activity. The district engineer will terminate any consultation immediately upon determining that further consultation is not productive and will immediately notify the consulting parties. If the consultation results in a mutual agreement among the SHPO, ACHP, applicant and the district engineer regarding the treatment of designated historic properties, then the district engineer may formalize that agreement either through permit conditioning or by signing a Memorandum of Agreement (MOA) with these parties. Such MOA will constitute the comments of the ACHP and the SHPO, and the district engineer may proceed with the permit decision. Consultation shall not continue beyond the comment period provided in paragraph 9.b.
a. If: (i) The district engineer determines that coordination with the SHPO is unproductive; or (ii) the ACHP, within the appropriate comment period, requests additional information in order to provide its comments; or (iii) the ACHP objects to any agreed resolution of impacts on designated historic properties; the district engineer, normally within 30 days, shall provide the ACHP with:
(1) A project description, including, as appropriate, photographs, maps, drawings, and
(2) A listing and description of the designated historic properties that will be affected, including the reports from any surveys or investigations;
(3) A description of the anticipated adverse effects of the undertaking on the designated historic properties and of the proposed mitigation measures and alternatives considered, if any; and
(4) The views of any commenting parties regarding designated historic properties.
In developing this information, the district engineer may coordinate with the applicant, the SHPO, and any appropriate Indian tribe or certified local government.
Copies of the above information also should be forwarded to the applicant, the SHPO, and any appropriate Indian tribe or certified local government. The district engineer will not delay his decision but will consider any comments these parties may wish to provide.
b. The district engineer will provide the ACHP 60 days from the date of the district engineer's letter forwarding the information in paragraph 9.a., to provide its comments. If the ACHP does not comment by the end of this comment period, the district engineer will complete processing of the permit application. When the permit decision is otherwise delayed as provided in 33 CFR 325.2(d) (3) & (4), the district engineer will provide additional time for the ACHP to comment consistent with, but not extending beyond that delay.
a. In making the public interest decision on a permit application, in accordance with 33 CFR 320.4, the district engineer shall weigh all factors, including the effects of the undertaking on historic properties and any comments of the ACHP and the SHPO, and any views of other interested parties. The district engineer will add permit conditions to avoid or reduce effects on historic properties which he determines are necessary in accordance with 33 CFR 325.4. In reaching his determination, the district engineer will consider the Secretary of the Interior's Standards and Guidelines for Archeology and Historic Preservation (48 FR 44716).
b. If the district engineer concludes that permitting the activity would result in the irrevocable loss of important scientific, prehistoric, historical, or archeological data, the district engineer, in accordance with the Archeological and Historic Preservation Act of 1974, will advise the Secretary of the Interior (by notifying the National Park Service (NPS)) of the extent to which the data may be lost if the undertaking is permitted, any plans to mitigate such loss that will be implemented, and the permit conditions that will be included to ensure that any required mitigation occurs.
After the permit has been issued, if the district engineer finds or is notified that the permit area contains a previously unknown potentially eligible historic property which he reasonably expects will be affected by the undertaking, he shall immediately inform the Department of the Interior Departmental Consulting Archeologist and the regional office of the NPS of the current knowledge of the potentially eligible historic property and the expected effects, if any, of the undertaking on that property. The district engineer will seek voluntary avoidance of construction activities that could affect the historic property pending a recommendation from the National Park Service pursuant to the Archeological and Historic Preservation Act of 1974. Based on the circumstances of the discovery, equity to all parties, and considerations of the public interest, the district engineer may modify, suspend or revoke a permit in accordance with 33 CFR 325.7.
Potential impacts on historic properties will be considered in development and evaluation of general permits. However, many of the specific procedures contained in this appendix are not normally applicable to general permits. In developing general permits, the district engineer will seek the views of the SHPO and, the ACHP and other organizations and/or individuals with expertise or interest in historic properties. Where designated historic properties are reasonably likely to be affected, general permits shall be conditioned to protect such properties or to limit the applicability of the permit coverage.
a. The criteria at paragraph 15 of this Appendix will be used for determining compliance with the nationwide permit condition at 33 CFR 330.5(b)(9) regarding the effect on designated historic properties. When making this determination the district engineer may consult with the SHPO, the ACHP or other interested parties.
b. If the district engineer is notified of a potentially eligible historic property in accordance with nationwide permit regulations and conditions, he will immediately notify the SHPO. If the district engineer believes that the potentially eligible historic property meets the criteria for inclusion in the National Register and that it may be affected by the proposed undertaking then he may suspend authorization of the nationwide permit until he provides the ACHP and the
The procedures for processing permits in emergency situations are described at 33 CFR 325.2(e)(4). In an emergency situation the district engineer will make every reasonable effort to receive comments from the SHPO and the ACHP, when the proposed undertaking can reasonably be expected to affect a potentially eligible or designated historic property and will comply with the provisions of this Appendix to the extent time and the emergency situation allows.
(a) An undertaking has an effect on a designated historic property when the undertaking may alter characteristics of the property that qualified the property for inclusion in the National Register. For the purpose of determining effect, alteration to features of a property's location, setting, or use may be relevant, and depending on a property's important characteristics, should be considered.
(b) An undertaking is considered to have an adverse effect when the effect on a designated historic property may diminish the integrity of the property's location, design, setting, materials, workmanship, feeling, or association. Adverse effects on designated historic properties include, but are not limited to:
(1) Physical destruction, damage, or alteration of all or part of the property;
(2) Isolation of the property from or alteration of the character of the property's setting when that character contributes to the property's qualification for the National Register;
(3) Introduction of visual, audible, or atmospheric elements that are out of character with the property or alter its setting;
(4) Neglect of a property resulting in its deterioration or destruction; and
(5) Transfer, lease, or sale of the property.
(c) Effects of an undertaking that would otherwise be found to be adverse may be considered as being not adverse for the purpose of this appendix:
(1) When the designated historic property is of value only for its potential contribution to archeological, historical, or architectural research, and when such value can be substantially preserved through the conduct of appropriate research, and such research is conducted in accordance with applicable professional standards and guidelines;
(2) When the undertaking is limited to the rehabilitation of buildings and structures and is conducted in a manner that preserves the historical and architectural value of affected designated historic properties through conformance with the Secretary's “Standards for Rehabilitation and Guidelines for Rehabilitating Historic Buildings”, or
(3) When the undertaking is limited to the transfer, lease, or sale of a designated historic property, and adequate restrictions or conditions are included to ensure preservation of the property's important historic features.
33 U.S.C. 401
This part prescribes enforcement policies (§ 326.2) and procedures applicable to activities performed without required Department of the Army permits (§ 326.3) and to activities not in compliance with the terms and conditions of issued Department of the Army permits (§ 326.4). Procedures for initiating legal actions are prescribed in § 326.5. Nothing contained in this part shall establish a non-discretionary duty on the part of district engineers nor shall deviation from these precedures give rise to a private right of action against a district engineer.
Enforcement, as part of the overall regulatory program of the Corps, is based on a policy of regulating the waters of the United States by discouraging activities that have not been properly authorized and by requiring corrective measures, where appropriate, to ensure those waters are not misused and to maintain the integrity of the program. There are several methods discussed in the remainder of
(a)
(b)
(c)
(1) If the violation involves a project that is not complete, the district engineer's notification should be in the form of a cease and desist order prohibiting any further work pending resolution of the violation in accordance with the procedures contained in this part. See paragraph (c)(4) of this section for exception to this procedure.
(2) If the violation involves a completed project, a cease and desist order should not be necessary. However, the district engineer should still notify the responsible parties of the violation.
(3) All notifications, pursuant to paragraphs (c) (1) and (2) of this section, should identify the relevant statutory authorities, indicate potential enforcement consequences, and direct the responsible parties to submit any additional information that the district engineer may need at that time to determine what course of action he should pursue in resolving the violation; further information may be requested, as needed, in the future.
(4) In situations which would, if a violation were not involved, qualify for emergency procedures pursuant to 33 CFR part 325.2(e)(4), the district engineer may decide it would not be appropriate to direct that the unauthorized work be stopped. Therefore, in such situations, the district engineer may, at his discretion, allow the work to continue, subject to appropriate limitations and conditions as he may prescribe, while the violation is being resolved in accordance with the procedures contained in this part.
(5) When an unauthorized activity requiring a permit has been undertaken by American Indians (including Alaskan natives, Eskimos, and Aleuts, but not including Native Hawaiians) on reservation lands or in pursuit of specific treaty rights, the district engineer should use appropriate means to coordinate proposed directives and orders with the Assistant Chief Counsel for Indian Affairs (DAEN-CCI).
(6) When an unauthorized activity requiring a permit has been undertaken by an official acting on behalf of a foreign government, the district engineer should use appropriate means to coordinate proposed directives and orders with the Office, Chief of Engineers, ATTN: DAEN-CCK.
(d)
(2) An order requiring initial corrective measures that resolve the violation may also be issued by the district engineer in situations where the acceptance or processing of an after-the-fact permit application is prohibited or considered not appropriate pursuant to § 326.3(e)(1) (iii) through (iv) below. However, such orders will be issued only when the district engineer has reached an independent determination that such measures are necessary and appropriate.
(3) It will not be necessary to issue a Corps permit in connection with initial corrective measures undertaken at the direction of the district engineer.
(e)
(i) No permit application will be processed when restoration of the waters of the United States has been completed that eliminates current and future detrimental impacts to the satisfaction of the district engineer.
(ii) No permit application will be accepted in connection with a violation where the district engineer determines that legal action is appropriate (§ 326.5(a)) until such legal action has been completed.
(iii) No permit application will be accepted where a Federal, state, or local authorization or certification, required by Federal law, has already been denied.
(iv) No permit application will be accepted nor will the processing of an application be continued when the district engineer is aware of enforcement litigation that has been initiated by other Federal, state, or local regulatory agencies, unless he determines that concurrent processing of an after-the-fact permit application is clearly appropriate.
(v) No appeal of an approved jurisdictional determination (JD) associated with an unauthorized activity or after-the-fact permit application will be accepted unless and until the applicant has furnished a signed statute of limitations tolling agreement to the district engineer. A separate statute of limitations tolling agreement will be prepared for each unauthorized activity. Any person who appeals an approved JD associated with an unauthorized activity or applies for an after-the-fact permit, where the application is accepted and evaluated by the Corps, thereby agrees that the statute of limitations regarding any violation associated with that application is suspended until one year after the final Corps decision, as defined at 33 CFR 331.10. Moreover, the recipient of an approved JD associated with an unauthorized activity or an application for an after-the-fact permit must also memorialize that agreement to toll the statute of limitations, by signing an agreement to that effect, in exchange for the Corps acceptance of the after-
(2) Upon completion of his review in accordance with 33 CFR parts 320 through 325, the district engineer will determine if a permit should be issued, with special conditions if appropriate, or denied. In reaching a decision to issue, he must determine that the work involved is not contrary to the public interest, and if section 404 is applicable, that the work also complies with the Environmental Protection Agency's section 404(b)(1) guidelines. If he determines that a denial is warranted, his notification of denial should prescribe any final corrective actions required. His notification should also establish a reasonable period of time for the applicant to complete such actions unless he determines that further information is required before the corrective measures can be specified. If further information is required, the final corrective measures may be specified at a later date. If an applicant refuses to undertake prescribed corrective actions ordered subsequent to permit denial or refuses to accept a conditioned permit, the district engineer may initiate legal action in accordance with § 326.5.
(f)
(g)
(a)
(b)
(c)
(d)
(2) Request corrected plans reflecting actual work, if needed; and
(3) Attempt to resolve the violation. Resolution of the violation may take the form of the permitted project being voluntarily brought into compliance or of a permit modification (33 CFR 325.7(b)). If a mutually agreeable solution cannot be reached, a written order requiring compliance should normally be issued and delivered by personal service. Issuance of an order is not, however, a prerequisite to legal action. If an order is issued, it will specify a time period of not more than 30 days for bringing the permitted project into compliance, and a copy will be sent to the appropriate state official pursuant to section 404(s)(2) of the Clean Water Act. If the permittee fails to comply with the order within the specified period of time, the district engineer may consider using the suspension/revocation procedures in 33 CFR 325.7(c) and/or he may recommend legal action in accordance with § 326.5.
(a)
(b)
(c)
(d)
(1) Significant precedential or controversial questions of law or fact;
(2) Requests for elevation to the Washington level by the Department of Justice;
(3) Violations of section 9 of the Rivers and Harbors Act of 1899;
(4) Violations of section 103 the Marine Protection, Research and Sanctuaries Act of 1972;
(5) All cases involving violations by American Indians (original of litigation report to DAEN-CCI with copy to DAEN-CCK) on reservation lands or in pursuit of specific treaty rights;
(6) All cases involving violations by officials acting on behalf of foreign governments; and
(7) Cases requiring action pursuant to paragraph (e) of this section.
(e)
(a)
(2) These procedures supplement the existing enforcement procedures at §§ 326.1 through 326.5. However, as a matter of Corps enforcement discretion once the Corps decides to proceed with an administrative penalty under these procedures it shall not subsequently pursue judicial action pursuant to § 326.5. Therefore, an administrative penalty should not be pursued if a subsequent judicial action for civil penalties is desired. An administrative civil penalty may be pursued in conjunction with a compliance order; request for restoration and/or request for mitigation issued under § 326.4.
(3)
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(b)
(2) The permittee will be provided actual notice, in writing, of the DE's proposal to issue an administrative civil penalty and will be advised of the right to request a hearing and to present evidence on the alleged violation. Notice to the permittee will be provided by certified mail, return receipt requested, or other notice, at the discretion of the DE when he determines justice so requires. This notice will be accompanied by a copy of the proposed order, and will include the following information:
(i) A description of the alleged violation and copies of the applicable law and regulations;
(ii) An explanation of the authority to initiate the proceeding;
(iii) An explanation, in general terms, of the procedure for assessing civil penalties, including opportunities for public participation;
(iv) A statement of the amount of the penalty that is proposed and a statement of the maximum amount of the penalty which the DE is authorized to assess for the violations alleged;
(v) A statement that the permittee may within 30 calendar days of receipt of the notice provided under this subparagraph, request a hearing prior to issuance of any final order. Further, that the permittee must request a hearing within 30 calendar days of receipt of the notice provided under this subparagraph in order to be entitled to receive such a hearing;
(vi) The name and address of the person to whom the permittee must send a request for hearing;
(vii) Notification that the DE may issue the final order on or after 30 calendar days following receipt of the notice provided under these rules, if the permittee does not request a hearing; and
(viii) An explanation that any final order issued under this section shall become effective 30 calendar days following its issuance unless a petition to set aside the order and to hold a hearing is filed by a person who commented on the proposed order and such petition is granted or an appeal is taken under section 309(g)(8) of the Clean Water Act.
(3) At the same time that actual notice is provided to the permittee, the DE shall give public notice of the proposed order, and provide reasonable opportunity for public comment on the proposed order, prior to issuing a final order assessing an administrative civil penalty. Procedures for giving public notice and providing the opportunity for public comment are contained in § 326.6(c).
(4) At the same time that actual notice is provided to the permittee, the DE shall provide actual notice, in writing, to the appropriate state agency for the state in which the violation occurred. Procedures for providing actual notice to and consulting with the appropriate state agency are contained in § 326.6(d).
(c)
(2) A 30 day public comment period shall be provided. Any person may submit written comments on the proposed administrative penalty order. The DE shall include all written comments in an administrative record relating to the proposed order. Any person who comments on a proposed order shall be given notice of any hearing held on the proposed order. Such persons shall have a reasonable opportunity to be heard and to present evidence in such hearings.
(3) If no hearing is requested by the permittee, any person who has submitted comments on the proposed order shall be given notice by the DE of any final order issued, and will be given 30 calendar days in which to petition the DE to set aside the order and to provide a hearing on the penalty. The DE shall set aside the order and provide a hearing in accordance with these rules if the evidence presented by
(4) The DE shall give public notice by mailing a copy of the information listed in paragraph (c)(5), of this section to:
(i) Any person who requests notice;
(ii) Other persons on a mailing list developed to include some or all of the following sources:
(A) Persons who request in writing to be on the list;
(B) Persons on “area lists” developed from lists of participants in past similar proceedings in that area, including hearings or other actions related to section 404 permit issuance as required by § 325.3(d)(1). The DE may update the mailing list from time to time by requesting written indication of continued interest from those listed. The DE may delete from the list the name of any person who fails to respond to such a request.
(5) All public notices under this subpart shall contain at a minimum the information provided to the permittee as described in § 326.6(b)(2) and:
(i) A statement of the opportunity to submit written comments on the proposed order and the deadline for submission of such comments;
(ii) Any procedures through which the public may comment on or participate in proceedings to reach a final decision on the order;
(iii) The location of the administrative record referenced in § 326.6(e), the times at which the administrative record will be available for public inspection, and a statement that all information submitted by the permittee and persons commenting on the proposed order is available as part of the administrative record, subject to provisions of law restricting the public disclosure of confidential information.
(d)
(2) For the purposes of this regulation, the appropriate State agency will be the agency administering the 401 certification program, unless another state agency is agreed to by the District and the respective state through formal/informal agreement with the state.
(3) The appropriate state agency will be provided the same opportunity to comment on the proposed order and participate in any hearing that is provided pursuant to § 326.6(c).
(e)
(2) The administrative record shall include the following:
(i) Documentation relied on by the DE to support the violations alleged in the proposed penalty order with a summary of violations, if a summary has been prepared;
(ii) Proposed penalty order or assessment notice;
(iii) Public notice of the proposed order with evidence of notice to the permittee and to the public;
(iv) Comments by the permittee and/or the public on the proposed penalty order, including any requests for a hearing;
(v) All orders or notices of the Presiding Officer;
(vi) Subpoenas issued, if any, for the attendance and testimony of witnesses and the production of relevant papers, books, or documents in connection with any hearings;
(vii) All submittals or responses of any persons or comments to the proceeding, including exhibits, if any;
(viii) A complete and accurate record or transcription of any hearing;
(ix) The recommended decision of the Presiding Officer and final decision and/or order of the Corps issued by the DE; and
(x) Any other appropriate documents related to the administrative proceeding;
(f)
(g)
(2) The permittee waives the right to a hearing to present evidence on the alleged violation or violations if the permittee does not submit the request for the hearing to the official designated in the notice of the proposed order within 30 calendar days of receipt of the notice. The DE shall determine the date of receipt of notice by permittee's signed and dated return receipt or such other evidence that constitutes proof of actual notice on a certain date.
(3) The DE shall promptly schedule requested hearings and provide reasonable notice of the hearing schedule to all participants, except that no hearing shall be scheduled prior to the end of the thirty day public comment period provided in § 326.6(c)(2). The DE may grant any delays or continuances necessary or desirable to resolve the case fairly.
(4) The hearing shall be held at the district office or a location chosen by the DE, except the permittee may request in writing upon a showing of good cause that the hearing be held at an alternative location. Action on such request is at the discretion of the DE.
(h)
(2) The DE shall give written notice of any hearing to be held under these rules to any person who commented on the proposed administrative penalty order under § 326.6(c). This notice shall specify a reasonable time prior to the hearing within which the commenter may request an opportunity to be heard and to present oral evidence or to make comments in writing in any such hearing. The notice shall require that any such request specify the facts or issues which the commenter wishes to address. Any commenter who files comments pursuant to § 326.6(c)(2) shall have a right to be heard and to present evidence at the hearing in conformance with these procedures.
(3) The DE shall select a member of the Corps counsel staff or other qualified person to serve as Presiding Officer of the hearing. The Presiding Officer shall exercise no other responsibility, direct or supervisory, for the investigation or prosecution of any case before him. The Presiding Officer shall conduct hearings as specified by these rules and make a recommended decision to the DE.
(4) The Presiding Officer shall consider each case on the basis of the evidence presented, and must have no prior connection with the case. The Presiding Officer is solely responsible for the recommended decision in each case.
(5)
(ii) The Presiding Officer shall not make, or knowingly cause to be made, any ex parte communication on the proceeding to any interested person outside the Corps or to any member of the interested Corps staff.
(iii) The DE may replace the Presiding Officer in any proceeding in which it is demonstrated to the DE's satisfaction that the Presiding Officer has engaged in prohibited ex parte communications to the prejudice of any participant.
(iv) Whenever an ex parte communication in violation of this section is received by the Presiding Officer or made known to the Presiding Officer, the Presiding Officer shall immediately notify all participants in the proceeding of the circumstances and substance of the communication and may require the person who made the communication or caused it to be made, or the party whose representative made the communication or caused it to be made, to the extent consistent with justice and the policies of the Clean Water Act, to show cause why that person or party's claim or interest in the proceedings should not be dismissed, denied, disregarded, or otherwise adversely affected on account of such violation.
(v) The prohibitions of this paragraph apply upon designation of the Presiding Officer and terminate on the date of final action or the final order.
(i)
(2) The Presiding Officer may subpoena witnesses and issue subpoenas for documents pursuant to the provisions of the Clean Water Act.
(3) The Presiding Officer shall provide interested parties a reasonable opportunity to be heard and to present evidence. Interested parties include the permittee, any person who filed a request to participate under 33 CFR 326.6(c), and any other person attending the hearing. The Presiding Officer may establish reasonable time limits for oral testimony.
(4) The permittee may not challenge the permit condition or limitation which is the subject matter of the administrative penalty order.
(5) Prior to the commencement of the hearing, the DE shall provide to the Presiding Officer the complete administrative record as of that date. During the hearing, the DE, or an authorized representative of the DE may summarize the basis for the proposed administrative order. Thereafter, the administrative record shall be admitted into evidence and the Presiding Officer shall maintain the administrative record of the proceedings and shall include in that record all documentary evidence, written statements, correspondence, the record of hearing, and any other relevant matter.
(6) The Presiding Officer shall cause a tape recording, written transcript or other permanent, verbatim record of the hearing to be made, which shall be included in the administrative record, and shall, upon written request, be made available, for inspection or copying, to the permittee or any person, subject to provisions of law restricting the public disclosure of confidential information. Any person making a request may be required to pay reasonable charges for copies of the administrative record or portions thereof.
(7) In receiving evidence, the Presiding Officer is not bound by strict rules of evidence. The Presiding Officer may determine the weight to be accorded the evidence.
(8) The permittee has the right to examine, and to respond to the administrative record. The permittee may offer into evidence, in written form or through oral testimony, a response to the administrative record including, any facts, statements, explanations, documents, testimony, or other exculpatory items which bear on any appropriate issues. The Presiding Officer may question the permittee and require the authentication of any written exhibit or statement. The Presiding Officer may exclude any repetitive or irrelevant matter.
(9) At the close of the permittee's presentation of evidence, the Presiding Officer should allow the introduction of rebuttal evidence. The Presiding Officer may allow the permittee to respond to any such rebuttal evidence submitted and to cross-examine any witness.
(10) The Presiding Officer may take official notice of matters that are not reasonably in dispute and are commonly known in the community or are ascertainable from readily available sources of known accuracy. Prior to
(11) After all evidence has been presented, any participant may present argument on any relevant issue, subject to reasonable time limitations set at the discretion of the Presiding Officer.
(12) The hearing record shall remain open for a period of 10 business days from the date of the hearing so that the permittee or any person who has submitted comments on the proposed order may examine and submit responses for the record.
(13) At the close of this 10 business day period, the Presiding Officer may allow the introduction of rebuttal evidence. The Presiding Officer may hold the record open for an additional 10 business days to allow the presentation of such rebuttal evidence.
(j)
(2) The Presiding Officer's recommended decision to the DE shall become part of the administrative record and shall be made available to the parties to the proceeding at the time the DE's decision is released pursuant to § 326.6(j)(5). The Presiding Officer's recommended decision shall not become part of the administrative record until the DE's final decision is issued, and shall not be made available to the permittee or public prior to that time.
(3) The rules applicable to Presiding Officers under § 326.6(h)(5) regarding ex parte communications are also applicable to the DE and to any person who advises the DE on the decision or the order, except that communications between the DE and the Presiding Officer do not constitute ex parte communications, nor do communications between the DE and his staff prior to issuance of the proposed order.
(4) The DE may request additional information on specified issues from the participants, in whatever form the DE designates, giving all participants a fair opportunity to be heard on such additional matters. The DE shall include this additional information in the administrative record.
(5) Within a reasonable time following receipt of the Presiding Officer's recommended decision, the DE shall withdraw, issue, or modify and issue the proposed order as a final order. The DE's decision shall be based on a preponderance of the evidence in the administrative record, shall consider the penalty factors set out in section 309(g)(3) of the CWA, shall be in writing, shall include a clear and concise statement of reasons for the decision, and shall include any final order assessing a penalty. The DE's decision, once issued, shall constitute final Corps action for purposes of judicial review.
(6) The DE shall issue the final order by sending the order, or written notice of its withdrawal, to the permittee by certified mail. Issuance of the order under this subparagraph constitutes final Corps action for purposes of judicial review.
(7) The DE shall provide written notice of the issuance, modification and
(8) The notice shall include a statement of the right to judicial review and of the procedures and deadlines for obtaining judicial review. The notice shall also note the right of a commenter to petition for a hearing pursuant to 33 CFR 326.6(c)(3) if no hearing was previously held.
(k)
(2) If a petition for hearing is received within 30 days after the final order is issued, the DE shall:
(i) Review the evidence presented by the petitioner.
(ii) If the evidence is material and was not considered in the issuance of the order, the DE shall immediately set aside the final order and schedule a hearing. In that case, a hearing will be held, a new recommendation will be made by the Presiding Officer to the DE and a new final decision issued by the DE.
(iii) If the DE denies a hearing under this subparagraph, the DE shall provide to the petitioner, and publish in the
(l)
(2) In order to obtain judicial review, the permittee or commenter must file a notice of appeal in the United States District Court for either the District of Columbia, or the district in which the violation was alleged to have occurred, within 30 calendar days after the date of issuance of the final order.
(3) Simultaneously with the filing of the notice of appeal, the permittee or commenter must send a copy of such notice by certified mail to the DE and the Attorney General.
33 U.S.C. 1344; 33 U.S.C. 1413.
This regulation prescribes the policy, practice and procedures to be followed by the U.S. Army Corps of Engineers in the conduct of public hearings conducted in the evaluation of a proposed DA permit action or Federal project as defined in § 327.3 of this part including those held pursuant to section 404 of the Clean Water Act (33 U.S.C. 1344) and section 103 of the Marine Protection, Research and Sanctuaries Act (MPRSA), as amended (33 U.S.C. 1413).
This regulation is applicable to all divisions and districts responsible for the conduct of public hearings.
(a)
(b)
(c)
(a) A public hearing will be held in connection with the consideration of a DA permit application or a Federal project whenever a public hearing is needed for making a decision on such permit application or Federal project. In addition, a public hearing may be held when it is proposed to modify or revoke a permit. (See 33 CFR 325.7).
(b) Unless the public notice specifies that a public hearing will be held, any person may request, in writing, within the comment period specified in the public notice on a DA permit application or on a Federal project, that a public hearing be held to consider the material matters at issue in the permit application or with respect to Federal project. Upon receipt of any such request, stating with particularity the reasons for holding a public hearing, the district engineer may expeditiously attempt to resolve the issues informally. Otherwise, he shall promptly set a time and place for the public hearing, and give due notice thereof, as prescribed in § 327.11 of this part. Requests for a public hearing under this paragraph shall be granted, unless the district engineer determines that the issues raised are insubstantial or there is otherwise no valid interest to be served by a hearing. The district engineer will make such a determination in writing, and communicate his reasons therefor to all requesting parties. Comments received as form letters or petitions may be acknowledged as a group to the person or organization responsible for the form letter or petition.
(c) In case of doubt, a public hearing shall be held. HQDA has the discretionary power to require hearings in any case.
(d) In fixing the time and place for a hearing, the convenience and necessity of the interested public will be duly considered.
(a) The district engineer, in whose district a matter arises, shall normally serve as the presiding officer. When the district engineer is unable to serve, he may designate the deputy district engineer or other qualified person as presiding officer. In cases of unusual interest, the Chief of Engineers or the division engineer may appoint such person as he deems appropriate to serve as the presiding officer.
(b) The presiding officer shall include in the administrative record of the permit action the request or requests for the hearing and any data or material submitted in justification thereof, materials submitted in opposition to or in support of the proposed action, the hearing transcript, and such other material as may be relevant or pertinent to the subject matter of the hearing. The administrative record shall be available for public inspection with the exception of material exempt from disclosure under the Freedom of Information Act.
At each public hearing, the district counsel or his designee may serve as legal advisor to the presiding officer. In appropriate circumstances, the district engineer may waive the requirement for a legal advisor to be present.
At the public hearing, any person may appear on his own behalf, or may be represented by counsel, or by other representatives.
(a) The presiding officer shall make an opening statement outlining the purpose of the hearing and prescribing the general procedures to be followed.
(b) Hearings shall be conducted by the presiding officer in an orderly but expeditious manner. Any person shall
(c) The presiding officer shall have discretion to establish reasonable limits upon the time allowed for statements of witnesses, for arguments of parties or their counsel or representatives, and upon the number of rebuttals.
(d) Cross-examination of witnesses shall not be permitted.
(e) All public hearings shall be reported verbatim. Copies of the transcripts of proceedings may be purchased by any person from the Corps of Engineers or the reporter of such hearing. A copy will be available for public inspection at the office of the appropriate district engineer.
(f) All written statements, charts, tabulations, and similar data offered in evidence at the hearing shall, subject to exclusion by the presiding officer for reasons of redundancy, be received in evidence and shall constitute a part of the record.
(g) The presiding officer shall allow a period of not less than 10 days after the close of the public hearing for submission of written comments.
(h) In appropriate cases, the district engineer may participate in joint public hearings with other Federal or state agencies, provided the procedures of those hearings meet the requirements of this regulation. In those cases in which the other Federal or state agency allows a cross-examination in its public hearing, the district engineer may still participate in the joint public hearing but shall not require cross examination as a part of his participation.
Where the presiding officer is the initial action authority, the transcript of the public hearing, together with all evidence introduced at the public hearing, shall be made a part of the administrative record of the permit action or Federal project. The initial action authority shall fully consider the matters discussed at the public hearing in arriving at his initial decision or recommendation and shall address, in his decision or recommendation, all substantial and valid issues presented at the hearing. Where a person other than the initial action authority serves as presiding officer, such person shall forward the transcript of the public hearing and all evidence received in connection therewith to the initial action authority together with a report summarizing the issues covered at the hearing. The report of the presiding officer and the transcript of the public hearing and evidence submitted thereat shall in such cases be fully considered by the initial action authority in making his decision or recommendation to higher authority as to such permit action or Federal project.
Presiding officers shall have the following authority:
(a) To regulate the course of the hearing including the order of all sessions and the scheduling thereof, after any initial session, and the recessing, reconvening, and adjournment thereof; and
(b) To take any other action necessary or appropriate to the discharge of the duties vested in them, consistent with the statutory or other authority under which the Chief of Engineers functions, and with the policies and directives of the Chief of Engineers and the Secretary of the Army.
(a) Public notice shall be given of any public hearing to be held pursuant to this regulation. Such notice should normally provide for a period of not less than 30 days following the date of public notice during which time interested parties may prepare themselves
(b) The notice shall contain time, place, and nature of hearing; the legal authority and jurisdiction under which the hearing is held; and location of and availability of the draft environmental impact statement or environmental assessment.
33 U.S.C. 1344.
This section defines the term “waters of the United States” as it applies to the jurisdictional limits of the authority of the Corps of Engineers under the Clean Water Act. It prescribes the policy, practice, and procedures to be used in determining the extent of jurisdiction of the Corps of Engineers concerning “waters of the United States.” The terminology used by section 404 of the Clean Water Act includes “navigable waters” which is defined at section 502(7) of the Act as “waters of the United States including the territorial seas.” To provide clarity and to avoid confusion with other Corps of Engineer regulatory programs, the term “waters of the United States” is used throughout 33 CFR parts 320 through 330. This section does not apply to authorities under the Rivers and Harbors Act of 1899 except that some of the same waters may be regulated under both statutes (see 33 CFR parts 322 and 329).
Waters of the United States include those waters listed in § 328.3(a). The lateral limits of jurisdiction in those waters may be divided into three categories. The categories include the territorial seas, tidal waters, and non-tidal waters (see 33 CFR 328.4 (a), (b), and (c), respectively).
For the purpose of this regulation these terms are defined as follows:
(a) 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 purpose by industries in interstate commerce;
(4) All impoundments of waters otherwise defined as waters of the United States under the definition;
(5) Tributaries of waters identified in paragraphs (a) (1) through (4) of this section;
(6) The territorial seas;
(7) Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (a) (1) through (6) of this section.
(8) Waters of the United States do not include prior converted cropland. Notwithstanding the determination of
(b) The term
(c) The term
(d) The term
(e) The term
(f) The term
(a)
(b)
(1) Extends to the high tide line, or
(2) When adjacent non-tidal waters of the United States are present, the jurisdiction extends to the limits identified in paragraph (c) of this section.
(c)
(1) In the absence of adjacent wetlands, the jurisdiction extends to the ordinary high water mark, or
(2) When adjacent wetlands are present, the jurisdiction extends beyond the ordinary high water mark to the limit of the adjacent wetlands.
(3) When the water of the United States consists only of wetlands the jurisdiction extends to the limit of the wetland.
Permanent changes of the shoreline configuration result in similar alterations of the boundaries of waters of the United States. Gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterway which also change the boundaries of the waters of the United States. For example, changing sea levels or subsidence of land may cause
33 U.S.C. 401
This regulation defines the term “navigable waters of the United States” as it is used to define authorities of the Corps of Engineers. It also prescribes the policy, practice and procedure to be used in determining the extent of the jurisdiction of the Corps of Engineers and in answering inquiries concerning “navigable waters of the United States.” This definition does not apply to authorities under the Clean Water Act which definitions are described under 33 CFR parts 323 and 328.
This regulation is applicable to all Corps of Engineers districts and divisions having civil works responsibilities.
Precise definitions of “navigable waters of the United States” or “navigability” are ultimately dependent on judicial interpretation and cannot be made conclusively by administrative agencies. However, the policies and criteria contained in this regulation are in close conformance with the tests used by Federal courts and determinations made under this regulation are considered binding in regard to the activities of the Corps of Engineers.
Navigable waters of the United States are those waters that are subject to the ebb and flow of the tide and/or are presently used, or have been used in the past, or may be susceptible for use to transport interstate or foreign commerce. A determination of navigability, once made, applies laterally over the entire surface of the waterbody, and is not extinguished by later actions or events which impede or destroy navigable capacity.
The several factors which must be examined when making a determination whether a waterbody is a navigable water of the United States are discussed in detail below. Generally, the following conditions must be satisfied:
(a) Past, present, or potential presence of interstate or foreign commerce;
(b) Physical capabilities for use by commerce as in paragraph (a) of this section; and
(c) Defined geographic limits of the waterbody.
(a)
(b)
A waterbody may be entirely within a state, yet still be capable of carrying interstate commerce. This is especially clear when it physically connects with a generally acknowledged avenue of interstate commerce, such as the ocean or one of the Great Lakes, and is yet wholly within one state. Nor is it necessary that there be a physically navigable connection across a state boundary. Where a waterbody extends through one or more states, but substantial portions, which are capable of bearing interstate commerce, are located in only one of the states, the entirety of the waterway up to the head (upper limit) of navigation is subject to Federal jurisdiction.
Determinations are not limited to the natural or original condition of the waterbody. Navigability may also be found where artificial aids have been or may be used to make the waterbody suitable for use in navigation.
(a)
(2) The artificial waterbody may be a major portion of a river or harbor area or merely a minor backwash, slip, or turning area (see § 329.12(b) of this part).
(3) Private ownership of the lands underlying the waterbody, or of the lands through which it runs, does not preclude a finding of navigability. Ownership does become a controlling factor if a privately constructed and operated canal is not used to transport interstate commerce nor used by the public; it is then not considered to be a navigable water of the United States. However, a private waterbody, even though not itself navigable, may so affect the navigable capacity of nearby waters as to nevertheless be subject to certain regulatory authorities.
(b)
(a)
(b)
A stream may be navigable despite the existence of falls, rapids, sand bars, bridges, portages, shifting currents, or similar obstructions. Thus, a waterway in its original condition might have had substantial obstructions which were overcome by frontier boats and/or portages, and nevertheless be a “channel” of commerce, even though boats had to be removed from the water in some stretches, or logs be brought around an obstruction by means of artificial chutes. However, the question is ultimately a matter of degree, and it must be recognized that there is some point beyond which navigability could not be established.
(a)
(1) The “ordinary high water mark” on non-tidal rivers is the line on the shore established by the fluctuations of water and indicated by physical characteristics such as a clear, natural line impressed on the bank; shelving; changes in the character of soil; destruction of terrestrial vegetation; the
(2) Ownership of a river or lake bed or of the lands between high and low water marks will vary according to state law; however, private ownership of the underlying lands has no bearing on the existence or extent of the dominant Federal jurisdiction over a navigable waterbody.
(b)
(a)
(1)
(2)
(b)
Permanent changes of the shoreline configuration result in similar alterations of the boundaries of the navigable waters of the United States. Thus, gradual changes which are due to natural causes and are perceptible only over some period of time constitute changes in the bed of a waterbody which also change the shoreline boundaries of the navigable waters of the United States. However, an area will remain “navigable in law,” even though no longer covered with water, whenever the change has occurred suddenly, or was caused by artificial forces intended to produce that change. For example, shifting sand bars within a river or estuary remain part of the navigable water of the United States, regardless that they may be dry at a particular point in time.
(a)
(b)
(c)
(1) Name of waterbody:
(2) Tributary to:
(3) Physical characteristics:
(i) Type: (river, bay, slough, estuary, etc.)
(ii) Length:
(iii) Approximate discharge volumes: Maximum, Minimum, Mean:
(iv) Fall per mile:
(v) Extent of tidal influence:
(vi) Range between ordinary high and ordinary low water:
(vii) Description of improvements to navigation not listed in paragraph (c)(5) of this section:
(4) Nature and location of significant obstructions to navigation in portions of the waterbody used or potentially capable of use in interstate commerce:
(5) Authorized projects:
(i) Nature, condition and location of any improvements made under projects authorized by Congress:
(ii) Description of projects authorized but not constructed:
(iii) List of known survey documents or reports describing the waterbody:
(6) Past or present interstate commerce:
(i) General types, extent, and period in time:
(ii) Documentation if necessary:
(7) Potential use for interstate commerce, if applicable:
(i) If in natural condition:
(ii) If improved:
(8) Nature of jurisdiction known to have been exercised by Federal agencies if any:
(9) State or Federal court decisions relating to navigability of the waterbody, if any:
(10) Remarks:
(11) Finding of navigability (with date) and recommendation for determination:
(a) Findings and determinations should be made whenever a question arises regarding the navigability of a waterbody. Where no determination has been made, a report of findings will be prepared and forwarded to the division engineer, as described above. Inquiries may be answered by an interim reply which indicates that a final agency determination must be made by the division engineer. If a need develops for an energency determination, district engineers may act in reliance on a finding prepared as in section 329.14 of this part. The report of findings should then be forwarded to the division engineer on an expedited basis.
(b) Where determinations have been made by the division engineer, inquiries regarding the
This Department, in the administration of the laws enacted by Congress for the protection and preservation of the navigable waters of the United States, has determined that ___ (River) (Bay) (Lake, etc.) is a navigable water of the United States from ___ to ___. Actions which modify or otherwise affect those waters are subject to the jurisdiction of this Department, whether such actions occur within or outside the navigable areas.
(c) Specific inquiries regarding the
(2) If not navigable, whether the proposed type of activity may nevertheless so affect the navigable waters of the United States that the assertion of regulatory jurisdiction is deemed necessary.
(a) Tabulated lists of final determinations of navigability are to be maintained in each district office, and be updated as necessitated by court decisions, jurisdictional inquiries, or other changed conditions.
(b) It should be noted that the lists represent only those waterbodies for which determinations have been made; absence from that list should not be taken as an indication that the waterbody is not navigable.
(c) Deletions from the list are not authorized. If a change in status of a waterbody from navigable to non-navigable is deemed necessary, an updated finding should be forwarded to the division engineer; changes are not considered final until a determination has been made by the division engineer.
33 U.S.C. 401
(a)
(b)
(c)
(d)
(e)
(2) The DE will review the notification and may add activity-specific conditions to ensure that the activity complies with the terms and conditions of the NWP and that the adverse impacts on the aquatic environment and other aspects of the public interest are individually and cumulatively minimal.
(3) For some NWPs involving discharges into wetlands, the notification must include a wetland delineation. The DE will review the notification and determine if the individual and cumulative adverse environmental effects are more than minimal. If the adverse effects are more than minimal the DE will notify the prospective permittee that an individual permit is required or that the prospective permittee may propose measures to mitigate the loss of special aquatic sites, including wetlands, to reduce the adverse impacts to minimal. The prospective permittee may elect to propose mitigation with the original notification. The DE will consider that proposed mitigation when deciding if the impacts are minimal. The DE shall add activity-specific conditions to ensure that the mitigation will be accomplished. If sufficient mitigation cannot be developed to reduce the adverse environmental effects to the minimal level, the DE will not allow authorization under the NWP and will instruct the prospective permittee on procedures to seek authorization under an individual permit.
(f)
(g)
(a) The definitions found in 33 CFR parts 320-329 are applicable to the terms used in this part.
(b)
(c)
(d)
(e)
(1) Not part of a surface tributary system to interstate or navigable waters of the United States; and
(2) Not adjacent to such tributary waterbodies.
(f)
(g)
(h)
(i)
(j)
The following activities were permitted by NWPs issued on July 19, 1977, and, unless the activities are modified, they do not require further permitting:
(a) Discharges of dredged or fill material into waters of the United States outside the limits of navigable waters of the United States that occurred before the phase-in dates which extended Section 404 jurisdiction to all waters of the United States. The phase-in dates were: After July 25, 1975, discharges into navigable waters of the United States and adjacent wetlands; after September 1, 1976, discharges into navigable waters of the United States and their primary tributaries, including adjacent wetlands, and into natural lakes, greater than 5 acres in surface area; and after July 1, 1977, discharges into all waters of the United States, including wetlands. (section 404)
(b) Structures or work completed before December 18, 1968, or in waterbodies over which the DE had not asserted jurisdiction at the time the activity occurred, provided in both instances, there is no interference with navigation. Activities completed shoreward of applicable Federal Harbor lines before May 27, 1970 do not require specific authorization. (section 10)
(a)
(b)
(2) NWPs do not obviate the need to obtain other Federal, state, or local permits, approvals, or authorizations required by law.
(3) NWPs do not grant any property rights or exclusive privileges.
(4) NWPs do not authorize any injury to the property or rights of others.
(5) NWPs do not authorize interference with any existing or proposed Federal project.
(c)
(2) If, prior to the issuance or reissuance of such NWPs, a state issues a 401 water quality certification which includes special conditions, the division engineer will make these special conditions regional conditions of the NWP for activities which may result in a discharge into waters of United
(3) If a state denies a required 401 water quality certification for an activity otherwise meeting the terms and conditions of a particular NWP, that NWP's authorization for all such activities within that state is denied without prejudice until the state issues an individual 401 water quality certification or waives its right to do so. State denial of 401 water quality certification for any specific NWP affects only those activities which may result in a discharge. That NWP continues to authorize activities which could not reasonably be expected to result in discharges into waters of the United States.
(4) DEs will take appropriate measures to inform the public of which activities, waterbodies, or regions require an individual 401 water quality certification before authorization by NWP.
(5) The DE will not require or process an individual permit application for an activity which may result in a discharge and otherwise qualifies for an NWP solely on the basis that the 401 water quality certification has been denied for that NWP. However, the district or division engineer may consider water quality, among other appropriate factors, in determining whether to exercise his discretionary authority and require a regional general permit or an individual permit.
(6) In instances where a state has denied the 401 water quality certification for discharges under a particular NWP, permittees must furnish the DE with an individual 401 water quality certification or a copy of the application to the state for such certification. For NWPs for which a state has denied the 401 water quality certification, the DE will determine a reasonable period of time after receipt of the request for an activity-specific 401 water quality certification (generally 60 days), upon the expiration of which the DE will presume state waiver of the certification for the individual activity covered by the NWP's. However, the DE and the state may negotiate for additional time for the 401 water quality certification, but in no event shall the period exceed one (1) year (see 33 CFR 325.2(b)(1)(ii)). Upon receipt of an individual 401 water quality certification, or if the prospective permittee demonstrates to the DE state waiver of such certification, the proposed work can be authorized under the NWP. For NWPs requiring a 30-day predischarge notification the district engineer will immediately begin, and complete, his review prior to the state action on the individual section 401 water quality certification. If a state issues a conditioned individual 401 water quality certification for an individual activity, the DE will include those conditions as activity-specific conditions of the NWP.
(7) Where a state, after issuing a 401 water quality certification for an NWP, subsequently attempts to withdraw it for substantive reasons after the effective date of the NWP, the division engineer will review those reasons and consider whether there is substantial basis for suspension, modification, or revocation of the NWP authorization as outlined in § 330.5. Otherwise, such attempted state withdrawal is not effective and the Corps will consider the state certification to be valid for the NWP authorizations until such time as the NWP is modified or reissued.
(d)
(2) If, prior to the issuance, reissuance, or expansion of activities authorized by an NWP, a state indicates that additional conditions are necessary for the state to agree with the Corps consistency determination, the division engineer will make such conditions regional conditions for the NWP in that state, unless he determines that the conditions do not comply with the provisions of 33 CFR 325.4 or believes for some other specific reason it would be inappropriate to include the conditions. In this case, the state's failure to agree with the Corps consistency determination without the conditions will be considered to be a disagreement with the Corps consistency determination.
(3) When a state has disagreed with the Corps consistency determination, authorization for all such activities occurring within or outside the state's coastal zone that affect land or water uses or natural resources of the state's coastal zone is denied without prejudice until the prospective permittee furnishes the DE an individual consistency certification pursuant to section 307(c)(3) of the CZMA and demonstrates that the state has concurred in it (either on an individual or generic basis), or that concurrence should be presumed (see paragraph (d)(6) of this section).
(4) DEs will take appropriate measures, such as public notices, to inform the public of which activities, waterbodies, or regions require prospective permittees to make an individual consistency determination and seek concurrence from the state.
(5) DEs will not require or process an individual permit application for an activity otherwise qualifying for an NWP solely on the basis that the activity has not received CZMA consistency agreement from the state. However, the district or division engineer may consider that factor, among other appropriate factors, in determining whether to exercise his discretionary authority and require a regional general permit or an individual permit application.
(6) In instances where a state has disagreed with the Corps consistency determination for activities under a particular NWP, permittees must furnish the DE with an individual consistency concurrence or a copy of the consistency certification provided to the state for concurrence. If a state fails to act on a permittee's consistency certification within six months after receipt by the state, concurrence will be presumed. Upon receipt of an individual consistency concurrence or upon presumed consistency, the proposed work is authorized if it complies with all terms and conditions of the NWP. For NWPs requiring a 30-day predischarge notification the DE will immediately begin, and may complete, his review prior to the state action on the individual consistency certification. If a state indicates that individual conditions are necessary for consistency with the state's Federally-approved coastal management program for that individual activity, the DE will include those conditions as activity-specific conditions of the NWP unless he determines that such conditions do not comply with the provisions of 33 CFR 325.4. In the latter case the DE will consider the conditioned concurrence as a nonconcurrence unless the permittee chooses to comply voluntarily with all the conditions in the conditioned concurrence.
(7) Where a state, after agreeing with the Corps consistency determination, subsequently attempts to reverse it's agreement for substantive reasons after the effective date of the NWP, the division engineer will review those reasons and consider whether there is substantial basis for suspension, modification, or revocation as outlined in 33 CFR 330.5. Otherwise, such attempted reversal is not effective and the Corps will consider the state CZMA consistency agreement to be valid for the NWP authorization until such time as the NWP is modified or reissued.
(8) Federal activities must be consistent with a state's Federally-approved coastal management program to the maximum extent practicable. Federal agencies should follow their own procedures and the Department of Commerce regulations appearing at 15 CFR part 930 to meet the requirements of the CZMA. Therefore, the provisions of 33 CFR 330.4(d)(1)-(7) do not apply to Federal activities. Indian tribes doing work on Indian Reservation lands shall be treated in the same manner as Federal applicants.
(e)
(1) A division engineer may assert discretionary authority by modifying, suspending, or revoking NWP authorizations for a specific geographic area, class of activity, or class of waters within his division, including on a statewide basis, whenever he determines sufficient concerns for the environment under the section 404(b)(1) Guidelines or any other factor of the public interest so requires, or if he otherwise determines that the NWP would result in more than minimal adverse environmental effects either individually or cumulatively.
(2) A DE may assert discretionary authority by modifying, suspending, or revoking NWP authorization for a specific activity whenever he determines sufficient concerns for the environment or any other factor of the public interest so requires. Whenever the DE determines that a proposed specific activity covered by an NWP would have more than minimal individual or cumulative adverse effects on the environment or otherwise may be contrary to the public interest, he must either modify the NWP authorization to reduce or eliminate the adverse impacts, or notify the prospective permittee that the proposed activity is not authorized by NWP and provide instructions on how to seek authorization under a regional general or individual permit.
(3) The division or district engineer will restore authorization under the NWPs at any time he determines that his reason for asserting discretionary authority has been satisfied by a condition, project modification, or new information.
(4) When the Chief of Engineers modifies or reissues an NWP, division engineers must use the procedures of § 330.5 to reassert discretionary authority to reinstate regional conditions or revocation of NWP authorizations for specific geographic areas, class of activities, or class of waters. Division engineers will update existing documentation for each NWP. Upon modification or reissuance of NWPs, previous activity-specific conditions or revocations of NWP authorization will remain in effect unless the DE specifically removes the activity-specific conditions or revocations.
(f)
(1) Federal agencies should follow their own procedures for complying with the requirements of the ESA.
(2) Non-federal permittees shall notify the DE if any Federally listed (or proposed for listing) endangered or threatened species or critical habitat might be affected or is in the vicinity of the project. In such cases, the prospective permittee will not begin work under authority of the NWP until notified by the district engineer that the requirements of the Endangered Species Act have been satisfied and that the activity is authorized. If the DE determines that the activity may affect any Federally listed species or critical habitat, the DE must initiate section 7 consultation in accordance with the ESA. In such cases, the DE may:
(i) Initiate section 7 consultation and then, upon completion, authorize the activity under the NWP by adding, if appropriate, activity-specific conditions; or
(ii) Prior to or concurrent with section 7 consultation, assert discretionary authority (see 33 CFR 330.4(e)) and require an individual permit (see 33 CFR 330.5(d)).
(3) Prospective permittees are encouraged to obtain information on the location of threatened or endangered species and their critical habitats from the U.S. Fish and Wildlife Service, Endangered Species Office, and the National Marine Fisheries Service.
(g)
(1) Federal permittees should follow their own procedures for compliance with the requirements of the National Historic Preservation Act and other Federal historic preservation laws.
(2) Non-federal permittees will notify the DE if the activity may affect historic properties which the National Park Service has listed, determined eligible for listing, or which the prospective permittee has reason to believe may be eligible for listing, on the National Register of Historic Places. In such cases, the prospective permittee will not begin the proposed activity until notified by the DE that the requirements of the National Historic Preservation Act have been satisfied and that the activity is authorized. If a property in the permit area of the activity is determined to be an historic property in accordance with 33 CFR part 325, appendix C, the DE will take into account the effects on such properties in accordance with 33 CFR part 325, appendix C. In such cases, the district engineer may:
(i) After complying with the requirements of 33 CFR part 325, appendix C, authorize the activity under the NWP by adding, if appropriate, activity-specific conditions; or
(ii) Prior to or concurrent with complying with the requirements of 33 CFR part 325, appendix C, he may assert discretionary authority (see 33 CFR 330.4(e)) and instruct the prospective permittee of procedures to seek authorization under a regional general permit or an individual permit. (See 33 CFR 330.5(d).)
(3) The permittee shall immediately notify the DE if, before or during prosecution of the work authorized, he encounters an historic property that has not been listed or determined eligible for listing on the National Register, but which the prospective permittee has reason to believe may be eligible for listing on the National Register.
(4) Prospective permittees are encouraged to obtain information on the location of historic properties from the State Historic Preservation Officer and the National Register of Historic Places.
(a)
(b)
(2)
(ii) Concurrent with the Chief of Engineers' notification of proposed, modified, reissued, or revoked NWPs, DEs will notify the known interested public by a notice issued at the district level. The notice will include proposed regional conditions or proposed revocations of NWP authorizations for specific geographic areas, classes of activities, or classes of waters, if any, developed by the division engineer.
(3)
(4)
(c)
(i) Give an opportunity for interested parties to express their views on the proposed action (the DE will publish and circulate a notice to the known interested public to solicit comments and provide the opportunity to request a public hearing);
(ii) Consider fully the views of affected parties;
(iii) Prepare supplemental documentation for any modifications or revocations that may result through assertion of discretionary authority. Such documentation will include comments received on the district public notices and a statement of findings showing how substantive comments were considered;
(iv) Provide, if appropriate, a grandfathering period as specified in § 330.6(b) for those who have commenced work or are under contract to commence in reliance on the NWP authorization; and
(v) Notify affected parties of the modification, suspension, or revocation, including the effective date (the DE will publish and circulate a notice to the known interested public and to anyone who commented on the proposed action).
(2) The modification, suspension, or revocation of authorizations under an NWP by the division engineer will become effective by issuance of public notice or a notification to the individuals involved.
(3) A copy of all regional conditions imposed by division engineers on activities authorized by NWPs will be forwarded to the Office of the Chief of Engineers, ATTN: CECW-OR.
(d)
(2)
(ii) If the DE's concerns remain after the informal consultation, the DE may suspend a specific authorization under an NWP by notifying the permittee in writing by the most expeditious means available that the authorization has been suspended, stating the reasons for the suspension, and ordering the permittee to stop any activities being done in reliance upon the authorization under the NWP. The permittee will be advised that a decision will be made either to reinstate or revoke the authorization under the NWP; or, if appropriate, that the authorization under the NWP may be modified by mutual agreement. The permittee will also be advised that within 10 days of receipt of the notice of suspension, he may request a meeting with the DE, or his designated representative, to present information in this matter. After completion of the meeting (or within a reasonable period of time after suspending the authorization if no meeting is requested), the DE will take action to reinstate, modify, or revoke the authorization.
(iii) Following completion of the suspension procedures, if the DE determines that sufficient concerns for the environment, including the aquatic environment under the section 404(b)(1) Guidelines, or other relevant factors of the public interest so require, he will revoke authorization under the NWP. The DE will provide the permittee a written final decision and instruct him on the procedures to seek authorization under a regional general permit or an individual permit.
(3) The DE need not issue a public notice when asserting discretionary authority over a specific activity. The modification, suspension, or revocation will become effective by notification to the prospective permittee.
(a)
(2) If the DE decides that an activity does not comply with the terms or conditions of an NWP, he will notify the person desiring to do the work and instruct him on the procedures to seek authorization under a regional general permit or individual permit.
(3) If the DE decides that an activity does comply with the terms and conditions of an NWP, he will notify the nationwide permittee.
(i) The DE may add conditions on a case-by-case basis to clarify compliance with the terms and conditions of an NWP or to ensure that the activity will have only minimal individual and cumulative adverse effects on the environment, and will not be contrary to the public interest.
(ii) The DE's response will state that the verification is valid for a specific period of time (generally but no more than two years) unless the NWP authorization is modified, suspended, or revoked. The response should also include a statement that the verification will remain valid for the specified period of time, if during that time period,
(iii) For activities where a state has denied 401 water quality certification and/or did not agree with the Corps consistency determination for an NWP the DE's response will state that the proposed activity meets the terms and conditions for authorization under the NWP with the exception of a state 401 water quality certification and/or CZM consistency concurrence. The response will also indicate the activity is denied without prejudice and cannot be authorized until the requirements of §§ 330.4(c)(3), 330.4(c)(6), 330.4(d)(3), and 330.4(d)(6) are satisfied. The response will also indicate that work may only proceed subject to the terms and conditions of the state 401 water quality certification and/or CZM concurrence.
(iv) Once the DE has provided such verification, he must use the procedures of 33 CFR 330.5 in order to modify, suspend, or revoke the authorization.
(b)
(c)
(d)
(1) When a portion of a larger project is authorized to proceed under an NWP, it is with the understanding that its construction will in no way prejudice the decision on the individual permit for the rest of the project. Furthermore, the individual permit documentation must include an analysis of the impacts of the entire project, including related activities authorized by NWP.
(2) NWPs do not apply, even if a portion of the project is not dependent on the rest of the project, when any portion of the project is subject to an enforcement action by the Corps or EPA.
(e)
33 U.S.C. 401
(a)
(b)
The terms and definitions contained in 33 CFR Parts 320 through 330 are applicable to this part. In addition, the following terms are defined for the purposes of this part:
(a)
(2) The RO will assist the division engineer in reaching and documenting the division engineer's decision on the merits of an appeal, if the division engineer has delegated this responsibility as explained in paragraph (a)(1) of this section. The division engineer has the authority to make the final decision on the merits of the appeal. Neither the RO nor the division engineer has the authority to make a final decision to issue or deny any particular permit nor to make an approved JD, pursuant to the administrative appeal process established by this part. The authority to issue or deny permits remains with the district engineer. However, the division engineer may exercise the authority at 33 CFR 325.8(c) to elevate any permit application, and subsequently make the final permit decision. In such a
(3)
(b)
(2)
Affected parties will be notified in writing of a Corps decision on those activities that are eligible for an appeal. For approved JDs, the notification must include an NAP fact sheet, an RFA form, and a basis of JD. For permit denials, the notification must include a copy of the decision document for the permit application, an NAP fact sheet and an RFA form. For proffered individual permits, when the initial proffered permit is sent to the applicant, the notification must include an NAO fact sheet. For declined permits (
(a)
(2)
(b)
(1) An individual permit decision (including a letter of permission or a standard permit with special conditions), where the permit has been accepted and signed by the permittee. By signing the permit, the applicant waives all rights to appeal the terms and conditions of the permit, unless the authorized work has not started in waters of the United States and that issued permit is subsequently modified by the district engineer pursuant to 33 CFR 325.7;
(2) Any site-specific matter that has been the subject of a final decision of the Federal courts;
(3) A final Corps decision that has resulted from additional analysis and evaluation, as directed by a final appeal decision;
(4) A permit denial without prejudice or a declined permit, where the controlling factor cannot be changed by the Corps decision maker (e.g., the requirements of a binding statute, regulation, state Section 401 water quality certification, state coastal zone management disapproval, etc. (See 33 CFR 320.4(j));
(5) A permit denial case where the applicant has subsequently modified the proposed project, because this would constitute an amended application that would require a new public interest review, rather than an appeal of the existing record and decision;
(6) Any request for the appeal of an approved JD, a denied permit, or a declined permit where the RFA has not been received by the division engineer within 60 days of the date of the NAP;
(7) A previously approved JD that has been superceded by another approved JD based on new information or data submitted by the applicant. The new approved JD is an appealable action;
(8) An approved JD associated with an individual permit where the permit has been accepted and signed by the permittee;
(9) A preliminary JD; or
(10) A JD associated with unauthorized activities except as provided in § 331.11.
(a) An affected party appealing an approved JD, permit denial or declined permit must submit an RFA that is received by the division engineer within 60 days of the date of the NAP. Flow charts illustrating the appeal process are in the Appendices of this part.
(b) In the case where an applicant objects to an initial proffered individual permit, the appeal process proceeds as follows. To initiate the appeal process regarding the terms and special conditions of the permit, the applicant must write a letter to the district engineer explaining his objections to the permit. The district engineer, upon evaluation of the applicant's objections, may: Modify the permit to address all of the applicant's objections or modify the permit to address some, but not all, of the applicant's objections, or not modify the permit, having determined that the permit should be issued as previously written. In the event that the district engineer agrees to modify the initial proffered individual permit to address all of the applicant's objections, the district engineer will proffer such modified permit to the applicant, enclosing an NAP fact sheet and an RFA form as well. Should the district engineer modify the initial proffered individual permit to address some, but not all, of the applicant's objections, the district engineer will proffer such modified permit to the applicant, enclosing an NAP fact sheet, RFA form, and a copy of the decision document for the project. If the district engineer does not modify the initial proffered individual permit, the district engineer will proffer the unmodified permit to the applicant a second time, enclosing an NAP fact sheet, an RFA form, and a copy of the decision document. If the applicant still has objections, after receiving the second proffered permit (modified or unmodified), the applicant may decline such proffered permit; this
(c) An approved JD will be reconsidered by the district engineer if the affected party submits new information or data to the district engineer within 60 days of the date of the NAP. (An RFA that contains new information will either be returned to the district engineer for reconsideration or the appeal will be processed if the applicant withdraws the new information.) The district engineer has 60 days from the receipt of such new information or data to review the new information or data, consider whether or not that information changes the previously approved JD, and, reissue the approved JD or issue a new approved JD. The reconsideration of an approved JD by the district engineer does not commence the administrative appeal process. The affected party may appeal the district engineer's reissued or new approved JD.
(d) The district engineer may not delegate his signature authority to deny the permit with prejudice or to return an individual permit to the applicant with unresolved objections. The district engineer may delegate signature authority for JDs, including approved JDs.
(e) Affected parties may appeal approved JDs where the determination was dated after March 28, 2000, but may not appeal approved JDs dated on or before March 28, 2000. The Corps will begin processing JD appeals no later than May 30, 2000. All appeals must meet the criteria set forth in § 331.5. If work is authorized by either general or individual permit, and the affected party wishes to request an appeal of the JD associated with the general permit authorization or individual permit or the special conditions of the proffered individual permit, the appeal must be received by the Corps and the appeal process concluded prior to the commencement of any work in waters of the United States and prior to any work that could alter the hydrology of waters of the United States.
(a)
(b)
(c)
(d)
(e)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(f)
(g)
The Division Engineer will make a final decision on the merits of the appeal at the earliest practicable time, in accordance with the following time limits. The administrative appeal process is initiated by the receipt of an RFA by the division engineer. The Corps will review the RFA to determine whether the RFA is acceptable. The Corps will notify the appellant accordingly within 30 days of the receipt of the RFA in accordance with § 331.7(b). If the Corps determines that the RFA is acceptable, the RO will immediately request the administrative record from the district engineer. The division engineer will normally make a final decision on the merits of the appeal within 90 days of the receipt of an acceptable RFA unless any site visit is delayed pursuant to § 331.7(c). In such case, the RO will complete the appeal review and the division engineer will make a final appeal decision within 30 days of the site visit. In no case will a site visit delay extend the total appeal process beyond twelve months from the date of receipt of an acceptable RFA.
(a) In accordance with the authorities contained in § 331.3(a), the division engineer will make a decision on the merits of the appeal. While reviewing an appeal and reaching a decision on the merits of an appeal, the division engineer can consult with or seek information from any person, including the district engineer.
(b) The division engineer will disapprove the entirety of or any part of the district engineer's decision only if he determines that the decision on some relevant matter was arbitrary, capricious, an abuse of discretion, not supported by substantial evidence in the administrative record, or plainly contrary to a requirement of law, regulation, an Executive Order, or officially promulgated Corps policy guidance. The division engineer will not attempt to substitute his judgment for that of the district engineer regarding a matter of fact, so long as the district engineer's determination was supported by substantial evidence in the administrative record, or regarding any other matter if the district engineer's determination was reasonable and within the zone of discretion delegated to the district engineer by Corps regulations. The division engineer may instruct the district engineer on how to correct any procedural error that was prejudicial to the appellant (
(c) The final decision of the division engineer on the merits of the appeal will conclude the administrative appeal process, and this decision will be filed in the administrative record for the project.
The final Corps decision on a permit application is the initial decision to issue or deny a permit, unless the applicant submits an RFA, and the division engineer accepts the RFA, pursuant to this Part. The final Corps decision on an appealed action is as follows:
(a) If the division engineer determines that the appeal is without merit, the final Corps decision is the district engineer's letter advising the applicant that the division engineer has decided that the appeal is without merit, confirming the district engineer's initial decision, and sending the permit denial or the proffered permit for signature to the appellant; or
(b) If the division engineer determines that the appeal has merit, the final Corps decision is the district engineer's decision made pursuant to the division engineer's remand of the appealed action. The division engineer will remand the decision to the district engineer with specific instructions to review the administrative record, and to further analyze or evaluate specific issues. If the district engineer determines that the effects of the district engineer's reconsideration of the administrative record would be narrow in scope and impact, the district engineer must provide notification only to those parties who commented or participated in the original review, and would allow 15 days for the submission of supplemental comments. For permit decisions, where the district engineer determines that the effect of the district engineer's reconsideration of the administrative record would be substantial in scope and impact, the district engineer's review process will include issuance of a new public notice, and/or preparation of a supplemental environmental analysis and decision document (see 33 CFR 325.7). Subsequently, the district engineer's decision made pursuant to the division engineer's remand of the appealed action becomes the final Corps permit decision. Nothing in this part precludes the agencies' authorities pursuant to Section 404(q) of the Clean Water Act.
Approved JDs, permit denials, and declined permits associated with after-the-fact permit applications are appealable actions for the purposes of this part. If the Corps accepts an after-the-fact permit application, an administrative appeal of an approved JD, permit denial, or declined permit may be filed and processed in accordance with these regulations subject to the provisions of paragraphs (a), (b), and (c) of this section. An appeal of an approved JD associated with unauthorized activities will normally not be accepted unless the Corps accepts an after-the-fact permit application. However, in rare cases, the district engineer may accept an appeal of such an approved JD, if the district engineer determines that the interests of justice, fairness, and administrative efficiency would be served thereby. Furthermore, no such appeal will be accepted if the unauthorized activity is the subject of a referral to the Department of Justice or the EPA, or for which the EPA has the lead enforcement authority or has requested lead enforcement authority.
(a)
(b)
(c)
No affected party may file a legal action in the Federal courts based on a permit denial or a proffered permit until after a final Corps decision has been made and the appellant has exhausted all applicable administrative remedies under this part. The appellant is considered to have exhausted all administrative remedies when a final Corps permit decision is made in accordance with § 331.10.
33 U.S.C. 401
(a)
(2) This part has been jointly developed by the Secretary of the Army, acting through the Chief of Engineers, and the Administrator of the Environmental Protection Agency. From time to time guidance on interpreting and implementing this part may be prepared jointly by U.S. EPA and the Corps at the national or regional level. No modifications to the basic application, meaning, or intent of this part will be made without further joint rulemaking by the Secretary of the Army, acting through the Chief of Engineers and the Administrator of the Environmental Protection Agency, pursuant to the Administrative Procedure Act (5 U.S.C. 551
(b)
(c)
(2) Pursuant to these requirements, the district engineer will issue an individual section 404 permit only upon a determination that the proposed discharge complies with applicable provisions of 40 CFR part 230, including those which require the permit applicant to take all appropriate and practicable steps to avoid and minimize adverse impacts to waters of the United States. Practicable means available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes. Compensatory mitigation for unavoidable impacts may be required to ensure that an activity requiring a section 404 permit complies with the Section 404(b)(1) Guidelines.
(3) Compensatory mitigation for unavoidable impacts may be required to ensure that an activity requiring a section 404 permit complies with the Section 404(b)(1) Guidelines. During the
(d)
(e)
(f)
(2) In addition, this part also applies instead of the provisions relating to the amount, type, and location of compensatory mitigation projects, including the use of preservation, in the February 6, 1990, Memorandum of Agreement (MOA) between the Department of the Army and the Environmental Protection Agency on the Determination of Mitigation Under the Clean Water Act Section 404(b)(1) Guidelines. All other provisions of this MOA remain in effect.
For the purposes of this part, the following terms are defined:
(a)
(2) Compensatory mitigation may be performed using the methods of restoration, enhancement, establishment, and in certain circumstances preservation. Restoration should generally be the first option considered because the likelihood of success is greater and the impacts to potentially ecologically important uplands are reduced compared to establishment, and the potential gains in terms of aquatic resource
(3) Compensatory mitigation projects may be sited on public or private lands. Credits for compensatory mitigation projects on public land must be based solely on aquatic resource functions provided by the compensatory mitigation project, over and above those provided by public programs already planned or in place. All compensatory mitigation projects must comply with the standards in this part, if they are to be used to provide compensatory mitigation for activities authorized by DA permits, regardless of whether they are sited on public or private lands and whether the sponsor is a governmental or private entity.
(b)
(2)
(3)
(4)
(5)
(6)
(c)
(2)
(ii) Locational factors (e.g., hydrology, surrounding land use) are important to the success of compensatory mitigation for impacted habitat functions and may lead to siting of such mitigation away from the project area. However, consideration should also be given to functions and services (e.g., water quality, flood control, shoreline protection) that will likely need to be addressed at or near the areas impacted by the permitted impacts.
(iii) A watershed approach may include on-site compensatory mitigation, off-site compensatory mitigation (including mitigation banks or in-lieu fee programs), or a combination of on-site and off-site compensatory mitigation.
(iv) A watershed approach to compensatory mitigation should include, to the extent practicable, inventories of historic and existing aquatic resources, including identification of degraded aquatic resources, and identification of immediate and long-term aquatic resource needs within watersheds that can be met through permittee-responsible mitigation projects, mitigation banks, or in-lieu fee programs. Planning efforts should identify and prioritize aquatic resource restoration, establishment, and enhancement activities, and preservation of existing aquatic resources that are important for maintaining or improving ecological functions of the watershed. The identification and prioritization of resource needs should be as specific as possible, to enhance the usefulness of the approach in determining compensatory mitigation requirements.
(v) A watershed approach is not appropriate in areas where watershed boundaries do not exist, such as marine areas. In such cases, an appropriate spatial scale should be used to replace lost functions and services within the same ecological system (e.g., reef complex, littoral drift cell).
(3)
(ii) This information may be available from sources such as wetland maps; soil surveys; U.S. Geological Survey topographic and hydrologic maps; aerial photographs; information on rare, endangered and threatened species and critical habitat; local ecological reports or studies; and other information sources that could be used to identify locations for suitable compensatory mitigation projects in the watershed.
(iii) The level of information and analysis needed to support a watershed approach must be commensurate with the scope and scale of the proposed impacts requiring a DA permit, as well as the functions lost as a result of those impacts.
(4)
(d)
(i) Hydrological conditions, soil characteristics, and other physical and chemical characteristics;
(ii) Watershed-scale features, such as aquatic habitat diversity, habitat connectivity, and other landscape scale functions;
(iii) The size and location of the compensatory mitigation site relative to hydrologic sources (including the availability of water rights) and other ecological features;
(iv) Compatibility with adjacent land uses and watershed management plans;
(v) Reasonably foreseeable effects the compensatory mitigation project will have on ecologically important aquatic or terrestrial resources (e.g., shallow sub-tidal habitat, mature forests), cultural sites, or habitat for federally- or state-listed threatened and endangered species; and
(vi) Other relevant factors including, but not limited to, development trends, anticipated land use changes, habitat status and trends, the relative locations of the impact and mitigation sites in the stream network, local or regional goals for the restoration or protection of particular habitat types or functions (e.g., re-establishment of habitat corridors or habitat for species of concern), water quality goals, floodplain management goals, and the relative potential for chemical contamination of the aquatic resources.
(2) District engineers may require on-site, off-site, or a combination of on-site and off-site compensatory mitigation to replace permitted losses of aquatic resource functions and services.
(3) Applicants should propose compensation sites adjacent to existing aquatic resources or where aquatic resources previously existed.
(e)
(2) If the district engineer determines, using the watershed approach in accordance with paragraph (c) of this section that out-of-kind compensatory mitigation will serve the aquatic resource needs of the watershed, the district engineer may authorize the use of such out-of-kind compensatory mitigation. The basis for authorization of out-of-kind compensatory mitigation must be documented in the administrative record for the permit action.
(3) For difficult-to-replace resources (e.g., bogs, fens, springs, streams, Atlantic white cedar swamps) if further avoidance and minimization is not practicable, the required compensation should be provided, if practicable, through in-kind rehabilitation, enhancement, or preservation since there is greater certainty that these methods of compensation will successfully offset permitted impacts.
(f)
(2) The district engineer must require a mitigation ratio greater than one-to-one where necessary to account for the method of compensatory mitigation (e.g., preservation), the likelihood of success, differences between the functions lost at the impact site and the functions expected to be produced by the compensatory mitigation project, temporal losses of aquatic resource functions, the difficulty of restoring or establishing the desired aquatic resource type and functions, and/or the distance between the affected aquatic resource and the compensation site. The rationale for the required replacement ratio must be documented in the administrative record for the permit action.
(3) If an in-lieu fee program will be used to provide the required compensatory mitigation, and the appropriate number and resource type of released credits are not available, the district engineer must require sufficient compensation to account for the risk and uncertainty associated with in-lieu fee projects that have not been implemented before the permitted impacts have occurred.
(g)
(h)
(i) The resources to be preserved provide important physical, chemical, or biological functions for the watershed;
(ii) The resources to be preserved contribute significantly to the ecological sustainability of the watershed. In determining the contribution of those resources to the ecological sustainability of the watershed, the district engineer must use appropriate quantitative assessment tools, where available;
(iii) Preservation is determined by the district engineer to be appropriate and practicable;
(iv) The resources are under threat of destruction or adverse modifications; and
(v) The preserved site will be permanently protected through an appropriate real estate or other legal instrument (e.g., easement, title transfer to state resource agency or land trust).
(2) Where preservation is used to provide compensatory mitigation, to the extent appropriate and practicable the preservation shall be done in conjunction with aquatic resource restoration, establishment, and/or enhancement activities. This requirement may be waived by the district engineer where preservation has been identified as a high priority using a watershed approach described in paragraph (c) of this section, but compensation ratios shall be higher.
(i)
(j)
(i) The compensatory mitigation project must include appropriate compensation required by the DA permit
(ii) Under no circumstances may the same credits be used to provide mitigation for more than one permitted activity. However, where appropriate, compensatory mitigation projects, including mitigation banks and in-lieu fee projects, may be designed to holistically address requirements under multiple programs and authorities for the same activity.
(2) Except for projects undertaken by federal agencies, or where federal funding is specifically authorized to provide compensatory mitigation, federally-funded aquatic resource restoration or conservation projects undertaken for purposes other than compensatory mitigation, such as the Wetlands Reserve Program, Conservation Reserve Program, and Partners for Wildlife Program activities, cannot be used for the purpose of generating compensatory mitigation credits for activities authorized by DA permits. However, compensatory mitigation credits may be generated by activities undertaken in conjunction with, but supplemental to, such programs in order to maximize the overall ecological benefits of the restoration or conservation project.
(3) Compensatory mitigation projects may also be used to provide compensatory mitigation under the Endangered Species Act or for Habitat Conservation Plans, as long as they comply with the requirements of paragraph (j)(1) of this section.
(k)
(2) For an individual permit that requires permittee-responsible mitigation, the special conditions must:
(i) Identify the party responsible for providing the compensatory mitigation;
(ii) Incorporate, by reference, the final mitigation plan approved by the district engineer;
(iii) State the objectives, performance standards, and monitoring required for the compensatory mitigation project, unless they are provided in the approved final mitigation plan; and
(iv) Describe any required financial assurances or long-term management provisions for the compensatory mitigation project, unless they are specified in the approved final mitigation plan.
(3) For a general permit activity that requires permittee-responsible compensatory mitigation, the special conditions must describe the compensatory mitigation proposal, which may be either conceptual or detailed. The general permit verification must also include a special condition that states that the permittee cannot commence work in waters of the United States until the district engineer approves the final mitigation plan, unless the district engineer determines that such a special condition is not practicable and not necessary to ensure timely completion of the required compensatory mitigation. To the extent appropriate and practicable, special conditions of the general permit verification should also address the requirements of paragraph (k)(2) of this section.
(4) If a mitigation bank or in-lieu fee program is used to provide the required compensatory mitigation, the special conditions must indicate whether a mitigation bank or in-lieu fee program will be used, and specify the number and resource type of credits the permittee is required to secure. In the case of an individual permit, the special condition must also identify the specific mitigation bank or in-lieu fee program that will be used. For general permit verifications, the special conditions may either identify the specific mitigation bank or in-lieu fee program, or state that the specific mitigation bank or in-lieu fee program used to provide the required compensatory mitigation must be approved by the district engineer before the credits are secured.
(l)
(2) For mitigation banks and in-lieu fee programs, the instrument must clearly indicate the party or parties responsible for the implementation, performance, and long-term management of the compensatory mitigation project(s). The instrument must also contain a provision expressing the sponsor's agreement to assume responsibility for a permittee's compensatory mitigation requirements, once that permittee has secured the appropriate number and resource type of credits from the sponsor and the district engineer has received the documentation described in paragraph (l)(3) of this section.
(3) If use of a mitigation bank or in-lieu fee program is approved by the district engineer to provide part or all of the required compensatory mitigation for a DA permit, the permittee retains responsibility for providing the compensatory mitigation until the appropriate number and resource type of credits have been secured from a sponsor and the district engineer has received documentation that confirms that the sponsor has accepted the responsibility for providing the required compensatory mitigation. This documentation may consist of a letter or form signed by the sponsor, with the permit number and a statement indicating the number and resource type of credits that have been secured from the sponsor. Copies of this documentation will be retained in the administrative records for both the permit and the instrument. If the sponsor fails to provide the required compensatory mitigation, the district engineer may pursue measures against the sponsor to ensure compliance.
(m)
(n)
(2) The amount of the required financial assurances must be determined by the district engineer, in consultation with the project sponsor, and must be based on the size and complexity of the compensatory mitigation project, the degree of completion of the project at the time of project approval, the likelihood of success, the past performance of the project sponsor, and any other factors the district engineer deems appropriate. Financial assurances may be in the form of performance bonds, escrow accounts, casualty insurance, letters of credit, legislative appropriations for government sponsored projects, or other appropriate instruments, subject to the approval of the district engineer. The rationale for determining the amount of the required financial assurances must be documented in the administrative record for either the DA permit or the instrument. In determining the assurance amount, the district engineer shall consider the cost of providing replacement mitigation, including costs for land acquisition, planning and engineering, legal fees, mobilization, construction, and monitoring.
(3) If financial assurances are required, the DA permit must include a special condition requiring the financial assurances to be in place prior to commencing the permitted activity.
(4) Financial assurances shall be phased out once the compensatory mitigation project has been determined by the district engineer to be successful in accordance with its performance
(5) A financial assurance must be in a form that ensures that the district engineer will receive notification at least 120 days in advance of any termination or revocation. For third-party assurance providers, this may take the form of a contractual requirement for the assurance provider to notify the district engineer at least 120 days before the assurance is revoked or terminated.
(6) Financial assurances shall be payable at the direction of the district engineer to his designee or to a standby trust agreement. When a standby trust is used (e.g., with performance bonds or letters of credit) all amounts paid by the financial assurance provider shall be deposited directly into the standby trust fund for distribution by the trustee in accordance with the district engineer's instructions.
(o)
(a)
(b)
(2) For individual permits, district engineers must consider any timely comments and recommendations from other federal agencies; tribal, state, or local governments; and the public.
(3) For activities authorized by letters of permission or general permits, the review and approval process for compensatory mitigation proposals and plans must be conducted in accordance with the terms and conditions of those permits and applicable regulations including the applicable provisions of this part.
(c)
(ii) For general permits, if compensatory mitigation is required, the district engineer may approve a conceptual or detailed compensatory mitigation plan to meet required time frames for general permit verifications, but a final mitigation plan incorporating the elements in paragraphs (c)(2) through (c)(14) of this section, at a level of detail commensurate with the scale and scope of the impacts, must be approved by the district engineer before the permittee commences work in waters of the United States. As an alternative, the district engineer may determine that it would be more appropriate to address any of the items described in paragraphs (c)(2) through (c)(14) of this section as permit conditions, instead of components of a compensatory mitigation plan. For permittees who intend to fulfill their compensatory mitigation obligations by securing credits from approved mitigation banks or in-lieu fee programs, their mitigation plans need include only the items described in paragraphs (c)(5) and (c)(6) of this section, and either the name of the specific mitigation bank or in-lieu fee program to be used or a statement indicating that a mitigation bank or in-lieu fee program will be used (contingent upon approval by the district engineer).
(iii) Mitigation banks and in-lieu fee programs must prepare a mitigation plan including the items in paragraphs (c)(2) through (c)(14) of this section for each separate compensatory mitigation project site. For mitigation banks and in-lieu fee programs, the preparation and approval process for mitigation plans is described in § 332.8.
(2)
(3)
(4)
(5)
(6)
(i) For permittee-responsible mitigation, this should include an explanation of how the compensatory mitigation project will provide the required compensation for unavoidable impacts to aquatic resources resulting from the permitted activity.
(ii) For permittees intending to secure credits from an approved mitigation bank or in-lieu fee program, it should include the number and resource type of credits to be secured and how these were determined.
(7)
(8)
(9)
(10)
(11)
(12)
(13)
(14)
(a) The approved mitigation plan must contain performance standards that will be used to assess whether the project is achieving its objectives. Performance standards should relate to the objectives of the compensatory mitigation project, so that the project can be objectively evaluated to determine if it is developing into the desired resource type, providing the expected functions, and attaining any other applicable metrics (e.g., acres).
(b) Performance standards must be based on attributes that are objective and verifiable. Ecological performance standards must be based on the best
(a)
(2) The district engineer may conduct site inspections on a regular basis (e.g., annually) during the monitoring period to evaluate mitigation site performance.
(b)
(c)
(2) The permittee or sponsor is responsible for submitting monitoring reports in accordance with the special conditions of the DA permit or the terms of the instrument. Failure to submit monitoring reports in a timely manner may result in compliance action by the district engineer.
(3) Monitoring reports must be provided by the district engineer to interested federal, tribal, state, and local
(a)
(2) The real estate instrument, management plan, or other mechanism providing long-term protection of the compensatory mitigation site must, to the extent appropriate and practicable, prohibit incompatible uses (e.g., clear cutting or mineral extraction) that might otherwise jeopardize the objectives of the compensatory mitigation project. Where appropriate, multiple instruments recognizing compatible uses (e.g., fishing or grazing rights) may be used.
(3) The real estate instrument, management plan, or other long-term protection mechanism must contain a provision requiring 60-day advance notification to the district engineer before any action is taken to void or modify the instrument, management plan, or long-term protection mechanism, including transfer of title to, or establishment of any other legal claims over, the compensatory mitigation site.
(4) For compensatory mitigation projects on public lands, where federal facility management plans or integrated natural resources management plans are used to provide long-term protection, and changes in statute, regulation, or agency needs or mission results in an incompatible use on public lands originally set aside for compensatory mitigation, the public agency authorizing the incompatible use is responsible for providing alternative compensatory mitigation that is acceptable to the district engineer for any loss in functions resulting from the incompatible use.
(5) A real estate instrument, management plan, or other long-term protection mechanism used for site protection of permittee-responsible mitigation must be approved by the district engineer in advance of, or concurrent with, the activity causing the authorized impacts.
(b)
(c)
(2) If monitoring or other information indicates that the compensatory mitigation project is not progressing towards meeting its performance standards as anticipated, the responsible party must notify the district engineer as soon as possible. The district engineer will evaluate and pursue measures to address deficiencies in the compensatory mitigation project. The district engineer will consider whether the compensatory mitigation project is providing ecological benefits comparable to the original objectives of the compensatory mitigation project.
(3) The district engineer, in consultation with the responsible party (and other federal, tribal, state, and local agencies, as appropriate), will determine the appropriate measures. The measures may include site modifications, design changes, revisions to maintenance requirements, and revised monitoring requirements. The measures must be designed to ensure that the modified compensatory mitigation project provides aquatic resource functions comparable to those described in the mitigation plan objectives.
(4) Performance standards may be revised in accordance with adaptive management to account for measures taken to address deficiencies in the compensatory mitigation project. Performance standards may also be revised to reflect changes in management strategies and objectives if the new standards provide for ecological benefits that are comparable or superior to the approved compensatory mitigation project. No other revisions to performance standards will be allowed except in the case of natural disasters.
(d)
(2) A long-term management plan should include a description of long-term management needs, annual cost estimates for these needs, and identify the funding mechanism that will be used to meet those needs.
(3) Any provisions necessary for long-term financing must be addressed in the original permit or instrument. The district engineer may require provisions to address inflationary adjustments and other contingencies, as appropriate. Appropriate long-term financing mechanisms include non-wasting endowments, trusts, contractual arrangements with future responsible parties, and other appropriate financial instruments. In cases where the long-term management entity is a public authority or government agency, that entity must provide a plan for the long-term financing of the site.
(4) For permittee-responsible mitigation, any long-term financing mechanisms must be approved in advance of the activity causing the authorized impacts.
(a)
(2) To the maximum extent practicable, mitigation banks and in-lieu fee project sites must be planned and designed to be self-sustaining over time, but some active management and maintenance may be required to ensure their long-term viability and sustainability. Examples of acceptable management activities include maintaining fire-dependent habitat communities in
(3) All mitigation banks and in-lieu fee programs must comply with the standards in this part, if they are to be used to provide compensatory mitigation for activities authorized by DA permits, regardless of whether they are sited on public or private lands and whether the sponsor is a governmental or private entity.
(b)
(2) In addition to the Corps, representatives from the U.S. Environmental Protection Agency, U.S. Fish and Wildlife Service, NOAA Fisheries, the Natural Resources Conservation Service, and other federal agencies, as appropriate, may participate in the IRT. The IRT may also include representatives from tribal, state, and local regulatory and resource agencies, where such agencies have authorities and/or mandates directly affecting, or affected by, the establishment, operation, or use of the mitigation bank or in-lieu fee program. The district engineer will seek to include all public agencies with a substantive interest in the establishment of the mitigation bank or in-lieu fee program on the IRT, but retains final authority over its composition.
(3) The primary role of the IRT is to facilitate the establishment of mitigation banks or in-lieu fee programs through the development of mitigation banking or in-lieu fee program instruments. The IRT will review the prospectus, instrument, and other appropriate documents and provide comments to the district engineer. The district engineer and the IRT should use a watershed approach to the extent practicable in reviewing proposed mitigation banks and in-lieu fee programs. Members of the IRT may also sign the instrument, if they so choose. By signing the instrument, the IRT members indicate their agreement with the terms of the instrument. As an alternative, a member of the IRT may submit a letter expressing concurrence with the instrument. The IRT will also advise the district engineer in assessing monitoring reports, recommending remedial or adaptive management measures, approving credit releases, and approving modifications to an instrument. In order to ensure timely processing of instruments and other documentation, comments from IRT members must be received by the district engineer within the time limits specified in this section. Comments received after these deadlines will only be considered at the discretion of the district engineer to the extent that doing so does not jeopardize the deadlines for district engineer action.
(4) The district engineer will give full consideration to any timely comments and advice of the IRT. The district engineer alone retains final authority for approval of the instrument in cases where the mitigation bank or in-lieu fee program is used to satisfy compensatory mitigation requirements of DA permits.
(5)
(c)
(2) The compensation planning framework must contain the following elements:
(i) The geographic service area(s), including a watershed-based rationale for the delineation of each service area;
(ii) A description of the threats to aquatic resources in the service area(s), including how the in-lieu fee program will help offset impacts resulting from those threats;
(iii) An analysis of historic aquatic resource loss in the service area(s);
(iv) An analysis of current aquatic resource conditions in the service area(s), supported by an appropriate level of field documentation;
(v) A statement of aquatic resource goals and objectives for each service area, including a description of the general amounts, types and locations of aquatic resources the program will seek to provide;
(vi) A prioritization strategy for selecting and implementing compensatory mitigation activities;
(vii) An explanation of how any preservation objectives identified in paragraph (c)(2)(v) of this section and addressed in the prioritization strategy in paragraph (c)(2)(vi) satisfy the criteria for use of preservation in § 332.3(h);
(viii) A description of any public and private stakeholder involvement in plan development and implementation, including, where appropriate, coordination with federal, state, tribal and local aquatic resource management and regulatory authorities;
(ix) A description of the long-term protection and management strategies for activities conducted by the in-lieu fee program sponsor;
(x) A strategy for periodic evaluation and reporting on the progress of the program in achieving the goals and objectives in paragraph (c)(2)(v) of this section, including a process for revising the planning framework as necessary; and
(xi) Any other information deemed necessary for effective compensation planning by the district engineer.
(3) The level of detail necessary for the compensation planning framework is at the discretion of the district engineer, and will take into account the characteristics of the service area(s) and the scope of the program. As part of the in-lieu fee program instrument, the compensation planning framework will be reviewed by the IRT, and will be a major factor in the district engineer's decision on whether to approve the instrument.
(d)
(2)
(i) The objectives of the proposed mitigation bank or in-lieu fee program.
(ii) How the mitigation bank or in-lieu fee program will be established and operated.
(iii) The proposed service area.
(iv) The general need for and technical feasibility of the proposed mitigation bank or in-lieu fee program.
(v) The proposed ownership arrangements and long-term management strategy for the mitigation bank or in-lieu fee project sites.
(vi) The qualifications of the sponsor to successfully complete the type(s) of mitigation project(s) proposed, including information describing any past such activities by the sponsor.
(vii) For a proposed mitigation bank, the prospectus must also address:
(A) The ecological suitability of the site to achieve the objectives of the proposed mitigation bank, including the physical, chemical, and biological characteristics of the bank site and how that site will support the planned types of aquatic resources and functions; and
(B) Assurance of sufficient water rights to support the long-term sustainability of the mitigation bank.
(viii) For a proposed in-lieu fee program, the prospectus must also include:
(A) The compensation planning framework (see paragraph (c) of this section); and
(B) A description of the in-lieu fee program account required by paragraph (i) of this section.
(3)
(4)
(5)
(ii) If the district engineer determines that the proposed mitigation
(iii) If the district engineer determines that the proposed mitigation bank or in-lieu fee program does not have potential for providing appropriate compensatory mitigation for DA permits, the initial evaluation letter must discuss the reasons for that determination. The sponsor may revise the prospectus to address the district engineer's concerns, and submit the revised prospectus to the district engineer. If the sponsor submits a revised prospectus, a revised public notice will be issued in accordance with paragraph (d)(4) of this section.
(iv) This initial evaluation procedure does not apply to proposed modifications of approved instruments.
(6)
(ii) For mitigation banks and in-lieu fee programs, the draft instrument must include the following information:
(A) A description of the proposed geographic service area of the mitigation bank or in-lieu fee program. The service area is the watershed, ecoregion, physiographic province, and/or other geographic area within which the mitigation bank or in-lieu fee program is authorized to provide compensatory mitigation required by DA permits. The service area must be appropriately sized to ensure that the aquatic resources provided will effectively compensate for adverse environmental impacts across the entire service area. For example, in urban areas, a U.S. Geological Survey 8-digit hydrologic unit code (HUC) watershed or a smaller watershed may be an appropriate service area. In rural areas, several contiguous 8-digit HUCs or a 6-digit HUC watershed may be an appropriate service area. Delineation of the service area must also consider any locally-developed standards and criteria that may be applicable. The economic viability of the mitigation bank or in-lieu fee program may also be considered in determining the size of the service area. The basis for the proposed service area must be documented in the instrument. An in-lieu fee program or umbrella mitigation banking instrument may have multiple service areas governed by its instrument (e.g., each watershed within a state or Corps district may be a separate service area under the instrument); however, all impacts and compensatory mitigation must be accounted for by service area;
(B) Accounting procedures;
(C) A provision stating that legal responsibility for providing the compensatory mitigation lies with the sponsor once a permittee secures credits from the sponsor;
(D) Default and closure provisions;
(E) Reporting protocols; and
(F) Any other information deemed necessary by the district engineer.
(iii) For a mitigation bank, a complete draft instrument must include the following additional information:
(A) Mitigation plans that include all applicable items listed in § 332.4(c)(2) through (14); and
(B) A credit release schedule, which is tied to achievement of specific milestones. All credit releases must be approved by the district engineer, in consultation with the IRT, based on a determination that required milestones have been achieved. The district engineer, in consultation with the IRT, may modify the credit release schedule, including reducing the number of available credits or suspending credit sales or transfers altogether, where necessary to ensure that all credit sales or transfers remain tied to compensatory mitigation projects with a high likelihood of meeting performance standards;
(iv) For an in-lieu fee program, a complete draft instrument must include the following additional information:
(A) The compensation planning framework (see paragraph (c) of this section);
(B) Specification of the initial allocation of advance credits (see paragraph (n) of this section) and a draft fee schedule for these credits, by service area, including an explanation of the basis for the allocation and draft fee schedule;
(C) A methodology for determining future project-specific credits and fees; and
(D) A description of the in-lieu fee program account required by paragraph (i) of this section.
(7)
(8)
(e)
(2) The district engineer must respond to the objection within 30 days of receipt of the letter. The district engineer's response may indicate an intent to disapprove the instrument or amendment as a result of the objection, an intent to approve the instrument or amendment despite the objection, or may provide a modified instrument or amendment that attempts to address the objection. The district engineer's response must be provided to all IRT members.
(3) Within 15 days of receipt of the district engineer's response, if the Regional Administrator or Regional Director is not satisfied with the response he may forward the issue to the Assistant Administrator for Water of the U.S. EPA, the Assistant Secretary for Fish and Wildlife and Parks of the U.S. FWS, or the Undersecretary for Oceans and Atmosphere of NOAA, as appropriate, for review and must notify the district engineer by letter via electronic mail or facsimile machine (with copies to all IRT members) that the issue has been forwarded for Headquarters review. This step is available only to the IRT members representing these three federal agencies, however other IRT members who do not agree with the district engineer's final decision do not have to sign the instrument or amendment or recognize the mitigation bank or in-lieu fee program for purposes of their own programs and authorities. If an IRT member other than the one filing the original objection has a new objection based on the district engineer's response, he may use the first step in this procedure (paragraph (e)(1) of this section) to provide that objection to the district engineer.
(4) If the issue has not been forwarded to the objecting agency's Headquarters, then the district engineer may proceed with final action on the instrument or amendment. If the issue has been forwarded to the objecting agency's Headquarters, the district engineer must hold in abeyance the final action on the instrument or amendment, pending Headquarters level review described below.
(5) Within 20 days from the date of the letter requesting Headquarters level review, the Assistant Administrator for Water, the Assistant Secretary for Fish and Wildlife and Parks, or the Undersecretary for Oceans and Atmosphere must either notify the Assistant Secretary of the Army (Civil Works) (ASA(CW)) that further review will not be requested, or request that the ASA(CW) review the final instrument or amendment.
(6) Within 30 days of receipt of the letter from the objecting agency's Headquarters request for ASA(CW)'s review of the final instrument, the ASA(CW), through the Director of Civil Works, must review the draft instrument or amendment and advise the district engineer on how to proceed with final action on that instrument or amendment. The ASA(CW) must immediately notify the Assistant Administrator for Water, the Assistant Secretary for Fish and Wildlife and Parks, and/or the Undersecretary for Oceans and Atmosphere of the final decision.
(7) In cases where the dispute resolution procedure is used, the district engineer must notify the sponsor of his final decision within 150 days of receipt of the final instrument or amendment.
(f)
(i) Compliance with other applicable laws, such as consultation under section 7 of the Endangered Species Act or section 106 of the National Historic Preservation Act, is required;
(ii) It is necessary to conduct government-to-government consultation with Indian tribes;
(iii) Timely submittal of information necessary for the review of the proposed mitigation bank or in-lieu fee program or the proposed modification of an approved instrument is not accomplished by the sponsor; or
(iv) Information that is essential to the district engineer's decision cannot be reasonably obtained within the specified time frame.
(2) In such cases, the district engineer must promptly notify the sponsor in writing of the extension and the reason for it. Such extensions shall be for the minimum time necessary to resolve the issue necessitating the extension.
(g)
(2)
(h)
(i)
(2) The sponsor must submit proposed in-lieu fee projects to the district engineer for funding approval. Disbursements from the program account may only be made upon receipt of written authorization from the district engineer, after the district engineer has consulted with the IRT. The terms of the program account must specify that the district engineer has the authority to direct those funds to alternative compensatory mitigation projects in cases where the sponsor does not provide compensatory mitigation in accordance with the time frame specified in paragraph (n)(4) of this section.
(3) The sponsor must provide annual reports to the district engineer and the IRT. The annual reports must include the following information:
(i) All income received, disbursements, and interest earned by the program account;
(ii) A list of all permits for which in-lieu fee program funds were accepted. This list shall include: The Corps permit number (or the state permit number if there is no corresponding Corps permit number, in cases of state programmatic general permits or other regional general permits), the service area in which the authorized impacts are located, the amount of authorized impacts, the amount of required compensatory mitigation, the amount paid to the in-lieu fee program, and the date the funds were received from the permittee;
(iii) A description of in-lieu fee program expenditures from the account, such as the costs of land acquisition, planning, construction, monitoring, maintenance, contingencies, adaptive management, and administration;
(iv) The balance of advance credits and released credits at the end of the report period for each service area; and
(v) Any other information required by the district engineer.
(4) The district engineer may audit the records pertaining to the program account. All books, accounts, reports, files, and other records relating to the in-lieu fee program account shall be available at reasonable times for inspection and audit by the district engineer.
(j)
(2) If a DA permit is required for an in-lieu fee project, the permit should not be issued until all relevant provisions of the mitigation plan have been substantively determined, to ensure that the DA permit accurately reflects all relevant provisions of the approved mitigation plan, such as performance standards.
(k)
(l)
(2) Authorization to sell credits to satisfy compensatory mitigation requirements in DA permits is contingent on compliance with all of the terms of the instrument. This includes constructing a mitigation bank or in-lieu fee project in accordance with the mitigation plan approved by the district engineer and incorporated by reference in the instrument. If the aquatic resource restoration, establishment, enhancement, and/or preservation activities cannot be implemented in accordance with the approved mitigation plan, the district engineer must consult with the sponsor and the IRT to consider modifications to the instrument, including adaptive management, revisions to the credit release schedule, and alternatives for providing compensatory mitigation to satisfy any credits that have already been sold.
(3) An in-lieu fee program sponsor is responsible for the implementation, long-term management, and any required remediation of the restoration, establishment, enhancement, and/or preservation activities, even though those activities may be conducted by other parties through requests for proposals or other contracting mechanisms.
(m)
(n)
(i) The compensation planning framework;
(ii) The sponsor's past performance for implementing aquatic resource restoration, establishment, enhancement, and/or preservation activities in the proposed service area or other areas; and
(iii) The projected financing necessary to begin planning and implementation of in-lieu fee projects.
(2) To determine the appropriate number of advance credits for a particular service area, the district engineer may require the sponsor to provide confidential supporting information that will not be made available to the general public. Examples of confidential supporting information may include prospective in-lieu fee project sites.
(3) As released credits are produced by in-lieu fee projects, they must be used to fulfill any advance credits that have already been provided within the project service area before any remaining released credits can be sold or transferred to permittees. Once previously provided advance credits have been fulfilled, an equal number of advance credits is re-allocated to the sponsor for sale or transfer to fulfill new mitigation requirements, consistent with the terms of the instrument. The number of advance credits available to the sponsor at any given time to sell or transfer to permittees in a given service area is equal to the number of advance credits specified in the instrument, minus any that have already been provided but not yet fulfilled.
(4) Land acquisition and initial physical and biological improvements must be completed by the third full growing season after the first advance credit in that service area is secured by a permittee, unless the district engineer determines that more or less time is needed to plan and implement an in-lieu fee project. If the district engineer
(5) The sponsor is responsible for complying with the terms of the in-lieu fee program instrument. If the district engineer determines, as a result of review of annual reports on the operation of the in-lieu fee program (see paragraphs (p)(2) and (q)(1) of this section), that it is not performing in compliance with its instrument, the district engineer will take appropriate action, which may include suspension of credit sales, to ensure compliance with the in-lieu fee program instrument (see paragraph (o)(10) of this section). Permittees that secured credits from the in-lieu fee program are not responsible for in-lieu fee program compliance.
(o)
(2)
(3)
(4)
(5)
(ii) For in-lieu fee programs, the cost per unit of credit must include the expected costs associated with the restoration, establishment, enhancement, and/or preservation of aquatic resources in that service area. These costs must be based on full cost accounting, and include, as appropriate, expenses such as land acquisition, project planning and design, construction, plant materials, labor, legal fees, monitoring, and remediation or adaptive management activities, as well as administration of the in-lieu fee program. The cost per unit credit must also take into account contingency costs appropriate to the stage of project planning, including uncertainties in construction and real estate expenses. The cost per unit of credit must also take into account the resources necessary for the long-term management and protection of the in-lieu fee project. In addition, the cost per unit credit must include financial assurances that are necessary to ensure successful completion of in-lieu fee projects.
(6)
(7)
(8)
(ii) For single-site mitigation banks, the terms of the credit release schedule must be specified in the mitigation banking instrument. The credit release schedule may provide for an initial debiting of a limited number of credits once the instrument is approved and other appropriate milestones are achieved (see paragraph (m) of this section).
(iii) For in-lieu fee projects and umbrella mitigation bank sites, the terms of the credit release schedule must be specified in the approved mitigation plan. When an in-lieu fee project or umbrella mitigation bank site is implemented and is achieving the performance-based milestones specified in the credit release schedule, credits are generated in accordance with the credit release schedule for the approved mitigation plan. If the in-lieu fee project or umbrella mitigation bank site does not achieve those performance-based milestones, the district engineer may modify the credit release schedule, including reducing the number of credits.
(9)
(10)
(p)
(2) For in-lieu fee programs, the instrument must contain a provision requiring the sponsor to establish and maintain an annual report ledger in accordance with paragraph (i)(3) of this section, as well as individual ledgers that track the production of released credits for each in-lieu fee project.
(q)
(2)
(3)
(r)
(s)
(t)
(2) For in-lieu fee project sites, real estate instruments, management plans, or other long-term protection mechanisms used for site protection must be finalized before advance credits can become released credits.
(u)
(2) The instrument may contain provisions for the sponsor to transfer long-term management responsibilities to a land stewardship entity, such as a public agency, non-governmental organization, or private land manager.
(3) The instrument or approved mitigation plan must address the financial arrangements and timing of any necessary transfer of long-term management funds to the steward.
(4) Where needed, the acquisition and protection of water rights should be secured and documented in the instrument or, in the case of umbrella mitigation banking instruments and in-lieu fee programs, the approved mitigation site plan.
(v)
(2)
40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 3).
The purpose of this part is to:
(a) Prescribe procedures for establishing, amending and disestablishing danger zones and restricted areas;
(b) List the specific danger zones and restricted areas and their boundaries; and
(c) Prescribe specific requirements, access limitations and controlled activities within the danger zones and restricted areas.
(a)
(b)
(a)
(b)
(c)
(a)
(1) Name, address and telephone number of requestor including the identity of the command and DoD facility and the identity of a point of contact with phone number.
(2) Name of waterway and if a small tributary, the name of a larger connecting waterbody.
(3) Name of closest city or town, county/parish and state.
(4) Location of proposed or existing danger zone or restricted area with a map showing the location, if possible.
(5) A brief statement of the need for the area, its intended use and detailed description of the times, dates and extent of restriction.
(b)
(2)
(i) Applicable statutory authority or authorities; (40 Stat. 266; 33 U.S.C. 1) and (40 Stat. 892; 33 U.S.C. 3)
(ii) A reasonable comment period. The public notice should fix a limiting
(iii) The address of the District Engineer as the recipient of any comments received.
(iv) The identity of the applicant/proponent;
(v) The name or title, address and telephone number of the Corps employee from whom additional information concerning the proposal may be obtained;
(vi) The location of the proposed activity accompanied by a map of sufficient detail to show the boundaries of the area(s) and its relationship to the surrounding area.
(3)
(i) The Federal Aviation Administration (FAA) where the use of airspace is involved.
(ii) The Commander, Service Force, U.S. Atlantic Fleet, if a proposed action involves a danger zone off the U.S. Atlantic coast.
(iii) Proposed danger zones on the U.S. Pacific coast must be coordinated with the applicable commands as follows:
Commander, Naval Base, Seattle
Commander, Naval Base, San Diego
Commander, Naval Base, Pearl Harbor
(c)
(d)
(e)
(f)
(a) Upon receipt of a request from any agency for the disestablishment of a danger zone, the District Engineer shall notify that agency of its responsibility for returning the area to a condition suitable for use by the public. The agency must either certify that it has not used the area for a purpose that requires cleanup or that it has removed all hazardous materials and munitions, before the Corps will disestablish the area. The agency will remain responsible for the enforcement of the danger zone regulations to prevent unauthorized entry into the area until the area is deemed safe for use by the public and the area is disestablished by the Corps.
(b) Upon receipt of the certification required in paragraph (a) of this section, the District shall forward the request for disestablishment of the danger zone through channels to CECW-OR, with its recommendations. Notice of proposed rulemaking and public procedures as outlined in § 334.4 are not normally required before publication of the final rule revoking a restricted area or danger zone regulation. The
(a) Geographic coordinates expressed in terms of latitude or longitude, or both, are not intended for plotting on maps or charts whose reference horizontal datum is the North American Datum of 1983 (NAD 83), unless such geographic coordinates are expressly labeled NAD 83. Geographic coordinates without the NAD 83 reference may be plotted on maps or charts referenced to NAD 83 only after application of the appropriate corrections that are published on the particular map or chart being used.
(b) For further information on NAD 83 and National Service nautical charts please contact: Director, Coast Survey (N/CG2), National Ocean Service, NOAA, 1315 East-West Highway, Station 6147, Silver Spring, MD 20910-3282.
(a)
(b)
(2) Vessels or other watercraft will be allowed to enter the danger zone any time there are no aerial bombing exercises being conducted.
(3) No live ammunition or explosives will be dropped in the area.
(4) Suitable Notice to Mariners, by appropriate methods, will be issued by the Commander, First Coast Guard District, Boston, Massachusetts; upon request of the Commandant, First Naval District, Boston, Massachusetts, or his designated agent.
(5) Prior to the conducting of each bombing practice, the area will be patrolled by a naval aircraft or surface vessel to ensure that no persons or watercraft are within the danger zone. Vessels may be requested to veer off when drops are to be made, however, drops will be made only when the area is clear. The patrol aircraft will employ the method of warning known as “buzzing” which consists of low flight by the airplane and repeated opening and closing of the throttle.
(6) Any such watercraft shall, upon being so warned, immediately leave the designated area and, until the conclusion of the practice, shall remain at such distance that it will be safe from falling projectiles.
(7) The regulations of this section shall be enforced by the Commandant, First Naval District, Boston, Massachusetts, or such agencies as he may designate.
(a)
(b)
(2) Testing will not restrict any fishing, recreational, or commercial activities in the testing area.
(3) Aircraft will patrol the area prior to and during test periods to insure that no surface vessels are within the area. No test drops will be made while surface vessels are transitting the area.
(4) No live ammunition or explosives will be dropped in the area.
(5) The regulations of this section shall be enforced by the Commandant, First Naval District, Boston, Mass., or such agencies as he may designate.
(a)
(b)
(2) Sonobuoy drop tests will normally be conducted at intermittent periods on a 5-day week basis, Monday through Friday. However, on occasion tests may be conducted intermittently on a seven-day week basis.
(3) Prior to and during the period when sonobuoys are being dropped, an escort vessel or naval aircraft will be in the vicinity to ensure that no persons or vessels are in the testing area. Vessels may be requested to veer off when sonobuoys are about to be dropped, however, drops will be made only when the area is clear.
(4) The sonobuoys drops will be made in connection with the production and experimentation of sonobuoys.
(5) No live ammunition or explosives will be involved.
(6) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Air Station, Brunswick, Maine, or such agencies as he may designate.
(a)
(b)
(2) This section shall be enforced by the Commandant, First Naval District, and such agencies as he may designate.
(a)
(b)
(c)
(a)
(b)
(a)
(b)
(2) This section shall be enforced by the Commandant, First Naval District, and such agencies as he may designate.
(a)
(2)
(3) The regulations in this paragraph shall be enforced by the Commandant, First Naval District, and such agencies as he may designate.
(a)
(b)
(2) Commercial fishermen and shell fishermen may fish within the restricted area provided their vessels display registration numbers issued by the Naval Submarine Base, New London, Connecticut. The registration numbers may be obtained by contacting the Commanding Officer, Naval Submarine Base New London. All commercial fishermen and shell fishermen must also leave the restricted area when notified by personnel of the New London Submarine Base that such use will interfere with submarine maneuevering, operations or security.
(3) Vessels which are owned, operated or sponsored by local, state municipalities or academic institutions preparing for or participating in a water sport or water related recreational event sponsored by those local or state municipalities or academic institutions, or private or commercial vessels engaged in observing the conduct of the above event shall be exempt from the restrictions above, providing:
(i) The Commanding Officer, Naval Submarine Base New London, and the Coast Guard Captain of the Port are advised in writing at least 48 hours in advance of the event, or
(ii) The event was publicized in such a manner that the local public in general had a reasonable opportunity to learn of the event 48 hours in advance.
(4) The regulations in this section shall be enforced by the Commander, U.S. Naval Submarine Base New London, Connecticut, and such agencies as he/she may designate.
(a)
(b)
(2) The practice minefield will consist of six inert drill mines each 16 inches in diameter and 5 feet long and one concrete sonar target 48 inches in diameter and 48 inches high located within the designated area. The sonar target will be permanently located in the extreme northeast corner within the designated drill minefield area. The six drill mines will be steel with all internal mechanisms and explosives removed and concrete filled. Drill mines will be removed from the designated area within 72 hours after each minehunting training exercise.
(3) Training activities will be limited to minehunting operations using only onboard sonar. Neither variable depth sonar devices or mechanical minesweeping operations will be utilized in the area.
(4) Training periods will be 2-3 days in length and 10-15 times a year, however during the time period July 1-mid-October, minehunting exercises will be held to minimum.
(5) Notice to mariners will be issued 6-8 weeks in advance of a scheduled practice exercise by the Commander, U.S. Naval Base, Newport, Rhode Island.
(6) The regulations of this section shall be enforced by the Commander, U.S. Naval Base, Newport, Rhode Island, and such agencies as he/she may designate.
(a) Beginning at a point on the east shore of Conanicut Island at latitude 41°33′15″; thence southeasterly to latitude 41°32′44″, longitude 71°21′17″; thence southerly to latitude 41°32′09″, longitude 71°21′17″; thence southeasterly to latitude 41°31′50″, longitude 71°21′10″; thence southeasterly to latitude 41°31′26″, longitude 71°20′33″ thence easterly to latitude 41°31′27″, longitude 71°20′06″ thence northerly to a point on the southwesterly shore of Prudence Island at latitude 41°35′00″, thence northerly along the southwesterly shore of Prudence Island to a point at latitude 41°35′43″ longitude 71°20′155″; thence northwesterly to latitude 41°37′21″, longitude 71°20′48″; thence west to latitude 41°37′21″ longitude 71°21′48″; and thence south to latitude 41°33′54″, longitude 71°21′48″.
(b)
(2) Orders and instructions issued by patrol craft or other authorized representatives of the enforcing agency shall be carried out promptly by persons or vessels in or in the vicinity of the prohibited area.
(3) The regulations in this section shall be enforced by the Commander U.S. Naval Base, Newport, RI, and such agencies as he may designate.
(a)
(b)
(c)
(a)
Island beginning at Coddington Point at latitude 41°31′24.0″ N, longitude 71°19′24.0″ W; thence west southwest to latitude 41°31′21.5″ N, longitude 71°19′45.0″ W; thence south southwest to latitude 41°31′04.2″ N, longitude 71°19′52.8″ W; thence due south to latitude 41°30′27.3″ N, longitude 71°19′52.8″ W; thence south southeast to 41°30′13.8″ N, longitude 71°19′42.0″ W; thence southeast to latitude 41°30′10.2″ N, longitude 71°19′32.6″ W; thence due east to latitude 41°30′10.2″ N, longitude 71°19′20.0″ W; thence northerly along the mainland shoreline to the point of origin.
(b)
(c)
(a)
(b)
(2) The portion of the restricted area beginning 600 feet seaward of the U.S. Pierhead Line is open to transiting vessels only. Vessels shall proceed across the area by the most direct route and without unnecessary delay. For vessels under sail, necessary tacking shall constitute a direct route.
(3) Commercial vessels at anchor will be permitted to swing into the seaward portion of the restricted area while at anchor and during the tide changes.
(c)
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, Third Coast Guard District, or his authorized representative.
(a)
(b)
(2) Vessels are authorized to cross the Terminal Channel provided that there are no naval vessels then transiting the channel bounded by:
(c)
(a)
(b)
(2) This section does not apply to anchored floating navigational aids or to placement or removal of such aids by the Coast Guard.
(3) This section does not apply to vessels engaged in commercial or pleasure boat fishing provided anchors, trawls, and ground tackle are not used.
(4) The regulations in this section shall be enforced by the Commandant, Fourth Naval District, and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commandant, Fourth Naval District, and such agencies as he may designate.
(a)
(b)
(2) When warning signals are displayed, all persons and vessels in the danger zone, except vessels entering or departing Chincoteague Inlet, shall leave the zone promptly by the shortest possible route and shall remain outside the zone until allowed by a patrol boat to enter or the dangers signal has been discontinued. Vessels entering or departing Chincoteague Inlet shall take the shortest passage possible through the danger zone upon display of the danger signal.
(3) The intent to conduct rocket-launching operations involving the area shall be indicated by a signal consisting of a large orange-colored, “blimp-shaped” balloon by day and a signal rotating alternately red and white beacon by night. The balloon shall be flown at latitude 37°50′38″, longitude 75°28′47″ and the beacon shall be displayed about 200 feet above mean high water at latitude 37°50′16″, longitude 75°29′07″. The appropriate one of these signals shall be displayed 30 minutes prior to rocket-launching time and shall remain displayed until danger no longer exists.
(4) The regulations in this section shall be enforced by the Director, Wallops Station, National Aeronautics and Space Administration, Wallops Island, Va., or such agencies as he may designate.
(a)
(1) Beginning at a point on the westerly side of Chesapeake Bay, at the south side of the mouth of Swan Creek, Harford County, Maryland, the most northerly point of the reservation known as Plum Point; thence southeasterly along the low water mark on the shore of Chesapeake Bay to and across the north entrance of Spesutie Narrows to and thence along the low water mark on the north shore of Spesutie Island to Locust Point; thence along straight line from Locust Point to Turkey Point for a distance of approximately 1,400 yards; thence following a line parallel with and 1,000 yards from the low water mark on the easterly shore of Spesutie Island to a point 1,000 yards due southeast of Sandy Point; thence approximately southwest in a straight line to a point approximately 1,250 yards S. 10°30′ W. from Bear Point; thence approximately 9,275 yards S. 51°04′ W. to a point in Chesapeake Bay about 1,700 yards due east from Taylor Island Point; thence southwesterly in a straight course, except such variations as may be necessary to include all of Pooles Island to the southwesterly point of Pooles Island, thence in a northwesterly direction to the most southwesterly point of Spry Island, including all of Spry Island; thence northwesterly in a straight line to extreme southerly island off Lower Island Point; thence northwesterly in a straight line through Brier Point to a point in Seneca Creek where this line intersects a straight line which passes through monuments No. 124 and No. 125 on westerly part of Carroll Island; thence northeasterly in a straight line passing through Marshy Point, at the junction of Dundee Creek and Saltpeter Creek, to the intersection of the center line of Reardon Inlet with Gunpowder River, except such variations as may be necessary to exclude any and all parts of
(b)
(c)
(d)
(i) Supesutie Narrows—all waters north and east of a line between Bear Point and Black Point;
(ii) All creeks except Landerick Creek;
(iii) The water adjacent to Carroll Island which lies between Brier Point and Lower Island Point also known as Hawthorne Cove;
(iv) The waters immediately off the mouth of Romney Creek;
(v) The waters adjacent to Abbey Point Recovery Field more accurately described as area number 16; depicted in Aberdeen Proving Ground Regulation 210-10, Appendix A.
(vi) The waters on the north side of the Bush River from Pond Point to Chelsea Chimney are closed for fishing purposes.
(2) The remainder of the restricted areas will normally be open for authorized use (including navigation and fishing) during the following hours:
(i) Monday through Thursday, 5 p.m. to 7:30 a.m.;
(ii) Weekends, 5 p.m. Friday to 7:30 a.m. Monday;
(iii) National (not state) holidays, 5 p.m. the day preceding the holiday to 7:30 a.m. the day following the holiday.
(3) When requirements of tests, as determined by the Commanding Officer, Aberdeen Proving Ground, or his designee, necessitate closing the restricted areas during the aforementioned times and days, the Commanding Officer, Aberdeen Proving Ground, will publish appropriate circulars or cause to be broadcast over local radio stations notices informing the public of the time and days which entrance to the restricted waters of Aberdeen Proving Ground by the general public will be prohibited.
(4) A fleet of patrol boats will be positioned at the perimeter of the restricted water zone boundaries (except in extreme weather conditions such as gales or ice) during periods of testing to prevent unauthorized entry. If necessary to attract attention of another vessel about to penetrate the restricted area, the patrol boat may operate a distinctive rotating blue and red light, public address system, sound a siren, or by radio contact on shipshore FM channel 16 and citizen band channel 12. Buoys will mark the restricted waters along the Chesapeake Bay perimeter during the period, normally 4 June through 1 October annually.
(5)
(e)
(2) There are no limitations on test firing by Federal testing facilities at Aberdeen Proving Ground over land belonging to Aberdeen Proving Ground.
(f)
(2) Holders of permits for setting fixed nets must comply with the provisions of this part and also with § 206.50(d) of this chapter.
(g)
(h)
(i)
(j) Aberdeen Proving Ground Regulations (APGR) 210-10 will govern commercial fishing and crabbing and APGR 210-26 will govern recreational (non-commercial) fishing and crabbing. This section shall be enforced by the Commander, Aberdeen Proving Ground, and such agencies as he/she may designate.
(k)
(a)
(b)
(2) The area will be in use intermittently, and this use will be signified by the presence of white-painted boats or floats, which will be lighted at night.
(3) Upon observing the boats or floats referred to in paragraph (b)(2) of this section, or upon being warned, vessels and persons shall immediately vacate the area and remain outside the area during the period of use.
(4) The regulations in this section shall be enforced by the Commandant, Severn River Naval Command, and such agencies as he may designate.
(a)
(b)
(c)
(a)
(b)
(2) The regulations in this section shall be enforced by the Superintendent, U.S. Naval Academy, Annapolis, Md., and such agencies as he may designate.
(a)
(2)
(3)
All bearings referred to true meridian.
(4)
(b)
(2) No person or vessel shall enter or remain in Area B or Area C between the hours of 1:00 p.m. and 5:00 p.m. daily except Sundays, except that through navigation of commercial craft will be permitted in Area C at all times, but such vessels shall proceed on their normal course and shall not delay their progress.
(3) No fishing structures, other than those presently in established locations, which may be maintained, will be permitted to be established in Area D without specific permission from the Commanding Officer, Naval Research Laboratory.
(4) The areas will be in use throughout the year, and no further notice is contemplated that firing is continuing.
(5) Prior to the conduct of each firing practice a patrol vessel will patrol the range to warn navigation. “Baker” will be flown from a conspicuous point on the patrol vessel and from a prominent position on shore.
(6) This section shall be enforced by the Commander, Naval Base, Norfolk, Virginia, and such agencies as he/she may designate.
(a) Except in the gut off the tip of Point Patience, no person in the water and no craft shall approach closer than 75 yards to the beaches, shoreline, or piers of the area formerly occupied by the U.S. Naval Mine Warfare Test Station, or of U.S. Naval Air Station property. A person in the water or a civilian craft shall not approach rafts, barges, or platforms closer than 100 yards.
(b) Diving tenders will exhibit a square red flag with white X when underwater diving takes place from naval small craft. At such times, persons in the water and civilian craft shall stay at least 200 yards clear of these vessels and the civilian craft shall proceed at a speed not greater than five knots when within 1,000 yards thereof.
(c) On occasions, seaplane landings and takeoffs will be practiced in the seadrome area north of the U.S. Naval Air Station, Patuxent River. This area includes those waters of the Patuxent River between Town Point and Hog Point shoreward of a line described as follows: Beginning at a point on the shore just west of Lewis Creek, bearing 161°30′ true, 2,000 yards from Patuxent River Light 8; thence to a point bearing 130° true, 1,850 yards from Patuxent River Light 8; thence to a piont bearing 247°30′ true, 3,650 yards from Drum Point Light 2; thence to point bearing 235° true, 2,060 yards from Drum Point Light 2; thence to a point bearing 129° true, 700 yards from Drum Point Light 2; thence to a point bearing 137° true, 1,060 yards from Drum Point Light 2; and thence to a point on the shore west of Harper Creek entrance, bearing 158°30′ true, 1,900 yards from Drum Point Light 2.
(d) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Air Station, Patuxent River, Md., and such agencies as he may designate.
(a)
(2)
(b)
(2) No person, vessel, or other craft shall enter or remain in the danger zone when notified by the enforcing authority to keep clear. Any watercraft under way or at anchor, upon being so warned, shall immediately vacate the area and shall remain outside the area until conclusion of potentially hazardous test or training events.
(3) The area will be in use intermittently throughout the year.
(4) Prior to the commencement of any potentially hazardous test or training event that requires clearing of non-participant boats from the danger zone, surface or air search of the entire area will be made for the purpose of locating and warning all craft and persons not connected with the test or training event, and a patrol will be maintained throughout the duration of the event.
(5) All persons, vessels, or other craft shall clear the area when warned by patrol vessels.
(6) Patrol vessels will provide warning that a potentially hazardous test or training event is in progress or is about to commence; when so warned, fishing or oystering vessels or other craft not directly connected with the event shall not navigate within the danger zone. Deep-draft vessels proceeding in established navigation channels normally will be permitted to traverse the area upon coordination with range patrol vessels. The patrol vessels will ensure safe separation between all non-participant vessels and potentially hazardous operations.
(7) When potentially hazardous testing or training is not in progress or is not about to commence, oystering and fishing boats and other craft may operate within the danger zone.
(8) All potentially hazardous test or training events will be performed in such a way as to contain the hazard footprint to the established danger zone described in paragraph (a) of this section. Naval authorities will not be responsible for damage to nets, traps, buoys, pots, fish pounds, stakes, or other equipment that may be located within the danger zone.
(9) Nothing in this regulation shall be intended to prevent the lawful use of approved waterfowl hunting blinds along the shorelines of Bloodsworth Island range complex, provided that all necessary licenses and permits have been obtained from the Maryland Department of Natural Resources and the completed copy of the permit has been submitted to the Conservation Division Director at NAS Patuxent River. Waterfowl hunters must observe all warnings and range clearances, as noted herein.
(10) The regulations in this section shall be enforced by the Commander, Naval Air Station Patuxent River,
(a)
(2)
(ii) Prior to firing or ordnance drops, the range will be patrolled by naval surface craft or aircraft to warn watercraft likely to be endangered. Surface craft so employed will display a square red flag. Naval aircraft will use a method of warning consisting of repeated shallow dives in the area, following each dive by a sharp pullup.
(iii) Any watercraft under way or at anchor, upon being so warned, shall immediately vacate the area and shall remain outside the area until conclusion of firing practice.
(iv) Nothing in this section shall prevent the taking of shellfish or the setting of fishing structures within the range outside target areas in accordance with Federal and State regulations:
(v) Naval authorities will not be responsible for damage caused by projectiles, bombs, missiles, or Naval or Coast Guard vessels to fishing structures or fishing equipment which may be located in the aerial firing range immediately adjacent to the target areas.
(b)
(2)
(3)
(c)
(a)
(2)
(b)
(2) Except as otherwise provided in paragraph (b)(6) of this section, persons, vessels or other craft shall not enter or remain in the restricted area when firing is or will soon be in progress unless authorized to do so by the enforcing agency.
(3) Advance notice will be given of the date on which the first firing is to be conducted and such notice will be published in “Notice to Mariners.” Thereafter, the danger zone will be in use intermittently throughout the year and no further notice is contemplated that firing is continuing.
(4) Warning that firing is or will soon be in progress will be indicated by a red flag displayed from one of six dolphin platforms on the perimeter of the prohibited area, and by patrol vessels within the danger zone or by aircraft employing the method of warning known as “buzzing” which consists of low flight by the airplane and repeated opening and closing of the throttle. Surface or air search of the entire area will be made prior to the commencement of firing on each scheduled day. During periods of firing a patrol vessel will remain in the approaches to the restricted area and maintain continuous contact with the firing planes to warn when the area is not clear.
(5) Upon observing the warning flag or upon receiving a warning by any of the patrol vessels or aircraft, persons, vessels or other craft shall immediately vacate the restricted area and remain outside the area until the conclusion of firing for the day.
(6) This section shall not deny traverse of portions of the restricted area by commercial craft proceeding in established steamer lanes, but when firing is or will soon be in progress all such craft shall proceed on their normal course through the area with all practicable speed.
(7) All projectiles, bombs and rockets will be fired to land within the prohibited area, and on or in the immediate vicinity of a target in the restricted area located adjacent to the west side of Tangier Island. The Department of the Navy will not be responsible for damages by such projectiles, bombs, or rockets to nets, traps, buoys, pots, fishpounds, stakes, or other equipment which may be located within the restricted area.
(8) The regulations of this section shall be enforced by the Commander, Naval Air Bases, Fifth Naval District, Norfolk, Virginia, and such agencies as he may designate.
(a)
(b)
(2) All vessels, other than naval craft, are forbidden to anchor within the danger zone except in cases of great emergency. All vessels anchoring under circumstances of great emergency within the area shall leave the area immediately after the emergency ceases or upon notification by the enforcing agency.
(3) Fishing, oystering, clamming, crabbing, and other aquatic activities are forbidden within the limits of the danger zone, except that existing fishing structures licensed by the State of Virginia may be maintained and operated:
(4) Day and night firing over the range will be conducted intermittently by one or more vessels, depending on weather and operating schedules. When firing is in progress, adequate patrol by naval craft will be conducted to prevent vessels from entering or remaining within the danger zone.
(5) This section shall be enforced by the Commandant, Fifth Naval District, U. S. Naval Base, Norfolk, Virginia, and such agencies as he may designate.
(a)
(i)
(ii)
(iii)
(2)
(ii) When hazardous operations are in progress, no person, or fishing or oystering vessels shall operate within the danger zone affected unless so authorized by the Naval Surface Warfare Center, Dahlgren's patrol boats. Oystering and fishing boats or other craft may cross the river in the danger zone only after they have reported to the patrol boat and received instructions as to when and where to cross. Deep-draft vessels using dredged channels and propelled by mechanical
(iii) Due to hazards of unexploded ordnance, no person or craft in the Middle Danger Zone shall approach closer than 100 yards to the shoreline of Naval Surface Warfare Center, Dahlgren, previously known as the Naval Surface Weapons Center.
(3)
(4)
(b)
(2)
(ii) Persons desiring to cross the waters in the danger zone shall first determine whether a red streamer is displayed on the east Shore of Accotink Bay at its mouth or near the danger zone boundary on Accotink Creek. If the red streamer is displayed, it will indicate that firing is in progress and that the waters in the danger zone are covered by rifle fire, and the area shall not be entered until the streamer is lowered.
(iii) The Post Commander is hereby authorized by using such agencies and equipment necessary to stop all persons and boats at the boundary of the danger zone and prohibit their crossing
(a)
(b)
(2) The boundary of the restricted area will be demarcated with marker buoys and warning signs set at 500 foot intervals. In addition, floating small craft intrusion barriers marked with reflective material will be placed across the Chopawamsic Creek channel at the entrance to the channel from the Potomac River and immediately west of the CSX railroad bridge.
(c)
(d)
(a)
(b)
(2) Flashing red lights, horns, and signs established at appropriate points will warn vessels of impending tests or operations considered to be hazardous to vessels within the danger zone.
(3) No persons or vessels except vessels of the United States or vessels authorized by the enforcing agency shall enter or remain in the danger zone while lights are flashing, when warning horns are in operation, or when warned or directed by a patrol vessel.
(4) Nothing in this section shall prohibit the use of Mattawoman Creek or Chicamuxen Creek as a harbor of refuge because of stress of weather.
(5) Except as prescribed in paragraph (b)(3) of this section, persons and vessels may enter and proceed through the danger zone without restriction. However, accidental explosions may occur at any time and persons and vessels entering the area do so at their own risk.
(6) Fishermen operating in the danger zone when warning signals are sounded shall evacuate the area immediately.
(7) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Surface Warfare Center, Indian Head Division, Indian Head, Maryland.
(a)
(b)
(c) The regulations in this section shall be enforced by the District Engineer, U.S. Army Engineer District, Philadelphia, Pa., and such agencies as he may designate.
(a)
(2)
(3)
(b)
(2) Trawling, dragging, and net-fishing are prohibited, and no permanent
(3) The Explosives-Handling Berth (Naval) described in paragraph (a)(3) of this section is reserved for the exclusive use of naval vessels and except in cases of emergency no other vessel shall anchor therein without the permission of local naval authorities, obtained through the Captain of the Port, U.S. Coast Guard, Norfolk, Va. There shall be no restriction on the movement of vessels through the Explosive-Handling Berth.
(4) Vessels shall not be anchored, nor shall persons in the water approach within 300 yards of the perimeter of the Explosives-Handling Berth when that berth is occupied by a vessel handling explosives.
(5) The regulations of this section shall be enforced by the Commander, Naval Base, Norfolk, Virginia, and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Officer in Charge, Cheatham Annex Depot, U.S. Naval Supply Center, Williamsburg, Virginia.
(a)
(b)
(2) The Commanding Officer shall not prevent persons from fulfilling their legal obligation to the Commonwealth of Virginia with regard to oyster planting ground leases that lie within the restricted area. The Commanding Officer may, at his/her discretion, require those persons and vessels working those leases to register with the Langley Air Force Base Security Officer on an annual basis. Failure to comply with this request may result in denial to access the oyster grounds until such time as the request has been complied with.
(3) Persons or vessels contracted with or utilized by the Commonwealth of Virginia to work the oyster grounds shall give verbal notification to the base Security Office prior to entering the restricted area.
(4) City, State and Federal law enforcement vessels may enter the restricted area at any time they deem necessary for the enforcement of their respective laws.
(c)
(a)
(b)
(2) Nothing in the regulations of this section shall prevent the harvesting and cultivation of oyster beds or the setting of fish traps within the restricted area under regulations of the Department of the Army, nor will the passage of fishing vessels to or from authorized traps be unreasonably interfered with or restricted.
(3) Vessels anchored in the area shall be so anchored as not to obstruct the arc of visibility of Deepwater Shoals Light.
(4) The Commanding General, Fort Eustis, Va., will, to the extent possible give public notice from time to time through local news media and the Coast Guard's Local Notice to Mariners of the schedule of intended Army use of the restricted area.
(5) The continuation of the restricted area for more than 3 years after the date of its establishment shall be dependent upon the outcome of the consideration of a request for its continuance submitted to the District Engineer, U.S. Army Engineer District, Norfolk, Virginia, by the using agency at least 3 months prior to the expiration of the 3 years.
(6) The regulations in this section shall be enforced by the Commanding General, Fort Eustis, Va., and such agencies as he may designate.
(a)
(2)
(3)
(b)
(2) This section shall be enforced by the Commander, Norfolk Naval Shipyard, Portsmouth, Va., and such agencies as he may designate.
(a)
(b)
(c)
(a)
(2) Beginning at a point on the Naval Station shore at latitude 36°56′37.5″ N, longitude 76°19′44″ W; thence westerly and northerly along the breakwater to its extremity at latitude 36°56′41.5″ N, longitude 76°19′54″ W; thence westerly to a point on the eastern limit of Norfolk Harbor Channel at latitude 36°56′41.5″ N, longitude 76°20′05.5″ W; thence northerly along the eastern limit of Norfolk Harbor Channel to latitude 36°57′52″ N, longitude 76°20′00″ W; thence easterly to latitude 36°57′52″ N, longitude 76°19′35″ W; thence to latitude 36°57′47.7″ N., longitude 73°18′57″ W; thence southeasterly to latitude 36°57′26″ N, longitude 76°18′42″ W; thence easterly to latitude 36°57′26.2″ N, longitude 76°17′55.2″ W; thence southerly to latitude 36°57′05″ N, longitude 76°17′52″ W; thence southeasterly to latitude 36°56′56.2″ N, longitude 76°17′27″ W; thence northeasterly to latitude 36°57′10″ N, longitude 76°16′29″ W; and thence to the shoreline at latitude 36°57′18.8″ N, longitude 76°16′22″ W, at the Naval Air Station.
(b)
(c)
(a)
(b)
(2) No person or vessel shall approach within 300 yards of any naval vessel or within 600 yards of any vessel displaying the red “baker” burgee.
(3) This section shall be enforced by the Commandant, Fifth Naval District, and such agencies as he may designate.
(a)
(b)
(2) This section shall be enforced by the Commandant, Fifth Naval District, Norfolk, Va.
(a)
(b)
(2) This section shall be enforced by the Commanding General, Tactical Air Command, Langley Air Force Base, Virginia, and such agencies as he may designate.
(a)
(b)
(2) No person or vessel shall enter or remain in the danger zone during periods of firing or bombing or when the zone is otherwise in use.
(3) The Commander, Tactical Air Command, Langley Air Force Base, Va., shall be responsible for publicizing in advance through the Coast Guard's “Local Notice to Mariners,” in the local press, and by radio from time to time the schedule of use of the area, and shall station patrol boats to warn vessels during periods of use.
(4) This section shall be enforced by the Commander, Tactical Air Command, Langley Air Force Base, Va., or such agency as he may designate.
(c)
(a)
(b)
(2) During periods when firing is in progress, red flags will be displayed at conspicuous locations on the beach. Observers will be on duty and firing will be suspended as long as any vessel is within the danger zone.
(3) Passage of vessels through the area will not be prohibited at any time, nor will commercial fishermen be prohibited from working fish nets within the area. No loitering or anchoring for other purposes will be permitted during announced firing periods.
(4) No firing will be done during hours of darkness or low visibility.
(5) The Commander, Fort Monroe, Va., is responsible for furnishing in advance the firing schedule to the Commander, 5th Coast Guard District, for publication in his “Local Notice to Mariners” and to the local press at Norfolk and Newport News, Va.
(c) The regulations in this section shall be enforced by the Commanding Officer, Fort Monroe, Va., and such agencies as he may designate.
(a)
(b)
(2) This section shall be enforced by the Commander, Naval Base, Norfolk, Virginia, and such agencies as he may designate.
(a)
(2)
(b)
(2)
(ii) A large red warning flag will be flown on shore during periods when firing is in progress. Observers will be on duty and firing will be suspended for the passage of vessels and for the placing and maintenance of fish nets within the area.
(c) This section shall be enforced by the Commanding Officer, U.S. Naval Amphibious Base, Little Creek, Norfolk, Virginia.
(a)
(b)
(2) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. When firing is in progress during periods of darkness, red flashing lights will be displayed from conspicuous locations which are visible from the water a minimum distance of four (4) nautical miles.
(3) Firing on the ranges will be suspended as long as any vessel is within the danger zone.
(4) Lookout posts shall be manned by the activity or agency operating the firing range at Fleet Combat Center. After darkness, night vision systems will be utilized by lookouts to aid in locating vessels transiting the area.
(5) There shall be no firing on any ranges during the periods of low visibility which would prevent the recognition of a vessel (to a distance of 7,500 yards) which is properly displaying navigational lights, or which would preclude a vessel from observing the red range flags or lights.
(6) The regulations in this section shall be enforced by the Commanding Officer, Fleet Combat Training Center, Atlantic, Dam Neck, Virginia Beach, Virginia, and other such agencies as he/she may designate.
(a)
(b)
(2) When firing is in progress during daylight hours, red flags will be displayed at conspicuous locations on the beach. When firing is in progress during periods of darkness, red flashing lights will be displayed from conspicuous locations on the beach which are visible from the water a minimum distance of four (4) nautical miles.
(3) Firing on the ranges will be suspended as long as any vessel is within the danger zone.
(4) Lookout posts will be manned by the activity or agency operating the firing range at the Fleet Combat Center, Atlantic, Dam Neck, Virginia Beach, Virginia. After darkness, night vision systems will be utilized by lookouts to aid in locating vessels transiting the area.
(5) There shall be no firing on the range during periods of low visibility which would prevent the recognition of a vessel (to a distance of 7,500 yards) which is properly displaying navigation lights, or which would preclude a vessel from observing the red range flags or lights.
(6) The regulations in this section shall be enforced by the Commander, Naval Air Force, U.S. Atlantic Fleet/Commander, Fleet Air Norfolk, Norfolk, Va., and such agencies as he may designate.
(a)
(b)
(2) This section shall be enforced by the Commanding Officer, U.S. Naval Amphibious Base, Little Creek, Norfolk, Virginia, and such agencies as he may designate.
(a)
(2)
All bearings in this section are referred to true meridian.
(b)
(c)
(d)
(2)
(3)
(4)
(a)
(b)
(c)
(a)
(2)
(b)
(ii) The waters within a circular area with a radius of 0.5 statute mile having its center at latitude 35°04′12″, longitude 76°28′24″.
(iii) The waters within a circular area with a radius of 0.5 statute mile having its center at latitude 35°01′42″, longitude 76°25′48″.
(iv) The waters within a circular area with a radius of 0.5 statute mile having its center at latitude 34°58′48″, longitude 76°26′12″.
(v) The waters within a circular band with an inner radius of 1.8 statute miles and an outer radius of 2.5 statute miles having its center at latitude 35°02′12″, longitude -76°28′00″.
(2)
(ii) The areas described in paragraphs (b)(1) (ii), (iii) and (iv) of this section shall be used for bombing, rocket firing, and strafing areas. Practice and dummy ammunition will be used. All operations will be conducted during daylight hours, and the areas will be open to navigation at night. No vessel or person shall enter these areas during the hours of daylight without special permission from the enforcing agency. The areas will be patrolled and vessels “buzzed” by the patrol plane prior to the conduct of operations in the areas. Vessels or personnel which have inadvertently entered the danger zones shall leave the area immediately upon being warned.
(iii) The areas described in paragraph (b)(1)(v) of this section shall be used as a strafing area. Practice and dummy ammunition will be used. Operations will be conducted on five consecutive days (Monday through Friday) per month during the months of February through November between the hours of 4 p.m. to 11 p.m. The block training dates will be scheduled two weeks in advance of the actual training start date. Marine Corps Air Station Cherry Point will have a call-in number for public use to provide information on the current use of the training area. The Notification to Mariners System will also be utilized to inform the public on the status of the training area. No vessel or person shall enter the area during the scheduled block training session except for such vessels as may be directed by the enforcing agency to enter on assigned duties. The area will be patrolled and vessels “buzzed” by the patrol plane prior to the conduct of
(c)
(a)
(b)
(c)
(2) Entry points into the danger zone will be prominently marked with signage indicating the boundary of the danger zone.
(3) Firing will take place both day and night at irregular periods throughout the year. Appropriate warnings will be issued through official government and civilian channels serving the region. Such warnings will specify the time and duration of operations and give such other pertinent information as may be required in the interest of safety. Upon completion of firing or if the scheduled firing is cancelled for any reason, the warning signals marking the danger zone will be removed.
(4) Except as otherwise provided in this section the danger zone will be open to general public access. Vessels, watercraft, and other vehicles may proceed through the danger zone.
(5) The regulation in this section shall be enforced by the Commanding Officer, Marine Corps Air Station Cherry Point, North Carolina, and/or persons or agencies as he/she may designate.
(a)
All bearings in this section are referred to true meridian.
(b)
(1)
(2)
(3)
(4)
(5)
(6)
(7)
(8)
(c)
(2) Firing will take place both day and night at irregular periods throughout the year. Insofar as training requirements will permit, underwater explosions will be restricted in the Atlantic Ocean sector (described in paragraph (a) of this section) during the periods May 1 and June 5, inclusive, and November 22 to December 15, inclusive.
(3) Two days in advance of the day when firing in any sector except the Stone Creek sector is scheduled to begin, the enforcing agency will warn the public of the contemplated firing, stating the sector or sectors to be closed, through the public press and the U.S. Coast Guard and, in the case of the Atlantic Ocean sector, the Cape Fear Pilots Association at Southport, and the Pilots Association at Moorehead City, North Carolina. The Stone Creek sector may be closed without advance notice.
(4) Towers at least 50 feet in height will be erected near the shore at the northeast and southwest limits of the Atlantic Ocean sector, and towers at least 25 feet in height will be erected near the easterly shore at the upper and lower limits of each New River sector. On days when firing is to take place a red flag will be displayed on each of the towers marking the sector or sectors to be closed. These flags will be displayed by 8:00 a.m., and will be removed when firing ceases for the day. Suitable range markers will be erected indicating the bearings of the north and west limits of the Atlantic Ocean sector.
(5) During the night firing, red lights will be displayed on the towers; and, in the case of the Atlantic Ocean sector, searchlights will be employed as barrier lights to enable safety observers to detect vessels which may attempt to enter the danger zone.
(6) No person shall enter or remain within a 2 acre area surrounding a waterborne refueling training operation, in either the Grey Point Sector, Farnell Bay Sector, or Morgan Bay Sector as described in paragraph (b) of this section, for the duration of the training operation after a notice to conduct a waterborne refueling training operation has been published in the local notice to mariners and has been broadcast over the Marine Band radio network. The 2 acre area surrounding a waterborne refueling training operation will be patrolled and persons and vessels shall clear the area under patrol upon being warned by the surface patrol craft.
(d)
(2)
(e)
(2)
(ii) Vessels may proceed through the Atlantic Intracoastal Waterway in the area without stopping except in cases of extreme emergencies.
(iii) All navigable waters in the area between the south bank of Bear Creek and the north bank of the north connecting channel between the Atlantic Intracoastal Waterway and Browns Inlet shall be closed to navigation at all times. There are highly sensitive unexploded projectiles within the limits of this area.
(iv) Vessels may proceed through the north connecting channel and the south connecting channel (Banks Channel) in the area between the Atlantic Intracoastal Waterway and Browns Inlet to the Atlantic Ocean without stopping during periods of nonmilitary use. Caution should be used when proceeding through these waters due to the presence of unexploded projectiles lying in this area.
(v) Navigable waters in the area between the south connecting channel (Banks Channel) leading to Browns Inlet and Onslow Beach Bridge on both sides of the Atlantic Intracoastal Waterway are open to unrestricted navigation during periods of nonmilitary use. An unknown element of risk exists in this area due to the possible presence of unexploded projectiles.
(vi) Warning of impending military use of the area will be contained in weekly Notice to Mariners.
(vii) Vessels having specific authority from the Commanding General, Marine Corps Base, Camp Lejeune, North Carolina, may enter the area.
(f)
(a)
(b) Except in cases of extreme emergency, all persons or vessels of any size or rafts other than those authorized by the Commander, Sunny Point Army Terminal, are prohibited from entering this area without prior permission of the enforcing agency.
(c) The regulations in this section shall be enforced by the Commander, Sunny Point Army Terminal, Southport, North Carolina, and such agencies as he/she may designate.
(a)
(1) That portion of the Cooper River beginning on the west shore at latitude 32°52′37″, longitude 79°58′06″, thence to latitude 32°52′37″, longitude 79°58′03″, thence to latitude 32°52′27″, longitude 79°68′01″, thence to latitude 32°52′06″, longitude 79°57′54″ at the west channel edge, thence to latitude 32°51′48.5″, longitude 79°57′41.5″, thence to latitude 32°51′33″, longitude 79°57′27″, thence to latitude 32°51′19″, longitude 79°57′05″, thence to latitude 32°51′01″, longitude 79°56′07″, thence to latitude 32°50′50″, longitude 79°56′02″, thence to latitude 32°50′48″, longitude 79°56′07″ on the west shore, thence north along the shoreline including the reach of Noisett Creek to the eastern boundary of the Navy Base to the beginning point at the west shore at latitude 32°52′37″, longitude 79°58′06″.
(2) The reach of Shipyard Creek upstream from a line 300 feet from and parallel to the upstream limit of the Improved Federal Turning Basin.
(3) That portion of the interior Shipyard Creek commencing at latitude 32°49′50″, longitude 79°56′10″, being a point at the southern tip of the shoreline where the northern shore of Shipyard Creek joins the Cooper River, thence going along the northern shore of Shipyard Creek to the southern portion of the existing restructed area in paragraph (a)(2) of this section; thence along said line being 300 feet from and parallel to the upstream limit of the Improved Federal Turning Basin for a distance of 15 feet, thence to the most northerly point of the Improved Federal Turning Basin, thence along the northeastern edge for the Improved Turning Basin to the northeast edge of the main channel of Shipyard Creek to a point lying in the mouth of Shipyard Creek where it reaches the Cooper River at the northeast edge of the main channel of the Shipyard Creek and longitude 79°56′10″, thence to the beginning point at latitude 32°49′50″, longitude 79°56′10″.
(4) That portion of the Cooper River surrounding Pier Yankee beginning at a point on the west shore of the Cooper River at latitude 32°50′00″, longitude 79°56′10.5″, thence to latitude 32°50′00″, longitude 79°55′55″, thence to latitude 32°49′54″, longitude 79°55′55″, to latitude 32°49′50″, longitude 79°56′10″, thence north along the shore to the beginning point at the west shore of the Cooper River at latitude 32°50′00″, longitude 79°56′10.5″.
(5) That portion of the Cooper River beginning on the west channel edge at latitude 32°52′06″, longitude 79°57′54″, thence to the east shore at latitude 32°52′13″, longitude 79°57′30″, thence along the eastern shore to latitude 32°51′30″, longitude 79°56′15.5″, thence to latitude 32°51′01″, longitude 79°55′50″, thence to latitude 32°50′52″, longitude 79°56′03.5″, thence to latitude 32°51′01″, longitude 79°56′07″, thence to latitude 32°51′19″, longitude 79°57′05″, thence to latitude 32°51′33″, longitude 79°57′27″, thence to latitude 32°51′48.5″, longitude 79°57′41.5″, thence to the beginning point at the west channel edge at latitude 32°52′06″, longitude 79°57′54″.
(6) That portion of the Cooper River beginning on the west shore at latitude 32°50′48″, longitude 79°56′07″, thence to latitude 32°50′50″, longitude 79°56′02″, thence to latitude 32°50′32″, longitude 79°55′55″, thence to latitude 32°50′00″, longitude 79°55′55″, thence to latitude 32°50′00″, longitude 79°56′10.5″ on the west shore, thence along the shoreline to the beginning point on the west shore at latitude 32°50′48″, longitude 79°56′07″.
(7) That portion of Goose Creek beginning at a point on the west shore of Goose Creek at its intersection with the Cooper River at latitude 32°54′32″, longitude 79°57′04″; thence proceeding along the western shoreline of Goose Creek for approximately 6.9 miles to its
(8) That portion of the Cooper River, extending from the mouth of Goose Creek, to a point approximately five-hundred (500) yards north of Red Bank Landing, a distance of approximately 4.8 miles, and the tributaries to the Cooper River within the area enclosed by the following arcs and their intersections:
(i) Radius=8255′ center of radius, latitude 32°55′45″, longitude 79°45′23″.
(ii) Radius=3790′ center of radius, latitude 32′55′00″, longitude 79°55′41″.
(iii) Radius=8255′ center of radius, latitude 32°55′41″, longitude 79°56′15″.
(iv) Radius=8255′ center of radius, latitude 32′56′09″, longitude 79°56′19″.
(9) That portion of the Cooper River beginning on the western shoreline at latitude 32°54′37″, longitude 79°57′01″; thence proceeding along the western shoreline in a northerly direction for approximately 4.8 miles to latitude 32°57′32″, longitude 79°55′27″; thence in a southerly direction for approximately 100 yards to latitude 32°57′29″, longitude 79°55′23″, thence in a southwesterly direction, paralleling the shoreline to latitude 32°56′48″, longitude 79°55′48″; thence in an easterly direction for approximately 50 yards to latitude 32°56′49″, longitude 79°55′46″, thence in a southerly direction, paralleling the shoreline, to latitude 32°56′40″, longitude 79°55′40″; thence in a westerly direction for approximately 50 yards to latitude 32°56′39″, longitude 79°55′42″; thence in a southwesterly direction, paralleling the shoreline, to latitude 32°56′15″, longitude 79°56′07″; thence in a southwesterly direction to latitude 32°56′05″, longitude 79°56′17″; thence in a westerly direction, for approximately 50 yards to latitude 32°56′05″, longitude 79°56′19″; thence in a southerly direction, paralleling the shoreline to latitude 32°55′45″, longitude 79°56′19″; thence in a southwesterly direction to latitude 32°55′42″, longitude 79°56′13″; thence in a southeasterly direction, parallel the shoreline, to latitude 32°55′18″, longitude 79°55′55″; thence in a southwesterly direction to latitude 32°55′16″, longitude 79°56′00″; thence in a southwesterly direction paralleling the shoreline to latitude 32°54′35″; longitude 79°56′57″, thence back to latitude 32°54′37″, and longitude 79°57′01″.
(10) That portion of the Cooper River beginning at a point near the center of the Cooper River at latitude 32°55′03″, longitude 79°55′42″; thence proceeding in an easterly direction to latitude, 32°55′03″; longitude 79°55′35″; thence in a southerly direction to latitude 32°54′52″, longitude 79°55′33″; thence in a westerly direction to latitude 32°54′53″, longitude 79°55′42″; thence in a northerly direction to latitude 32°55′03″, longitude 79°55′42″.
(11) That portion of Foster Creek beginning at a point on the southern shoreline of Foster Creek at its intersection with Back River at latitude 32°58′30″, longitude 79°56′33″; thence proceeding along the southern shoreline to the terminus of Foster Creek; thence back down its northern shoreline of Foster Creek to latitude 32°58′34″, longitude 79°56′34″; thence back to latitude 32°58′30″, longitude 79°56′33″.
(12)
(13)
(b)
(2) Personnel, vessels and other watercraft entering the restricted area described in paragraph (a)(5) of this section, shall proceed at normal speed and under no circumstances anchor, fish, loiter, or photograph until clear of the restricted area.
(3) Personnel, vessels and other watercraft may be restricted from using any or all of the area described in paragraphs (a)(3) and (a)(6) of this section without first obtaining an escort or other approval from Commander, Naval Base, Charleston, when deemed necessary and appropriately noticed by him/her for security purposes or other military operations.
(4) Personnel, vessels and other watercraft, other than those specifically authorized by Commanding Officer, U.S. Naval Weapons Station, Charleston, SC, entering the restricted area described in paragraph (a)(8) of this section shall proceed at normal speed, and under no circumstances anchor, fish, loiter, or photograph in any way until clear of the restricted area.
(5) Personnel, vessels and other watercraft, other than those specifically authorized by Commanding Officer, U.S. Naval Weapons Station, Charleston, SC, entering the areas described in paragraphs (a)(9) and (a)(10) of this section are prohibited from entering within one-hundred (100) yards of the west bank of the Cooper River, in those portions devoid of any vessels or manmade structures. In those areas where vessels or man-made structures are present, the restricted area will be 100 yards from the shoreline or 50 yards beyond those vessels or other man-made structures, whichever is the greater. This includes the area in paragraph (a)(10) of this section.
(6) In the interest of National Security, Commanding Officer, U.S. Naval Weapons Station, Charleston, SC, may at his/her discretion, restrict passage of persons, watercraft and vessels in the areas described in paragraphs (a)(7), (a)(8) and (a)(11) of this section until such time as he/she determines such restriction may be terminated.
(7) All restricted areas and all danger zones and the approaches leading to the danger zones will be marked with suitable warning signs.
(8) The regulations described in paragraphs (b) (1), (2) and (3) of this section shall be enforced by Commander, Naval Base, Charleston, and such agencies as he/she may designate.
(9) The regulations in this section for the danger zones described in paragraphs (a)(12) and (a)(13) of this section and the regulations described in paragraphs (b) (4), (5) and (6) of this section, shall be enforced by the Commanding Officer, Naval Weapons Station Charleston, SC, and such agencies as he/she may designate.
(10) It is understood that none of the restrictions herein will apply to properly marked Federal vessels performing official duties. It is further understood that Federal employees will not take photographs from within the above described restricted areas.
(11) The unauthorized entering or crossing of the danger zones described in paragraphs (a)(12) and (a)(13) of this section by all persons, watercraft and vessels is prohibited at all times unless specifically authorized by the Commanding Officer of the U.S. Naval Weapons Station Charleston, SC.
(a)
(2) Area No. 2 is that portion of the Cooper River beginning at a point west of Shutes Folly Island at “a” Latitude 32°46′27″, Longitude 79°55′31″; thence to “b” Latitude 32°46′39″, Longitude 79°55′11″; thence to “c” Latitude 32°46′39″, Longitude 79°54′51″; thence to “d” Latitude 32°46′28″, Longitude 79°54′47″; thence to “e” Latitude 32°46′17″, Longitude 79°54′51″; thence to “f” Latitude 32°46′17″, Longitude 79°55′11″; and thence returning to “a” Latitude 32°46′27″, Longitude 79°55′31″.
(b)
(2) No person shall enter or remain in the water within the restricted areas. Ships transiting the areas will proceed without delay and shall not, except as noted below, lie to or anchor within the areas.
(i) Pleasure craft under 50 feet LOA will not normally be affected; however, such craft may be required to stand clear upon notification, in the event they are interfering with range operation.
(ii) Anchored commercial ships will be allowed to swing into the restricted area at the Shutes Folly Island site when the range is not in use. Shutes Folly Island Range usage will be indicated by range house display of the international DELTA signal flag.
(iii) This section shall be enforced by the Commandant, Sixth Naval District, Charleston, South Carolina, and such agencies as he may designate.
(a)
(2) That portion of Mulligan Creek located on the southern side of the MCAS runway, beginning at a point on the eastern shoreline of Mulligan Creek at latitude 32.48993°, longitude 80.69836°, thence southwesterly across Mulligan Creek to the shoreline of the MCAS, latitude 32.48771°, longitude 80.70424°, thence continuing in a northerly direction along the eastern shoreline of the MCAS, thence in a northeasterly direction along the and southern side of the MCAS runway, thence back down the eastern shoreline of Mulligan Creek to its starting point, latitude 32.48993°, longitude 80.69836°.
(3) That area adjacent to the Atlantic Intracoastal Waterway (AIWW), situated within the boundaries of the area described in paragraph (a)(1) of this section, beginning at a point on the west side of the AIWW navigational channel at latitude 32.463732°, longitude 80.690208°, thence continuing in a northerly direction along the western channel edge of the AIWW to latitude 32.467999°, longitude 80.690749°, thence turning in a westerly direction and continuing to latitude 32.467834°, longitude 80.700080°, on the eastern shore of the MCAS, thence heading in a southward direction along the shoreline to latitude 32.463692°, longitude 80.698440°, thence turning in a westerly direction and returning back to the starting point on the west edge of the AIWW channel, latitude 32.463732°, longitude 80.690208°.
(4) That area contiguous to Albergottie Creek, situated within the boundaries of the area described in paragraph (a)(1) of this section, beginning at a point on the southern shoreline of the MCAS at latitude 32.452376°, longitude 80.708263°, thence continuing in a northerly direction along the shoreline, up to the shoreline adjacent to Kimes Avenue and back down the opposite shoreline in a southerly direction to a point at latitude 32.450643°, longitude 80.715653°, thence turning in an easterly direction and returning back to the starting point at latitude 32.452376°, longitude 80.708263°.
(5) That area contiguous to Salt Creek, situated within the boundaries of the area described in paragraph (a)(1) of this section, beginning at a point on the southern shoreline of the MCAS and the edge of Salt Creek at latitude 32.45194°, longitude 80.724473°, thence continuing in a northerly direction along the shoreline of the MCAS and continuing on to its intersection again with Salt Creek and adjacent to U.S. Highway 21, thence turning and continuing along the shoreline of Salt Creek in an easterly direction and returning back to the starting point at latitude 32.45194°, longitude 80.724473°.
(6) That section of the Atlantic Intracoastal Waterway (AIWW), beginning at the confluence of the AIWW and Albergottie Creek, being that point on the west side of the AIWW navigational channel at latitude 32.457226°, longitude 80.687770°, thence continuing in a northerly direction along the western channel edge of the AIWW to latitude 32.458580°, longitude 80.689181°, thence to latitude 32.460413°, longitude 80.689228°, thence to latitude 32.461459°, longitude 80.689418°, thence to latitude 32.464015°, longitude 80.690294°, thence to latitude 32.470255°, longitude 80.690965°, thence to latitude 32.471309°, longitude 80.691196°, thence to latitude 32.475084°, longitude 80.692455°, thence to latitude 32.478161°, longitude 80.691546°, thence to latitude 32.479191°, longitude 80.691486°, thence to latitude 32.481817°, longitude 80.691939°, thence to latitude 32.493001°, longitude 80.689835°, thence to latitude 32.494422°, longitude 80.688296°, thence crossing the AIWW channel in a southeasterly direction to a point on the east side of the AIWW and the marsh edge of bank, latitude 32.49343°, longitude 80.68699°, thence southward along the edge of the AIWW and the waterward marsh edge of Ladies Island to a point on the west shoreline of Pleasant Point Peninsular, latitude 32.45806°, longitude 80.68668°, thence back across the AIWW navigational channel to the point of beginning, latitude 32.457226°, longitude 80.687770°.
(7) That portion of Mulligan Creek, beginning at its northern mouth and
(8) That portion of Mulligan Creek, beginning at the Perryclear Drive bridge crossing, latitude 32.50534°, longitude 80.69960°, thence proceeding in a south westerly direction along the northern shoreline of Mulligan Creek to the terminus of its western tributary, thence back down its southern shoreline to the terminus of its eastern terminus located at the northern end on the MCAS runway, latitude 32.49531°, longitude 80.70658°, thence back down the southern shoreline to its starting point at Perryclear Drive bridge crossing, latitude 32.50534°, longitude 80.69960°.
(9) (
(10) (
(b)
(2) The public shall have unrestricted access and use of the waters described in paragraph (a)(6) of this section whenever the MCAS is in Force Protection Condition Normal, Alpha or Bravo. Whenever the facility is in Force Protection Condition Charlie or Delta, personnel, vessels and other watercraft entering the restricted area described in paragraph (a)(6) of this section shall proceed at normal speed and shall under no circumstances anchor, fish, loiter or photograph in any way until clear of the restricted area.
(3) The public shall have unrestricted access and use of the waters described in paragraphs (a)(1), (a)(7), and (a)(9) of this section whenever the MCAS is in Force Protection Condition Normal Alpha or Bravo. Whenever the facility is in Force Protection Condition Charlie or Delta, personnel, vessels and other watercraft are prohibited from entering the waters described in paragraphs (a)(1), (a)(7), and (a)(9) of this section, unless they first obtain an escort or other approval from the Commander, MCAS, Beaufort, South Carolina.
(4) Unauthorized personnel, vessels and other watercraft shall not enter the danger zone described in paragraph (a)(10) of this section at any time.
(5) All restricted areas and danger zones will be marked with suitable warning signs.
(6) It is understood that none of the restrictions herein will apply to properly marked Federal vessels performing official duties.
(7) It is further understood that unauthorized personnel will not take photographs from within the above described restricted areas.
(c)
(a) During periods when the rifle and pistol ranges on Parris Island are in use, the following areas will be restricted to navigation:
(1)
(2)
(b) Firing over these ranges will normally take place between the hours of 6:30 a.m. and 5 p.m., Monday through Friday, and from 6 a.m. to 12 noon on Saturday, National holidays excepted, and at other times as designated and properly published by the Commanding General, Parris Island Marine Base.
(c) No person, vessel and other watercraft shall enter the restricted waters when firing is in progress. At all other times these waters are open to navigation. Safety regulations shall be enforced at all times with the following specific precautions being provided by the Parris Island Marine Base:
(1)
(2)
(d) The regulations in this section shall be enforced by the Commanding General, Marine Corps Recruit Depot, Parris Island, South Carolina, and such agencies as he may designate.
(a)
(2)
(b)
(2) Prior to conducting each practice, the entire area will be patrolled by aircraft to warn any persons and watercraft found in the vicinity that such practice is about to take place. The warning will be by “buzzing,” (
(3) The regulations in this section shall be enforced by the Commanding Officer, 2d Bombardment Wing, Hunter Air Force Base, Savannah, Georgia, and such agencies as he may designate.
(a)
(2)
(3)
(4)
(5)
(b)
(2)
(3)
(4)
(c)
(a) The area is described as:
(1) A line running at 238.5° true and paralleling the pier at 100 feet is extended from the eastern edge of the mooring platform #59 to the western edge of platform #65. From these points the boundaries are extended to the shoreline along lines running at 328.5°.
(2) The easterly waterward coordinate being:
(3) The westerly waterward coordinate being:
(b)
(2) This regulation shall be enforced by the Officer in Charge, U.S. Navy Fuel Depot, Jacksonville, Florida, and such agencies as the officer in charge may designate.
(a)
(2)
(3)
(4)
(b)
(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.
(3) Warning signs will be posted near the MCSF-BI shoreline advising boaters of the restrictions in this section.
(c)
(2) Enforcement of the regulations in this section will be accomplished utilizing the Department of Defense Force Protection Condition (FPCON) System. From the lowest security level to the highest, Force Protection Conditions levels are titled Normal, Alpha, Bravo, Charlie and Delta. The regulations in this section will be enforced as noted in paragraph (b) of this section, or at the discretion of the Commanding Officer.
(a)
(b)
(2) Prior to each bombing operation the danger zone will be patrolled by naval aircraft which will warn all persons and vessels to leave the area by “zooming” a safe distance to the side and at least 500 feet above the surface. Upon being so warned, such persons and vessels shall leave the danger zone immediately and shall not re-enter the danger zone until bombing operations have ceased.
(3) At intervals of not more than three months, public notices will be issued that bombing operations are continuing. Such notices will appear in the local newspaper and in “Notice to Mariners”.
(4) The regulations in this section shall not deny passage through Lake George by regular cargo-carrying vessels proceeding along established lanes for such vessels. When any such vessel is within the danger zone the officer in charge of the bombing operations will cause the cessation or postponement of such operations until the vessel has cleared the area. The vessel shall proceed on its normal course and shall not delay its progress.
(5) The regulations in this section shall be enforced by the Commander, Naval Air Bases, Sixth Naval District, Naval Air Station, Jacksonville, Florida, and such agencies as he may designate.
(a)
(b)
(2) Due to the nature of this restricted area, closures may occur with little advance notice. Closure of the area shall be noticed by warning statements displayed on the electronic marquee signs located at the gates of the KSC and on an electronic marquee sign located on the north side of the Port Canaveral ship channel between the Trident and Poseidon wharfs during the duration of the closure. If time permits, additional information will be published in area newspapers and announced on marine radio broadcast.
(c)
(a)
(b)
(2) The area will be closed when a red square flag (bravo), and depending on the status of the hazardous operation, either an amber or red beacon, steady burning or rotating, day or night, when displayed from any of the three berths along the wharf.
(3) Lighted signs indicating the restricted area will be placed on the pier and adjacent thereto.
(4) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Ordnance Test Unit, AFMTC, Patrick Air Force Base, Florida.
(a)
(b)
(2) Due to the nature of this restricted area, closures may occur with very little advance notice. Closure of the area shall be noticed by the display of a red beacon located at the southern entrance to Cape Canaveral Air Force Station. Information will be provided via marine radio broadcast during the duration of the area closure.
(c)
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, 45th Space Wing, Patrick Air Force Base, Florida, and such agencies as he/she may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Director, John F. Kennedy Space Center, NASA, Cocoa Beach, Fla.
(a)
(b)
(2) The regulations of this section shall be enforced by the Facility Director, Naval Surface Warfare Center, Detachment Dania, Florida, and such agencies as he/she may designate.
(a)
(b)
(2) Warning signals will be used to warn persons and vessels that the danger zone is active. These signals will be in the form of a large red ball and a red flashing high intensity beacon. One signal will be located on a 90-foot pole near the shoreline at the north end of the danger zone, and one signal will be located on a 90-foot pole near the shoreline about one-half mile north of the south limit of the danger zone. An amber rotating beacon and warning sign will be erected on the north side of the Port Canaveral ship channel to indicate to vessels about to leave the harbor that the danger zone is in use.
(3) When the signals in paragraph (b)(2) of this section are displayed, all persons and vessels, except those authorized personnel and patrol vessels, will immediately leave the danger zone by the most direct route and stay out until the signals are discontinued.
(4) The regulations in this paragraph shall be enforced by the Commander, Air Force Missile Test Center, Patrick Air Force Base, Fla., and such agencies as he may designate.
(a)
(b)
(2) Due to the nature of this restricted area, closures may occur with very little advance notice. Closure of the area shall be noticed by the display of a red ball and red beacon from a 90-foot pole near the shoreline at approximately latitude 28°35.0′ N, longitude 80°34.8′ W and from a 90-foot pole near the shoreline at approximately latitude 28°25.3′ N, longitude 80°35.0′ W. Information will be provided via marine radio broadcast and a warning statement displayed on an electronic marquee sign located on the north side of the Port Canaveral ship channel between the Trident and Poseidon Wharf during the duration of the area closure.
(c)
(a)
(b)
(2) The regulations will be enforced by the Commanding Officer, Naval Ordnance Test Unit, Patrick Air Force Base, Florida, or such agencies he may designate.
(a)
(2) All waters within 100 yards of the westerly shoreline of the Harry S. Truman Annex and all waters within a portion of the Truman Annex Harbor, as defined by a line beginning on the shore at Latitude 24°33′00″ N., Longitude 81°48′41.7″ W.; thence to a point 100 yards due west at Latitude 24°33′00″ N., Longitude 81°48′45″ W.; thence northerly, paralleling the westerly shoreline of the Harry S. Truman Annex, including a portion of the Truman Annex Harbor entrance, to Latitude 24°33′23″ N., Longitude 81°48′37″ W.; thence southeasterly to the shore (sea wall) at Latitude 24°33′19.3″ N., Longitude 81°48′28.7″ W. (Area #2).
(3) All waters within 100 yards of the U.S. Coast Guard Station and the westerly end of Trumbo Point Annex beginning at the shore at Latitude 24°33′47.6″ N., Longitude 81°47′55.6″ W.; thence westerly to Latitude 24°33′48″ N., Longitude 81°48′00.9″ W.; thence due south to Latitude 24°33′45.8″ N., Longitude 81°48′00.9″ W.; thence westerly to Latitude 24°33′47″ N., Longitude 81°48′12″ W.; thence northerly to Latitude 24°34′06.2″ N., Longitude 81°48′10″ W.; thence easterly to a point joining the restricted area around Fleming Key at Latitude 24°34′03.3″ N., Longitude 81°47′55″ W. (Area #3).
(4) Beginning at the last point designated in area 3 at Latitude 24°34.0550′
(5) All waters contiguous to the southwesterly shoreline of Boca Chica Key beginning at a point on the southwest shoreline at Latitude 24°33′24″ N., Longitude 81°42′30″ W.; proceed due south 100 yards to Latitude 24°33′20.4″ N., Longitude 81°42′30″ W.; thence, maintaining a distance of 100 yards from the shoreline, proceed westerly and northerly to Latitude 24°34′03″ N., Longitude 81°42′47″ W.; thence due north to a point at the easterly end of the U.S. Highway 1 (Boca Chica Channel) bridge at Latitude 24°34′39″ N., Longitude 81°42′47″ W. (Area #5).
(6)
(b)
(2) Privately owned vessels, properly registered and bearing identification in accordance with Federal and/or State laws and regulations may transit the following portions of restricted areas #2, #3 and #5. NOTE: All vessels entering the areas at night must display lights as required by Federal laws and Coast Guard regulations or, if no constant lights are required, then the vessel must display a bright white light showing all around the horizon,
(i) The channel, approximately 75 yards in width, extending from the northwest corner of Pier D-3 of Trumbo Point Annex, eastward beneath the Fleming Key bridge and along the north shore of Trumbo Point Annex (area #3).
(ii) A channel of 150 feet in width which extends easterly from the main ship channel into Key West Bight, the northerly edge of which channel passes 25 feet south of the Trumbo Point Annex piers on the north side of the Bight. While the legitimate access of privately owned vessels to facilities of Key West Bight is unimpeded, it is prohibited to moor, anchor, or fish within 50 feet of any U.S. Government-owned pier or craft (area #3).
(iii) The dredged portion of Boca Chica channel from its seaward end to a point due south of the east end of the Boca Chica Bridge (area #5).
(iv) All of the portion of Restricted Area No. 2 that lies between the Truman Annex Mole and the Key West Harbor Range Channel. The transit zone extends to the northeasterly corner of the Truman Annex Mole, thence to the northwesterly end of the breakwater at Latitude 24°33′21.3″ N, Longitude 81°48′32.7″ W.
(3) Stopping or landing by any person and/or any vessel, other than Government-owned vessels and specifically authorized private craft in any of the restricted areas or danger zone described in paragraph (a) of this section is prohibited.
(4) Vessels using the restricted channel areas described in paragraph (b)(2) (i), (ii), (iii), and (iv) of this section shall proceed at speeds commensurate with minimum wake.
(c) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station, Key West, Florida, and such agencies as he/she may designate.
(a)
(2)
(ii) A circular area located directly west of Marquesas Keys with a radius of three statute miles having its center at latitude 24°35.6′ and longitude 82°11.6′, not to include land area within Marquesas Keys. The targets located within this area, pile-mounted platforms, will be used as high altitude horizontal bombing range utilizing live ordnance up to and including 1,800 pounds of high explosives. In general, these explosives will be of an air-burst type, above 1,500 feet.
(iii) A circular area located west of Marquesas Keys with a radius of two nautical miles having its center at latitude 24°34′30″ and longitude 82°14′00″.
(b)
(2) Watercraft shall not be prohibited from passing through the operational training area except when the operations being conducted are of such nature that the exclusion of watercraft is required in the interest of safety or for accomplishment of the mission, or is considered important to the national security.
(3) When the warning to navigation interests states that bombing and strafing operations will take place over the designated target areas or that other operations hazardous to watercraft are proposed to be conducted in a specifically described portion of the overall area, all watercraft will be excluded from the target area or otherwise described zone of operations and no vessel shall enter or remain therein during the period operations are in progress.
(4) Aircraft and naval vessels conducting operations in any part of the operational training area will exercise caution in order not to endanger watercraft. Operations which may be
(5) The regulations in this section shall be enforced by the Commandant, Sixth Naval District, Charleston, S.C., and such agencies as he may designate.
(a)
(b)
(2) Advance notice will be given of the date on which the first firing practice shall begin. At intervals of not more than three months thereafter, notice will be sent out that firing practice is continuing. Such notices will appear in local newspapers and in “Notice to Mariners.”
(3) The regulations in the section shall be enforced by the proper Air Force Authority at MacDill Air Force Base.
(a)
(b)
(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.
(c)
(a)
(b)
(2) Prior to the conduct of rocket firing, the area will be patrolled by surface patrol boat and/or patrol aircraft to insure that no persons or watercraft are within the danger zone and to warn any such persons or watercraft seen in the vicinity that rocket firing is about to take place in the area. When aircraft is used to patrol the area, low flight of the aircraft across the bow will be used as a signal or warning.
(3) Any such person or watercraft shall, upon being so warned, immediately leave the area, and until the conclusion of the firing shall remain at such a distance that they will be safe from the fallout resulting from such rocket firing.
(4) The regulations in this section shall not deny access to or egress from harbors contiguous to the danger zone in the case of regular passenger or cargo carrying vessels proceeding to or from such harbors. In the case of the presence of any such vessel in the danger zone the officer in charge shall cause the cessation or postponement of fire until the vessel shall have cleared that part of the area in which it might be endangered by the fallout. The vessel shall proceed on its normal course and shall not delay its progress unnecessarily. Masters are requested to avoid the danger zone whenever possible so that interference with firing training may be minimized.
(c) The regulations in this section shall be enforced by the Commander, Moody Air Force Base, Valdosta, Georgia, and such agencies as he may designate.
(a)
(b)
(2) During firing, the entire area plus 5 miles beyond in all directions shall be kept under surveillance by one control helicopter equipped with FM and UHF
(3) The regulations in this section shall be enforced by the Commanding Officer, U.S. Army Aviation Test Board, Fort Rucker, Ala., and such agencies as he may designate.
(a)
(b)
(2) Patrol boats and aircraft will warn all persons and navigation out of the area before each testing period.
(3) The regulations in this section shall be enforced by the Commander, Headquarters 4756th Air Defense Wing (Weapons) U. S. Air Force, Tyndall Air Force Base, Florida, and such other agencies as he may designate.
(a)
(b)
(2) All persons and vessels will be warned to leave the danger area during firing practice by surface patrol boat and/or patrol aircraft. When aircraft is used to patrol the area, low flight of the aircraft overhead and/or across the bow will be used as a signal or warning. Upon being so warned all persons and vessels shall clear the area immediately.
(3) The area will be open to all vessels whenever firing practice is not being conducted.
(4) The regulations in this section shall be enforced by the Commanding Officer, Tyndall Air Force Base, Florida, and such agencies as he may designate.
(a)
(2)
(b)
(2) Area No. 2 will be operated on a sporadic schedule, with firings likely each day including Saturdays, Sundays, and holidays, between the hours of 6:00 a.m. and 5:00 p.m. A 10′ × 18′ red flag will be displayed on a pole at the shore line whenever firing is in progress.
(3) The regulations in this section shall be enforced by the Commanding Officer, Tyndall Air Force Base, Florida, and such agencies as he may designate.
(a)
(2)
(b)
(ii) No person, vessel or other craft shall enter or remain within the aerial gunnery range along the north shore of
(2)
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, Air Force Proving Ground Command, Eglin Air Force Base, Florida, and such agencies as he may designate.
(a)
(b)
(2) During periods of firing, passage through the area will not be denied to cargo-carrying or passenger-carrying vessels or tows proceeding on established routes. In case any such vessel is within the danger area, the officer in charge of firing operations will cause the cessation or postponement of fire until the vessel shall have cleared the portion of the danger area involved. The entire area involved will be under constant observation of both surface patrol vessels and air patrol planes prior to and during periods of firing and notice will be given to vessels and tows of intention to fire by buzzing low over the vessel, upon which signal vessels and tows shall proceed on their established course promptly and clear the area as soon as possible.
(3) All person and vessels exclusive of those identified in paragraph (b)(2) of this section will warned to leave the immediate danger area during firing periods by surface patrol craft. Upon being so warned, such persons and vessels shall clear the area immediately. Such periods normally will not exceed two hours.
(4) The regulations in this section shall be enforced by the Commanding Officer, Air Force Proving Ground
(a)
(2)
(b)
(2) No person, vessel or other watercraft shall enter the prohibited area, except to navigate the Gulf Intracoastal Waterway. Such vessels and other watercraft shall confine their movements to the waters within the limits of the Intracoastal Waterway and shall make the passage as promptly as possible under normal vessel speed.
(3) During periods when experimental test operations are underway no person, vessel or other watercraft shall enter or navigate the waters of the restricted area.
(4) Warning signs will be erected on the shore lines of Santa Rosa Sound and the Gulf of Mexico to mark the limits of the respective areas.
(5) The regulations in this section shall be enforced by the Commander, Headquarters Air Proving Ground Command, Eglin Air Force Base, Florida, and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, Eglin Air Force Base, Florida, or such agencies as he may designate.
(a)
(b)
(2) These regulations shall be enforced by the Commander, Eglin Air Force Base, Florida, or such agencies as he may designate.
(a)
(b)
(2) The restriction noted in paragraph (b)(1) of this section is in effect 24 hours a day, 7 days a week.
(3) The regulations in this section shall be enforced by the Officer in Charge, Naval Support Activity Panama City, Panama City Beach Florida, and such agencies as he/she may designate.
(a)
(2)
(3)
(4)
(5)
(6)
(b)
(2) All areas identified in this section have the potential to be active at any time. The normal/routine activation of any area will be noticed to the public via a General Local Notice to Mariners. Activation of any area for significant exercises and training events will be noticed, in advance and during the event, to the public via Notice to Mariners and Broadcast Notice to Mariners.
(3)
(4)
(c)
(a)
(2)
(3)
(b)
(2) All areas identified in this section have the potential to be active at any time. The normal/routine activation of any area will be noticed to the public via a General Local Notice to Mariners. Activation of any area for significant exercises and training events will be noticed, in advance and during the event, to the public via Notice to Mariners and Broadcast Notice to Mariners.
(c)
(a)
(b)
(2) All areas identified in this section have the potential to be active at any time. The normal/routine activation of any area will be noticed to the public via a General Local Notice to Mariners. Activation of any area for significant exercises and training events will be noticed, in advance and during the event, to the public via Notice to Mariners and Broadcast Notice to Mariners.
(c)
(a)
(b)
(2) Vessels are allowed to enter and remain in this area provided they have operational communication equipment capable of monitoring VHF Marine frequency Channel 16, (156.80 MHz). In the event the Marine radio equipment is not installed on the vessel, CB equipment with Channel 13 (27.115 MHz) will be used as an alternate means of communications. Warnings will be broadcast by the Air Force on Channel 16 (156.80 MHz) and Channel 13 (27.115 MHz) using the following sequence:
(i) Announcement 90 minutes prior to drone launch.
(ii) Announcement 60 minutes prior to drone launch.
(iii) Announcement of drone launch or drone cancelled, and the expected time of the drone launch. Upon receipt of the drone warning on either Channel 16 (156.80 MHz) or Channel 13 (27.115 MHz), vessels will take the necessary action to vacate the drone launch corridor not later than 60 minutes prior to expected drone launch.
(3) Vessels are authorized direct movement without stopping through this area at any time unless warned by helicopter or patrol boat.
(4) The area will be patrolled by helicopter/vessels during periods of hazardous military activity. Verbal warnings or instructions issued by these craft will be strictly adhered to.
(5) The regulations in this section shall be enforced by the Commanding Officer, Tyndall Air Force Base, Florida, and such agencies as he may designate.
(a)
(2) The waters within an area enclosed by the following points: Beginning at latitude 30°21.58′ N., longitude 87°12.49′ W.; thence to latitude 30°20.25′ N., longitude 87°11.00′ W.; thence to latitude 30°20.28′ N., longitude 87°14.27′ W.; thence to the point of beginning. This encompasses a large triangular area north of Santa Rosa Island and west of the land area between Fair Point and Deer Point.
(b)
(2) The area described in paragraph (a)(2) of this section will normally be utilized Wednesday through Friday between 8 a.m. and 4 p.m. for parasail operations.
(3) During those times that specific missions, exercises, or training operations are being conducted, the U.S. Navy vessels and/or crafts designated as essential to the operation(s) by proper U.S. Navy authority shall have the rights-of-way. All other vessels and crafts are required to keep clear of and remain 300 yards from all naval vessels engaged in said operations. Approaching within 300 yards of vessels and/or crafts while they are engaged in operations and/or training exercises is prohibited.
(4) Vessel traffic through the restricted area will remain open during operations and/or exercises; however, mariners shall exercise extreme caution and be on the lookout for swimmers, small craft and helicopters when transiting the area. It should be presumed by all mariners that Navy operations and/or exercises are being conducted whenever military craft and/or helicopters are operating within the restricted area.
(5) Any problems encountered regarding Navy operations/exercises within the restricted area should be addressed to “Navy Pensacola Command” on Channel 16 (156.6 MHz) for resolution and/or clarification.
(6) The regulations in this section shall be enforced by the Commander of the Naval Air Station, Pensacola, Florida, and such agencies as he/she may designate.
(a)
(b)
(2) The existing “Navy Channel” adjacent to the north shore of Magazine Point, by which vessels enter and egress Bayous Davenport and Grande into Pensacola Bay shall remain open to all craft except in those extraordinary circumstances where the Commanding Officer, N.A.S. or his/her designee determines that risk to the installation, its personnel, or property is so great and so imminent that closing the channel to all but designated military craft is required for security reasons, or as directed by higher authority. This section will not preclude the closure of the channel as part of a security exercise; however, such closures of said channel will be limited in duration and scope to the maximum extent so as not to interfere with the ability of private vessels to use the channel for navigation in public waters adjacent thereto not otherwise limited by this regulation.
(3) The regulations in this section shall be enforced by the Commanding Officer of the Naval Air Station, Pensacola, Florida, and such agencies he/she may designate.
(a)
(b)
(2) All persons, vessels, and other craft are prohibited from entering the waters described in paragraph (a) of this section for any reason. All vessels and craft, including pleasure vessels and craft (sailing, motorized, and/or rowed or self-propelled), private and commercial fishing vessels, other commercial vessels, barges, and all other vessels and craft, except vessels owned or operated by the United States and/or a Federal, State, or local law enforcement agency are restricted from entering, transiting, anchoring, drifting or otherwise navigating within the area described in paragraph (a) of this section.
(3) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station Pensacola and/or such persons or agencies he/she may designate.
(a)
(b)
(2) The restricted area is in effect twenty four hours per day and seven days a week (24/7).
(3) Should warranted access into the restricted navigation area be needed, all entities are to contact the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, Maine, or his/her authorized representative on Marine Communication Channel 16.
(c)
(a)
(b)
(c)
(a)
(b)
(2) The regulations of this section shall be enforced by the Commanding Officer, Naval and Marine Corps Reserve Center, Orange, Texas, and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Chief of Naval Air Training, U.S. Naval Air Station, Corpus Christi, Tex., and such agencies as he may designate.
(a)
(b)
(c)
(a)
(b)
(2) The regulations in this section shall be enforced by the Commanding Officer of the Holston Ordnance Works, Kingsport, Tennessee, and such agencies as he may designate.
(a)
(b)
(c)
(a)
(b)
(a)
(b)
(2) The enforcing agency is hereby authorized to use such agencies as shall be necessary to prohibit all persons and vessels from entering the area until such time as shall be convenient.
(3) If such flags are displayed it will indicate that firing is in progress, and that the waters in the danger zone are subject to impact by rounds missing or ricocheting off the impact berm and should not be entered until the flags are lowered.
(4) Wherever possible, the enforcing agency will warn the public of the contemplated times of firing and the areas involved two days in advance of the scheduled date, through the public press and the U.S. Coast Guard. The danger zone may, however, be closed without advance notice.
(5) [Reserved]
(6) The regulations in this section shall be enforced by the Commander, U.S. Naval Training Center, Great Lakes, Illinois, and such agencies as he may designate.
(a)
(2)
(b)
(2) When the airport is in operation a red ball, at least three feet in diameter, shall be continuously displayed at the northeast and northwest corners of
(a)
(b)
(2) During specific, infrequent periods when Military exercises will be conducted, as promulgated in the Local Notice to mariners published by the USCG, no vessel or craft of any size shall lie-to or anchor in the danger zone, other than a vessel operated by or for the USCG, or any other authorized agency.
(c)
(d)
(a) The danger zone: Consists of the waters of Lake Erie within:
(1)
(2)
(b)
(2)
(c) Authorized dates and hours of firing:
(1)
(2)
(d)
(2) The danger areas within the danger zone shall be open to the public for navigation, fishing and other public use when firing and/or bombing is not scheduled.
(e)
(1)
(2)
(f)
(2)
(3) [Reserved]
(4) The appropriate enforcing officer has authority to suspend any scheduled firing for reasonable periods during regattas and immediately after fishing nets are destroyed or dislocated by severe storms.
(5) The special firing notices which will include schedules of use will be published by the enforcing officer indicated in paragraph (e) of this section, in sufficient time to permit circularization to interested parties and posting on the bulletin boards of post offices in surrounding localities. Special notices will also be furnished the District Engineer, Corps of Engineers, Detroit, Mich.; the Commander, Ninth Coast Guard District, Cleveland, Ohio; the Regional Manager, Federal Aviation Administration, Chicago, Ill.; and each of the enforcing agencies listed in paragraph (e) of this section. Users of the waterway shall familiarize themselves with the current special firing notices. If in doubt, inquiry should be made to the enforcing officer indicated in paragraph (e) of this section.
(6) Agencies desiring to use the areas shall present their requirements to the respective enforcing officer who is responsible for, and is granted authority to, coordinate the firing and established priorities, for the using agencies.
(g)
(h)
(i) The regulations in this section shall be reviewed annually by the Department of the Army to determine whether further limitations of the danger zone shall be considered.
(a)
(b)
(c)
(a)
(b)
(2) A portion of the restricted area extending 120 feet from pierheads and from the low water mark on shore where piers do not exist is closed to all persons and vessels except those owned by, under hire to, or performing work for, the Naval Amphibious Base.
(3) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay. For vessels under sail, necessary tacking shall constitute a direct route.
(4) The regulations in this section shall be enforced by the Commanding Officer, Naval Amphibious Base, Coronado, California, and such agencies as he/she shall designate. Organized activities (such as sail races and regattas) within the restricted area may be allowed providing that a request has been made to the Commanding Officer, Naval Amphibious Base, Coronado, San Diego, California 92155 or by calling, telephone number (619) 522-4833 at least 10 days prior to the event.
(a)
(b)
(2) Dragging, seining, other fishing operations, and other activities not under the direction of the United States, which might foul underwater installations within the restricted area, are prohibited.
(3) All tows entering the restricted area shall be streamed and shortened to the seaward of the area and towing appendages and catenaries shall not be dragged along the bottom while proceeding through the area.
(4) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay.
(5) No vessel or craft of any size shall lie-to or anchor in the restricted area at any time other than a vessel operated by or for components, or other vessels authorized by Commander, Navy Region Southwest, or his/her designee.
(6) When security conditions dictate, Naval security forces may impose strict enforcement of stand-off distances within the restricted area. This enforcement will not prevent utilization of navigable channels, but will serve to control its use in order to protect vital National interests.
(c)
(a)
(b)
(2) The danger zone will be open to fishing and general navigation when no weapons firing is scheduled, which will be indicated by the absence of any warning flags or flashing lights on land in the locations specified in paragraphs (b)(3) and (b)(4) of this section.
(3) When live firing is about to be undertaken or is in progress during daylight hours, three (3) large red warning flags will be displayed at the top of the flag poles on the southern berm of the small arms range, so as to be clearly visible from all points of entry into the danger zone. The west flag pole is located on the southern berm at latitude 32°41′21.5″ N, longitude 117°12′42.8″ W, the middle flag pole is located at latitude 32°41′21.7″ N, longitude 117°12′40.9″ W, and the east flag pole is located at latitude 32°41′22.4″ N, longitude 117°12′38.7″ W.
(4) When live firing is about to be undertaken or is in progress during periods of darkness, three (3) red flashing warning lights will be displayed at the top of the flag poles on the southern berm of the small arms range at the locations described in paragraph (b)(3) of this section, so as to be clearly visible from all points of entry into the danger zone.
(5) The danger zone is not considered safe for vessels or individuals when live firing is in progress. When live firing is about to begin or is scheduled as indicated by the warning flags or flashing warning lights described in paragraphs (b)(3) and (b)(4) of this section, all vessels will be required to expeditiously vacate the danger zone.
(6) Anchoring by any vessel within the danger zone is prohibited.
(7) Prior to conducting live firing, Navy personnel will visually scan the danger zone to ensure that no vessels or individuals are located within it. Any vessels or individuals in the danger zone will be notified by the Navy Range Safety Officer using a marine VHF-FM marine radio and by other means as necessary, to exit the danger zone and remain outside the area until conclusion of live firing. As new technology becomes available, the VHF-FM marine radio communications system may be updated.
(8) Safety observers will be posted in accordance with range standard operating procedures at all times when the warning flags or flashing lights described in paragraphs (b)(3) and (b)(4) of this section are displayed. Operation of the small arms range will only occur when visibility is sufficient to maintain visual surveillance of the danger zone and vicinity. In the event of limited visibility due to rain, fog or other conditions, live firing will be postponed until the danger zone can be confirmed clear of all vessels and individuals.
(9) Naval Base Coronado will maintain a schedule of live firing at the small arms range on its Web site,
(c)
(a)
(2)
(ii) Transit will be allowed through the restricted area except that no transit will be allowed within 100 feet of the ammunition pier (Bravo Pier). All unauthorized vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay. Only vessels owned by, under hire to, or performing work for the Naval Air Station or the Naval Weapons Station may operate within 100 feet of the ammunition pier.
(b)
(2)
(ii) Craft of any size shall not be excluded from transiting the area. However, they shall proceed through the area by the most direct route without delay or loitering. On occasion, access to the bait barges may be delayed for intermittent periods not exceeding 30 minutes.
(iii) No craft of any size shall lay-to or anchor within the area except on prior permission granted by the Officer in Charge, U.S. Naval Degaussing Station.
(c)
(2)
(ii) Dredging, dragging, seining, other fishing operations, and other activities not under the direction of the United States, which might foul underwater installations within the restricted area, are prohibited.
(iii) All tows entering the restricted area shall be streamed and shortened to the seaward of the area and towing appendages and catenaries shall not be dragged along the bottom while proceeding through the area.
(iv) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay.
(d)
(2)
(ii) Loitering, dredging, dragging, seining, fishing and similar activities within the restricted area are prohibited.
(e)
(a)
(b)
(2) No other vessels shall anchor or moor permanently in the area except by special permission obtained in advance from the Commander, Naval Base, San Diego, Calif.
(3) The regulations in this section shall be enforced by the Commandant, 11th Naval District, San Diego, Calif., and such agencies as he may designate.
(a)
(b)
(2) Dredging, dragging, seining, and other similar operations within the restricted area are prohibited.
(3) The regulations in this section shall be enforced by the Commandant, Eleventh Naval District, San Diego, California, and such agencies as he may designate.
(a)
(b)
(2) Dredging, dragging, seining, fishing operations, and other activities, which might foul underwater installations within the restricted area, are prohibited.
(3) All vessels entering the restricted area shall proceed across the area by the most direct route and without unnecessary delay.
(4) The regulations in this section shall be enforced by the Commanding General, U.S. Marine Corps Base, Camp
(a)
(b)
(2) Loitering, dredging, dragging, anchoring, seining, fishing, and similar activities within the restricted area during vertical replenishment operations use is prohibited.
(c)
(a)
(b)
(2) The regulations in this section shall be enforced by the Commanding General, U.S. Marine Corps Base, Camp Pendleton, California, or such agencies as he may designate.
(a)
(b)
(2) Dredging, dragging, seining or other fishing operations within these boundaries are prohibited.
(3) No seaplanes, other than those approved for entry by Naval Ordnance Test Station, may enter the area.
(4) The regulations in this section shall be enforced by security personnel attached to the U.S. Naval Ordnance Test Station, China Lake, California, and by such agencies as may be designated by the Commandant, Eleventh Naval District, San Diego, California.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, Naval Base, San Diego, and such agencies as he/she shall designate.
(a)
(b)
(2) All craft authorized transit of this area shall stay within the limits of the entrance channel in the Outer Harbor, and confine their movement to within the limits of the marked small craft channel at the southern portion of the Inner Harbor.
(3) Recreational craft, such as water skis, jet skis (personal water craft), row boats, canoes, kayaks, wind surfers, sail boards, surf boards, etc., and any activity involving persons in the water, are specifically prohibited within the restricted area.
(4) Boats unable to throttle down or to maintain steerage way at 5 miles per hour speed shall proceed at the minimum speed consistent with seamanship in an area regularly subject to waterborne explosive handling operations. In case of doubt, boat operators of inbound boats will remain in the west end of the basin and outbound boats in the east end of the basin until informed by a representative of the Naval Weapons Station or U.S. Coast Guard of the completion of the waterborne explosive handling hazard.
(5) Smoking, open flames and barbecues in boats are prohibited during the transit of this area.
(6) Nothing in the regulations in this section shall be construed as relieving the owner or persons in command of any vessels or plant from the penalties of the law for obstructing navigation or for not complying with the navigation laws in regard to lights or signals or for otherwise violating law.
(7) All vessel operators shall heed and obey all posted signs and/or instructions issued by security personnel of the U.S. Naval Weapons Station.
(8) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Weapons Station, Seal Beach, California, and such agencies as he/she may designate. For clarification or other information, the U.S. Naval Weapons Station Command Duty Officer should be contacted at (213) 594-7101.
(a)
(b)
(a)
(2)
(b)
(2) Except as otherwise provided in this paragraph, the danger zone will be open to fishing and general navigation. When firing is not scheduled the danger zone may be occupied without restriction. When firing is in progress safety observers will be maintained to warn all vessels. Notice to vacate the area, or to stop at the boundaries, will be given by siren, patrol vessel, or other effective means, and such notice shall be promptly obeyed. All vessels permitted to enter the danger zone during a firing period, other than those owned by and operated by or under the direction of the U.S. Government, shall proceed across the area by the most direct route and clear the area with the greatest possible dispatch. No person shall enter the water and no vessel, fishing boat, or recreational craft shall anchor in the danger zone during an actual firing period.
(3) Nothing in this section shall be construed as relieving the owner or person in charge of a vessel from any penalties for obstructing navigation, or for obstructing or interfering with range lights, or for not complying with the navigation laws in regard to lights and fog signals, or for otherwise violating any law or regulations.
(4) The regulations in this section shall be enforced by the Commanding Officer, Fort MacArthur, California, and such agencies as he may designate.
(a)
(2) The waters of the Pacific Ocean within an area beginning at China Point Light; extending in a direction of 181 degrees true, 2.0 nautical miles; thence 303 degrees true, 5.35 nautical miles; thence 040.4 degrees true to the beach.
(3) The waters of the Pacific Ocean within an area beginning at Pyramid Head Light; extending in a direction of 133 degrees true, 2.0 nautical miles; thence 024 degrees true, 2.14 nautical miles, thence 313 degrees true, 7.6 nautical miles; thence 220 degrees true to the beach.
(b)
(2) All persons in the area are warned that unexploded ordinance exists within the shore bombardment area on San Clemente Island and in the surrounding waters. All persons should exercise extreme caution when operating in the area.
(3) Information about scheduled exercises will be published in the Local Notice to Mariners and also may be obtained by calling the shore bombardment area scheduler at (619) 437-2231. Vessels in the vicinity of San Clemente Island may obtain information on the status of the range by contacting the Navy Observation Post by marine radio on channel 16. However, the Navy Observation Post is normally manned only during firing exercises. In addition, since the Navy Observation Post may not be able to receive radio transmissions or answer a vessel calling from the area described in paragraph (A)(3) of this section due to interference from the land mass, it is recommended that callers position their craft for line-of-sight transmission with the Navy Observation Posts near Pyramid Cove prior to assuming that the range is not in use.
(4) Except in an emergency, no vessel shall anchor in these areas without first obtaining permission from the Commander, Naval Base, San Diego or from the senior officer present in the area who may grant permission to anchor not exceeding the period of time that he, himself, is authorized to remain there. The senior officer present shall advise the Commander, Naval Base, San Diego when and to whom a berth is assigned.
(5) The regulations in this section shall be enforced by the Commander, Naval Base, San Diego, and such agencies as he/she shall designate.
(a)
(b)
(2) Except as otherwise provided in this section, the danger zone will be open to fishing and general navigation.
(3) The operations officer, Naval Ordnance Test Station, Pasadena Annex, Pasadena, California, will announce firing schedules. Each week, public notices will be issued giving advance firing schedules. Such notices will appear in the local newspapers and in local “Notice to Mariners” and “Notice to Airmen.” For the benefit of the fishermen and small-craft operators, announcements will be made on the marine radio.
(4) When a scheduled firing is about to be undertaken, fishing boats and other small craft will be contacted by surface patrol boats or aircraft equipped with a loudspeaker system. When so notified, all persons and vessels shall leave the area immediately by the shortest route. Upon completion of firing or if the scheduled firing is cancelled for any reason, fishermen and small-boat operators will be notified as far in advance as possible by Marine Radio Broadcast.
(5) The regulations in this section shall be enforced by security personnel attached to the Naval Ordnance Test Station, Pasadena Annex, and by such agencies as may be designated by the Commandant, Eleventh Naval District, San Diego.
(a)
(b)
(2) The regulations in this section shall be enforced by the commander, Naval Base, San Diego, California, and such agencies as he/she shall designate.
(a)
(b)
(2) BRAVO section is the westerly section of the area, and is described as follows:
(3) CHARLIE section is the easterly section of the area, and is described as follows:
(c)
(1) At Point M two triangular markers are installed facing southward, 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, each pole being located on the line of longitude 119°29′40″ W. and near the southerly shoreline at latitude 33°13′10″ N. The southernmost marker is 20 feet below the other.
(2) At Point N two triangular markers are installed facing northwesterly, 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, the poles being located near the northwesterly shoreline at latitude 33°16′30″ N. and longitude 119°30′40″ W. The northernmost marker is 20 feet below the other.
(3) At Point O two triangular markers are installed facing northeasterly, 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, the poles being located near the northeasterly shoreline at latitude 33°15′43″ N. and longitude 119°28′40″ W. The northernmost marker is 20 feet below the other.
(d)
(2) Subject to the provisions of paragraph (d)(4) of this section, relating to sections BRAVO and CHARLIE, no vessels other than Pacific Missile Range craft and those cleared for entry by COMPMR, or the Officer-in-Charge, San Nicolas Island shall enter any section of the area at any time except in an emergency, proceeding with extreme caution.
(3) Dredging, dragging, seining, anchoring and other fishing operations within ALPHA section of the area are prohibited at all times.
(4) Dredging, dragging, seining, or other fishing operations are allowed within the boundaries of BRAVO and CHARLIE sections at all times except when declared closed by COMPMR. Notice that sections BRAVO and/or CHARLIE are closed to fishing shall be given by publication of notices to mariners, or may be obtained by monitoring standard Coast Guard radio broadcasts or by contacting the Pacific Missile Range by telephone or radio. Boats must remain at least 300 yards from the shoreline of San Nicolas Island at all times. Nothing in this provision shall be construed as authorization for personnel to land on San Nicolas Island, except in an emergency.
(5) The regulations in this section shall be enforced by personnel attached to the Pacific Missile Range, Point Mugu, Calif., and by such agencies as may be designated by the Commandant, 11th Naval District, San Diego, Calif.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, U.S. Naval Base Los Angeles, Long Beach, California, and such agencies as he may designate.
(a)
All bearings in this section are referred to true meridian.
(b)
(a)
(2) The waters of the entrance channel to Oakland Inner Harbor (San Antonio Estuary) between the westerly end of the rock wall on the south side of the channel and the easterly boundary of the Naval Air Station.
(b)
(2) No person shall enter this area and no vessel without special authorization of the Commander, Twelfth Coast Guard District, shall lie, anchor or moor in the area described in paragraph (a)(2) of this section. Vessels may proceed through the entrance channel in process of ordinary navigation or may moor alongside wharves on the Oakland side of the channel.
(a)
(b)
(a)
(b)
(2) All vessels over 1,000 tons displacement, bound for the Naval Supply Center, Oakland, shall use a qualified pilot regularly licensed for the waters of Oakland Harbor.
(a)
(b)
(a)
(b)
(a)
(b)
(2) Mooring, anchoring, fishing, transit and/or swimming shall not be allowed within the Restricted Area without prior written permission from the Commanding Officer of the Coast Guard Group San Francisco on Yerba Buena Island.
(c)
(a)
(b)
(a)
(b)
(a)
(b)
(a)
(b)
(a)
(b)
(2) The regulations in this section shall be enforced by the Commanding Officer, Naval Weapons Station Concord, and such agencies as he/she shall designate.
(a)
(b)
(2) Except as otherwise provided in this section, the danger zone will be open to fishing and general navigation.
(3) The Commanding Officer, U.S. Naval Construction Battalion Center, Port Hueneme, California, will announce firing schedules. Each week, public notices will be issued giving advance firing schedules. Such notices will appear in the local newspapers and in local “Notice to Mariners,” and “Notice to Airmen.” For the benefit of fishermen and smallcraft operators, announcements will be made on the marine radio.
(4) When a scheduled firing is about to be undertaken or is in progress, a large red flag will be displayed from the control tower situated at latitude 34°05′32″, longitude 119°03′57″, so as to be clearly visible for a distance of at least three (3) miles offshore. Safety observers will be on duty at all times when the warning flag is being displayed from the tower. Upon completion of firing, or if the scheduled firing is canceled for any reason, fishermen and small-boat operators will be notified as far in advance as possible by Marine Radio Broadcast.
(5) Persons, vessels or other craft shall not enter or remain in the danger zone when the warning flag is being
(6) The regulations in this section shall be enforced by the Commandant, Eleventh Naval District, San Diego, California, and such agencies as he may designate.
(a)
(b)
(2) The danger zone may be used at all times for navigation and fishing, except when advance notice of intention to use this area has been given by the enforcing agency by one or more of the following means:
(i) Notice published in Ventura County daily newspaper, at least two days in advance of the date of said use and in the local “Notice to Mariners.”
(ii) Display of red flag from the tower at 34°05′53″ N., 119°06′59″ W; or display of red flashing beacons in the case of night firing.
(iii) Radio broadcast on VHF-FM channel 16.
(iv) Notice to individual craft by visit of United States vessel.
(v) Telephone advice to such fisherman's organizations as may request, in writing, that such advice be given.
(3) Safety observers will be on duty at all times when the range is in use. Upon completion of firings, or if the scheduled firing is canceled for any reason, fishermen and small boat operators will be notified as far in advance as possible by Marine Radio Broadcast.
(4) Persons, vessels or other craft shall not enter or remain in the danger zone when the warning flag or beacon is being displayed unless authorized to do so by the range officer in the control tower.
(5) The regulations in this section shall be enforced by personnel attached to the Naval Air Weapons Station, Point Mugu, California, and by such other agencies as the Commandant, Eleventh Naval District, San Diego, California, may designate.
(a)
(b)
(c)
(a)
(b)
(c)
(a)
(2) The danger area described in paragraph (a)(1) of this section will be divided into zones in order that certain firing tests and operations, whose characteristics as to range and reliability permit, may be conducted without requiring complete evacuation of the entire area. These zones are described as follows:
(i)
(ii)
(iii)
(iv)
(v)
(vi)
(vii)
(viii)
(ix)
(b)
(2) The stopping or loitering by any person or vessel is expressly prohibited within Danger Zone 4, between the mouth of the Santa Ynez River and Point Arguello, unless prior permission is obtained from the Commander, Western Space and Missile Center (WSMC) at Vandenberg AFB, California.
(3) The impacting of missile debris from launch operations will take place in any one or any group of zones in the danger areas at frequent and irregular intervals throughout the year. The Commander, WSMC, will announce in advance, the closure of zones hazarded by missile debris impact. Such advance announcements will appear in the weekly “Notice to Mariners.” For the benefit of fishermen, small craft operators and drilling platform operators, announcements will also be made on radio frequency 2182 kc, 2638 kc, VHF channel 6 (156.30 MHZ), VHF channel 12 (156.60 MHZ), and VHF channel 16 (156.80 MHZ) for daily announcements. Additionally, information will be posted on notice boards located outside Port Control Offices (Harbormasters) at Morro Bay, Port San Luis, Santa Barbara, Ventura, Channel Islands, and Port Hueneme Harbors, and any established harbor of refuge between Santa Barbara and Morro Bay.
(4) All fishing boats, other small craft, drilling platforms and shipping vessels with radios are requested to monitor radio frequency 2182 kc, 2638 kc, VHF channel 6 (156.30 MHZ), VHF channel 12 (156.60 MHZ), or channel 16 (156.80 MHZ) while in these zones for daily announcements of zone closures.
(5) When a scheduled launch operation is about to begin, radio broadcast notifications will be made periodically, starting at least 24 hours in advance. Additional contact may be made by surface patrol boats or aircraft equipped with a loudspeaker system. When so notified, all persons and all
(6) The Commander, WSMC, will extend full cooperation relating to the public use of the danger area and will fully consider every reasonable request for its use in light of requirements for national security and safety of persons and property.
(7) Where an established harbor of refuge exists, small craft may take shelter for the duration of zone closure.
(8) Fixed or movable oil drilling platforms located in zones identified as hazardous and closed in accordance with this regulation shall cease operations for the duration of the zone closure. The zones shall be closed continuously no longer than 72 hours at any one time. Such notice to evacuate personnel shall be accomplished in accordance with procedures as established by the Commander, WSMC, the U.S. Department of the Interior, Minerals Management Service and the oil industry in the adjacent waters of the outer continental shelf.
(9) No seaplanes, other than those approved by the Commander, WSMC, may enter the danger zones during launch closure periods.
(10) The regulations in this section shall be enforced by personnel attached to WSMC and by such other agencies as may be designated by the Commander, WSMC.
(11) The regulations in this section shall be in effect until further notice. They shall be reviewed again during August 1994.
(a)
(b)
(1) At point A two triangular markers are installed facing southward, 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, each pole being placed on the line of longitude 120°23′17″ W. and near the southerly shoreline at latitude 34°01′32″ N. The southernmost marker is 20 feet below the other.
(2) At point H two triangular markers are installed facing true north 10 feet in length on each side, with red and white diagonal stripes, each marker mounted atop 80-foot poles spaced 100 yards apart, each pole being placed on the line of longitude 120°23′17″ W. and near the northwesterly shoreline at latitude 34°03′09″ N. The northernmost marker is 20 feet below the other.
(c)
(2) The anchoring, stopping or loitering by any person, vessel, fishing boat or recreational craft within the danger zone during scheduled firing/drop hours is expressly prohibited.
(3) The bomb drops will take place in the danger zone at frequent and irregular intervals throughout the year. Danger zone usage demands are identified in the Eleventh Coast Guard District, “Local Notice of Mariners.” Announcements will also be made on marine radio channel 16, at 0800 local
(4) The Commander, PMTC will extend full cooperation relating to the public use of the danger zone area and will fully consider every reasonable request for its use in light of requirements for national security and safety of persons and property.
(5) No seaplanes, other than those approved for entry by the Commander, PMTC, may enter the danger zone during firing periods.
(6) Landing by any vessel or going ashore by any person on San Miguel Island is specifically prohibited without prior permission of the Superintendent, Channel Islands National Park. Applications for such permission should be made to: Superintendent, Channel Islands National Park, 1699 Anchors Way Drive, Ventura, California 93003.
(7) The regulations in this section shall be enforced by personnel attached to the Pacific Missile Test Center, Point Mugu, California, and by such other agencies as the Commandant, 11th Naval District, San Diego, California, may designate.
(8) The regulations in this section shall be in effect until further notice. They shall be reviewed in 1986.
(a)
(ii) The danger zone is divided into a short range area, extending seaward from the shore a distance of 5,000 yards measured along the southerly and northerly boundaries, and a long range area embracing the entire danger zone.
(2)
(ii) The area between the 5,000 yard short range and the 8,000 yard seaward boundary of the danger zone may be used at all times for navigation and fishing, except when advance notice of intention to use this area has been given by the enforcing agency by one or more of the following means.
(
(
(
(
(
(iii) The regulations in this paragraph will be enforced by the Commanding General, Fort Ord, California.
(b)
(2)
(a)
(b)
(a)
The danger zone shall be used until September 30, 1982, after which it shall be subject to review to determine the further need thereof.
(b)
(a)
(b)
(2) Prior to each target practice operation the restricted area will be patrolled by naval aircraft. Those persons and vessels found within the restricted area will be overflown by the aircraft at an altitude of not less than 300′ in the direction in which the unauthorized person and vessel are to proceed to clear the area.
(c) The regulations in this section shall be enforced by the Commandant, Thirteenth Naval District, Seattle, Washington, and such agencies as he may designate.
(a)
(2)
(ii) Navigation will be permitted within the area at all times except when naval exercises are in progress. No vessel shall enter or remain in the area when such exercises are in progress. Prior to commencement of an exercise, the Navy will make an aerial or surface reconnaissance of the area. Vessels under way and laying a course through the area will not be interfered with, but they shall not delay their progress. Vessels anchored or cruising in the area and vessels unobserved by the Navy reconnaissance which enter or are about to enter the area while a torpedo is in the water will be contacted by a Navy patrol boat and advised to steer clear. Torpedos will be tested only when all vessels or other craft have cleared the area.
(iii) When operations are in progress, use of the area will be indicated by the presence of Naval vessels flying a “Baker” (red) flag.
(iv) Notices of temporary suspension and revival of operations will be published in local newspapers and in Notice to Mariners published by the U.S. Coast Guard.
(b)
(2)
(ii) No vessel shall trawl or drag in the area.
(iii) No vessel shall anchor in the area except between the shore and the 10-fathom depth line.
(iv) Operations will normally be confined to the period from about 9:30 a.m., to 2:30 p.m., on Mondays through Fridays, and will normally consist of intermittent tests of less than 30 minutes duration, with boat passage permitted between tests. Transits of log-tows and other slow-moving traffic will be arranged on a mutually satisfactory individual basis as appropriate. Emergencies or high-priority projects may occasionally cause operations outside the periods specified above. No operations will be conducted on Sundays.
(c) The regulations in this section shall be enforced by the Commandant, Thirteenth Naval District, and such agencies as he may designate.
(a)
(b)
(c)
(2) All persons and vessels entering these areas shall be obliged to comply with orders received from naval sources pertaining to their movements while in the areas.
(3) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, and such agencies as he/she may designate.
For
(a)
(2)
(ii) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, and such agencies as he/she may designate.
For
(a)
(b)
(2) Mooring, anchoring, fishing and/or recreational boating shall not be allowed within the restricted area without prior written permission from the Commanding Officer, Naval Station Everettt.
(c)
(a)
(2)
(3)
(ii)
(B) Use of any equipment such as anchors, grapnels, etc., which may foul underwater installations within the restricted area, is prohibited at all times.
(C) Dumping of any nonbuoyant objects in this area is prohibited.
(D) Navigation will be permitted within that portion of this circular area not lying within Area No. 1 at all times except when magnetic silencing operations are in progress.
(E) When magnetic silencing operations are in progress, use of the area will be indicated by display of quick flashing red beacons on the pier located in the southeast quadrant of the area.
(4)
(a)
(2)
(ii) The regulations in this paragraph shall be enforced by the Commander, Naval base, Seattle, and such agencies as he/she may designate.
For
(a)
(2)
(3)
(ii)
(b)
(a)
(b)
(c)
(a)
(2)
(ii) No marine craft of any type shall at anytime approach or remain within one hundred yards of the hydrophone buoys. The hydrophone buoys will be anchored in Carr Inlet on a line perpendicular to the course line opposite Ketner's Point, and about one mile from the Fox Island shore. The course line, or range, will bear 134°38′21″ (314°38′21″) true, and will be marked by range beacons erected near the shoreline approximately one mile north-northeast of of Steilacoom and approximately two miles north-northeast of Home.
(iii)
(iv) The remainder of the area shall be open to navigation at all times except when the range is in use or when hydrophones are being calibrated. When the range is in use or hydrophones are being calibrated, quick flashing beacon lights will be displayed on signal towers located at Gibson Point, Green Point, Penrose Point, Pitt Island and Hyde Point. These beacon lights will be either red or green. The beacon lights will show quick flashing every two seconds. The ranging of vessels or calibration of hydrophones requiring retrictions will be conducted 24 hours per day for up to 5 days consecutively, and will total approximately 150 days spread throughout the year. Shutting off of beacon lights will indicate termination of use of the range. Insofar as possible, the schedule of operations giving the days the range will be in use for each forthcoming month will be published in local newspapers and in the local U.S. Coast Guart Notice to Mariners.
(v) When the red beacon lights are displayed, indicating that the range is in use or hydrophones are being calibrated, navigation within the area will be restricted as follows:
(
(
(
(
(
(
(
(
(
(
(3) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, and such agencies as he/she may designate.
(b) [Reserved]
For
(a)
(2)
(ii) The regulations in this paragraph shall be enforced by the Commander, Naval Base, Seattle, or his/her authorized representative.
(b) [Reserved]
For
(a)
(b)
(c)
(a)
(b)
(2)
(3)
(4)
(5)
(ii) Small craft may operate within 500 yards of the shoreline at speeds no
(iii) During the period May 1 through September 15 annually, the Navy will only conduct acoustic measurement tests which will result in transitory restrictions in Area #5 for a total of no more than 15 days.
(iv) Transitory restrictions in Area #5 will not be enforced during daylight hours when Navy testing coincides with pre-scheduled special events in Behm Canal. Special events are defined as summer holidays or celebrations, competitions, or economic endeavors scheduled by an agency or organization, and typically occurring every year for the utilization of natural resources of Behm Canal. Special events include commercial emergency seine fishery openings from July 25 through September 15, historic salmon derbies lasting eight days or less, Memorial Day, Labor Day, Independence Day or any nationally recognized three day weekend to celebrate these holidays.
(v) Public notification that the Navy will be conducting operations in Behm Canal will be given at least 72 hours in advance to the following Ketchikan contacts: U.S. Coast Guard, Ketchikan Gateway Borough Planning Department, Harbor Master, Alaska Department of Fish and Game, KRBD Radio, KTKN Radio, and the Ketchikan Daily News.
(c) Vessels will be allowed to transit Restricted Area #5 within 20 minutes of marine radio or telephone notification to the Navy Range Operations Officer.
(d)
(a)
(b)
(2) The fact that practice firing is to take place over the designated area shall be advertised to the public 72 hours in advance through the usual media for the dissemination of such information. Notice to the U.S. Coast Guard and NOTAM shall be issued at least 48 hours before firing is to be conducted on the range. Information as to the dates, time, and characteristics of the firing shall be advertised in advance of each session of firing.
(3) Prior to conducting each practice firing, the danger zone shall be patrolled by aircraft to note the location of all vessels within the area. The practice firing exercise shall be conducted in the portion of the danger zone not occupied by surface craft.
(4) This section shall be enforced by the Commander, Alaskan Air Command, U.S. Air Force, Seattle, Washington, or such agencies as he may designate.
(a)
(b)
(2) All mariners entering the area will do so at their own risk and are
(3) The regulation in this section shall be enforced by the Department of the Air Force, Headquarters 6th Weather Wing (MAC), Andrews Air Force Base, Washington, D.C. 20331.
(a)
(b)
(2) The fact that practice firing is to take place over the designated area shall be advertised to the public 7 days in advance through the usual media for the dissemination of such information. Notice to the U.S. Coast Guard and NOTAM shall be issued at least 48 hours before firing is to be conducted on the range. Information as to the dates, time, and characteristics of the firing shall be advertised in advance of each session of firing.
(3) Prior to conducting each practice firing, the danger zone shall be patrolled by aircraft to note the location of all vessels within the area. The practice firing exercise shall be conducted in the portion of the danger zone not occupied by surface craft.
(4) The regulations in this section shall be enforced by the Commander, Alaskan Air Command, U.S. Air Force, Anchorage, Alaska, or such agencies as he may designate.
(a)
(ii) The area will be marked at points approximately 200 feet apart along the shore by white signs containing the word “Warning.” The signs will not be lighted.
(2)
(b)
(2) The dropping and dragging of anchors, weights, or other ground tackle within the Dry Cargo dock mooring area is prohibited.
(3) The regulations in this section shall be enforced by the District Engineer, U.S. Army Engineer District, Anchorage, Alaska, and such agencies as he may designate.
(a)
(b)
(2) The dragging of anchors in or across the restricted area is prohibited
(3) Fishing and trawling activities in the restricted area are prohibited.
(4) The regulation of this restricted area shall be enforced by the Commander, Patrol Wing, U.S. Pacific Fleet, Naval Air Station Moffett Field, California, and such agencies and he/she may designate.
(a)
(b)
(2) A ring of eight lighted and marked navigation buoys marking the perimeter of the mooring anchor system will provide a visible distance reference at a radius of approximately 800 yards from latitude 51°53′05.4″ N, longitude 176°33′47.4″ W (NAD 83). Each buoy has a white light, flashing at 3 second intervals with a 2 nautical mile range. Vessels, persons or other craft must stay at least 200 yards outside the buoys.
(3) The regulation in this section shall be enforced by personnel attached to the Missile Defense Agency and/or by such other agencies as the Director, MDA-AK, Fort Richardson, Alaska, may designate.
(a)
(b)
(2) Dragging of anchors in or across the restricted area is prohibited and no object attached to a vessel shall be placed on or near the bottom.
(3) The regulations in this section shall be enforced by the Commander, Third Fleet, Pearl Harbor, Hawaii and such agencies as he may designate.
(a)
(2)
(b)
(c)
(a)
(b)
(2) The regulations of this section shall be enforced by the Commanding General, U.S. Army, Hawaii/25th Infantry Division, APO 957, and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commanding Officer, Naval Air Station, Barber's Point, Hawaii, 96862, and such agencies as he/she may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commanding Officer, Explosive Ordnance Disposal Training and Evaluation Unit One, Barbers Point, Hawaii 96862-5600.
(a)
(b)
(2) Whenever live firing is in progress during daylight hours, two large red triangular warning pennants will be flown at each of two highly visible and widely separated locations on the shore at Ulupau Crater.
(3) Whenever any weapons firing is scheduled and in progress during periods of darkness, flashing red warning beacons will be displayed on the shore at Ulupau Crater.
(4) Boaters will have complete access to the danger zone whenever there is no weapons firing scheduled, which will be indicated by the absence of any warning flags, pennants, or beacons displayed ashore.
(5) The danger zone is not considered safe for boaters whenever weapons firing is in progress. Boaters shall expeditiously vacate the danger zone at best speed and by the most direct route whenever weapons firing is scheduled. Passage of vessels through the danger zone when weapons firing is in progress will be permitted, but boaters shall proceed directly through the area at best speed. Weapons firing will be suspended as long as there is a vessel in the danger zone. Whenever a boater disregards the publicized warning signals that hazardous weapons firing is scheduled, the boater will be personally requested to expeditiously vacate the danger zone by MCBH Kaneohe Bay military personnel utilizing by hailing the vessel on VHF channel 16 or contacting directly by U.S. Navy surface craft.
(6) Observation posts will be manned whenever any weapons firing is scheduled and in progress. Visibility will be sufficient to maintain visual surveillance of the entire danger zone and for an additional distance of 5 miles in all directions whenever weapons firing is in progress.
(c)
(a)
(b)
(2) Range markers at the control point at latitude 22°02′44.5″ N., longitude 159°47′16.4″ W., are separated 300 feet (one pole 75 feet west and the other pole 225 feet east of this point) along a line bearing 266°20′ True.
(3) The range marker poles seaward from each control point are 25 feet in height above ground level. The other two poles are 45 feet above ground level.
(4) Each range marker consists of a 10-foot equilateral triangle with alternate red and white diagonal stripes.
(c)
(a)
(b)
(2) Dredging, dragging, seining, or other fishing operations which might foul underwater installations within the area are prohibited.
(3) Use of the restricted area for boating, fishing (except as prohibited in paragraph (b)(2) of this section) and other surface activities is authorized.
(4) The regulations in this section shall be enforced by the Officer in Charge, Fleet Area Control and Surveillance Facility, Pearl Harbor, Hawaii 96860-7625, and such agencies as he/she may designate.
(a)
(b)
(2) Operating officers and personnel of the Makai Test Range will be responsible for marking in a conspicuous manner the location of surface and underwater equipment which is subject to damage from navigation and fishing activities in the vicinity or represents a hazard to persons or property in the vicinity, and the location of the work area during critical testing phases. Surface communication by boat will be provided by the Makai Test Range during testing phases.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commanding Officer, U.S. Naval Station, Guam, Marianas Islands and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by Commander Naval Forces Marianas and such agencies as he may designate.
(3) The water areas of the outer boundaries of the restricted area will not be marked but signs will be posted at the designated boundary coordinates to warn against trespassing in the restricted area.
(a)
(b)
(2) All ships are advised to contact Kwajalein Control (2716 KC for voice, 500 KC for CW initial contact, and 468 KC for CW working) before entering the area.
(a)
All bearings in this section are referred to true meridian.
(2)
(3)
The outer boundaries of the danger zones will not be marked, but signs will be posted along shore to warn against trespassing in the firing areas.
(b)
(2) The fact that practice firing is to take place over the designated area will be advertised to the public through the usual media for the dissemination of such information. Factual information as to the dates, time, and characteristics of the firing will be advertised in advance of each session of firing but in no case less than one week nor more than four weeks before such firing is scheduled to take place.
(3) Prior to conducting each practice firing, the entire danger zone will be patrolled by aircraft or surface vessels to insure that no watercraft are within the danger zone. Any watercraft in the vicinity will be warned that practice firing is about to take place. Any such watercraft shall, upon being so warned, leave the danger zone immediately and shall not return until such practice shall have been terminated and notification to that effect shall have been given by the patrol craft, except that vessels proceeding on a regular course through the area will be allowed to proceed out of the area without warning, and firing will not commence until such vessels are clear of the area.
(4) This section shall be enforced by the Commanding General, U.S. Army Forces Antilles, and such agencies as he may designate.
(a)
(b)
(2) The regulations in this section shall be enforced by the Commander, Caribbean Sea Frontier, San Juan, Puerto Rico, and such agencies as he may designate.
(a)
(b)
(2) The regulations will be enforced by the Commander, U.S. Naval Forces Caribbean, U.S. Naval Station, Roosevelt Roads, Puerto Rico, and such agencies and subordinate commands as he/she may designate.
(a)
(2) A strip, 1,500 yards wide, off the naval reservation shoreline along the west end of Vieques Island extending from Caballo Point on the north shore, west around the breakwater to Point Arenas, and thence south and east to a point on the shoreline one mile east of the site of the abandoned central at Playa Grande.
(3) A strip, 1,500 yards wide, off the south coast of Vieques Island extending from the entrance to Port Mosquito east to Conejo Point.
(4) An area inclosed by an arc with a radius of 3,000 yards centered on Cabras Island Lighthouse and extending from Point Puerca to Point Cascajo.
(b)
(a)
(2)
(b)
(2) The regulations in this paragraph shall be enforced by the Commanding Officer, Atlantic Fleet Range Support Facility, Roosevelt Roads, P.R., and such agencies as he may designate.
33 U.S.C. 1344; 33 U.S.C. 1413.
This regulation prescribes the practices and procedures to be followed by the Corps of Engineers to ensure compliance with the specific statutes governing Army Civil Works operations and maintenance projects involving the discharge of dredged or fill material into waters of the U.S. or the transportation of dredged material for the purpose of disposal into ocean waters. These practices and procedures should be employed throughout the decision/management process concerning methodologies and alternatives to be used to ensure prudent operation and maintenance activities.
Under authority delegated from the Secretary of the Army and in accordance with section 404 of the Clean Water Act of 1977 (CWA) and section 103 of the Marine Protection, Research, and Sanctuaries Act of 1972, hereinafter referred to as the Ocean Dumping Act (ODA), the Corps of Engineers regulates the discharge of dredged or fill material into waters of the United States and the transportation of dredged material for the purpose of disposal into ocean waters. Section 404 of the CWA requires public notice with opportunity for public hearing for discharges of dredged or fill material into waters of the U.S. and that discharge sites can be specified through the application of guidelines developed by the Administrator of the Environmental Protection Agency (EPA) in conjunction with the Secretary of the Army. Section 103 of the ODA requires public notice with opportunity for public hearing for the transportation for disposal of dredged material for disposal in ocean waters. Ocean disposal of dredged material must be evaluated using the criteria developed by the Administrator of EPA in consultation with the Secretary of the Army. Section 103(e) of the ODA provides that the Secretary of the Army may, in lieu of permit procedures, issue regulations for Federal projects involving the transportation of dredged material for ocean disposal which require the application of the same criteria, procedures, and requirements which apply to the issuance of permits. Similarly, the Corps does not issue itself a CWA permit to authorize Corps discharges of dredged material or fill material into U.S. waters, but does apply the 404(b)(1) guidelines and other substantive requirements of the CWA and other environmental laws.
This regulation (33 CFR parts 335 through 338) is applicable to the Corps of Engineers when undertaking operation and maintenance activities at Army Civil Works projects.
The Corps of Engineers undertakes operations and maintenance activities where appropriate and environmentally acceptable. All practicable and reasonable alternatives are fully considered on an equal basis. This includes the discharge of dredged or fill material into waters of the U.S. or ocean waters in the least costly manner, at the least costly and most practicable location, and consistent with engineering and environmental requirements.
(a) The Clean Water Act (33 U.S.C. 1251
(b) The Marine Protection, Research, and Sanctuaries Act of 1972 (33 U.S.C. 1401
(a) The National Historic Preservation Act of 1966 (16 U.S.C. 470a
(b) The Reservoir Salvage Act of 1960 (16 U.S.C. 469), as amended.
(c) The Endangered Species Act (16 U.S.C. 1531
(d) The Estuary Protection Act (16 U.S.C. 1221).
(e) The Fish and Wildlife Coordination Act (16 U.S.C. 661
(f) The National Environmental Policy Act (42 U.S.C. 4341
(g) The Wild and Scenic Rivers Act (16 U.S.C. 1271
(h) Section 307(c) of the Coastal Zone Management Act of 1976 (16 U.S.C. 1456 (c)), as amended.
(i) The Water Resources Development Act of 1976 (Pub. L. 94-587).
(j) Executive Order 11593,
(k) Executive Order 11988,
(l) Executive Order 11990,
(m) Executive Order 12372,
(n) Executive Order 12114,
The definitions of 33 CFR parts 323, 324, 327, and 329 are hereby incorporated. The following terms are defined or interpreted from parts 320 through 330 for purposes of 33 CFR parts 335 through 338.
33 U.S.C. 1344; 33 U.S.C. 1413.
Since the jurisdiction of the CWA extends to all waters of the U.S., including the territorial sea, and the jurisdiction of the ODA extends over ocean waters including the territorial sea, the following rules are established to assure appropriate regulation of discharges of dredged or fill material into waters of the U.S. and ocean waters.
(a) The disposal into ocean waters, including the territorial sea, of dredged material excavated or dredged from navigable waters of the U.S. will be evaluated by the Corps in accordance with the ODA.
(b) In those cases where the district engineer determines that the discharge of dredged material into the territorial sea would be for the primary purpose of fill, such as the use of dredged material for beach nourishment, island creation, or construction of underwater berms,
(c) For those cases where the district engineer determines that the materials proposed for discharge in the territorial sea would not be adequately evaluated under the section 404(b)(1) guidelines of the CWA, he may evaluate that material under the ODA.
(a)
(1) The CWA requires the Corps to seek state water quality certification for discharges of dredged or fill material into waters of the U.S.
(2) Section 307 of the Coastal Zone Management Act (CZMA) requires that certain activities that a Federal agency conducts or supports be consistent with the Federally-approved state management plan to the maximum extent practicable.
(b)
(1) A public notice providing opportunity for a public hearing should be issued at the earliest practicable time. The public notification procedures of § 337.1 of this chapter should be followed.
(2) The public hearing procedures of 33 CFR part 327 should be followed.
(3) As soon as practicable, the district engineer will request from the state a 401 water quality certification and, if applicable, provide a coastal zone consistency determination for the Corps activity using the procedures of § 336.1(b) (8) and (9), respectively, of this part.
(4) Discharges of dredged material will be evaluated using the guidelines authorized under section 404(b)(1) of the CWA, or using the ODA regulations, where appropriate. If the guidelines alone would prohibit the designation of a proposed discharge site, the economic impact on navigation and anchorage of the failure to use the proposed discharge site will also be considered in evaluating whether the proposed discharge is to be authorized under CWA section 404(b)(2).
(5) The EPA Administrator can prohibit or restrict the use of any defined area as a discharge site under 404(c) whenever he determines, after notice and opportunity for public hearing and after consultation with the Secretary of the Army, that the discharge of such materials into such areas will have an unacceptable adverse effect on municipal water supplies, shellfish beds and fishery areas, wildlife, or recreation areas. Upon notification of the prohibition of a discharge site by the Administrator the district engineer will complete the administrative processing of the proposed project up to the point of signing the Statement of Findings (SOF) or Record of Decision (ROD). The unsigned SOF or ROD along with a report described in § 337.8 of this chapter will be forwarded through the appropriate Division office to the Dredging Division, Office of the Chief of Engineers.
(6) In accordance with the National Environmental Policy Act (NEPA), and the regulations of the Council on Environmental Quality (40 CFR parts 1500-1508), an Environmental Impact Statement (EIS) or Environmental Assessment (EA) will be prepared for all Corps of Engineers projects involving the discharge of dredged or fill material, unless such projects are included within a categorical exclusion found at 33 CFR part 230 or addressed within an existing EA or EIS. If a proposed maintenance activity will result in a deviation in the operation and maintenance plan as described in the EA or EIS, the district engineer will determine the need to prepare a new EA, EIS, or supplement. If a new EA, EIS,
(7) If it can be anticipated that related work by other Federal or non-Federal interests will occur in the same area as Corps projects, the district engineer should use all reasonable means to include it in the planning, processing, and review of Corps projects. Related work normally includes, but is not necessarily limited to, maintenance dredging of approach channels and berthing areas connected to Federal navigation channels. The district engineer should coordinate the related work with interested Federal, state, regional, and local agencies and the general public at the same time he does so for the Corps project. The district engineer should ensure that related work meets all substantive and procedural requirements of 33 CFR parts 320 through 330. Documents covering Corps maintenance activities normally should also include an appropriate discussion of ancillary maintenance work. District engineers should assist local interests to obtain from the state any necessary section 401 water quality certification and, if required, the section 307 coastal zone consistency concurrence. The absence of such certification or concurrence by the state or the denial of a Corps permit for related work shall not be cause for delay of the Federal project. Local sponsors will be responsible for funding any related work. If permitting of the related work complies with all legal requirements and is not contrary to the public interest, section 10, 404, and 103 permits normally will be issued by the district engineer in a separate SOF or ROD. Authorization by nationwide or regional general permit may be appropriate. If the related work does not receive a necessary state water quality certification and/or CZMA consistency concurrence, or are determined to be contrary to the public interest the district engineer should re-examine the project viability to ensure that continued maintenance is warranted.
(8)
(i) In addition to the Corps section 404 public notice, information and data demonstrating compliance with state water quality standards will be provided to the state water quality certifying agency along with the request for water quality certification. The information and data may be included within the 404(b)(1) evaluation. The district engineer will request water quality certification to be consistent with the maintenance dredging schedule for the project. Submission of the public notice, including information and data demonstrating compliance with the state water quality standards, will constitute a valid water quality certification request pursuant to section 401 of the CWA.
(ii) If the proposed disposal activity may violate state water quality standards, after consideration of disposal site dilution and dispersion, the district engineer will work with the state to acquire data to satisfy compliance with the state water quality standards. The district engineer will use the technical manual “Management Strategy for Disposal of Dredged Material: Contaminant Testing and Controls” or its appropriate updated version as a guide for developing the appropriate tests to be conducted on such dredged material.
(iii) If the state does not take final action on a request for water quality certification within two months from the date of the initial request, the district engineer will notify the state of his intention to presume a waiver as provided by section 401 of the CWA. If the state agency, within the two-month period, requests an extension of time, the district engineer may approve one 30-day extension unless, in his opinion, the magnitude and complexity of the information contained in the request warrants a longer or additional extension period. The total period of time in which the state must act should not exceed six months from
(iv) The procedures of § 337.2 will be followed if the district engineer determines that the state data acquisition requirements exceed those necessary in establishment of the Federal standard.
(9)
(i) The Corps section 404 public notice and any additional information that the district engineer determines to be appropriate will be provided the state coastal zone management agency along with the consistency determination. The consistency determination will consider the maintenance dredging schedule for the project. Submission of the public notice and, as appropriate, any additional information as determined by the district engineer will constitute a valid coastal zone consistency determination pursuant to section 307 of the CZMA.
(ii) If the district engineer decides that a consistency determination is not required for a Corps activity, he may provide the state agency a written determination that the CZMA does not apply.
(iii) The district engineer may provide the state agency a general consistency determination for routine or repetitive activities.
(iv) If the state fails to provide a response within 45 days from receipt of the initial consistency determination, the district engineer will presume state agency concurrence. If the state agency, within the 45-day period, requests an extension of time, the district engineer will approve one 15-day extension unless, in his opinion, the magnitude and complexity of the information contained in the consistency determination warrants a longer or additional extension period. The longer or additional extension period shall not exceed six months from the date of the initial consistency determination.
(v) If the district engineer determines that the state recommendations to achieve consistency to the maximum degree practicable exceed either his authority or funding for a proposed dredging or disposal activity, he will so notify the state coastal zone management agency indicating that the Corps has complied to the maximum extent practicable with the state's coastal zone management program. If the district engineer determines that state recommendations to achieve consistency to the maximum degree practicable do not exceed his authority or funding but, nonetheless, are excessive, he will follow the procedures of § 337.2.
(c)
(1)
(2)
(3)
(4)
(5)
(6)
(i) The district engineer will establish whether historic properties located in navigation channels or at disposal sites are eligible for inclusion in the National Register of Historic Places in accordance with applicable regulations of the Advisory Council on Historic Preservation and the Department of the Interior.
(ii) The district engineer will take into account the effects of any proposed actions on properties included in or eligible for inclusion in the National Register of Historic Places, and will request the comments of the Advisory
(7)
(ii) Any other areas named in Acts of Congress or Presidential Proclamations, such as National Rivers, National Wilderness Areas, National Seashores, National Parks, and National Monuments, should be given full consideration when evaluating Corps operations and maintenance activities.
(8)
(ii) District engineers should consider ways of reducing unavoidable adverse environmental impacts of dredging and disposal activities. The determination as to the extent of implementation of such measures will be done by the district engineer after weighing the benefits and detriments of the maintenance work and considering applicable environmental laws, regulations, and other relevant factors.
(9)
(10)
(11)
(i) The evaluation of Corps operations and maintenance activities involving the discharge of dredged or fill
(ii) Where officially adopted state, regional, or local land use classifications, determinations, or policies are applicable, they normally will be presumed to reflect local views and will be considered in addition to other national factors.
(a)
(b)
(1) In accordance with the provisions of section 103 of the ODA, the district engineer should issue a public notice giving opportunity for public hearing, following the procedures described in § 337.1 of this chapter for Corps operation and maintenance activities involving disposal of dredged material in ocean waters, as well as dredged material transported through the territorial sea for ocean disposal.
(2) The public hearing procedures of 33 CFR part 327 should be followed.
(c)
(d)
(2) As provided by the EPA regulations at 40 CFR 225.2(b-e) for implementing the procedures of section 102 of the ODA, the regional administrator
(3) If the regional administrator advises the district engineer that the proposed disposal will comply with the criteria, the district engineer will complete the administrative record and sign the SOF.
(4) In situations where an EPA-designated site is not feasible for use or where no site has been designated by the EPA, the district engineer, in accordance with the ODA and in consultation with EPA, may select a site pursuant to section 103. Appropriate NEPA documentation should be used to support site selections. District engineers should address site selection factors in the NEPA document. District engineers will consider the criteria of 40 CFR parts 227 and 228 when selecting ocean disposal sites, as well as other technical and economic considerations. Emphasis will be placed on evaluation to determine the need for ocean disposal and other available alternatives. Each alternative should be fully considered on an equal basis, including the no dredging option.
(5) If the regional administrator advises the district engineer that a proposed ocean disposal site or activity will not comply with the criteria, the district engineer should proceed as follows.
(i) The district engineer should determine whether there is an economically feasible alternative method or site available other than the proposed ocean disposal site. If there are other feasible alternative methods or sites available, the district engineer will evaluate the engineering and economic feasibility and environmental acceptability of the alternative sites.
(ii) If the district engineer makes a determination that there is no economically feasible alternative method or site available, he will so advise the regional administrator of his intent to proceed with the proposed action setting forth his reasons for such determination.
(iii) If the regional administrator advises, within 15 days of the notice of the intent to issue, that he will commence procedures specified by section 103(c) of the ODA to prohibit use of a proposed disposal site, the case will be forwarded through the respective Division office and CECW-D to the Secretary of the Army or his designee for further coordination with the Administrator of EPA and final resolution. The report forwarding the case should be in the format described in § 337.8 of this chapter.
(iv) The Secretary of the Army or his designee will evaluate the proposed project and make a final determination on the proposed disposal. If the decision of the Secretary of the Army or his designee is that ocean disposal at the proposed site is required because of the unavailability of economically feasible alternatives, he will seek a waiver from the Administrator, EPA, of the criteria or of the critical site designation in accordance with section 103(d) of the ODA.
33 U.S.C. 1344; 33 U.S.C. 1413.
The practices and procedures part of this regulation apply to all Corps operations and maintenance activities involving the discharge of dredged or fill material in waters of the U.S. and ocean waters and related activities of local interests accomplished to ensure continued functions of constructed Corps projects.
Presently, public notification of proposed discharges of dredged or fill material is required by the provisions of section 103 of the ODA and sections 401 and 404 of the CWA. District engineers are encouraged to develop procedures to avoid unnecessary duplication of state agency procedures. Joint public notification procedures should be a primary factor in the development of Memoranda of Agreement with the states as described in § 337.4.
(a) With the possible exception of emergency actions as discussed in § 337.7, the district engineer should issue a public notice for projects involving the discharge of dredged or fill material into waters of the U.S. or ocean waters unless the project is authorized by a general permit. Public notices for Corps operation and maintenance activities are normally issued for an indefinite period of time and are not reissued unless changes in the disposal plan warrant re-evaluation under section 404 of the CWA or section 103 of the ODA. The public notice is the primary method of advising all interested parties of Federal projects and of soliciting comments and information necessary to evaluate the probable impact of the discharge of dredged or fill material into waters of the U.S. or ocean waters. The notice should, therefore, include sufficient information to provide a clear understanding of the nature of the activity and related activities of local interests in order to generate meaningful comments. A single public notice may be used for more than one project in appropriate cases. The notice normally should include the following items:
(1) The name and location of the project and proposed disposal site.
(2) A general description of the project and a description of the estimated type, composition, and quantity of materials to be discharged, the proposed time schedule for the dredging activity, and the types of equipment and methods of dredging and conveyance proposed to be used.
(3) A sketch showing the location of the project, including depth of water in the area and all proposed discharge sites.
(4) The nature, estimated amount, and frequency of known and anticipated related dredging and discharge to be conducted by others.
(5) A list of Federal, state, and local environmental agencies with whom the activity is being coordinated.
(6) A statement concerning a preliminary determination of the need for and/or availability of an environmental impact statement.
(7) Any other available information which may assist interested parties in evaluating the likely impact of the proposed activity, if any.
(8) A reasonable period of time, normally thirty days but not less than fifteen days from date of mailing except in emergency situations where the procedures of § 337.7 will be followed, within which interested parties may express their views concerning the proposed project.
(9) If the proposed Federal project would occur in the territorial seas or ocean waters, a description of the project's relationship to the baseline from which the territorial sea is measured.
(10) A statement on the status of state water quality certification under section 401 of the CWA.
(11) For activities requiring a determination of consistency with an approved state coastal zone management plan, the following information will be included in the notice:
(i) A statement on whether or not the proposed activity will be undertaken in a manner consistent to the maximum extent practicable with the state management program.
(ii) Sufficient information to support the consistency determination to include associated facilities and their coastal zone effect.
(iii) Data and supporting information commensurate with the expected effects of the activity on the coastal zone.
(12) A statement on historic resources, state of present knowledge, likelihood of damage or other adverse effect on such resources, etc.
(13) A statement on endangered species.
(14) A statement on evaluation factors to be considered, adapted from that presented at 33 CFR 325.3(b).
(15) The name, address, and telephone number of the Corps employee from whom additional information concerning the project may be obtained.
(16) The signature of the district engineer or his designee on all maintenance dredged material disposal public notices.
(17) For activities regulated under section 103 of the ODA, the following additional information should be integrated into the public notice:
(i) A statement on the designation status of the disposal site.
(ii) If the proposed disposal site is not a designated site, a description of the characteristics of the proposed disposal site and an explanation as to why no previously designated disposal site is feasible.
(iii) A brief description of known dredged material discharges at the proposed disposal site.
(iv) Existence and documented effects of other authorized disposals that have been made at the disposal area.
(v) An estimated length of time during which disposal would continue at the proposed site.
(vi) Information on the characteristics and composition of the dredged material, and the following paragraph:
The proposed transportation of this dredged material for disposing of it in ocean waters is being evaluated to determine that the proposed disposal will not unreasonably degrade or endanger human health, welfare, or amenities or the marine environment, ecological systems, or economic potentialities. In making this determination, the criteria established by the Administrator, EPA pursuant to section 102(a) of the ODA, will be applied. In addition, based upon an evaluation of the potential effect which the failure to utilize this ocean disposal site will have on navigation, economic and industrial development, and foreign and domestic commerce of the United States, an independent determination will be made of the need to dispose of the dredged material in ocean waters, other possible methods of disposal, and other appropriate locations.
(b) The following statement should be included in the public notices:
Any person who has an interest which may be affected by the disposal of this dredged material may request a public hearing. The request must be submitted in writing to the district engineer within the comment period of this notice and must clearly set forth the interest which may be affected and the manner in which the interest may be affected by this activity.
(c) Public notices should be distributed as described in 33 CFR 325.3(c). In addition, public notices should be sent to CECW-D, Office of the Chief of Engineers, Washington, DC 20314, if the project involves the discharge of dredged material in waters of the U.S. or ocean waters. District engineers should also develop, as appropriate, regional mailing lists for Corps maintenance dredging and disposal activities to the extent that property owners adjacent to the navigation channel and disposal area are notified of the proposed activity. In order to effect compliance with Executive Order 12372, district engineers should provide copies of public notices to concerned state and local elected officials.
(d) The district engineer should consider all comments received in response to the public notice in his subsequent actions. All comments expressing objections to or raising questions about the project should be acknowledged. Comments received as form letters or petitions, however, may be acknowledged as a group to the person or organization responsible for the form letter or petition. If comments are received which relate to matters within the special expertise of another agency, the district engineer may seek the advice of that agency. The receipt of
(e) Notices sent to several agencies within the same state may result in conflicting comments from those agencies. Many states have designated a state agency or individual to provide a single and coordinated state position regarding Federal activities. Where a state has not so designated a single source, the district engineer, as appropriate, may seek from the Governor an expression of his views and desires concerning the proposed and subsequent similar projects.
(f) All comments received from the public notice coordination should be considered in the public interest review process. Comments received from Federal or state agencies which are within the area of expertise of another agency will be communicated with that other agency if the district engineer needs the information to make a final determination on the proposed project.
The procedures of this section should be followed in implementing state requirements.
(a) District engineers should cooperate to the maximum extent practicable with state agencies to prevent violation of Federally approved state water quality standards and to achieve consistency to the maximum degree practicable with an approved coastal zone management program.
(b) If the state agency imposes conditions or requirements which exceed those needed to meet the Federal standard, the district engineer should determine and consider the state's rationale and provide to the state information addressing why the alternative which represents the Federal standard is environmentally acceptable. The district engineer will accommodate the state's concerns to the extent practicable. However, if a state agency attempts to impose conditions or controls which, in the district engineers opinion, cannot reasonably be accommodated, the following procedures will be followed.
(1) In situations where an agency requires monitoring or testing, the district engineer will strive to reach an agreement with the agency on a data acquisition program. The district engineer will use the technical manual “Management Strategy for Disposal of Dredged Material: Contaminant Testing and Controls” or its appropriate updated version as a guide for developing the appropriate tests to be conducted. If the agency insists on requirements which, in the opinion of the district engineer, exceed those required in establishment of the Federal standard, the agency will be asked to fund the difference in cost. If the agency agrees to fund the difference in cost, the district engineer will comply with the request. If the agency does not fund the additional cost, the district engineer will follow the guidance in paragraph (b) (3) of this section.
(2) When an agency requires special conditions or implementation of an alternative which the Federal standard does not, district engineers will proceed as follows: In those cases where the project authorization requires a local sponsor to provide suitable disposal areas, disposal areas must be made available by a sponsor before dredging proceeds. In other cases where there are no local sponsor requirements to provide disposal areas, the state or the prospective local sponsor will be advised that, unless the state or the sponsor provides suitable disposal areas, the added Federal cost of providing these disposal areas will affect the priority of performing dredging on that project. In either case, states will be made aware that additional costs to meet state standards or the requirements of the coastal zone management program which exceed those necessary in establishment of the Federal standard may cause the project to become economically unjustified.
(3) If the state denies or notifies the district engineer of its intent to deny water quality certification or does not concur regarding coastal zone consistency, the project dredging may be deferred. A report pursuant to § 337.8 of this section will be forwarded to CECW-D, Office of the Chief of Engineers, Washington, DC 20314-1000 for resolution.
Section 404(g-1) of the CWA allows the Administrator of the EPA to transfer to qualified states administration of the section 404 permit program for discharges into certain waters of the U.S. Once a state's 404 program is approved, the district engineer will follow state procedures developed in accordance with section 404(g-1) of the CWA for all on-going Corps projects involving the discharge of fill material in transferred waters to the state agency responsible for administering the program. Corps projects involving the discharge of dredged or fill material in waters not transferred to the state will be processed in accordance with this regulation.
The establishment of joint notification procedures for Corps projects involving disposal of dredged or fill material should be actively pursued through the development of MOAs with the state. The MOAs may be used to define responsibilities between the state and the Corps district involved. The primary purpose of MOAs will be to avoid or eliminate administrative duplication, when such duplication does not contribute to the overall decision-making process. MOAs for purposes of this regulation will not be used to implement provisions not related to the maintenance or enforcement of Federally-approved state water quality standards or coastal zone management programs. District engineers are authorized and encouraged to develop MOAs with states and other Federal agencies for Corps projects involving the discharge of dredged or fill material. Copies of all MOAs will be forwarded to CECW-D, Office of the Chief of Engineers, Washington, DC 20314-1000 for approval.
Under the provisions of sections 404(e) of the CWA and 104(c) of the ODA certain categories of activities may be authorized on a regional, statewide, or nationwide basis. General authorizations can be a useful mechanism for implementation of the procedural provisions of the CWA, CZMA, and ODA while avoiding unnecessary duplication and paperwork. Through the general authorization process, compliance with all environmental laws and regulations including coastal zone consistency, if applicable, and water quality certification can be accomplished in a single process for a category of activities. Since the emphasis of particular environmental issues for most Corps projects is more regional than nationwide, district engineers are encouraged to develop general authorizations for routine Civil Works activities involving the discharge of dredged or fill material to address the specific requirements of a particular geographic region. When evaluating general categories of activities, the district engineer should follow the same procedure as outlined for individual Federal activities including the water quality certification and/or coastal zone consistency requirements of part 336 of this chapter. General authorizations should include related activities of local interests. Additionally, district engineers should use existing general permits authorized on a statewide or regional basis and the nationwide permits at 33 CFR part 330 for Federal projects involving the disposal of dredged material. The development of new statewide or regional general authorizations for Federal activities should be in accordance with the requirements of §§ 336.1 and 336.2 of this chapter. General permits for related activities of local interests should be developed using the procedures of 33 CFR parts 320 through 330.
Upon completion of the evaluation process including required coordination, receipt or waiver of required state certifications, and completion of the appropriate environmental documents, an SOF will be prepared. In cases involving an EIS, a ROD will be prepared in accordance with 33 CFR part 230 and should be used in lieu of the SOF, providing the substantive parts of this section are included in the ROD. The SOF need not duplicate information contained in supporting environmental documents but rather may incorporate it by reference. The SOF should include
(a) The SOF should identify the name of the preparer, date (which may not necessarily correspond to the date signed), and name of waterway.
(b) The proposed action for which the findings are made should be described.
(c) A coordination section should be provided. The coordination section should reference the public notice number and date. The letters of comment and appropriate responses should be summarized. Any coordination undertaken by local or state agencies should also be discussed.
(d) An environmental effects and impacts section should be used to document compliance with the applicable environmental laws. This section should include the views and/or conditions of the state concerning water quality certification and, if required, the results of the coastal zone consistency process.
(e) A determinations section should reference the results of the EA and/or EIS and any conditions necessary to meet the state's water quality standards or coastal zone management program. Appropriate conditions or modifications should be included in the project specifications. This section should also contain a subsection on consideration of alternatives and cumulative impacts.
(f) A section on the district engineer's findings and conclusions concerning the proposed project should be included.
(g) The SOF should be dated and signed by the district engineer or his designee except in those cases requiring referral to higher authority.
(h) In accordance with the provisions of section 104(g) of the ODA, the district engineer will forward a copy of the SOF to the District Commander, U.S. Coast Guard, if the activity involves the ocean disposal of dredged material.
(i) The Findings of No Significant Impact or ROD, as appropriate, required by 33 CFR part 230 may be incorporated into the SOF, as appropriate.
After obtaining approval from the division engineer, the district engineer will respond to emergency situations on an expedited basis, complying with the procedures of this regulation to the maximum degree practicable. The district engineer will issue a public notice describing the emergency in accordance with § 337.1, if such a notice is practicable in view of the emergency situation; such a public notice should be forwarded to all appropriate Federal and state agencies. The district engineer should prepare a section 404(b)(1) evaluation report and, as necessary, an environmental assessment, if this is practicable in view of the emergency situation. If comments are received from the public notice which, in the judgment of the district engineer, reveal the necessity of modifying the emergency operation, the district engineer should take appropriate measures to modify the emergency operation to reduce, avoid, or minimize adverse environmental impacts. If the district engineer, after receiving comments from the public notice, determines that the emergency action would constitute a major Federal action significantly affecting the quality of the human environment, he should, after consultation with the division engineer, coordinate with the Council on Environmental Quality about alternative arrangements for compliance with the NEPA in accordance with 40 CFR 1506.11 to the extent that it is practicable in view of the emergency situation. District engineers should consult with the appropriate state officials to seek water quality certification or waiver of certification, and should certify that the Federal action is consistent to the maximum extent practicable with an approved coastal zone management plan for emergency activities, to the extent that is practicable in view of the emergency.
(a)
(1) When there is substantial doubt as to the authority, law, regulations, or policies applicable to the Federal project;
(2) When higher authority requests the case be forwarded for decision;
(3) When the state does not concur in a coastal zone consistency determination or attempts to concur with conditions or controls;
(4) When the state denies or unreasonably delays a water quality certification or issues the certification with conditions or controls not related to maintenance or enforcement of state water quality standards or significantly exceeding the Federal standard;
(5) When the regional administrator has advised the district engineer, pursuant to section 404(c) of the CWA, of his intent to prohibit or restrict the use of a specified discharge site; or notifies the district engineer that the discharge of dredged material in ocean waters or territorial seas will not comply with the criteria and restrictions on the use of the site established under the ODA; and the district engineer determines that the proposed disposal cannot be reasonably modified to alleviate the regional administrator's objections; and
(6) When the state fails to grant water quality certification or a waiver of certification or concurrence or waiver of coastal zone consistency for emergency actions.
(b)
(1) Justification showing the economic need for dredging.
(2) The impact on states outside the project area if the project is not dredged.
(3) The estimated cost of agency requirements which exceed those necessary in establishment of the Federal standard.
(4) The relative urgency of dredging based on threat to national security, life or property.
(5) Any other facts which will aid in determining whether to further defer the dredging and seek Congressional appropriations for the added expense or the need to exercise the authority of the Secretary of the Army to maintain navigation as provided by sections 511(a) and 404(t) of the CWA if the disagreement concerns water quality certification or other state permits.
(6) If the disagreement concerns coastal zone consistency, the district engineer will follow the reporting requirement of this section and § 336.1(b)(9) of this chapter.
(a) District engineers should identify and develop dredged material disposal management strategies that satisfy the long-term (greater than 10 years) needs for Corps projects. Full consideration should be given to all practicable alternatives including upland, open water, beach nourishment, within banks disposal, ocean disposal, etc. Within existing policy, district engineers should also explore beneficial uses of dredged material, such as marsh establishment and dewatering techniques, in order to extend the useful life of existing disposal areas. Requests for water quality certification and/or coastal zone consistency concurrence for projects with identified long-term disposal sites should include the length of time for which the certification and/or consistency concurrence is sought. The section 404(b)(1) evaluation and environmental assessment or environmental impact statement should also address long-term maintenance dredging and disposal. District engineers should use the guidance at 40 CFR 230.80 to shorten environmental compliance processing time. The Corps of Engineers will be responsible for accomplishing or assuring environmental compliance requirements for all disposal areas. This does not preclude the adoption of other agencies NEPA documents in accordance with 40 CFR parts 1500 through 1508.
(b) The identification of disposal sites should include consideration of dredged material disposal needs by project beneficiaries. District engineers are encouraged to require local interests, where the project has a local sponsor, to designate long-term disposal areas.
District engineers should assure that dredged or fill material disposal activities are conducted in conformance with current plans and description of the project as expressed in the SOF or ROD. Conditions and/or limitations required by a state (e.g., water quality certification), as identified through the coordination process, should be included in the project specifications. Contracting officers should assure that contractors are aware of their responsibilities for compliance with the terms and conditions of state certifications and other conditions expressed in the SOF or ROD.
33 U.S.C. 1344.
(a) The procedures of this part, in addition to the provisions of 33 CFR parts 335 through 337, should be followed when undertaking Corps operations and maintenance activities involving the discharge of fill material into waters of the U.S., except that the procedures of part 336 of this chapter will be used in those cases where the discharge of fill material is also the discharge of dredged material,
(b) After construction of Corps Civil Works water resource projects, certain operations and maintenance activities involving the discharge of fill material require evaluation under the CWA. These activities generally include lakeshore management, installation of boat ramps, erosion protection along the banks of navigation channels, jetty maintenance, remedial erosion control, etc. While these activities are normally addressed in the existing environmental impact statement for the project, new technology or unexpected events such as storms or high waters may require maintenance or remedial work not fully addressed in existing environmental documents or state permits. In determining compliance with the applicable environmental laws and regulations the district engineer should use the CWA exemptions at 404(f) and NEPA categorical exclusions to the maximum extent practicable. If the district engineer decides that the changes have not been adequately addressed in existing environmental documentation, the procedures of this part should be followed.
(a) Generally, fill activities conducted by the Corps for operations and maintenance of existing Civil Works water resource and navigation projects are routine and have little, if any, potential for significant degradation of the environment. District engineers are encouraged to develop general authorizations in accordance with section 404 of the CWA and 104 of the ODA following the procedures of § 337.5 of this chapter for categories of such routine activities. The general authorization should satisfy all compliance requirements including water quality certifications and, if applicable, coastal zone consistency determinations. For activities which are not conducive to the development of general authorizations or are more appropriately evaluated on an individual basis, the following procedures should be followed.
(b) A public notice should be issued using the procedures § 337.1 of this chapter.
(c) Water quality certifications should be requested and, if applicable, coastal zone consistency determinations should be provided using the procedures of § 336.1(b) (8) and (9) of this chapter.
(d) The discharge site should be specified through the application of the section 404(b)(1) guidelines.
(e) The procedures of 40 CFR part 230 should be used to determine the NEPA compliance requirements.
(f) The factors of § 336.1(c) of this chapter should be followed when evaluating fill activities.
(g) Upon completion of all required coordination and after receipt of the necessary state certifications, the district engineer should prepare an SOF in accordance with § 337.6.
E.O. 12372, July 14, 1982 (47 FR 30959), as amended April 8, 1983 (48 FR 15887); and sec. 401 of the Intergovernmental Cooperation Act of 1968, as amended (31 U.S.C. 6506).
(a) The regulations in this part implement Executive Order 12372, “Intergovernmental Review of Federal Programs,” issued July 14, 1982 and amended on April 8, 1983. These regulations also implement applicable provisions of section 401 of the Intergovernmental Cooperation Act of 1968.
(b) These regulations are intended to foster an intergovernmental partnership and a strengthened Federalism by relying on state processes and on state, areawide, regional and local coordination for review of proposed federal financial assistance and direct federal development.
(c) These regulations are intended to aid the internal management of the Corps of Engineers, and are not intended to create any right or benefit enforceable at law by a party against the Corps of Engineers or its officers.
The Chief of Engineers publishes in the
Responsible Corps officials, to the extent practicable, consult with and seek
(a) A state may select any program or activity published in the
(b) Each state that adopts a process shall notify the appropriate Division Engineer of the programs and activities selected for that process.
(c) A state may notify the appropriate Division Engineer of changes in its selections at any time. For each change, the state shall submit to the Division Engineer an assurance that the state has consulted with local elected officials regarding the change. The Division Engineer may establish deadlines by which states are required to inform the Corps of Engineers of changes in their program selections.
(d) The Corps of Engineers uses a state's process as soon as feasible, depending on individual programs and activities, after the Division Engineer is notified of its selections.
(a) For those programs and activities covered by a state process under § 384.6, the responsible Corps official, to the extent permitted by law:
(1) Uses the state process to determine views of state and local elected officials; and
(2) Communicates with state and local elected officials, throught the state process, as early in a program planning cycle as is reasonably feasible to explain specific plans and actions.
(b) The District Engineer provides notice to directly affected state, areawide, regional, and local entities in a state of proposed Federal financial assistance or direct Federal development if:
(1) The state has not adopted a process under the Order; or
(2) The assistance or development involves a program or activity not selected for the state process.
(a) Except in unusual circumstances, the responsible Corps official gives state processes or directly affected state, areawide, regional and local officials and entities at least 60 days from the date established by such official to comment on proposed direct Federal development or Federal financial assistance.
(b) This section also applies to comments in cases in which the review, coordination, and communication with the Corps of Engineers have been delegated.
(a) The responsible Corps official follows the procedures in § 384.10 if:
(1) A state office or official is designated to act as a single point of contact between a state process and all federal agencies, and
(2) That office or official transmits a state process recommendation for a program selected under § 384.6.
(b)(1) The single point of contact is not obligated to transmit comments from state, areawide, regional or local officials and entities where there is no state process recommendation.
(2) If a state process recommendation is transmitted by a single point of contact, all comments from state, areawide, regional, and local officials and entities that differ from it must also be transmitted.
(c) If a state has not established a process, or is unable to submit a state process recommendation, state, areawide, regional and local officials
(d) If a program or activity is not selected for a state process, state, areawide, regional and local officials and entities may submit comments to the responsible Corps official. In addition, if a state process recommendation for a nonselected program or activity is transmitted to the responsible Corps official by the single point of contact, such official follows the procedures of § 384.10 of this part.
(e) The responsible Corps official considers comments which do not constitute a state process recommendation submitted under these regulations and for which such official is not required to apply the procedures of § 384.10 of this part, when such comments are provided by a single point of contact or directly to such official by a commenting party.
(a) If a state process provides a state process recommendation to the Corps of Engineers through its single point of contact, the responsible Corps official either:
(1) Accepts the recommendation;
(2) Reaches a mutually agreeable solution with the state process; or
(3) Provides the single point of contact with a written explanation of the decision in such form as such Corps official in his or her discretion deems appropriate. The Corps official may also supplement the written explanation by providing the explanation to the single point of contact by telephone, other telecommunication, or other means.
(b) In any explanation under paragraph (a)(3) of this section, the responsible Corps official informs the single point of contact that:
(1) The Corps of Engineers will not implement its decision for at least 10 days after the single point of contact receives the explanation; or
(2) The Assistant Secretary of the Army (Civil Works), or the next higher level responsible Corps official, has reviewed the case and determined that, because of unusual circumstances, the waiting period of at least 10 days is not feasible.
(c) For purposes of computing the waiting period under paragraph (b)(1) of this section, a single point of contact is presumed to have received written notification 5 days after the date of mailing of such notification.
(a) The responsible Corps official is responsible for:
(1) Identifying proposed federal financial assistance and direct federal development that have an impact on interstate areas;
(2) Notifying appropriate officials and entities in states which have adopted a process and which select the Corps of Engineers program or activity.
(3) Making efforts to identify and notify the affected state, areawide, regional, and local officials and entities in those states that have not adopted a process under the Order or do not select the Corps of Engineers program or activity;
(4) Responding pursuant to § 384.10 of this part if the responsible Corps official receives a recommendation from a designated areawide agency transmitted by a single point of contact, in cases in which the review, coordination, and communication with the Corps of Engineers has been delegated.
(b) The responsible Corps official uses the procedures in § 384.10 if a state process provides a state process recommendation to such official through a single point of contact.
(a) Emergency and disaster recovery actions performed under Pub. L. 99, 84th Congress, are excluded from the requirements of the Order and this regulation.
(b) In other emergencies, the Division Engineer may waive any provision of these regulations.
Section 601, Pub. L. 106-541, 114 Stat. 2680; 10 U.S.C. 3013(g)(3); 33 U.S.C. 1 and 701; and 5 U.S.C. 301.
(a) The programmatic regulations of this part implement the provisions of section 601(h)(3) of the Water Resources Development Act of 2000, Public Law 106-541, 114 Stat. 2688 (hereinafter “WRDA 2000”), which was enacted on December 11, 2000.
(b) The purpose of the programmatic regulations of this part is to ensure that the goals and purposes of the Comprehensive Everglades Restoration Plan (the Plan) are achieved and to establish the processes necessary for implementing the Plan. Some of these processes are project specific, including, but not limited to, development of Project Implementation Reports, Project Cooperation Agreements, plans and specifications, Pilot Project Technical Data Reports, and Operating Manuals. Other processes are of more general applicability, including, but not limited to, development of program-wide guidance memoranda, interim goals, interim targets, and the Master Implementation Sequencing Plan. Taken together, these processes will ensure that the restoration purposes and other goals of the Plan are achieved. The regulations of this part
(c) Section 601(h) of WRDA 2000 establishes an integrated framework for assuring that the goals and purposes of the Plan are achieved. This framework includes tools for planning, implementation, and evaluation; a process for developing these tools in an open public process, with input from other Federal, State, and local agencies; and an enforcement mechanism to ensure that the requirements of the statute are carried out.
(1)
(ii) The specific implementation tools established by section 601(h) are Project Cooperation Agreements and Operating Manuals.
(iii) The specific evaluation tool established by section 601(h) is the interim goals for evaluating the restoration success of the Plan.
(iv) In addition to the specific planning, implementation, and evaluation tools established by section 601(h), the regulations of this part establish additional tools, including but not limited to, Project Management Plans, Program Management Plans, Comprehensive Plan Modification Reports, the Master Implementation Sequencing Plan, and interim targets for evaluating progress towards achieving the other water related needs of the region.
(2)
(3)
(4)
(i) Providing for public notice and comment in the development of planning, implementation, and evaluation tools;
(ii) Providing notice of final action on planning, evaluation, and implementation tools;
(iii) Making available to the public on a web site or by other appropriate means final, and where appropriate draft, copies of all planning, evaluation, and implementation tools; and
(iv) Explaining through the regulations of this part and by other appropriate means the process for developing the tools, the linkage between the process, tools, and enforcement mechanism, and the means by which these elements constitute an integrated framework for assuring that the goals and purposes of the Plan are achieved.
(a) This part applies to all activities conducted to implement the Comprehensive Everglades Restoration Plan.
(b) As used in this part, the Secretary of the Army acts through the Assistant Secretary of the Army for Civil Works with respect to the Army's civil works program pursuant to 10 U.S.C. 3016.
(c) Nothing in this part shall be interpreted to amend, alter, diminish, or otherwise affect:
(1) The rights, powers and duties provided under the “Comprehensive Everglades Restoration Plan Assurance of Project Benefits Agreement,” dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000; or
(2) Any existing legal water rights of the United States, the State of Florida, the Miccosukee Tribe of Indians of Florida, or the Seminole Tribe of Florida, including rights under the compact among the Seminole Tribe of Florida, the State, and the South Florida Water Management District, defining the scope and use of water rights of the Seminole Tribe of Florida, as codified by section 7 of the Seminole Indian Land Claims Settlement Act of 1987 (25 U.S.C. 1772e).
(d) This part is intended to aid the internal management of the implementing agencies and is not intended to create any right or benefit enforceable at law by a party against the implementing agencies or their officers. Nothing in this part shall create a right or expectation to benefits or enhancements, temporary or permanent, in third parties that are not specifically authorized by Congress in section 601 of WRDA 2000.
(e) Nothing in this part is intended to, or shall be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nor is this part intended to, nor shall it be interpreted to, prescribe any process of Florida law.
For the purposes of this part, the following terms are defined:
In accordance with section 601(h)(3)(c)(ii) of WRDA 2000, this part expressly prohibits “the requirement for concurrence by the Secretary of the Interior or the Governor on Project Implementation Reports, Project Cooperation Agreements, Operating Manuals for individual projects undertaken in the Plan, and any other documents relating to the development, implementation, and management of individual features of the Plan, unless such concurrence is provided for in other Federal or State laws.”
(a)
(2) Guidance on the following six program-wide subjects shall be promulgated in accordance with paragraphs (b) and (c) of this section:
(i) General format and content of Project Implementation Reports (§ 385.26(a));
(ii) Instructions for formulation and evaluation of alternatives developed for Project Implementation Reports, their cost effectiveness and impacts (§ 385.26(b));
(iii) General content of operating manuals (§ 385.28(a));
(iv) General directions for the conduct of the assessment activities of RECOVER (§ 385.31(b));
(v) Instructions relevant to Project Implementation Reports for identifying the appropriate quantity, timing, and distribution of water to be dedicated and managed for the natural system (§ 385.35(b)); and
(vi) Instructions relevant to Project Implementation Reports for identifying if an elimination or transfer of existing legal sources of water will occur as a result of implementation of the Plan (§ 385.36(b)).
(b)
(1) Guidance memoranda shall be consistent with this part, applicable law, and achieving the goals and purposes of the Plan.
(2) The Secretary of the Army shall afford the public an opportunity to comment on each guidance memorandum prior to approval through the issuance of a notice of availability in the
(3) Approved guidance memoranda shall be made available to the public.
(4) The guidance memoranda specifically referenced in this part shall be developed by December 13, 2004.
(5) The six guidance memoranda described in paragraph (a) of this section shall be developed with the concurrence of the Secretary of the Interior and the Governor. Within 180 days after being provided with the final guidance memorandum, or such shorter period that the Secretary of the Interior and the Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written statement of concurrence or non-concurrence with the proposed guidance memorandum. A failure to provide a written statement of concurrence or non-concurrence within such time frame shall be deemed as meeting the concurrency requirements of this section. A copy of any concurrency or nonconcurrency statements shall be made a part of the administrative record and referenced in the final guidance memorandum. Any nonconcurrency statement shall specifically detail the reason or reasons for the non-concurrence. If the six guidance memoranda described in paragraph (a) of this section create a special procedure for any individual Project Implementation Report, a specific Project Cooperation Agreement, an Operating Manual for a specific project component, or any other document relating to the development, implementation, and management of one specific individual feature of the Plan, this section does not require concurrence or non-concurrence on that special procedure. In lieu of concurrence or non-concurrence on such a special procedure, the Secretary of the Army shall consult with the Secretary of the Interior and the Governor.
(6) The Secretary of the Army shall consider incorporating into the regulations of this part the guidance memoranda specifically referenced in this section during future reviews and revisions of the regulations of this part.
(c)
(d)
(a) The Secretary of the Army shall review, and if necessary revise, the regulations of this part at least every five years. In addition, the Secretary of the Army may review and revise the regulations of this part whenever the Secretary believes that such review and revision is necessary to attain the goals and purposes of the Plan. The
(b) Upon completing the review of the regulations of this part, the Secretary shall promulgate any revisions to the regulations after notice and opportunity for public comment in accordance with applicable law, with the concurrence of the Secretary of the Interior and the Governor, and in consultation with the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Administrator of the Environmental Protection Agency, the Secretary of Commerce, and other Federal, State, and local agencies.
(c) Within 180 days after being provided with the final revisions to the programmatic regulations of this part, or such shorter period that the Secretary of the Interior and Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written statement of concurrence or non-concurrence with the revisions. A failure to provide a written statement of concurrence or non-concurrence within such time frame shall be deemed as meeting the concurrency process of paragraph (b) of this section. A copy of any concurrency or nonconcurrency statements shall be made a part of the administrative record and referenced in the final revised programmatic regulations. Any non-concurrency statement shall specifically detail the reason or reasons for the non-concurrence.
The administrative record of the programmatic regulations in this part contains a copy of the concurrency statements by the Secretary of the Interior and the Governor to the Secretary of the Army. The concurrency statements can be obtained from the Army Corps of Engineers, Jacksonville District, 701 San Marco Blvd., Jacksonville, Florida 32207, or by accessing the programmatic regulations Web page at:
(a) The Comprehensive Everglades Restoration Plan (CERP) is a framework for modifications and operational changes to the Central and Southern Florida Project. The overarching objective of the Plan is the restoration, preservation, and protection of the South Florida ecosystem while providing for other water-related needs of the region, including water supply and flood protection.
(b) The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, implement the Plan, as authorized by Congress, to ensure the protection of water quality in, the reduction of the loss of fresh water from, and the improvement of the environment of the South Florida ecosystem and to achieve and maintain the benefits to the natural system and human environment described in the Plan, and required pursuant to section 601 of WRDA 2000, for as long as the project is authorized.
(c) The goal of the Plan is to restore, preserve, and protect the South Florida ecosystem while providing for other water-related needs of the region. The Plan is designed to accomplish this by providing the quantity, quality, timing, and distribution of water necessary to achieve and sustain those essential hydrological and biological characteristics that defined the undisturbed South Florida ecosystem. As authorized by Congress, the restored South Florida ecosystem will be significantly healthier than the current system; however it will not completely replicate the undisturbed South Florida ecosystem and some areas may more closely replicate the undisturbed ecosystem than others. Initial modeling showed that most of the water
(d) The Corps of Engineers and non-Federal sponsors shall implement the Plan in a manner to continuously improve the expected performance level of the Plan based upon new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the adaptive assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan.
The Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, conduct activities, including program-level activities, necessary to implement the Plan. Such activities shall be conducted as part of an integrated implementation program, in accordance with this part, and based on the following principles:
(a) Individual projects shall be formulated, evaluated, and justified based on their ability to contribute to the goals and purposes of the Plan and on their ability to provide benefits that justify costs on a next-added increment basis.
(b) Interim goals shall be established in accordance with § 385.38 to provide a means for evaluating restoration success of the Plan at specific time intervals during implementation. Interim targets to evaluate progress on providing for other water-related needs of the region provided for in the Plan shall be established in accordance with § 385.39. Interim goals and interim targets shall be consistent with each other.
(c) Endorsement of the Plan as a restoration framework is not intended as a constraint on innovation during implementation through the adaptive management process. Continuous improvement of the Plan shall be sought to ensure that new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan are integrated into the implementation of the Plan. The adaptive management process provides a means for analyzing the performance of the Plan and assessing progress towards meeting the goals and purposes of the Plan as well as a basis for improving the performance of the Plan. Improving the performance of the Plan means enhancing the benefits of the Plan in terms of restoration of the natural system while providing for other water-related needs of the region, including water supply and flood protection.
(a)
(b)
(ii) In carrying out their responsibilities under section 601 of WRDA 2000 with respect to the restoration of the South Florida ecosystem, the Secretary of the Army and the Secretary of the Interior shall fulfill any obligations to the Indian tribes in South Florida under the Indian trust doctrine as well as other applicable legal obligations.
(2)
(c)
(d)
(e)
Generally, the Corps of Engineers and non-Federal sponsors shall develop and implement projects in accordance with the process that is shown in figure 1 in Appendix A of this part. Typical steps in this process involve:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(a) The Plan includes pilot projects to address uncertainties associated with certain components such as aquifer storage and recovery, in-ground reservoir technology, seepage management, and wastewater reuse. The purpose of the pilot projects is to develop information necessary to better determine the technical feasibility of these components prior to development of a Project Implementation Report.
(b) Prior to initiating activities on a pilot project, the Corps of Engineers and the non-Federal sponsor shall develop a Project Management Plan as described in § 385.24.
(c) Project Implementation Reports shall not be necessary for pilot projects. Prior to implementing a pilot project, the Corps of Engineers and the non-Federal sponsor shall prepare a Pilot Project Design Report.
(1) The Pilot Project Design Report shall contain the technical information necessary to construct the pilot project including engineering and design, cost estimates, real estate analyses, and appropriate NEPA documentation.
(2) The Pilot Project Design Report shall include a detailed operational testing and monitoring plan necessary to develop information to assist in better determining the technical feasibility of certain components prior to development of a Project Implementation Report.
(3) In accordance with § 385.18, the Corps of Engineers and the non-Federal sponsor shall provide the public with opportunities to review and comment on the draft Pilot Project Design Report.
(4) The Corps of Engineers and the non-Federal sponsor shall approve the final Pilot Project Design Report in accordance with applicable law.
(d) Upon completion of operational testing and monitoring, the Corps of Engineers and the non-Federal sponsor shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, prepare a Pilot Project Technical Data Report, documenting the findings and conclusions from the operational testing and monitoring of the pilot project. The purpose of the Pilot Project Technical Data Report is to help assess the viability of technology and to assist in the development of the full-scale project. The Corps of Engineers and the non-Federal sponsor shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the report.
(1) In accordance with § 385.22(b), the draft Pilot Project Technical Data Report shall be externally peer reviewed.
(2) In accordance with § 385.18, the public shall be provided with opportunities to review and comment on the draft Pilot Project Technical Data Report.
(3) The final Pilot Project Technical Data Report shall be made available to the public.
(a) To expedite implementation of the Plan, the Corps of Engineers and non-Federal sponsors may implement projects under the authority of section 601(c) of WRDA 2000 that are described in the Plan and that will produce a substantial benefit to the restoration, preservation, and protection of the South Florida ecosystem.
(b) Each project implemented under the authority of section 601(c) of WRDA 2000 shall:
(1) In general, follow the process described in § 385.11;
(2) Not be implemented until a Project Implementation Report is prepared and approved in accordance with § 385.26; and
(3) Not exceed a total cost of $25,000,000.
(c) The total aggregate cost of all projects implemented under the additional program authority shall not exceed $206,000,000.
(a)
(2) As appropriate, other agencies shall be invited to be cooperating agencies in the preparation of NEPA documentation pursuant to § 230.16 of this chapter.
(3) The District Engineer is the NEPA official responsible for compliance with NEPA for actions conducted to implement the Plan. Unless otherwise provided for by this part, NEPA coordination for implementation of the plan shall follow the NEPA procedures established in part 230 of this chapter.
(b)
(i) Comprehensive Plan Modification Reports;
(ii) System Operating Manual or significant changes to the System Operating Manual;
(iii) Project Implementation Reports, including the draft Project Operating Manual when included in the Project Implementation Report;
(iv) Pilot Project Design Reports, including the detailed operational testing and monitoring plan; and
(v) Project Operating Manuals for any project where a Project Implementation Report is not prepared, or significant changes to Project Operating Manuals.
(2) The District Engineer may consider the use of an environmental assessment (EA) on the types of actions described in this paragraph if early studies and coordination show that a particular action, considered individually and cumulatively, is not likely to have a significant impact on the quality of the human environment.
(c)
(d)
(1) Project Cooperation Agreements;
(2) Project Management Plans;
(3) Program Management Plans;
(4) Plans and specifications for projects;
(5) Pilot Project Technical Data Reports;
(6) Assessment reports prepared for the adaptive management program;
(7) Interim goals and interim targets;
(8) Development or revision of guidance memoranda or methods such as adaptive management, monitoring, plan formulation and evaluation, quantification of water needed for the natural system or protection of existing uses, methods of determining levels of flood protection, and similar guidance memoranda or methods; and
(9) Deviations from Operating Manuals for emergencies and unplanned minor deviations when, considered individually and cumulatively, they do not have significant effects on the quality of the human environment, as described in applicable Corps of Engineers regulations, including § 222.5(f)(4) and § 222.5(i)(5) of this chapter, and Engineer Regulation ER 1110-2-8156 “Preparation of Water Control Manuals.”
The State of Florida has established procedures, requirements, and approvals that are needed before the State or the South Florida Water Management District can participate as the non-Federal sponsor for projects of the Plan. Project Implementation Reports shall include such information and analyses, consistent with this part, as are necessary to facilitate review and approval of projects by the South Florida Water Management District and the State pursuant to the requirements of Florida law.
(a) The Corps of Engineers shall execute a design agreement with each non-Federal sponsor for the projects of the Plan prior to initiation of design activities with that non-Federal sponsor.
(b) Any procedures, guidance, or documents developed by the Corps of Engineers and the non-Federal sponsor pursuant to a design agreement shall be consistent with this part.
(a) In accordance with the procedures of the Corps of Engineers business process described in Engineer Regulation ER 5-1-11 “US Army Corps of Engineers Business process,” the Corps of Engineers and the non-Federal sponsor shall form a Project Delivery Team to develop the products necessary to implement each project.
(b) The Corps of Engineers shall assign, and the non-Federal sponsor may assign, a project manager to lead the Project Delivery Team.
(c) The Corps of Engineers and the South Florida Water Management District shall encourage the participation of other Federal, State, and local agencies and the Miccosukee Tribe of Indians of Florida and the Seminole Tribe of Florida on Project Delivery Teams, and use their expertise to ensure that information developed by the Project Delivery Team is shared with agencies, tribes, and the public at the earliest possible time in the implementation process. In forming the Project Delivery Team, the Corps of Engineers and the non-Federal sponsor shall request that the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies participate on the Project Delivery Team.
(1) In general, participation on the Project Delivery Team shall be the financial responsibility of the participating agency or tribe. However, the Corps of Engineers shall provide funding for the U.S. Fish and Wildlife Service and the National Marine Fisheries Service to prepare Fish and Wildlife Coordination Act Reports, as required by applicable law, regulation, or agency procedures.
(2) Participation by an agency or tribe on the Project Delivery Team shall not be considered or construed to be a substitute for consultation, coordination, or other activities required by applicable law or this part.
(d) Documents and work products prepared or developed by the Project Delivery Team shall not be self-executing, but shall be provided as information for consideration by the Corps
(a)
(i) Provide information about proposed activities;
(ii) Make the public's desires, needs, and concerns known to decision-makers before decisions are reached; and
(iii) Consider and respond to the public's views in reaching decisions.
(2) In carrying out implementation activities for the Plan, the Corps of Engineers and non-Federal sponsors shall undertake outreach activities to:
(i) Increase general public awareness for the Plan;
(ii) Involve interested groups and interested communities in the decision-making process and incorporate public values into decisions;
(iii) Better serve and involve minority communities and traditionally under served communities, persons with limited English proficiency, and socially and economically disadvantaged individuals;
(iv) Improve the substantive quality of decisions as a result of public participation; and
(v) Reduce conflict among interested and affected parties by building agreement or consensus on solutions to emerging issues.
(b)
(2) The Corps of Engineers and non-Federal sponsors shall develop and conduct outreach activities for project or program-level activities in order to provide information to the public and to provide opportunities for involvement by the public.
(3) The Corps of Engineers and non-Federal sponsors shall monitor the effectiveness of outreach activities throughout the implementation process.
(4) Project Management Plans and Program Management Plans shall include information concerning any outreach activities to be undertaken during the implementation of the project or activity.
(5) Project Delivery Team meetings and RECOVER meetings shall be open to attendance by the public. The public shall be notified in advance of these meetings through e-mail, posting on a web site, or other appropriate means. The public shall be provided with an opportunity to comment at such meetings.
(6) Public meetings and workshops shall be held at such times and locations as to facilitate participation by the public.
(7) The Corps of Engineers and non-Federal sponsors shall provide opportunities for the public to review and comment on draft documents.
(c)
(2) The Corps of Engineers and non-Federal sponsors shall monitor the effectiveness of outreach activities conducted to ensure that socially and economically disadvantaged individuals and communities, including individuals with limited English proficiency, are provided opportunities to review and comment during implementation of the Plan.
(3) Project Management Plans and Program Management Plans shall include information, concerning any outreach activities to be undertaken during the implementation of the project or activity, to socially and economically disadvantaged individuals and
(4) The Corps of Engineers and non-Federal sponsors shall make project and program information available in languages other than English where a significant number of individuals in the area affected by the project or program activity are expected to have limited English proficiency.
(5) The Corps of Engineers and non-Federal sponsors shall provide translators or similar services at public meetings where a significant number of participants are expected to have limited English proficiency.
(a) Project Management Plans and Program Management Plans shall include information concerning any environmental and economic equity activities to be undertaken during the implementation of the project or activity.
(b) As required by applicable laws and policies, the Corps of Engineers and non-Federal sponsors shall consider and evaluate environmental justice issues and concerns in the implementation of projects.
(c) During the implementation of the Plan, through appropriate means, consistent with section 601(k) of WRDA 2000 and other provisions of Federal law, the Corps of Engineers and non-Federal sponsors shall provide information to socially and economically disadvantaged individuals and communities, including individuals with limited English proficiency, about potential or anticipated contracting opportunities that are expected to result from implementation of the Plan.
(d) The District Engineer shall ensure that small business concerns owned and controlled by socially and economically disadvantaged individuals are provided opportunities to participate under section 15(g) of the Small Business Act (15 U.S.C. 644(g)) throughout the implementation process. The District Engineer shall track the amount of contracts awarded to small business concerns owned and controlled by socially and economically disadvantaged individuals in order to ensure that they are provided such opportunities.
(a) RECOVER (Restoration Coordination and Verification) is an interagency and interdisciplinary scientific and technical team described in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999. RECOVER was established by the Corps of Engineers and the South Florida Water Management District to conduct assessment, evaluation, and planning and integration activities using the best available science that support implementation of the Plan with the overall goal of ensuring that the goals and purposes of the Plan are achieved. RECOVER has been organized into a Leadership Group that provides management and coordination for the activities of RECOVER and teams that accomplish activities such as: developing system-wide performance measures; developing and implementing the monitoring and assessment program; evaluating alternatives developed by Project Delivery Teams to achieve the goals and purposes of the Plan; conducting system-wide water quality analyses; developing, refining, and applying system-wide models and tools; and evaluating modifications to the Plan. RECOVER is not a policy making body, but has technical and scientific responsibilities that support implementation of the Plan.
(b) Documents or work products prepared or developed by RECOVER shall not be self-executing, but shall be provided as information for consideration by the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies. Technical information developed by RECOVER shall be available to the public.
(c) The Corps of Engineers and the South Florida Water Management District shall encourage the participation
(1) In general, participation on RECOVER shall be the financial responsibility of the participating agency or tribe.
(2) Participation by an agency or tribe on RECOVER shall not be considered or construed to be a substitute for consultation, coordination, or other activities required by applicable law, policy, or regulation.
(d) The Corps of Engineers and the South Florida Water Management District shall:
(1) Assign program managers from the Corps of Engineers and the South Florida Water Management District to be responsible for carrying out the activities of RECOVER; and
(2) Establish a RECOVER Leadership Group to assist the program managers in coordinating and managing the activities of RECOVER, including the establishment of sub-teams or other entities, and in reporting on the activities of RECOVER. In addition to the program managers, the RECOVER Leadership Group shall, consist of one member appointed by each of the following:
(i) Environmental Protection Agency;
(ii) National Oceanic and Atmospheric Administration;
(iii) U.S. Fish and Wildlife Service;
(iv) U.S. Geological Survey;
(v) National Park Service;
(vi) Miccosukee Tribe of Indians of Florida;
(vii) Seminole Tribe of Florida;
(viii) Florida Department of Agriculture and Consumer Services;
(ix) Florida Department of Environmental Protection; and
(x) Florida Fish and Wildlife Conservation Commission.
(3) As necessary to assist the program managers, the Corps of Engineers and the South Florida Water Management District may add additional members to the RECOVER Leadership Group.
(e) RECOVER shall perform assessment, evaluation, and planning and integration activities as described in this paragraph.
(1)
(i) Developing proposed assessment performance measures for assessing progress towards the goals and purposes of the Plan;
(ii) Developing a proposed monitoring plan to support the adaptive management program;
(iii) Conducting monitoring and assessment activities as part of the adaptive management program to assess the actual performance of the Plan;
(iv) Developing recommendations for interim goals in accordance with § 385.38;
(v) Assessing progress towards achieving the interim goals established pursuant to § 385.38;
(vi) Developing recommendations for interim targets in accordance with § 385.39;
(vii) Assessing progress towards achieving the interim targets established pursuant to § 385.39; and
(viii) Cooperating with the independent scientific review panel and external peer review in accordance with § 385.22.
(2)
(i) Developing proposed evaluation performance measures for evaluating alternative plans developed for the Project Implementation Report;
(ii) Conducting evaluations of alternative plans developed for Project Implementation Reports and Comprehensive Plan Modification Reports; and
(iii) Supporting development and refinement of predictive models and tools used in the evaluation of alternate plans developed by the Project Delivery Teams.
(3)
(i) Developing and refining conceptual and predictive models and tools in support of the integration of new science into the adaptive management program;
(ii) Reviewing and synthesizing new information and science that could have an effect on the Plan;
(iii) Developing proposed refinements and improvements in the design or operation of the Plan during all phases of implementation;
(iv) Preparing technical information to be used in the development of the periodic reports to Congress prepared pursuant to § 385.40; and
(v) Analyzing proposed revisions to the Master Implementation Sequencing Plan.
(f) In carrying out the functions described in this section, RECOVER shall consider the effects of activities and projects that are not part of the Plan, but which could affect the ability of the Plan to achieve its goals and purposes.
(g) As appropriate, the Corps of Engineers and the South Florida Water Management District shall seek external peer review of RECOVER activities in accordance with § 385.22(b).
(a) The Corps of Engineers and the non-Federal sponsor shall prepare a quality control plan, in accordance with applicable Corps of Engineers regulations, for each product that will be produced by a Project Delivery Team. The quality control plan shall be included in the Project Management Plan and shall describe the procedures to be used to ensure compliance with technical and policy requirements during implementation.
(b) During development of the Project Management Plan for each project, the Corps of Engineers and the non-Federal sponsor shall establish a Technical Review Team to conduct reviews to ensure that products are consistent with established criteria, guidance, procedures, and policy. The members of the Technical Review Team
(c) Technical review is intended to be a continuous process throughout project implementation. The Technical Review Team shall document its actions and recommendations and provide reports to the Project Delivery Team at designated points during the implementation process that shall be described in the quality control plan.
(a)
(2) To carry out section 601(j), the Department of the Army, the Department of the Interior, and the State shall establish an independent scientific review panel to conduct on-going review of the progress achieved by the implementation of the Plan in achieving the restoration goals of the Plan and shall provide the panel with the resources and cooperation necessary to ensure that the panel is able to function effectively.
(3) Not later than June 14, 2004, the Secretary of the Army, the Secretary of the Interior, and the Governor, in consultation with the South Florida Ecosystem Restoration Task Force, shall enter into a five-year agreement, with options for extensions in five-year increments, with the National Academy of Sciences to convene this panel.
(4) The Department of the Army, the Department of the Interior, and the State expect that the National Academy of Sciences will use established practices for assuring the independence of members and that the review panel will include members reflecting a balance of the knowledge, training, and experience suitable to comprehensively review and assess progress towards achieving natural system restoration goals of the Plan.
(5) To ensure the independence of the section 601(j) panel, its sole mission shall be to review the Plan's progress toward achieving the natural system restoration goals of the Plan and to produce a biennial report to Congress, the Secretary of the Army, the Secretary of the Interior, and the Governor that includes an assessment of ecological indicators and other measures of progress in restoring the ecology of the natural system, based on the Plan. The Secretary of the Army, the Secretary of the Interior, the Governor, and the South Florida Ecosystem Restoration Task Force and its members, shall not attempt to influence the panel's review or assign this panel any other tasks, nor request any advice on any other matter, nor shall this panel accept any other tasks nor provide advice on any other matter, to any entity, whether Federal, State or local, whether public or private.
(6) Before final establishment of the panel, the Department of the Army, the Department of the Interior, and the State, in consultation with the South Florida Ecosystem Restoration Task Force, shall be afforded the opportunity to review the list of panel members convened by the National Academy of Sciences.
(7) The agreement shall recognize that the Department of the Army, the Department of the Interior, and the State retain the right and ability to establish other independent scientific review panels or external peer reviews when deemed necessary by those agencies for conducting specific scientific and technical reviews.
(8) The Department of the Army, the Department of the Interior, and the State of Florida shall share the panel's costs. The Department of the Army and the Department of the Interior
(9) The panel shall produce a biennial report to Congress, the Secretary of the Army, the Secretary of the Interior, and the Governor, pursuant to section 601(j) of WRDA 2000, that includes an assessment of ecological indicators and other measures of progress in restoring the ecology of the natural system, based on the Plan.
(10) The Corps of Engineers and the South Florida Water Management District and other non-Federal sponsors shall cooperate with the independent scientific review panel, including responding to reasonable requests for information concerning the implementation of the Plan.
(11) The Secretary of the Army, the Secretary of the Interior, and the Governor shall consult with the South Florida Ecosystem Restoration Task Force in their decision to exercise each five-year option to extend the agreement with the National Academy of Sciences. Upon expiration of the agreement, the Secretary of the Army, the Secretary of the Interior, and the Governor shall consult the South Florida Ecosystem Restoration Task Force in selection of another body to convene the independent scientific review panel required by section 601(j) of WRDA 2000.
(b)
(2) In accordance with § 385.12(d), draft Pilot Project Technical Reports shall be externally peer reviewed.
(3) In accordance with § 385.31(b), draft assessment reports prepared for the adaptive management program shall be externally peer reviewed.
(a) Disputes with the non-Federal sponsor concerning a Project Cooperation Agreement shall be resolved under the specific dispute resolution procedures of that Project Cooperation Agreement.
(b) Disputes with the non-Federal sponsor concerning design activities shall be resolved under the specific dispute resolution procedures of the design agreement.
(c) All other unresolved issues with the non-Federal sponsor and disputes with the State associated with the implementation of the Plan shall be resolved according to the terms of the Dispute Resolution Agreement executed on September 9, 2002 pursuant to section 601(i) of WRDA 2000.
(d) For disputes with parties not covered by the provisions of paragraphs (a), (b), or (c) of this section, the Corps of Engineers shall attempt to resolve the dispute in accordance with applicable statutory requirements and/or the following procedures:
(1) The parties will attempt to resolve disputes at the lowest organizational level before seeking to elevate a dispute.
(2) Any disputed matter shall first be elevated to the District Engineer and the equivalent official of the other agency, or their designees. The parties may decide to continue to elevate the dispute to higher levels within each agency.
(3) The parties to a dispute may agree to participate in mediation.
(4) When a dispute is resolved the parties shall memorialize the resolution in writing.
(a)
(2) The Project Management Plan shall define the activities, and where appropriate, the subordinate tasks, as well as the assignment of responsibility for completing products and activities such as Project Implementation Reports, Pilot Project Design Reports, plans and specifications, real estate acquisition, construction contracts and construction, Comprehensive Plan Modification Reports, and other activities necessary to support implementation of the Plan.
(3) The Project Management Plan shall include a quality control plan, as described in § 385.21.
(4) As appropriate, the Project Management Plan shall include activities to be conducted to meet the requirements of the Fish and Wildlife Coordination Act, as described in § 385.26(e).
(5) The Project Management Plan shall provide schedule and funding information for the project.
(6) In accordance with § 385.18, Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the Project Management Plan.
(b)
(a)
(2) The Program Management Plan shall define the activities, and where appropriate, the subordinate tasks, as well as the assignment of responsibility for completing products developed in support to program-level activities.
(3) In accordance with § 385.18, Corps of Engineers and the non-Federal sponsor shall provide opportunities for the public to review and comment on the Program Management Plan.
(b)
(a)
(2) Before completion of the draft Project Implementation Report, the Corps of Engineers and the non-Federal sponsor shall provide the South Florida Ecosystem Restoration Task Force with information about the alternative plans developed and evaluated for the Project Implementation Report.
(3) The Project Implementation Report shall:
(i) Be consistent with the Plan and applicable law, policy, and regulation, including the Principles and Guidelines of the Water Resources Council, as modified by section 601(f)(2)(A) of WRDA 2000;
(ii) Be based on the best available science;
(iii) Comply with all applicable Federal, State, and Tribal laws;
(iv) Contain sufficient information for proceeding to final design of the project, such as: additional plan formulation and evaluation, environmental and/or economic benefits, engineering and design, costs, environmental impacts, real estate requirements, and the preparation of the appropriate National Environmental Policy Act documentation;
(v) Contain the information necessary to determine that the activity is justified by the environmental benefits derived by the South Florida ecosystem in accordance with section 601(f)(2)(A) and/or that the benefits of the project are commensurate with costs, and that the project is cost-effective;
(vi) Comply, in accordance with section 601(b)(2)(A)(ii) of WRDA 2000, with applicable water quality standards and applicable water quality permitting requirements;
(vii) Identify, in accordance with § 385.35, the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system;
(viii) Identify, in accordance with § 385.35, the amount of water to be reserved or allocated for the natural system under State law necessary to implement the provisions in paragraphs (a)(3)(vi) and (vii) of this section;
(ix) Identify the quantity, timing, and distribution of water made available for other water-related needs of the region;
(x) Determine, in accordance with § 385.36, if existing legal sources of water are to be eliminated or transferred;
(xi) Determine, in accordance with § 385.37(b) that implementation of the selected alternative will not reduce levels of service for flood protection that:
(A) Were in existence on the date of enactment of section 601 of WRDA 2000; and
(B) Are in accordance with applicable law; and consider, as appropriate, in accordance with § 385.37(c), opportunities to provide additional flood protection;
(xii) Include an assessment of the monetary and non-monetary benefits and costs, optimization and justification, cost-effectiveness, and engineering feasibility of the project;
(xiii) Include a discussion of any significant changes in cost or scope of the project from that presented in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999;
(xiv) Include an analysis, prepared by RECOVER as described in paragraph (c) of this section, of the project's contributions towards achieving the goals and purposes of the Plan, including, as appropriate, suggestions for improving the performance of the alternative plans;
(xv) Describe how the project contributes to the achievement of interim goals established pursuant to § 385.38 and the interim targets established pursuant to § 385.39;
(xvi) Include, in accordance with § 385.28(c), a draft Project Operating Manual as an appendix; and
(xvii) Include, as appropriate, information necessary for the non-Federal sponsor to address the requirements of Chapter 373 of the Florida Statutes, and other applicable planning and reporting requirements of Florida law.
(4) The Corps of Engineers and the non-Federal sponsor shall develop the Project Implementation Report generally in accordance with the process shown in figure 2 in Appendix A of this part.
(5) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the major tasks that are generally needed to prepare a Project Implementation Report and the format and content of a Project Implementation Report.
(b)
(1)
(2)
(3)
(c)
(2) RECOVER shall prepare information for the Project Delivery Team describing the results of the evaluations of alternative plans developed for the Project Implementation Report towards achieving the goals and purposes of the Plan, including, as appropriate, suggestions for improving the performance of the alternative plans.
(d)
(2) The District Engineer shall prepare the Record of Decision for Project Implementation Reports. Review and signature of the Record of Decision shall follow the same procedures as for review and approval of feasibility reports in § 230.14 of this chapter and other applicable Corps of Engineers regulations.
(e)
(2) The Project Management Plan shall include a discussion of activities to be conducted for compliance with the Fish and Wildlife Coordination Act and other applicable laws.
(3) Consistent with applicable law, policy, and regulations, coordination shall include preparation of the following documents as shown in figure 2 in Appendix A of this part:
(i) Planning Aid Letter that describes issues and opportunities related to the conservation and enhancement of fish and wildlife resources; and
(ii) Draft and final Fish and Wildlife Coordination Act Reports that provide the formal views and recommendations of the U.S. Fish and Wildlife Service or the National Marine Fisheries Service, and the Florida Fish and Wildlife Conservation Commission on alternative plans.
(f)
(2) The Project Implementation Report shall contain an appropriate letter of intent from the non-Federal sponsor indicating concurrence with the recommendations of the Project Implementation Report.
(3) Upon the completion of the Project Implementation Report and NEPA document, the District Engineer shall submit the report and NEPA document to the Division Engineer.
(4) Upon receipt and approval of the Project Implementation Report the Division Engineer shall issue a public notice announcing completion of the Project Implementation Report based upon:
(i) The Division Engineer's endorsement of the findings and recommendations of the District Engineer; and
(ii) The Division Engineer's assessment that the project has been developed and the report prepared in accordance with current law and policy. The notice shall indicate that the report has been submitted to Corps of Engineers Headquarters for review.
(5) Headquarters, U.S. Army Corps of Engineers shall conduct a review in accordance with applicable policies and regulations of the Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall administer the 30-day state and agency review of the Project Implementation Report, and as appropriate, file the Environmental Impact Statement with the Environmental Protection Agency.
(6) After completion of the review and other requirements of law and policy, the Chief of Engineers shall submit the Project Implementation Report and the Chief of Engineers' recommendations on the project to the Assistant Secretary of the Army for Civil Works.
(7) The Assistant Secretary of the Army for Civil Works shall review all Project Implementation Reports, and shall, prior to either approving them or submitting the Assistant Secretary's recommendations to Congress, coordinate the project and proposed recommendations with the Office of Management and Budget.
(i) For projects authorized by section 601(c) of WRDA 2000, the Assistant Secretary of the Army for Civil Works shall review and approve the Project Implementation Report prior to implementation of the project.
(ii) For projects authorized by section 601(b)(2)(C) of WRDA 2000, the Assistant Secretary of the Army for Civil Works shall review the Project Implementation Report prior to submitting the Assistant Secretary's recommendations to the Committee on Transportation and Infrastructure of the House of Representatives and the Committee on Environment and Public Works of the Senate for approval.
(iii) For all other projects, the Assistant Secretary of the Army for Civil Works shall review the Project Implementation Report prior to submitting the Assistant Secretary's recommendations regarding authorization to Congress.
(a)
(b)
(c)
(1) The District Engineer shall, in consultation with the South Florida Water Management District, the Florida Department of Environmental Protection, the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, and other Federal, State, and local agencies, verify in writing that the revised reservation or allocation continues to provide for an appropriate quantity, timing, and distribution of water dedicated and managed for the natural system after considering any changed circumstances or new information since completion of the Project Implementation Report. In accordance
(2) The Secretary of the Army shall notify the appropriate committees of Congress whenever a change to the reservation or allocation of water for the natural system executed under State law as described in the Project Implementation Report has been made. Such notification shall include the Secretary's and the State's reasons for determining that the revised reservation or allocation continues to provide for an appropriate quantity, timing, and distribution of water dedicated and managed for the natural system after considering any changed circumstances or new information since completion of the Project Implementation Report. The Secretary of the Army's notification to the appropriate committees of Congress shall be made available to the public.
(d)
(1) Eliminate or transfer existing legal sources of water until a new source of comparable quantity and quality as that available on the date of enactment of WRDA 2000 is available to replace the water to be lost as a result of implementation of the Plan; and
(2) Reduce levels of service for flood protection that are:
(i) In existence on the date of enactment of WRDA 2000; and
(ii) In accordance with applicable law.
(a)
(2) Operating Manuals shall consist of a System Operating Manual and Project Operating Manuals. In general, the System Operating Manual provides a system-wide operating plan for the operation of the projects of the Plan and other C&SF Project features and the Project Operating Manuals provide the details necessary for integrating the operation of the individual projects with the system operation described in the System Operating Manual.
(3) In accordance with § 385.18, the public shall have the opportunity to review and comment on draft Operating Manuals.
(4) The Division Engineer and the non-Federal sponsor shall approve completed Operating Manuals.
(5) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the content of Operating Manuals and the tasks necessary to develop Operating Manuals.
(6) Operating Manuals shall:
(i) Be consistent with the goals and purposes of the Plan;
(ii) Comply with NEPA, in accordance with § 385.14.
(iii) Describe regulation schedules, water control, and operating criteria for a project, group of projects, or the entire system;
(iv) Make provisions for the natural fluctuation of water made available in any given year and fluctuations necessary for the natural system as described in the Plan;
(v) Be consistent with applicable water quality standards and applicable water quality permitting requirements;
(vi) Be consistent with the reservation or allocation of water for the natural system and the savings clause provisions described in the Project Implementation Report and the Project Cooperation Agreement and the provisions of § 385.35(b), § 385.36, and § 385.37 and reflect the operational criteria used in the identification of the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system;
(vii) Include a drought contingency plan as required by § 222.5(i)(5) of this chapter and Engineer Regulation ER 1110-2-1941 “Drought Contingency Plans” that is consistent with the Water Rights Compact Among the Seminole Tribe of Florida, the State of Florida, and the South Florida Water Management District and Florida Administrative Code Section 40E-21 (Water Shortage Plan) and Florida Administrative Code Section 40E-22 (Regional Water Shortage Plan); and
(viii) Include provisions authorizing temporary short-term deviations from the Operating Manual for emergencies and unplanned circumstances, as described in applicable Corps of Engineers regulations, including § 222.5(f)(4) and § 222.5(i)(5) of this chapter, and Engineer Regulation ER 1110-2-8156 “Preparation of Water Control Manuals.” However, deviations shall be minimized by including planning for flooding events caused by rainfall and hurricane events, as well as by including a drought contingency plan.
(A)
(B)
(7) Except as provided in this part, operating manuals generally shall follow the procedures for water control plans in § 222.5 of this chapter and applicable Corps of Engineers regulations for preparation of water control manuals and regulation schedules, including Engineer Regulation ER 1110-2-8156.
(b)
(2) The System Operating Manual shall initially be based on the existing completed Central and Southern Florida Project features and shall be developed by the Corps of Engineers as provided in § 222.5(g) of this chapter and by the South Florida Water Management District as its laws and regulations require. Existing water control plans, regulation schedules, and Master Water Control Plans for the Central and Southern Florida Project shall remain in effect until approval of the System Operating Manual.
(3) The System Operating Manual shall be revised whenever the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, believe it is necessary to ensure that the goals and purposes of the Plan are achieved.
(4) Except as provided in this part, the System Operating Manual shall follow the procedures for preparation of water control manuals, regulation schedules and Master Water Control Manuals in § 222.5 of this chapter and applicable Corps of Engineers regulations.
(5) The Corps of Engineers and the South Florida Water Management District shall provide notice and opportunity for public comment for any significant modification to the System Operating Manual.
(c)
(2) Project Operating Manuals shall be considered supplements to the System Operating Manual, and present aspects of the projects not common to the system as a whole.
(3) Each Project Implementation Report shall, as appropriate, include a draft Project Operating Manual as an appendix to the Project Implementation Report.
(4) As appropriate, the draft Project Operating Manual shall be revised for the project construction phase and the operational monitoring and testing phase after completion of project construction.
(5) The final Project Operating Manual shall be completed as soon as practicable after completion of the operational testing and monitoring phase of the project. The completed project shall continue to be operated in accordance with the approved draft Project Operating Manual until the final Project Operating Manual is approved.
(6) The Corps of Engineers and the non-Federal sponsor shall provide notice and opportunity for public comment for any significant modification to the Project Operating Manual.
(a) As appropriate, the Corps of Engineers and the non-Federal sponsor may prepare design documents to provide additional design information needed for projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor.
(b) The Corps of Engineers and the non-Federal sponsor shall prepare plans and specifications necessary for construction of projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor.
(c) The Corps of Engineers and the non-Federal sponsor may prepare other documents as appropriate during the real estate acquisition and construction phases for projects. Such documents shall be approved in accordance with applicable policies of the Corps of Engineers and the non-Federal sponsor.
(a) Not later than December 13, 2004 the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, develop a Master Implementation Sequencing Plan that includes the sequencing and scheduling for implementation of all of the projects of the Plan, including pilot projects and operational elements, based on the best scientific, technical, funding, contracting, and other information available. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in preparing the Master Implementation Sequencing Plan.
(1) Projects shall be sequenced and scheduled to maximize the achievement of the goals and purposes of the Plan at the earliest possible time and in the most cost-effective way, consistent with the requirement that each project be justified on a next-added increment basis, including the achievement of the interim goals established pursuant to § 385.38 and the interim targets established pursuant § 385.39, consistent with § 385.36 and § 385.37(b), and to the extent practical given funding,
(i) Technical dependencies and constraints;
(ii) Benefits to be provided by the project;
(iii) Availability of lands required for the project; and
(iv) Avoiding elimination or transfers of existing legal sources of water until an alternate source of comparable quantity and quality is available, in accordance with § 385.36.
(2) The Master Implementation Sequencing Plan shall include appropriate discussion of the logic, constraints, and other parameters used in developing the sequencing and scheduling of projects.
(3) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the Master Implementation Sequencing Plan.
(b) Whenever necessary to ensure that the goals and purposes of the Plan are achieved, but at least every five years, the Corps of Engineers and the South Florida Water Management District shall, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, review the Master Implementation Sequencing Plan.
(1) The Master Implementation Sequencing Plan may be revised as appropriate, consistent with the goals and purposes of the Plan, and consistent with § 385.36 and § 385.37(b), to incorporate new information including, but not limited to:
(i) Updated schedules from Project Management Plans;
(ii) Information obtained from pilot projects;
(iii) Updated funding information;
(iv) Approved revisions to the Plan;
(v) Congressional or other authorization or direction;
(vi) Information resulting from the adaptive management program, including new information on costs and benefits; or
(vii) Information regarding progress towards achieving the interim goals established pursuant to § 385.38 and the interim targets established pursuant to § 385.39.
(2) Proposed revisions to the Master Implementation Sequencing Plan shall be analyzed by RECOVER for effects on achieving the goals and purposes of the Plan and the interim goals and targets.
(3) The revised Master Implementation Sequencing Plan shall include information about the reasons for the changes to the sequencing and scheduling of individual projects.
(4) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on revisions to the Master Implementation Sequencing Plan.
(a)
(b)
(2) RECOVER shall develop a monitoring program that is designed to measure status and trends towards achieving the goals and purposes of the Plan throughout the South Florida ecosystem.
(3) RECOVER shall conduct monitoring activities and use the information collected and analyzed through the monitoring program as a basis for conducting assessment tasks, which may include, but are not limited to, the following:
(i) Determining if measured responses are desirable and are achieving the interim goals and the interim targets or the expected performance level of the Plan;
(ii) Evaluating if corrective actions to improve performance or improve cost-effectiveness should be considered; and
(iii) Preparing reports on the monitoring program.
(4) Whenever it is deemed necessary, but at least every five years, RECOVER shall prepare a technical report that presents an assessment of whether the goals and purposes of the Plan are being achieved, including whether the interim goals and interim targets are being achieved or are likely to be achieved. The technical report shall be provided to the Corps of Engineers and the South Florida Water Management District for use in preparing the assessment report. The technical report prepared by RECOVER shall also be made available to the public.
(i) The Corps of Engineers and the South Florida Water Management District shall consult with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies in the development of the assessment report. The Corps of Engineers and the South Florida Water Management District shall also consult with the South Florida Ecosystem Restoration Task Force in developing the assessment report.
(ii) In accordance with § 385.22(b), the draft assessment report shall be externally peer reviewed.
(iii) In accordance with § 385.18, Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the draft assessment report.
(iv) The Corps of Engineers and the South Florida Water Management District shall transmit the final assessment report to the Secretary of the Army, the Secretary of the Interior, and the Governor.
(v) The Secretary of the Army shall make the final assessment report available to the public.
(c)
(d)
(i) Modifying current operations of the Plan;
(ii) Modifying the design or operational plan for a project of the Plan not yet implemented;
(iii) Modifying the sequence or schedule for implementation of the Plan;
(iv) Adding new components to the Plan or deleting components not yet implemented;
(v) Removing or modifying a component of the Plan already in place; or
(vi) A combination of these.
(2) Such actions should be implemented through revisions to Operating Manuals in accordance with § 385.28, revisions to the Master Implementation Sequencing Plan in accordance with § 385.30, a Comprehensive Plan Modification Report in accordance with § 385.32, or other appropriate mechanisms.
Whenever the Corps of Engineers and the South Florida Water Management District, in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and
(a)
(1) Be initiated at the discretion of the Corps of Engineers and the South Florida Water Management District in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, after consideration of the assessment report prepared in accordance with § 385.31(b), requests from the Department of the Interior or the State, or other appropriate information;
(2) Comply with all applicable Federal and State laws, including the National Environmental Policy Act, the Endangered Species Act, the Fish and Wildlife Coordination Act, the National Historic Preservation Act, the Clean Water Act, the Safe Drinking Water Act, the Clean Air Act, the Coastal Zone Management Act, the Marine Mammal Protection Act, and any other applicable law;
(3) Contain information such as: Plan formulation and evaluation, engineering and design, estimated benefits and costs, and environmental effects,;
(4) Include appropriate analyses of alternatives evaluated by RECOVER;
(5) Include updated water budget information for the Plan, including the total quantity of water that is expected to be generated by implementation of the Plan, and the quantity expected to be generated for the natural system to attain restoration goals as well as the quantity expected to be generated for use in the human environment;
(6) Contain appropriate NEPA documentation to supplement the Programmatic Environmental Impact Statement included in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999; and
(7) Include coordination with the U.S. Fish and Wildlife Service, the National Marine Fisheries Service, the Florida Fish and Wildlife Coordination Commission, and other appropriate agencies in the preparation of the Comprehensive Plan Modification Report, as required by applicable law.
(b)
(2) The Comprehensive Plan Modification Report shall contain an appropriate letter of intent from the South Florida Water Management District indicating concurrence with the recommendations of the Comprehensive Plan Modification Report.
(3) Upon the completion of the Comprehensive Plan Modification Report and NEPA document, the District Engineer shall submit the report and NEPA document to the Division Engineer.
(4) Upon receipt and approval of the Comprehensive Plan Modification Report, the Division Engineer shall issue a public notice announcing completion
(i) The Division Engineer's endorsement of the findings and recommendations of the District Engineer; and
(ii) The Division Engineer's assessment that the report has been prepared in accordance with current law and policy. The notice shall indicate that the report has been submitted to Corps of Engineers Headquarters for review.
(5) Headquarters, U.S. Army Corps of Engineers shall conduct a review in accordance with applicable policies and regulations of the Corps of Engineers. Headquarters, U.S. Army Corps of Engineers shall administer the 30-day state and agency review of the Comprehensive Plan Modification Report, and, as appropriate, file the Environmental Impact Statement with the Environmental Protection Agency.
(6) After completion of the policy review and other requirements of law and policy, the Chief of Engineers shall submit the Comprehensive Plan Modification Report and the Chief of Engineers' recommendations to the Assistant Secretary of the Army for Civil Works.
(7) The Assistant Secretary of the Army for Civil Works shall review the Comprehensive Plan Modification Report and shall, prior to submitting the Assistant Secretary's recommendations to Congress, coordinate the proposed recommendations with the Office of Management and Budget.
(c)
(a) In carrying out their responsibilities for implementing the Plan, the Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors shall rely on the best available science including models and other analytical tools for conducting analyses for the planning, design, construction, operation, and assessment of projects. The selection of models and analytical tools shall be done in consultation with the Department of the Interior, the Environmental Protection Agency, the Department of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Florida Department of Environmental Protection, and other Federal, State, and local agencies.
(b) The Corps of Engineers, the South Florida Water Management District, and other non-Federal sponsors may, in consultation with the Department of the Interior, the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, the Environmental Protection Agency, the Department of Commerce, the Florida Department of Environmental Protection, and other Federal, State, and local agencies, periodically revise models and analytical tools or develop new models and analytical tools as needed. As appropriate, RECOVER shall review the adequacy of system-wide simulation models and analytical tools used in the evaluation and assessment of projects, and shall propose improvements in system-wide models and analytical tools required for the evaluation and assessment tasks.
(c) The Corps of Engineers and the South Florida Water Management District shall determine on a case-by-case basis what documentation is appropriate for revisions to models and analytic tools, depending on the significance of the changes and their impacts to the Plan. Such changes may be treated as Minor Changes to the Plan, in accordance with § 385.32(c) where appropriate.
(a) The Plan shall be updated to incorporate approved changes to the Plan resulting from:
(1) Approval by the Secretary of the Army of a project to be implemented pursuant to § 385.13;
(2) Authorization of projects by Congress;
(3) Comprehensive Plan Modification Reports approved by Congress; or
(4) Other changes authorized by Congress.
(b) The Corps of Engineers and the South Florida Water Management District shall annually prepare a document for dissemination to the public that describes:
(1) The components of the Plan, including any approved changes to the Plan;
(2) The estimated cost of the Plan, including any approved changes to the Plan;
(3) A water budget for the Plan; and
(4) The water that has been reserved or allocated for the natural system under State law for the Plan.
(c) The Corps of Engineers shall annually provide to the Office of Management and Budget an updated estimate of total cost of the Plan, the costs of individual project components, and an explanation of any changes in these estimates from the initial estimates contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999.
(a)
(i) The pre-CERP baseline may express the quantity, timing, and distribution of water in stage duration curves; exceedance frequency curves; quantities available in average, wet, and dry years; or any other method which is based on the best available science.
(ii) The pre-CERP baseline shall include appropriate documentation that includes a description of the assumptions used to develop the pre-CERP baseline.
(iii) In addition to the development of the pre-CERP baseline, the Corps of Engineers and the South Florida Water Management District shall conduct other analyses that they deem necessary to determine if an existing legal source of water has been eliminated or transferred or if a new source of water is of comparable quality to that which has been eliminated or transferred in accordance with § 385.36.
(2) In accordance with § 385.18, the Corps of Engineers and the South Florida Water Management District shall provide opportunities for the public to review and comment on the pre-CERP baseline.
(3) The pre-CERP baseline shall be developed with the concurrence of the Secretary of the Interior and the Governor. Within 180 days of being provided the pre-CERP baseline, or such shorter period that the Secretary of the Interior and the Governor may agree to, the Secretary of the Interior and the Governor shall provide the Secretary of the Army with a written
(4) Nothing in this paragraph is intended to, or shall it be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nothing in this section is intended to, nor shall it be interpreted to, prescribe any process of Florida law.
(b)
(2) Each Project Implementation Report shall take into account the availability of pre-CERP baseline water and previously reserved water as well as the estimated total quantity of water that is necessary for restoration for the natural system and the quantity of water anticipated to be made available from future projects in identifying the appropriate quantity, timing, and distribution of water dedicated and managed for the natural system, determining whether improvements in water quality are necessary to ensure that water delivered to the natural system meets applicable water quality standards; and identifying the amount of water for the natural system necessary to implement, under State law, the provisions of section 601(h)(4)(A)(iii)(V) of WRDA 2000.
(3) Section 601(h)(3)(C)(i)(I) of WRDA 2000 requires the regulations of this part to establish a process for development of Project Implementation Reports, Project Cooperation Agreements, and Operating Manuals that ensure that the goals and objectives of the Plan are achieved. Section 601(h)(4)(A)(iii)(IV) of WRDA 2000 provides that Project Implementation Reports shall identify the appropriate
(i) The guidance memorandum shall generally be based on using a system-wide analysis of the water made available and may express the quantity, timing and distribution of water in stage duration curves; exceedance frequency curves; quantities available in average, wet, and dry years; or any other method which is based on the best available science. The guidance memorandum shall also provide for projects that are hydrologically separate from the rest of the system. The guidance memorandum also shall address procedures for determining whether improvements in water quality are necessary to ensure that water delivered to the natural system meets applicable water quality standards. These procedures shall ensure that any features to improve water quality are implemented in a manner consistent with the cost sharing provisions of WRDA 1996 and WRDA 2000.
(ii) The guidance memorandum shall generally take into account the natural fluctuation of water made available in any given year based on an appropriate period of record; the objective of restoration of the natural system; the need for protection of existing uses transferred to new sources; contingencies for drought protection; the need to identify the additional quantity, timing, and distribution of water made available by a new project component while maintaining a system-wide perspective on the amount of water made available by the Plan; and the need to determine whether improvements in water quality are necessary to ensure that water delivered by the Plan meets applicable water quality standards.
(iii) Project Implementation Reports approved before December 12, 2003 or before the development of the guidance memorandum may use whatever method that the Corps of Engineers and the non-Federal sponsor deem is reasonable and consistent with the provisions of section 601 of WRDA 2000.
(iv) Nothing in this paragraph is intended to, or shall it be interpreted to, reserve or allocate water or to prescribe the process for reserving or allocating water or for water management under Florida law. Nothing in this section is intended to, nor shall it be interpreted to, prescribe any process of Florida law.
(c)
(a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA 2000, Project Implementation Reports shall include
(b) The Corps of Engineers and the South Florida Water Management District shall develop a guidance memorandum in accordance with § 385.5 for approval by the Secretary of the Army, with the concurrence of the Secretary of the Interior and the Governor, that describes the process for determining if existing legal sources of water are to be eliminated or transferred and for determining how and when a new source of water of comparable quantity and quality as that available on the date of enactment of WRDA 2000 is available to replace the water to be lost as a result of implementation of the Plan. The guidance memorandum shall also describe the process for comparing the recommended project with the pre-CERP baseline to determine if existing legal sources of water are to be transferred or eliminated as a result of project implementation. The guidance memorandum shall include a definition for existing legal sources of water for the purposes of determining if existing legal sources of water are to be eliminated or transferred. Existing legal sources of water shall include those for:
(1) An agricultural or urban water supply;
(2) Allocation or entitlement to the Seminole Indian Tribe of Florida under section 7 of the Seminole Indian Land Claims Settlement Act of 1987 (25 U.S.C. 1772e);
(3) The Miccosukee Tribe of Indians of Florida;
(4) Water supply for Everglades National Park; and
(5) Water supply for fish and wildlife.
(c) Until guidance is issued, issues involving existing legal sources of water should be resolved on a case-by-case basis considering all factors that can be identified as relevant to decisions under the savings clause.
(a)
(b)
(1) Were in existence on the date of enactment of section 601 of WRDA 2000; and
(2) Are in accordance with applicable law, will not be reduced by implementation of the project.
(c)
(a)
(2) After execution of the Interim Goals Agreement, the Department of the Army shall memorialize the agreement in appropriate Corps of Engineers guidance.
(b)
(2) The interim goals shall:
(i) Facilitate inter-agency planning, monitoring and assessment;
(ii) Be provided to the independent scientific review panel established in accordance with § 385.22(a);
(iii) Be considered in developing the Master Implementation Sequencing Plan, Project Implementation Reports, and Comprehensive Plan Modification Reports; and
(iv) Be considered in making budgetary decisions concerning implementation of the Plan.
(3) To ensure flexibility in implementing the Plan over the next several decades, and to ensure that interim goals may reflect changed circumstances or new information resulting from adaptive management, the interim goals may be modified, consistent with the processes set forth in paragraph (d) of this section, to reflect new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan.
(4) The Corps of Engineers and the South Florida Water Management District shall sequence and schedule projects as appropriate to achieve the interim goals and the interim targets established pursuant to § 385.39 to the extent practical given funding, technical, or other constraints.
(5) If the interim goals have not been met or are unlikely to be met, then the Corps of Engineers and the South Florida Water Management District shall determine why the interim goals have not been met or are unlikely to be met and either:
(i) Initiate adaptive management actions pursuant to § 385.31(d) to achieve the interim goals as soon as practical, consistent with the purposes of the Plan and consistent with the interim targets established pursuant to § 385.39; or
(ii) Recommend changes to the interim goals in accordance with paragraph (b)(3) of this section.
(c)
(2) In developing its recommendations for interim goals, RECOVER shall consider indicators including, but not limited to:
(i) Hydrologic indicators, including:
(A) The amount of water, in addition to the pre-CERP baseline and assumptions regarding without project conditions, which will be available to the natural system;
(B) Hydroperiod targets in designated sample areas throughout the Everglades;
(C) The changes in the seasonal and annual overland flow volumes in the Everglades that will be available to the natural system;
(D) The frequency of extreme high and low water levels in Lake Okeechobee; and
(E) The frequency of meeting salinity envelopes in estuaries such as the St. Lucie, Caloosahatchee, Biscayne Bay, and Florida Bay and nearshore areas.
(ii) Improvement in water quality; including:
(A) Total phosphorus concentrations in the Everglades; and
(B) Lake Okeechobee phosphorus concentrations.
(iii) Ecological responses, including:
(A) Increases in total spatial extent of restored wetlands;
(B) Improvement in habitat quality; and
(C) Improvement in native plant and animal abundance.
(3) In developing the interim goals based upon water quality and expected ecological responses, the Corps of Engineers, The Department of the Interior, and the South Florida Water Management District shall take into consideration the extent to which actions undertaken by Federal, State, tribal, and other entities under programs not within the scope of this part may affect achievement of the goals.
(d)
(2) In developing its recommendations for interim goals, RECOVER shall use the principles in paragraph (c) of this section.
(3) The Secretary of the Army, the Secretary of the Interior, and the Governor shall review the Interim Goals Agreement at a minimum of every five years after the date of the Interim Goals Agreement, to determine if the interim goals should be revised. Thereafter, the Secretary of the Army, the Secretary of the Interior, and the Governor shall revise the interim goals and execute a new agreement as appropriate. However, the Secretary of the Army, the Secretary of the Interior, and the Governor may review and revise the interim goals whenever appropriate as new information becomes available. Any revisions to the interim goals shall be consistent with the process established in this section.
(a)
(2) As provided for in paragraph (c) of this section, the Secretary of the Army and the Governor shall establish interim targets for evaluating progress towards other water-related needs of the region provided for in the Plan throughout the implementation process. The interim targets and interim goals shall be consistent with each other.
(3) The Department of the Army shall include these interim targets in appropriate Corps of Engineers guidance.
(4) To ensure flexibility in implementing the Plan over the next several decades, and to ensure that interim targets may reflect changed circumstances or new information resulting from adaptive management, the interim targets may be modified, consistent with the processes set forth in paragraph (c) of this section, to reflect new information resulting from changed or unforeseen circumstances, new scientific and technical information, new or updated modeling; information developed through the assessment principles contained in the Plan; and future authorized changes to the Plan integrated into the implementation of the Plan.
(5) The Corps of Engineers and the South Florida Water Management District shall sequence and schedule projects as appropriate to achieve the interim goals and interim targets for other water-related needs of the region provided for in the Plan, to the extent practical given funding, technical, or other constraints.
(6) If the interim targets have not been met or are unlikely to be met, then the Corps of Engineers and the South Florida Water Management District shall determine why the interim targets have not been met or are unlikely to be met and either:
(i) Initiate adaptive management actions pursuant to § 385.31(d) to achieve the interim targets as soon as practicable, consistent with the purposes of the Plan and consistent with the interim goals established pursuant to § 385.38; or
(ii) Recommend changes to the interim targets in accordance with paragraph (a)(4) of this section.
(b)
(2) In developing its recommendations for interim targets, RECOVER shall consider indicators including, but not limited to:
(i) The frequency of water restrictions in the Lower East Coast Service Areas at each time increment;
(ii) The frequency of water restrictions in the Lake Okeechobee Service Areas at each time increment;
(iii) The frequency of meeting salt-water intrusion protection criteria for the Lower East Coast Service Area at each time increment; and
(iv) The frequency of water shortage restrictions on lands covered under the Water Rights Compact Among the Seminole Tribe of Florida, the State of Florida, and the South Florida Water Management District at each time increment.
(c)
(2) In developing its recommendations for interim targets, RECOVER shall use the principles in paragraph (b) of this section.
(3) The Secretary of the Army and the Governor shall review the interim targets at a minimum every five years beginning five years after the establishment of the interim targets to determine if they should be revised and to determine what those revisions should be. The public shall also be provided with an opportunity to comment on the proposed revisions. The Secretary of the Army and the Governor may also revise the interim targets whenever appropriate as new information becomes available. Any revisions to the interim targets shall be established consistent with the process described in this section.
(a) Beginning on October 1, 2005 and periodically thereafter until October 1, 2036, the Secretary of the Army and the Secretary of the Interior shall jointly
(b) This report shall be prepared in consultation with the Environmental Protection Agency, the Department of Commerce, the Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, the Florida Department of Environmental Protection, the South Florida Water Management District, and other Federal, State, and local agencies and the South Florida Ecosystem Restoration Task Force.
(c) Such reports shall include a description of planning, design, and construction work completed, the amount of funds expended during the period covered by the report, including a detailed analysis of the funds expended for adaptive management, and the work anticipated over the next five-year period and updated estimates of total cost of the Plan and individual component costs and an explanation of any changes from the initial estimates contained in the “Final Integrated Feasibility Report and Programmatic Environmental Impact Statement,” dated April 1, 1999.
(d) In addition, each report shall include:
(1) The determination of each Secretary, and the Administrator of the Environmental Protection Agency, concerning the benefits to the natural system and the human environment achieved as of the date of the report and whether the completed projects of the Plan are being operated in a manner that is consistent with the requirements of section 601(h) of WRDA 2000;
(2) Progress towards the interim goals established in accordance with § 385.38 for assessing progress towards achieving the benefits to the natural system;
(3) Progress towards interim targets for other water-related needs of the region provided for in the Plan established pursuant § 385.39 for assessing progress towards achieving the benefits to the human environment; and
(4) A review of the activities performed by the Secretary pursuant to section 601(k) of WRDA 2000 and § 385.18 and § 385.19 as they relate to socially and economically disadvantaged individuals and individuals with limited English proficiency.
(e) The discussion on interim goals in the periodic reports shall include:
(1) A discussion of the performance that was projected to be achieved in the last periodic report to Congress;
(2) A discussion of the steps taken to achieve the interim goals since the last periodic Report to Congress and the actual performance of the Plan during this period;
(3) If performance did not meet the interim goals, a discussion of the reasons for such shortfall;
(4) Recommendations for improving performance; and
(5) The interim goals to be achieved in the next five years, including any revisions to the interim goals, reflecting the work to be accomplished during the next five years, along with a discussion of steps to be undertaken to achieve the interim goals.
(f) The discussion on interim targets in the periodic reports shall include:
(1) A discussion of the expected and actual performance of the Plan in achieving interim targets since the last periodic Report to Congress, including the reasons for any deviations from expected performance; and
(2) A discussion of the interim targets expected to be achieved during the next five years, including specific activities to achieve them and any recommendations for improving performance.
(g) In preparing the report to Congress required pursuant to this section, the Corps of Engineers and the Department of the Interior shall provide an opportunity for public review and comment, in accordance with § 385.18.
33 U.S.C. 983(a) and 984(a)(4), as amended; 49 CFR 1.52(a), unless otherwise noted.
These regulations may be cited as the “Seaway Regulations (the “Practices and Procedures” in Canada).”
In the regulations in this part:
(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
(n)
(o)
(p)
(q)
(r)
(a) Subject to paragraph (e) of this section, no vessel of more than 222.5 m in overall length or 23.8 m in extreme breadth shall transit.
(b) No vessel shall transit if any part of the vessel or anything on the vessel extends more than 35.5 m above water level.
(c) No vessel shall transit if any part of its bridges or anything on the vessel protrudes beyond the hull.
(d) No vessel's hull or superstructure when alongside a lock wall shall extend beyond the limits of the lock wall, as illustrated in appendix I of this part.
(e) A vessel having a beam width in excess of 23.2 m, but not more than 23.8 m, and having dimensions that do not exceed the limits set out in the block diagram in appendix I of this part or overall length in excess of 222.5 m, but not more than 225.5 m, shall, on application to the Manager or Corporation, be considered for transit in accordance with directions issued by the Manager and Corporation.
(f) Vessels with beams greater than 23.20 m may be subject to transit restrictions and/or delays during periods of ice cover.
No vessel of less than 6 m in overall length or 900 kg in weight shall transit through Seaway Locks.
(a) No vessel shall transit unless it is (1) Propelled by motor power that is adequate in the opinion of an officer; and (2) Marked and equipped in accordance with the requirements of § 401.6 to 401.21.
(b) [Reserved]
(a) Vessels of more than 20.0 m in overall length shall be correctly and distinctly marked and equipped with draft markings on both sides at the bow and stern.
(b) In addition to the markings required by paragraph (a) of this section, vessels of more than 110 m in overall length shall be marked on both sides with midship draft markings.
(c) Where a vessel's bulbous bow extends forward beyond her stem head, a symbol of a bulbous bow shall be marked above the vessel's summer load line draught mark in addition to a + symbol followed by a number indicating the total length in meters by which the bulbous bow projects beyond the stem.
(a) Where any structural part of a vessel protrudes so as to endanger Seaway installations, the vessel shall be equipped with only horizontal permanent fenders—
(1) That are made of steel, hardwood, or teflon or a combination of two or all of these materials, are of a thickness not exceeding 15 centimeters, with well tapered ends, and are located along the hull, close to the main deck level; and
(2) On special application, portable fenders, other than rope hawsers, may be allowed for a single transit if the portable fenders are—
(i) Made of a material that will float; and
(ii) Securely fastened and suspended from the vessel in a horizontal position by a steel cable or a fiber rope in such a way that they can be raised or lowered in a manner that does not damage Seaway installations.
(b) Tires shall not be used as fenders.
(c) On special application, ships of unusual design may be permitted to utilize temporary or permanent fenders not greater than 30 cm in thickness.
(a) Vessels of more than 50 m in overall length shall be equipped with at least one adequate landing boom on each side.
(b) Vessels' crews shall be adequately trained in the use of landing booms.
(c) Vessels not equipped with or not using landing booms must use the Seaway's tie-up service at approach walls using synthetic mooring lines only. Maximum of 4 lines will be handled by Seaway personnel and the service does not include let go service.
(a) Self-propelled vessels, other than pleasure craft of less than 20.0 m in overall length, shall be equipped with VHF (very high frequency) radiotelephone equipment.
(b) The radio transmitters on a vessel shall:
(1) Have sufficient power output to enable the vessel to communicate with Seaway stations from a distance of 48 km; and
(2) Be fitted to operate from the conning position in the wheelhouse and to communicate on channels 11, 12, 13, 14, 17 and 66a.
(a) Mooring lines shall:
(1) Be of a uniform thickness throughout their length;
(2) Have a diameter not greater than 28 mm for wire line and not greater than 60 mm for approved synthetic lines;
(3) Be fitted with a hand spliced eye or Flemish type mechanical spliced eye of not less than 2.4 m long for wire lines and 1.8 m long spliced eye for approved synthetic lines;
(4) Have sufficient strength to check the vessel; and
(5) Be arranged so that they may be led to either side of the vessel as required.
(6) Be certified and a test certificate for each mooring line containing information on breaking strength, material type, elongation and diameter shall be available onboard for inspection.
(b) Unless otherwise permitted by an officer, vessels greater than 150 m shall only use wire mooring lines with a breaking strength that complies with the minimum specifications set out in the table to this section shall be used for securing a vessel in lock chambers.
(c) Synthetic lines may be used for mooring at approach walls, tie-up walls and docks within the Seaway.
(d) Notwithstanding paragraphs (a) through (c) of this section, nylon line is not permitted.
(a) Mooring lines shall:
(1) Be led at the vessel's side through a type of fairlead or closed chock, acceptable to the Manager and Corporation;
(2) Pass through not more than three inboard rollers that are fixed in place and equipped with horns to ensure that lines will not slip off when slackened and provided with free-running sheaves or rollers; and
(3) Where the fairleads are mounted flush with the hull, be permanently fendered to prevent the lines from being pinched between the vessel and a wall.
(b) Wire lines shall only be led through approved roller type fairleads.
(a) Unless otherwise permitted by the officer the minimum requirements in respect of mooring lines which shall be available for securing on either side of the vessels, winches and the location of fairleads on vessels are as follows:
(1) Vessels of more than 100 m but not more than 150 m in overall length shall have three mooring lines—wires or synthetic hawsers, which shall be independently power operated by winches, capstans or windlasses. All lines shall be led through closed chocks or fairleads acceptable to the Manager and the Corporation.
(i) One shall lead forward and one shall lead astern from the break of the bow and one lead astern from the quarter.
(ii) One synthetic hawser shall be hand held and lead astern from the break of the bow through chocks to suitable mooring bitts on deck;
(2) Vessels of more than 150 m in overall length shall have four mooring lines—wires, independently power operated by the main drums of adequate power operated winches as follows:
(i) One mooring line shall lead forward and one mooring line shall lead astern from the break of the bow.
(ii) One mooring line shall lead forward and one mooring line shall lead astern from the quarter.
(3) Vessels of more than 150 m in overall length shall have four mooring lines—wires, independently power operated by the main drums of adequate power operated winches as follows:
(i) One mooring line shall lead forward and one mooring line shall lead astern from the break of the bow and shall be independently power operated by the main drums of adequate power operated winches; and
(ii) One mooring line shall lead forward and one mooring line shall lead astern from the quarter and shall be independently power operated by the main drums of adequate power operated winches.
(iii) All lines shall be led through a type of fairlead acceptable to the Manager and the Corporation.
(b) Unless otherwise permitted by the officer, the following table sets out the requirements for the location of fairleads or closed chocks for vessels of 100 m or more in overall length:
Hand lines shall:
(a) Be made of material acceptable to the Manager and the Corporation;
(b) Be of uniform thickness and have a diameter of not less than 15 mm and not more than 17 mm and a minimum length of 30 m. The ends of the lines shall be back spliced or tapered; and
(c) Not be weighted or have knotted ends.
A highly visible anchor marking buoy of a type approved by the Manager and the Corporation, fitted with 22 m of suitable line, shall be secured directly to each anchor so that the buoy will mark the location of the anchor when the anchor is dropped.
(a) Every ship of more than 110m in overall length, the keel of which is laid after January 1, 1975, shall be equipped with a stern anchor.
(b) Every integrated tug and barge or articulated tug and barge unit greater than 110m in overall length which is constructed after January 1, 2003, shall be equipped with a stern anchor.
Every vessel of 1600 gross registered tons or integrated tug and barge or articulated tug and barge unit of combined 1600 gross registered tons or more shall be equipped with—
(a) Propeller direction and shaft r.p.m. indicators located in the wheelhouse and the engine room; and
(b) Visible and audible wrong-way propeller direction alarms, with a time delay of not greater than 8 seconds, located in the wheelhouse and the engineer room, unless the vessel is fitted with a device which renders it impossible to operate engines against orders from the bridge telegraph.
Every vessel of 1600 gross registered tons or integrated tug and barge or articulated tug and barge unit of combined 1600 gross registered tons or more equipped with a variable pitch propeller shall be equipped with—
(a) A pitch indicator in the wheelhouse and the engine room; and
(b) Effective April 1, 1984, visible and audible pitch alarms, with a time delay of not greater than 8 seconds, in the wheelhouse and engine room to indicate wrong pitch.
Every vessel shall be equipped with:
(a) A steering light located on the centerline at or near the stem of the vessel and clearly visible from the helm; or
(b) Two steering lights located at equal distances either side of the centerline at the forepart of the vessel and clearly visible from the bridge along a line parallel to the keel.
(a) Every vessel not equipped with containers for ordure shall be equipped with a sewage disposal system enabling compliance with the Canadian Garbage
(b) Garbage on a vessel shall be:
(1) Destroyed by means of an incinerator or other garbage disposal device; or
(2) Retained on board in covered, leak-proof containers, until such time as it can be disposed of in accordance with the provisions of the Canadian Garbage Pollution Prevention Regulations, the Canadian Great Lakes Sewage Pollution Prevention Regulations, the U.S. Clean Water Act, and the U.S. River and Harbor Act, and amendments thereto.
(c) No substance shall be discharged or disposed of onto a lockwall or tie-up wall by any means, including overboard discharge pipes.
(d) Burning of shipboard garbage is prohibited between CIP 2 & Cardinal and between CIP 15 and CIP 16.
(a) Each of the following vessels must use an Automatic Identification System (AIS) transponder to transit the Seaway:
(1) Each commercial vessel that requires pre-clearance in accordance with § 401.22 and has a 300 gross tonnage or greater, has a Length Over All (LOA) over 20 meters, or carries more than 50 passengers for hire; and
(2) Each dredge, floating plant or towing vessel over 8 meters in length, except only each lead unit of combined and multiple units (tugs and tows).
(b) Each vessel listed in paragraph (a) of this section must meet the following requirements to transit the Seaway:
(1) International Maritime Organization (IMO) Resolution MSC.74(69), Annex 3, Recommendation on Performance Standards for a Universal Shipborne AIS, as amended;
(2) International Telecommunication Union, ITU-R Recommendation M.1371-1: 2000, Technical Characteristics For A Universal Shipborne AIS Using Time Division Multiple Access In The VHF Maritime Mobile Band, as amended;
(3) International Electrotechnical Commission, IEC 61993-2 Ed.1, Maritime Navigation and Radio Communication Equipment and Systems—AIS—Part 2: Class A Shipborne Equipment of the Universal AIS—Operational and Performance Requirements, Methods of Test and Required Test Results, as amended;
(4) International Maritime Organization (IMO) Guidelines for Installation of Shipborne Automatic Identification System (AIS), NAV 48/18, 6 January 2003, as amended, and, for ocean vessels only, with a pilot plug, as specified in Section 3.2 of those Guidelines, installed close to the primary conning position in the navigation bridge and a standard 120 Volt, AC, 3-prong power receptacle accessible for the pilot's laptop computer; and
(5) The Minimum Keyboard Display (MKD) shall be located as close as possible to the primary conning position and be visible;
(6) Computation of AIS position reports using differential GPS corrections from the U.S. and Canadian Coast Guards' maritime Differential Global Positioning System radiobeacon services; or
(7) The use of a temporary unit meeting the requirements of paragraphs (b)(1) through (5) of this section is permissible; or
(8) For each vessel with LOA less than 30 meters, the use of portable AIS compatible with the requirements of paragraphs (b)(1) through (3) and paragraph (5) of this section is permissible.
In addition to the requirements set forth elsewhere in these Regulations, vessels transiting the U.S. waters of
(a) No vessel, other than a pleasure craft 300 gross registered tonnage or less, shall transit until an application for preclearance has been made, pursuant to § 401.24, to the Manager by the vessel's representative and the application has been approved by the Corporation or the Manager pursuant to § 401.25.
(b) No vessel shall transit while its preclearance is suspended or has terminated by reason of:
(1) The expiration of the representative's guarantee of toll payment,
(2) A change of ownership or representative of the vessel, or
(3) A material alteration in the physical characteristics of the vessel, until another application for preclearance has been made and approved.
(c) Unless otherwise permitted by an officer a non-commercial vessel of 300 gross registered tonnage or less cannot apply for preclearance status and must transit as a pleasure craft.
(a) It is a condition of approval of an application for preclearance that the vessel is covered by liability insurance equal to or exceeding $100 per gross registered ton.
(b) No vessel shall transit while its liability insurance is not in full force and effect.
The representative of a vessel may, on a preclearance form obtained from the Manager, St. Lambert, Quebec, or downloaded from the St. Lawrence Seaway Web site (
Where the Corporation or the Manager approves an application for preclearance, it shall:
(a) Give the approval; and
(b) Assign a number to the approval.
(a) Before transit by a vessel to which the requirement of preclearance applies, security for the payment of tolls in accordance with the “St. Lawrence Seaway Tariff of Tolls” as well as security for any other charges, shall be provided by the representative by means of:
(1) A deposit of money with the Manager;
(2) A deposit of money to the credit of the Manager with a bank in the United States or a member of the Canadian Payments Association, a corporation established by section 3 of the Canadian Payments Association Act, or a local cooperative credit society that is a member of a central cooperative credit society having membership in the Canadian Payments Association;
(3) A deposit with the Manager of negotiable bonds of the Government of the United States or the Government of Canada; or
(4) A letter of guarantee to the Manager given by an institution referred to in paragraph (a)(2) of this section.
(5) A letter of guarantee or bond given to the Manager by an acceptable Bonding Company. Bonding companies may be accepted if they:
(i) Appear on the list of acceptable bonding companies as issued by the Treasury Board of Canada; and
(ii) Meet financial soundness requirements as may be defined by the Manager at the time of the request.
(b) The security for the tolls of a vessel shall be sufficient to cover the tolls established in the “St. Lawrence Seaway Tariff of Tolls” for the gross registered tonnage of the vessel, cargo carried, and lockage tolls as well as security for any other charges estimated by the Manager.
(c) Where a number of vessels:
(1) For each of which preclearance has been given;
(2) Are owned or controlled by the same individual or company; and
(3) Have the same representative, the security for the tolls is not required if the individual, company, or representative has paid every toll invoice received in the preceding five years within the period set out in § 401.75(a).
(d) Notwithstanding paragraph (c) of this section, where a number of vessels, for each of which a preclearance has been given, are owned or controlled by the same individual or company and have the same representative, the security for tolls may be reduced or eliminated provided the representative has paid every toll invoice received in the preceding five years within the period set out in § 401.75(a). The representative must provide the Manager with a financial statement that meets the requirements established by the Manager.
(e) Where, in the opinion of the Manager, the security provided by the representative is insufficient to secure the tolls and charges incurred or likely to be incurred by a vessel, the Manager may suspend the preclearance of the vessel.
Every vessel shall comply promptly with transit instructions given by the traffic controller or any other officer.
(a) The maximum speed over the bottom for a vessel of more than 12 m in overall length shall be regulated so as not to adversely affect other vessels or shore property, and in no event shall such a vessel proceeding in any area between the place set out in Column I of an item of Schedule II to this part and a place set out in Column II of that item exceed the speed set out in Column III or Column IV of that item, whichever speed is designated by the Corporation and the Manager in a Seaway Notice from time to time as being appropriate to existing water levels.
(b) Where the Corporation or the Manager designate any speed less than the maximum speeds set out in Schedule II of this part, that speed shall be transmitted as transit instructions referred to in § 401.27.
(c) Every vessel under way shall proceed at a reasonable speed so as not to cause undue delay to other vessels.
(d) Every vessel passing a moored vessel or equipment working in a canal shall proceed at a speed that will not endanger the moored vessel, the moored equipment or the occupants of either.
(a) The draft and speed of a vessel in transit shall be controlled by the master, who shall take into account the vessel's individual characteristics and
(b) The draft of a vessel shall not, in any case, exceed 79.2 dm or the maximum permissible draft designated in a Seaway Notice by the Corporation and the Manager for the part of the Seaway in which a vessel is passing.
(a) Every vessel shall be adequately ballasted.
(b) Every vessel shall be properly trimmed.
(c) No vessel, other than under exceptional circumstances and with special permission, shall be accepted for transit whose trim by the stern exceeds 45.7 dm.
(d) Any vessel that is not adequately ballasted or properly trimmed in the opinion of an officer, may be refused transit or may be delayed.
(e) To obtain clearance to transit the Seaway:
(1) Every vessel entering the Seaway after operating beyond the exclusive economic zone must agree to comply with the “Code of Best Practices for Ballast Water Management” of the Shipping Federation of Canada dated September 28, 2000, while operating anywhere within the Great Lakes and the Seaway; and
(2) Every other vessel entering the Seaway that operates within the Great Lakes and the Seaway must agree to comply with the “Voluntary Management Practices to Reduce the Transfer of Aquatic Nuisance Species Within the Great Lakes by U.S. and Canadian Domestic Shipping” of the Lake Carriers Association and Canadian Shipowners Association dated January 26, 2001, while operating anywhere within the Great Lakes and the Seaway. For copies of the “Code of Best Practices for Ballast Water Management” and of the “Voluntary Management Practices to Reduce the Transfer of Aquatic Nuisance Species Within the Great Lakes by U.S. and Canadian Domestic Shipping” refer to the St. Lawrence Seaway Web site at
(f) As a condition of transit of the Seaway after having operated outside the exclusive economic zone (EEZ) every vessel that carries only residual amounts of ballast water and/or sediment that were taken onboard the vessel outside the EEZ shall:
(1) Conduct a saltwater flushing of their ballast water tanks that contain the residual amounts of ballast water and/or sediment in an area 200 nautical miles from any shore before entering waters of the Seaway. Saltwater flushing is defined as the addition of mid-ocean water to ballast water tanks: The mixing of the flushwater with residual water and sediment through the motion of the vessel; and the discharge of the mixed water, such that the resultant residual water remaining in the tank has as high salinity as possible, and is at least 30 parts per thousand (ppt). The vessel shall take on as much mid-ocean water into each tank as is safe (for the vessel and crew) in order to conduct saltwater flushing. And adequate flushing may require more than one fill-mix-empty sequence, particularly if only small amounts of water can be safely taken onboard at one time. The master of the vessel is responsible for ensuring the safety of the vessel, crew, and passengers. Vessels reporting only residual ballast water onboard shall take particular care to conduct saltwater flushing on the transit to the Great Lakes so as to eliminate fresh and or brackish water residuals in ballast tanks; and
(2) Maintain the ability to measure salinity levels in each tank onboard the vessel so that final salinities of at least 30 ppt can be ensured.
(g) Every tank that is found not in compliance with 401.30(f) shall retain any ballast water until it exits the Seaway.
(h) These requirements do not apply to vessels of the armed forces, as defined in the Federal Water Pollution
(a) The meeting and passing of vessels shall be governed by the Collision Regulations of Canada and the Inland Rules of the United States.
(b) No vessel shall meet another vessel within the area between the caution signs at bridges or within any area that is designated as a “no meeting area” by signs erected by the Corporation or the Manager in that area.
(c) Except as instructed by the traffic controller, no vessel shall overtake and pass or attempt to overtake and pass another vessel—
(1) In any canal;
(2) Within 600 m of a canal or lock entrance; or
(3) After the order of passing through has been established by the vessel traffic controller.
(a) Every vessel shall have cargo booms secured in a manner that affords maximum visibility from the wheelhouse.
(b) Cargo or containers carried, forward or aft, on deck shall be stowed in a manner that:
(1) Affords an unrestricted view from the wheelhouse for the purpose of navigation; and
(2) Does not interfere with mooring equipment.
No vessel of unusual design, vessel, or part of a vessel under tow, or vessel whose dimensions exceed the maximum vessel dimensions § 401.3 shall transit the Seaway except in accordance with special instructions of the Corporation or the Manager given on the application of the representative of the vessel.
No vessel that is not self-propelled (including but not limited to tug/tows and/or deadship/tows) shall be underway in any Seaway waters unless it is securely tied to an adequate tug or tugs, in accordance with special instructions given by the Manager or the Corporation pursuant to § 401.33. Every vessel in tow has to be inspected prior to every transit unless it has a valid Seaway Inspection Certificate. The owner/master shall give a 24-hour notice of arrival when an inspection is requested.
Every vessel transiting between C.I.P. 2 and Tibbetts Point and between C.I.P. 15 and 16 shall:
(a) Man the propulsion machinery of the vessel, including the main engine control station;
(b) Operate the propulsion machinery so that it can respond immediately through its full operating range;
(c) Man the wheelhouse of the vessel at all times by either the master or certified deck officer, and a helmsman, and;
(d) Have sufficient well rested crewmembers available for mooring operations and other essential duties.
Vessels shall advance to a lock in the order instructed by the traffic controller.
(a) Upon arrival at a lock, a vessel awaiting instructions to advance shall moor at the tie-up wall, close up to the designated limit or approach sign or to the ship preceding it, whichever is
(b) Crew members being put ashore on landing booms and handling mooring lines on tie-up walls shall wear approved life jackets.
A vessel approaching a lock shall comply with directions indicated by the signal light system associated with the lock and in no case shall its stem pass the designated limit of approach sign while a red light or no light is displayed.
Before a vessel enters a lock:
(a) Winches shall be capable of paying out and heaving in at a minimum speed of 46 m per minute; and
(b) The eye of each mooring line shall be passed outward through the fairleads at the side.
Every vessel equipped with fenders that are not permanently attached shall raise its fenders when passing a lock gate in Snell or Eisenhower Locks.
(a) Unless directed by the Manager and the Corporation, no vessel shall proceed into a lock in such a manner that the stem passes the stop symbol on the lock wall nearest the closed gates.
(b) On being cast off in a lock, no vessel shall be allowed to fall back in such a manner that the stern passes the stop symbol on the lock wall nearest the closed gates.
(c) Every vessel proceeding into a lock shall be positioned and moored as directed by the officer in charge of the mooring operation.
(d) No vessel shall use thrusters when passing a lock gate.
Where two or more vessels are being locked together, vessels astern of the leading vessel shall:
(a) Come to a full stop a sufficient distance from the preceding vessel to avoid a collision; and
(b) Be moved into mooring position as directed by the officer in charge of the lock.
(a) At locks, hand lines shall be secured to the mooring lines and passed as follows:
(1) A downbound vessel shall use its own hand lines, secured to the eye at the end of the mooring lines, by means of a bowline, which hand lines shall be passed to the linehandlers at the lock as soon as the vessel passes the open gates;
(2) Hand lines shall be passed to upbound vessels by the linehandlers as soon as the vessel passes the open gates, and secured, by means of a clove hitch, to the mooring lines 60 cm behind the splice of the eye;
(3) At Iroquois Lock and Lock 8, Welland Canal, both upbound and downbound vessels shall use their own hand lines as provided in paragraph (a)(1) of this section; and
(4) Upbound vessels of overall length in excess of 218 m in Locks 4 and 5, Welland Canal, shall secure the hand lien to the eye of the No. 1 mooring wire by means of a bowline.
(b) Mooring lines shall not be passed over the side of a vessel in a manner dangerous to a lock crew.
Unless otherwise directed by an officer, vessels passing through the locks shall moor at the side of the tie-up wall or lock as shown in the table to this section.
(a) Mooring lines shall only be placed on mooring posts as directed by the officer in charge of a mooring operation.
(b) No winch from which a mooring line runs shall be operated until the officer in charge of a mooring operation has signalled that the line has been placed on a mooring post.
When the speed of a vessel entering a lock chamber has to be checked in an emergency, a signal consisting of five blasts on a horn shall be given by the master and all mooring lines shall be put out as quickly as possible.
(a) Lines of a vessel shall be under visual control and attended by members of its crew during the time the vessel is passing through a lock.
(b) While a vessel is within a lock chamber and lines are hand held for tension control, each line shall be attended by at least one member of the vessel's crew.
(a) Mooring lines shall only be cast off as directed by the officer in charge of a mooring operation.
(b) No vessel shall proceed out of a lock until the exit gates, ship arresters and the bridge, if any, are in a fully open position.
(c) No vessel shall use thrusters when passing a lock gate.
No vessel shall be turned about in any canal, except:
(a) With permission from the traffic controller; and
(b) At the locations set out in the table to this section.
1. South Shore Canal:
(a) Turning Basin No. 1—Opposite Brossard.
(b) Turning Basin No. 2—Between Lock 7 and the Guard Gate Cut for vessels up to 180 m in overall length.
2. Welland Canal:
(a) Turning Basin No. 1—Opposite St. Catharines Wharf for vessels up to 107 m in overall length.
(b) Turning Basin No. 2—Between Lock 7 and the Guard Gate Cut for vessels up to 180 m in overall length.
(c) Turning Basin No. 3—Immediately south of Port Robinson (Mile 13).
(d) Turning Basin No. 4—North of Lock No. 8 for vessels up to 170 m in overall length.
(e) For vessels up to 80 m in overall length.
(1) North end of Wharf No. 1,
(2) Tie-up wall above Lock 1,
(3) Tie-up wall below Lock 2,
(4) Wharf No. 9,
(5) Between the southerly extremities of Wharves 18-2 and 18-3.
Except in an emergency, no vessel shall drop anchor in any canal or tie-up to any canal bank unless authorized to do so by the traffic controller.
Except in an emergency, or unless authorized to do so by the traffic controller, no vessel shall drop anchor in any part of the Seaway except in the following designated anchorage areas:
(a) Point Fortier (Lake St. Louis).
(b) Melocheville (Beauharnois Canal).
(c) St. Zotique, Dickerson Island and Stonehouse Point (Lake St. Francis).
(d) Wilson Hill Island and Morrisburg (Lake St. Lawrence).
(e) Prescott and Union Park (St. Lawrence River).
(f) Off Port Weller (Lake Ontario).
(g) Off Port Colborne (Lake Erie).
(a) Unless a vessel's approach has been recognized by a flashing signal, the master shall signal the vessel's presence to the bridge operator by VHF radio when it comes abreast of any of the bridge whistle signs.
(b) The signs referred to in paragraph (a) of this section are placed at distances varying between 550 m and 2990 m upstream and downstream from moveable bridges at sites other than lock sites.
(a) No vessel shall pass the limit of approach sign at any movable bridge until the bridge is in a fully open position and the signal light shows green.
(b) No vessel shall pass the limit of approach sign at the twin Railway Bridges on the South Shore Canal at Kahnawake until both bridges are in a
No vessel shall be operated, drop anchor or be fastened or moored in a manner that obstructs or hinders navigation.
(a) Aids to navigation shall not be interfered with or used as moorings.
(b) No person shall, unless authorized by the Corporation or the Manager, set out buoys or navigation markers on the Seaway.
No searchlight shall be used in such a manner that its rays interfere with the operators at a Seaway structure or on any vessel.
The master of every vessel shall:
(a) Navigate so as to avoid damage to Seaway property; and
(b) Prevent defacement of Seaway property by any member of the vessel's crew.
(a) Except as authorized by an officer, no person, other than a member of the crew of a vessel passing through, shall disembark or board any vessel while the vessel is passing through.
(b) No member of the crew of a vessel passing through shall disembark or board except for the purpose of carrying out essential duties as directed by the Master.
(c) Persons disembarking or boarding shall be assisted by a member of the vessel's crew under safe conditions.
(a) The transit of pleasure craft shall be scheduled by the traffic controller or the officer in charge of a lock and may be delayed so as to avoid interference with other vessels; and
(b) Every pleasure craft seeking to transit Canadian Locks shall stop at a pleasure craft dock and arrange for transit by contacting the lock personnel using the direct-line phone and make the lockage fee payment by purchasing a ticket using the automated ticket dispensers.
(a) No vessel shall:
(1) Emit sparks or excessive smoke; or
(2) Blow boiler tubes.
(b) No vessel shall discharge into Seaway waters any substance not in conformity with applicable United States Federal Regulations and Canadian Regulations with the exception of the waters of the Welland Canal where two specific zones are established in which no substances shall be discharged, namely,
(1) From Lock 7 (Thorold) to mile 17 (Welland); and
(2) From Lock 8 (Port Colborne) to the outer Port Colborne Piers (Lake Erie).
(c) A record shall be kept by the vessel of each location within the Seaway or adjacent waters where bilge water has been discharged.
(d) Except as authorized by the Corporation or the Manager, no vessel shall discharge garbage, ashes, ordure, litter or other materials.
(a) Vessels shall be on radio listening watch on the applicable assigned frequency while within a Seaway traffic control sector as shown on the General Seaway Plan and shall give notice of arrival in the manner prescribed in § 401.64 upon reaching any designated calling in point.
(b) Notice of arrival shall be deemed to have been given when it is acknowledged by a Seaway station.
The Seaway stations operate on the following assigned VHF frequencies:
156.8 MHz—(channel 16)—Distress and Calling.
156.7 MHz—(channel 14)—Working (Canadian Stations in Sector 1 and the Welland Canal).
156.6 MHz—(channel 12)—Working (U.S. Station in Lake Ontario)
156.6 MHz—(channel 12)—Working (U.S. Stations in Sector 2 of the River).
156.55 MHz—(channel 11)—Working (Canadian Stations in Sector 3, Lake Ontario and Lake Erie).
The Seaway stations are located as follows:
Every vessel shall use the channels of communication in each control sector as listed in the table to this section.
(a) Every vessel, intending to transit or in transit, shall report on the assigned frequency to the designated Seaway station when opposite any calling in point or checkpoint (indicated on the General Seaway Plan) and, when reporting, shall give the information indicated in Schedule III.
(b) Changes in information provided under paragraph (a), including updated ETAs that vary from the ETAs provided under that paragraph by 30 minutes or more, shall be reported to the appropriate Seaway station.
(c) A downbound vessel in St. Lambert Lock shall switch to channel 10 (156.5 MHz) for a traffic report from Montreal Vessel Traffic Management Center.
(d) After obtaining the situation report referred to in paragraph (c) of this section, the downbound vessel shall return to guarding channel 14 (156.7 MHz) and remain on that channel until it is clear of St. Lambert Lock chamber.
(e) When the downbound vessel has cleared the downstream end of the lower approach wall of St. Lambert Lock, the master of the vessel shall call “Seaway Beauharnois” and request permission to switch to channel 10 (156.5 MHz).
(f) Seaway Beauharnois shall grant the permission requested pursuant to paragraph (e) of this section and advise the downbound vessel of any upbound traffic that may be cleared for Seaway entry but not yet at C.I.P. 2.
(g) In the event of an expected meeting of vessels between the downstream end of the lower approach wall and C.I.P. 2, the downbound vessel shall remain on channel 14 (156.7 MHz) until the meeting has been completed.
(h) After the meeting, the downbound vessel shall call “Seaway Beauharnois” before switching to channel 10 (156.5 MHz).
(a) Every vessel entering or leaving a lake port shall report to the appropriate Seaway station at the following check points:
(1) For the lake ports of Toronto and Hamilton, 1 nautical mile outside the harbor limits; and
(2) For other lake ports, when crossing the harbor entrance.
(b) Every vessel arriving at a port, dock or anchorage shall report to the appropriate Seaway station, giving an estimated time of departure if possible, and, at least four hours prior to departure, every vessel departing from a port, dock or anchorage shall report in the same way giving its destination and the expected time of arrival at the next check point.
(c) Every vessel prior to departing from a port, dock, or anchorage shall report to the appropriate Seaway station its destination and its expected time of arrival at the next check point.
Sections 401.66 through 401.73 issued under 68 Stat. 93-96, 33 U.S.C. 981-990, as amended and secs. 4, 5, 6, 7, 8, 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471.
(a) Vessels carrying a cargo or part cargo of fuel oil, gasoline, crude oil or other flammable goods in bulk, including empty tankers which are not gas free, and vessels carrying dangerous substances whether break-bulk or containerized, to which regulations made under the
(b) Every vessel carrying dangerous cargo, as described in §§ 401.66 through 401.73, and all tankers carrying liquid cargo in bulk, shall file with the Corporation and the Manager a copy of the
A vessel carrying explosives, either Government or commercial, as defined in the Dangerous Cargo Act of the United States and in the International Maritime Dangerous Goods Code, Class 1, Divisions 1.1 to 1.5 inclusive, shall be deemed for the purpose of these Regulations to be an explosive vessel.
(a) A Seaway Explosives Permission Letter is required for an explosive vessel in the following cases:
(1) For all vessels carrying any quantity of explosives with a mass explosive risk, up to a maximum of 2 tonnes (IMO Class 1, Division 1.1 and 1.5);
(2) For all vessels carrying more than 10 tonnes and up to a maximum of 50 tonnes of explosives that do not explode en masse (IMO Class 1, Division 1.2);
(3) For all vessels carrying more than 100 tonnes and up to a maximum of 500 tonnes of explosives having a fire hazard without explosive effect (IMO Class 1, Division 1.3); and
(4) For all vessels carrying more than 100 tonnes and up to a maximum of 500 tonnes of safety explosives and shop goods (IMO Class 1, Divisions 1.4).
(b) When an explosive vessel is carrying quantities of explosives above the maximum mentioned in paragraph (a) of this section, no Seaway Explosives Permission Letter shall be granted and the vessel shall not transit.
(c) A written application for a Seaway Explosives Permission Letter certifying that the cargo is packed, marked, and stowed in accordance with the Canadian Regulations respecting the Carriage of Dangerous Goods, the United States Regulations under the Dangerous Cargo Act and the International Maritime Dangerous Goods Code may be made to the Saint Lawrence Seaway Development Corporation, P.O. Box 520, Massena, New York 13662 or to the St. Lawrence Seaway Management Corporation, 202 Pitt Street, Cornwall, Ontario, K6J 3P7.
(d) A signed copy of a Seaway Explosives Permission Letter and a true copy of any certificate as to the loading of dangerous cargo shall be kept on board every explosive vessel in transit and shall be made available to any officer requiring production of such copies.
For the purpose of these Regulations, a vessel shall be deemed to be a hazardous cargo vessel in the following cases:
(a) A tanker carrying fuel oil, gasoline, crude oil or other flammable liquids in bulk, having a flashpoint below 61 °C, including a tanker that is not gas free where its previous cargo had a flashpoint below 61 °C;
(b) A tanker carrying compressed liquefied gases, bulk acids or liquefied chamicals;
(1) In excess of 50 tonnes of gases, compressed, liquified or dissolved under pressure (IMO Class 2),
(2) In excess of 50 tonnes of flammable liquids having a flashpoint below 61 °C (IMO Class 3),
(3) In excess of 50 tonnes of flammable solids, spontaneously combustible material or substances emitting combustible gases when wet (IMO Class 4),
(4) In excess of 50 tonnes of oxidizing substances or organic peroxides (IMO Class 5),
(5) Any quantity of poisonous (toxic) substances and infectious substances (IMO Class 6),
(6) Any quantity of radioactive substances (IMO Class 7),
(7) In excess of 50 tonnes of corrosive substances (IMO Class 8),
(8) Any quantity of metal turnings, borings, cuttings, or shavings in bulk having a temperature on loading or in transit in excess of 65.5 °C, and
(9) Any quantity of grain that is under fumigation, where the chemical being used is hazardous to human life.
(10) Any quantity of direct reduced iron (DRI).
All explosive vessels requiring a Seaway Explosives Permission Letter in accordance with § 401.68 and all tankers carrying cargo with a flashpoint of up to 61 °C, except those carrying such cargo in center tanks with gas free wing tanks, shall be equipped with a sufficient number of non-metallic fenders on each side to prevent any metallic part of the vessel from touching the side of a dock or lock wall.
An explosive or hazardous cargo vessel shall display at the masthead or at an equivalent conspicuous position a “B” flag.
(a) Every explosive vessel or hazardous cargo vessel shall, when reporting information related to cargo as required by § 401.64(a), report the nature and tonnage of its explosive or hazardous cargo where applicable. Every vessel carrying grain which is under fumigation shall declare to the nearest traffic control center the nature of the fumigant, its properties and cargo holds affected.
(b) Every explosive vessel requiring a Seaway Explosives Permission Letter shall, when reporting in, give the number of its Seaway Explosives Permission Letter.
(c) Every hazardous cargo vessel carrying metal turnings, shavings, cuttings or borings in bulk shall, when reporting information related to cargo as required by § 401.64(a), give the high temperature reading of each compartment at that time, together with the high temperature reading in each compartment taken on completion of loading.
(d) Every vessel carrying radioactive substances shall, when reporting in, give the number and date of issue of any required certificate issued by the Atomic Energy Control Board authorizing such shipment.
(e) Every vessel carrying dangerous cargo, as defined in § 401.66, and all tankers carrying liquid cargo in bulk, and all vessels carrying grain under fumigation shall, prior to transiting any part of the Seaway, file with the Manager a copy of the current load plan that includes the following information:
(1) The name of the cargo, its IMO class and UN number as set out in the IMDG Code, if applicable, or, if the cargo is not classed by the IMO and does not have a UN number, the words “NOT CLASSED”;
(2) The approximate total weight in metric tonnes or total volume in cubic meters and the stowage location of each commodity;
(3) The approximate weight in metric tonnes or the approximate volume in cubic meters in each hold or tank;
(4) The flashpoint of the cargo, if applicable; and
(5) The estimated date of entry into the Seaway and the date and time that the load plan was last issued or amended.
(6) Tankers in ballast shall report the previous cargo of each cargo hold on a plan as described in this paragraph (e).
(f) For tankers, the information required under this section shall be detailed on a plan showing the general layout of the tanks, and a midships cross-section showing the double bottom tanks and ballast side tanks.
(g) If a Material Safety Data Sheet (MSDS) on a hazardous cargo that a vessel is carrying is not available in a Seaway Traffic Control Center, the vessel shall provide information enabling the preparation of an MSDS.
(h) Every vessel shall submit its load plan to the nearest Seaway Traffic Control Center from which it will be distributed to all other Seaway Traffic Control Centers. Any changes in stowage, including loading and discharging during a transit, the ship shall submit an updated plan before departing from any port between St. Lambert and Long Point.
(i) Failure to comply with the requirements in this section may result in unnecessary delays or transit refusal.
Cleaning and gas freeing of tanks shall not take place:
(a) In a canal or a lock;
(b) In an area that is not clear of other vessels or structures; and
(c) Before gas freeing and tank cleaning has been reported to the nearest Seaway station.
(a) Seaway Transit Declaration Form (Cargo and Passenger) shall be forwarded to the Manager by the representative of a ship, for each ship that has an approved preclearance except non-cargo ships, within fourteen days after the vessel enters the Seaway on any upbound or downbound transit. The form may be obtained from the St. Lawrence Seaway Management Corporation, 151 Ecluse Street, St. Lambert, Quebec, J4R 2V6 or from the St. Lawrence Seaway Web site at
(b) The loaded or manifest weight of cargo shall be shown on the Seaway Transit Declaration Form, except in the case of petroleum products where gallonage meters are not available at the point of loading, in which case offloaded weights may be shown on the Declaration Form.
(c) Where a vessel carries cargo to or from an overseas port, a copy of the cargo manifest, duly certified, shall be forwarded with the Seaway Transit Declaration Form.
(d) A Weight-Scale Certificate or similar document issued in the place of a cargo manifest may be accepted in lieu thereof.
(e) Where a Seaway Transit Declaration Form is found to be inaccurate concerning the destination, cargo or passengers, the representative shall immediately forward to the Manager a revised Declaration Form.
(f) Seaway Transit Declaration Forms shall be used in assessing toll charges in accordance with the St. Lawrence Seaway Tariff of Tolls and toll accounts shall be forwarded in duplicate to the representative or its designated agent.
(g) Where government aid cargo is declared, appropriate Canadian or U.S. customs form or a stamped and signed certification letter from the U.S. or Canada Customs must accompany the transit declaration form.
(a) Every toll invoice shall be paid in Canadian funds within forty-five days after the vessel enters the Seaway, and any adjustment of the amount payable shall be provided for in a subsequent invoice.
(b) Tolls, established by agreement between Canada and the United States, and known as the St. Lawrence Seaway Schedule of Tolls, shall be paid by pleasure crafts with prepaid tickets purchased in Canadian funds using credit card ticket dispensers located at pleasure craft docks. At U.S. locks, the fee is paid in U.S. funds or the pre-established equivalent in Canadian funds.
(c) Fees for Seaway arranged security guard in compliance with Transport Canada Security regulations shall be paid in Canadian funds within 30 days of billing.
Cargo that is carried both upbound and downbound in the course of the same voyage shall be reported in the Seaway Transit Declaration Form, but
(a) Documentary evidence, comprising inspection certificates, load line certificates, crew lists, dangerous cargo manifest and the cargo stowage plan, shall be carried on board and shall be made available to any officer requiring production of such evidence.
(b) Documentary evidence, comprising evidence of cargo declared, cargo manifest, dangerous cargo manifest and bills of lading, shall be kept by the agent, owner or operator for a period of five years, or until an audit has been performed by the Corporation or the Manager, whichever occurs first, and such documents shall be made available to an officer requiring production of such evidence.
Every vessel shall provide at least 96 hours notice of arrival to the nearest Seaway station prior to all transits or in case reinspection of the ship is required.
(a) The master of any explosive vessel or hazardous cargo vessel shall report to a Seaway station, as set out in Schedule III, the nature, quantity, and IMO classification of the dangerous cargo and where it is stowed on the vessel.
(b) The master of any vessel, that takes on explosive or hazardous cargo while in the Seaway, shall report to the nearest Seaway station at least four hours prior to commencing transit from a port, dock or wharf, the nature, quantity and IMO classification of the dangerous cargo and where it is stowed on the vessel.
(a) Where a vessel on the Seaway is involved in an accident or a dangerous occurrence, the master of the vessel shall report the accident or occurrence, pursuant to the requirements of the Transportation Safety Board Regulations, to the nearest Seaway station and Transport Canada Marine Safety or U.S. Coast Guard office as soon as possible and prior to departing the Seaway system.
(b) Where a vessel approaching the Seaway with intent to transit has been involved in an accident in the course of its last voyage that might affect its ability to transit safely and expeditiously, the master of the vessel shall report the accident to the nearest Seaway station before entering the Seaway.
A vessel, any part of which extends more than 33.5 m above water level, shall not transit any part of the Seaway until precise information concerning the height of the vessel has been furnished to the nearest Seaway station.
A vessel anchoring in a designated anchorage area, or elsewhere, and a vessel mooring at a wharf or dock, tying-up to a canal bank or being held on a canal bank in any manner shall immediately report its position to the
While transiting the Seaway, the master of a vessel shall immediately report to the nearest Seaway station:
(a) Any condition of the vessel that might impair its ability to transit safely and expeditiously;
(b) Any hazardous condition of the vessel;
(c) Any malfunction on the vessel of equipment required by §§ 401.5 to 401.19 and subsections (e) through (j) of Schedule I of subpart A of this Part;
(d) Any difficulty on the part of the vessel in controlling its tow or tows;
(e) Any hazard, dangerous situation or malfunctioning aid to navigation which has not been published in a Notice to Mariners;
(f) Any loss of anchor with particulars of the precise location of the loss; and
(g) Any location where visibility is less than one nautical mile.
The master of any vessel which intends to transit the Seaway shall report to the nearest Seaway Station, prior to entering the Seaway, any of the conditions set out in paragraphs (a) through (d) of § 401.84.
An officer may detain a vessel that causes:
(a) Damage to property of the Corporation;
(b) Damage to goods or cargo stored on property of the Corporation; or
(c) Injury to employees of the Corporation; until security satisfactory to the Corporation has been provided.
(a) An officer may detain a vessel where:
(1) The tolls or charges levied against the vessel have not been paid; or
(2) A violation of these Regulations has taken place in respect of the vessel.
(b) A vessel detained pursuant to paragraph (a)(1) of this section shall be released when the unpaid tolls or charges are paid.
(c) A vessel detained pursuant to paragraph (a)(2) of this section may be released when a sum of money in an amount, determined by the Corporation to be the maximum fine or civil penalty that may be imposed for the violation in respect of which the vessel has been detained, is deposited with the Corporation as security for the payment of any fine or civil penalty that may be imposed.
(d) Where a sum of money has been deposited pursuant to paragraph (c) of this section, the Corporation may:
(1) Return the deposit;
(2) Hold the deposit in trust as security for the payment of any fine that may be imposed; or
(3) Retain the deposit if the depositor agrees to retention by the Corporation of the sum deposited.
(e) Although the depositor may have agreed to retention by the Authority of an amount deposited under paragraph (c) of this section, he may bring an action for the recovery of the amount deposited on the ground that there has been no violation of the regulations in this part.
(a) Where a vessel has been detained pursuant to § 401.87(a) and payment of
(1) The time of the detention, in the case of arrears of tolls and charges, or
(2) The imposition of the fine or penalty, in the case of a violation, the Corporation may direct that the vessel or its cargo or any part thereof be seized and sold subject to and in accordance with an order of a court of competent jurisdiction.
(b) The Corporation may, after giving such notice as it deems reasonable to the representative of the vessel, sell the vessel or cargo seized pursuant to paragraph (a) of this section.
(c) An amount equal to the cost of the detention, seizure and sale, and
(1) The tolls and charges payable, or
(2) The fine or penalty imposed on conviction, shall be deducted from the proceeds of a sale pursuant to paragraph (b) of this section, and the balance shall be paid to the owner of the vessel or cargo or the mortgagee thereof, as the case may be.
(a) An officer may refuse to allow a vessel to transit when,
(1) The vessel is not equipped in accordance with §§ 401.5 to 401.19 and subsections (e) to (j) of Schedule I of subpart A of this part when transiting the Canadian waters of the Seaway;
(2) The vessel, its cargo, equipment or machinery are in a condition that will prevent safe or expeditious transit by that vessel; or
(3) The vessel is manned with a crew that is incompetent or inadequate.
(a) For the purpose of enforcing these Regulations in this part in both Canadian and U.S. waters, an officer may board any vessel and:
(1) Examine the vessel and its cargo; and
(2) Determine that the vessel is adequately manned.
(b) In addition to § 401.90(a)(1) and (2) in Canadian waters, a Manager's officer may also:
(1) Require any person appearing to be in charge of the vessel to produce for inspection, or for the purpose of making copies or extracts, any log book, document or paper; and
(2) In carrying out an inspection:
(i) Use or cause to be used any computer system or data processing system on the vessel to examine any data contained in, or available to, the system;
(ii) Reproduce any record, or cause it to be reproduced from the data, in the form of a print-out or other intelligible output and remove the print-out or other output for examination or copying; and
(iii) Use or cause to be used any copying equipment in the vessel to make copies of any books, records, electronic data or other documents.
(c) In Canadian waters, the owner or person who is in possession or control of a vessel that is inspected, and every person who is found on the vessel, shall:
(1) Give the officer all reasonable assistance to enable the officer to carry out the inspection and exercise any power conferred by the Canada Marine Act; and
(2) Provide the officer with any information relevant to the administration of these practices and procedures that the officer may reasonably require.
(d) Vessels shall provide a safe and approved means of boarding. Pigeon holes are not accepted as a means of boarding and an alternate safe means of access shall be provided.
The Corporation or the Manager may, at the owner's expense, move any vessel, cargo, or thing that obstructs or hinders transit on any part of the Seaway.
No vessel shall winter within the Seaway or lie-up within the Seaway during the navigation season except with the written permission of the Corporation or the Manager and subject to the conditions and charges that may be imposed.
(a) Except as authorized by an officer, no person shall load or unload goods on property of the Corporation or the Manager.
(b) Except as authorized by an officer or by the Seaway Property Regulations or its successors, no person shall enter upon any land or structure of the Manager or the Corporation or in any Seaway canal or lock area.
(a) A copy of these Regulations (subpart A of part 401), a copy of the vessel's valid Vessel Inspection Report and the Seaway Notices for the current navigation year shall be kept on board every vessel in transit. For the purposes of this section, a copy may be kept in either paper or electronic format so long as it can be accessed in the wheelhouse.
(b) Onboard every vessel transiting the Seaway a duplicated set of the Ship's Fire Control Plans shall be permanently stored in a prominently marked weather-tight enclosure outside the deckhouse for the assistance of shore-side fire-fighting personnel.
The master or owner of a vessel shall ensure that all requirements of these Regulations and Seaway Notices applicable to that vessel are complied with.
In § 410.97:
(a)
(b)
(c)
(d)
(e)
(a) No wintering vessel shall return downbound through the Montreal-Lake Ontario Section of the Seaway in the same navigation season in which it entered the Seaway unless the transit is authorized by the Corporation and the Manager.
(b) No vessel shall transit the Montreal-Lake Ontario Section of the Seaway during the closing period in a navigation season unless
(1) It reports at the applicable calling in point referred to in paragraph (c) of this section on or before the clearance date in that navigation season; or
(2) It reports at the applicable calling in point referred to in paragraph (c) of this section within a period of 96 hours after the clearance date in that navigation season, it complies with the provisions of the agreement between Canada and the United States, known as the St. Lawrence Seaway Tariff of Tolls and the transit is authorized by the Corporation and the Manager.
(c) For the purposes of paragraph (b) of this section, the calling in point is,
(1) In the case of an upbound vessel, Cape St. Michel; and
(2) In the case of a downbound vessel, Cape Vincent.
(d) No vessel shall transit the Montreal-Lake Ontario Section of the Seaway after the period of 96 hours referred to in paragraph (b)(2) of this section unless the transit is authorized by the Corporation and the Manager.
(e) Every vessel that, during a closing period, enters the Montreal-Lake Ontario Section of the Seaway, upbound or downbound, or departs upbound from any port, dock, wharf or anchorage in that Section shall,
(1) At the time of such entry or departure, report to the nearest Seaway station the furthermost destination of the vessel's voyage and any intermediate destinations within that Section; and
(2) At the time of any change in those destinations, report such changes to the nearest Seaway station.
(f) Where ice conditions restrict navigation,
(1) No upbound vessel that has a power to length ratio of less than 24:1 (kW/meter) and a forward draft of less than 50 dm, and
(2) No downbound vessel that has a power to length ratio of less than 15:1 (kW/meter) and a forward draft of less than 25 dm shall transit between the St. Lambert Lock and the Iroquois Lock of the Montreal-Lake Ontario Section of the Seaway and CIP 15 and CIP 16 of the Welland Canal.
No vessel of 1600 gross tons or more shall transit the U.S. waters of the St. Lawrence Seaway unless it is equipped with the following maneuvering data and equipment:
(a) Charts of the Seaway that are currently corrected and of large enough scale and sufficient detail to enable safe navigation. These may be published by a foreign government if the charts contain similar information to those published by the U.S. Government.
(b) U.S. Coast Guard Light List, currently corrected.
(c) Current Seaway Notices Affecting Navigation.
(d) The following maneuvering data prominently displayed on a fact sheet in the wheelhouse:
(1) For full and half speed, a turning circle diagram to port and starboard that shows the time and distance of advance and transfer required to alter the course 90 degrees with maximum rudder angle and constant power settings:
(2) The time and distance to stop the vessel from full and half speed while maintaining approximately the initial heading with minimum application of rudder;
(3) For each vessel with a fixed propeller, a table of shaft revolutions per minute, for a representative range of speeds, and a notice showing any critical range of revolutions at which the engine designers recommend that the engine not be operated on a continuous basis.
(4) For each vessel that is fitted with a controllable pitch propeller, a table of control settings for a representative range of speeds;
(5) For each vessel that is fitted with an auxiliary device to assist in maneuvering, such as a bow thruster, a table of vessel speeds at which the auxiliary device is effective in maneuvering the vessel;
(6) The maneuvering information for the normal load and normal ballast condition for:
(A) Calm weather—wind 10 knots or less, calm sea;
(B) No current;
(C) Deep water conditions—water depth twice the vessel's draft or greater; and
(D) Clean hull.
(7) At the bottom of the fact sheet, the following statement:
The response of the (name of the vessel) may be different from the above if any of the following conditions, on which the maneuvering is based, are varied:
(a) Calm weather—wind 10 knots or less, calm sea;
(b) No current;
(c) Deep water conditions—water depth twice the vessel's draft or greater;
(d) Clean hull;
(e) Intermediate drafts or unusual trim.”
(e) Illuminated magnetic compass at main steering station with compass deviation table, graph or record.
(f) Gyro-compass with illuminated gyro-repeater at main steering station.
(g) Marine radar system for surface navigation. Additionally, vessels of 10,000 gross tons or more must have a second main radar system that operates independently of the first.
(h) Efficient echo sounding device.
(i) Illuminated rudder angle indicator or repeaters that are:
(1) Located in the wheelhouse;
(2) Arranged so that they can easily be read from any position on the bridge.
(j) Illuminated indicator showing the operating mode of that device when vessel is equipped with auxiliary maneuvering devices.
Structures are located at a number of Seaway locks which, when fully raised, overhang the lock wall at a given point, thereby limiting:
(a) The height of a vessel above the water line measured at the vessel's side; and
(b) The height of other structures that are located near the sides of the vessel, such as derricks, crosstrees, antennas, etc.
The following block diagram shows the limits beyond which a vessel's hull or superstructure cannot extend
The limits in the block diagram are based on vessels with a maximum allowable beam of 23.2 m. For vessels that have a beam width less than this and that have dimensions exceeding the limits of the block diagram (measured with the vessel alongside the lock wall), a special permission to transit must be obtained. (Accurate measurements may be required before such permission is granted).
33 U.S.C. 981-990, 1231 and 1232; and 49 CFR 1.52.
(a) A person who willfully and knowingly violates a regulation shall be fined not more than $50,000 for each violation or imprisoned for not more
(b) For the purpose of paragraph (a) of this section, a “person” is deemed to be anyone who
(1) Handles any vessel contrary to the provisions of these regulations or of any rules or directions of the Corporation, or an officer thereof, given under the regulations;
(2) Is a party to any act described in paragraph (b)(1) of this section; or
(3) Is the owner, charterer or master of any vessel by means of which any act described in paragraph (b)(1) of this section is committed.
(a) A person, as described in § 401.101(b), who violates a regulation is liable to a civil penalty of not more than $36,625.
(b) In assessing or collecting any civil penalty incurred under paragraph (a) of this section, the Corporation may, in its discretion, remit, mitigate or compromise any penalty.
(c) Upon failure to collect a penalty levied under this section, the Corporation may request the United States Attorney General to commence any action for collection in any district court of the United States. A vessel by means of which a violation of a regulation is committed shall be liable in rem and may be proceeded against accordingly.
Sec. 106, Pub. L. 92-340, 86 Stat. 424, unless otherwise noted.
(a) The Secretary of Transportation, by 49 CFR 1.52 (a) has delegated to the Administrator of the Saint Lawrence Seaway Development Corporation the authority vested in the Secretary under sections 4, 5, 6, 7, 8, 12 and 13 of Sec. 2 of the Port and Tanker Safety Act of 1978, Pub. L. 95-474 (92 Stat. 1471), as it pertains to the operation of the Saint Lawrence Seaway.
(b) The Administrator hereby authorizes the Corporation's Associate Administrator to administer this statute in accordance with the procedures set forth in this subpart.
Section 13 of sec. 2 of the Port and Tanker Safety Act of 1978 authorizes the assessment and collection of a civil penalty of not more than $25,000 from anyone who violates a regulation issued under that section.
(a) Violations of Seaway Regulations, Subpart A of this part, will be brought to the attention of the alleged violator at the time of detection whenever possible. When appropriate, there will be a written notification of the fact of the violation. This notification will set
(b) If the Associate Administrator decides that a violation of Seaway Regulations has occurred, a determination will be made as to whether to invoke no penalty at all and close the case or whether to invoke a part or full statutory penalty. In either event, a written notice of the decision shall be given to advise the violator. If a penalty is assessed, such notice will advise the violator of the right to petition for relief within 15 days or such longer period as the Associate Administrator, in his or her discretion, may allow. The Associate Administrator may mitigate the penalty or remit it in full, except as the latter action is limited to paragraph (f) of this section. The violator may appear in person before the Associate Administrator. If the violator does not apply for relief but instead maintains that he or she has not committed the violation(s) charged, and the Associate Administrator, upon review, concludes that invocation of the penalty was proper, no remission or mitigation action will be taken. On the other hand, should the violator petition the Associate Administrator for relief without contesting the determination that violation did, in fact, occur, relief may be granted as the circumstances may warrant.
(c) When the penalty is mitigated, such mitigation will be made conditional upon payment of the balance within 15 days of notice or within such other longer period of time as the Associate Administrator, in his or her discretion, may allow.
(d) The violator may appeal to the Administrator from the action of the Associate Administrator. Any such appeal shall be submitted to the Administrator through the Associate Administrator within 15 days of the date of notification by the Associate Administrator, or such longer period of time as the Associate Administrator, in his or her discretions, may allow.
(e) Should the alleged violator require additional time to present matters favorable to the case at any stage of these penalty proceedings, a request for additional time shall be addressed to the Associate Administrator who will grant a reasonable extension of time where sufficient justification is shown.
(f) Under the following circumstances, the Corporation's Chief Counsel shall forward cases involving violations of the Seaway Regulations to the United States Attorney with the recommendation that action be taken to collect the assessed statutory penalty:
(1) When, within the prescribed time, the violator does not explain the violation, appeal for mitigation or remission, or otherwise respond to written notices from the Associate Administrator; or
(2) When, having responded to such inquiries, the violator fails or refuses to pay the assessed or mitigated penalty, or to appeal to the Administrator, within the time prescribed; or
(3) When the violator denies that the violation(s) was committed by him or her, the Associate Administrator, upon review, disagrees and the violator thereafter fails to appeal to the Administrator, or to remit payment of the assessed penalty within the time prescribed (see paragraph (b) of this section); or
(4) When the violator fails to pay within the prescribed time the penalty as determined by the Administrator after consideration of the violator's appeal from the action of the Associate Administrator.
(g) If a report of boarding or an investigation report submitted by a Corporation employee or investigative body discloses evidence of violation of a Federal criminal statute, the Corporation's Chief Counsel, in accordance with § 401.204, shall refer the findings to
(a) Prosecution in the Federal courts for violations of Seaway Regulations enforced by the Corporation that provide, upon conviction, for punishment by fine or imprisonment is a matter finally determined the Department of Justice. This final determination consists of deciding whether and under what conditions to prosecute or to abandon prosecution.
(b) The Corporation's Chief Counsel is hereby authorized to determine whether or not a violation of the Seaway Regulations carrying a criminal penalty is one that would justify referral of the case to the U.S. Attorney.
(c) The Corporation's Chief Counsel will identify the regulations that were violated and make specific recommendations concerning the proceedings to be instituted by the U.S. Attorney in every case.
(d) Referral of a case to the U.S. Attorney for prosecution terminates the Corporation's authority with respect to the criminal aspects of a violation.
(a) If the violation of the Seaway Regulations carries a criminal penalty, the Corporation's Chief Counsel is hereby authorized to determine whether to refer the case to the U.S. Attorney for prosecution in accordance with § 401.204, which outlines the appropriate procedure for handling criminal cases.
(b) The decision of the U.S. Attorney as to whether to institute criminal proceedings shall not bar the initiation of civil penalty proceedings by the Associate Administrator.
(a) The payment must be by money order or certified check payable to the order of the Saint Lawrence Seaway Development Corporation and mailed to the Comptroller. If the payment is made in person at the offices of the Saint Lawrence Seaway Development Corporation, the payment may be in cash or by postal money order or check payable to the order of the Saint Lawrence Seaway Development Corporation.
(b) The payment of any penalty will be acknowledged by written receipt.
(c) If the penalty paid is determined by the Associate Administrator to have been improperly or excessively imposed, the payor will be notified and requested to submit an application for a refund which should be mailed to the Saint Lawrence Seaway Development Corporation, attention of the Chief Engineer. Such application must be made by the payor within one year of the date of notification provided for in this section.
(d) In the event the alleged violator is about to leave the jurisdiction of the United States, he or she will be required, before being allowed to depart, to post a bond in the amount and manner suitable to the Associate Administrator, from which bond any subsequent assessed or mitigated penalty may be satisfied.
33 U.S.C. 983(a),984(a)(4), and 988, as amended; 49 CFR 1.52.
This regulation prescribes the charges to be assessed for the full or partial transit of the St. Lawrence Seaway between Montreal, Quebec, and Lake Erie.
This tariff may be cited as the St. Lawrence Seaway Tariff of Tolls (Schedule of Tolls in Canada).
In this tariff,
(1) Cement, loose or in sacks;
(2) Coke and petroleum coke, loose or in sacks;
(3) Domestic cargo;
(4) Liquids carried in vessels' tanks;
(5) Ores and minerals (crude, screened, sized or concentrated, but not otherwise processed) loose or in sacks, including alumina, bauxite, gravel, phosphate rock, sand, stone and sulphur;
(6) Pig iron and scrap metals;
(7) Lumber, pulpwood, poles and logs, loose or bundled;
(8) Raw sugar, flour, loose or in sacks;
(9) Wood pulp, loose or in bales; and
(10) Material for recycling, scrap material, refuse and waste.
(1) Empty containers or the tare weight of loaded containers;
(2) Ships' fuel, ballast or stores;
(3) The personal effects of crew or passengers; or
(4) In transit cargo that is carried both upbound and downbound in the course of the same voyage.
(1) Processed food products that are donated by, or the purchase of which has been financed on concessional terms by, the federal government of the United States or Canada for the purposes of nutrition, economic development, emergency, or disaster relief programs; and
(2) Food cargo that is:
(i) Owned or financed by a non-profit organization or cooperative;
(ii) Intended for use in humanitarian or development assistance overseas; and
(iii) Stamped or otherwise shown to have been declared as such to that is
(1) Containerized cargo moved by ship in the Seaway at any time in a navigation season;
(2) A commodity/origin/destination combination in which the commodity moved by ship in the Seaway at any time in a navigation season:
(i) Originating at a point inside Canada or the United States of America or at a country outside Canada or the United States of America, provided that such commodity has not originated from such point or country, as the case may be, at any time in any of the five consecutive navigation seasons immediately preceding the then current navigation season;
(ii) Destined to a point inside Canada or the United States of America or a country outside Canada or the United States of America, provided that such commodity has not been destined to such point or country, as the case may be, at any time in any of the five consecutive navigation seasons immediately preceding the then current navigation season;
(iii) Originating at a point inside Canada or the United States of America or a country outside Canada or the United States of America and destined to a point inside Canada or the United States of America or a country outside Canada or the United States of America, provided that such Commodity was previously moved, in lieu of movement by ship, by any mode of transportation other than by ship at all times in the five consecutive navigation seasons immediately preceding the then current navigation season; or
(iv) That has not moved through either section of the Seaway in any of the five consecutive navigation seasons immediately preceding the then current navigation season, in a volume exceeding 10,000 metric tons.
(a) Every vessel entering, passing through or leaving the Seaway shall pay a toll that is the sum of each applicable charge in § 402.10. Each charge is calculated based on the description set out in column 1 of § 402.10 and the rate set out in column 2 or 3.
(b) The toll is assessed against the vessel, its cargo and its passengers for a complete or partial transit of the Seaway and covers a single trip in one direction.
(c) The toll is due from the representative of the vessel within 45 days after the day on which the vessel enters the first lock of a transit of the Seaway.
(d) The two (2) incentive programs, New Business and Volume Rebate, are exclusive and cannot be applied at the same time on the same cargo movement.
(a) To be eligible for the rebate applicable under the New Business Incentive Program, a carrier must submit an application to the Manager for the proposed commodity/origin/destination combination to be approved and accepted under the rules of the New Business Incentive Program promulgated and administered from time to time by the Manager.
(b) Containerized cargo, whatever the origin or destination, moved by ship in the Seaway at any time in the navigation seasons commencing in 2008, 2009, 2010, 2011 and 2012 qualifies as New Business.
(c) A commodity/origin/destination combination that qualifies as New Business after the 30th day of September in any navigation season continues to qualify as New Business in the two consecutive navigation seasons; and
(d) A commodity/origin/destination combination that qualifies as New Business after the 30th day of September in any navigation season continues to qualify as New Business in the three consecutive navigation seasons immediately following the then current navigation season.
(a) To be eligible to the Volume Rebate Incentive program:
(1) A shipper/receiver in the Great Lakes/St. Lawrence Seaway System must submit to the Manager for approval, before June 30th of every season, the commodity, as defined under the Manager's commodity classification, for which a Volume Rebate is sought, the origin or destination of the commodity, and a proof of the maximum volume of the commodity the shipper/receiver has shipped over the last 5 years from that origin or to that destination.
(2) The shipper/receiver must already move the commodity, as defined under the Manager's commodity classification, through the Seaway at a minimum of 100,000 tonnes per season for the past five navigation seasons.
(b) Once approved by the Manager, the maximum volume will become the basis on which to calculate the incremental volume.
(c) The Volume Rebate Incentive program is not accessible at the end of the navigation season without a pre-approved maximum volume within the set deadline.
(d) The same cargo volume can only be used by one shipper/receiver.
(e) For the Volume Rebate to be applicable, the total volume of the commodity shipped through the Seaway must also increase during the navigation season.
For the purposes of calculating applicable tolls:
(a) A cord of pulpwood is taken to weigh 1,450 kilograms (3,196.70 pounds); and
(b) The cargo tonnage shall be rounded to the nearest 1,000 kilograms (2,204.62 pounds.)
(a) Subject to paragraph (b) of this section, a vessel that reports for its final transit of the Seaway from a place set out in column 1 of § 402.11 within a period after the clearance date established by the Manager and the Corporation set out in column 2 of 402.11 shall pay operational surcharges in the amount set out in column 3 of 402.11, prorated on a per-lock basis.
(b) If surcharges are postponed for operational or climatic reasons, a vessel that reports for its final transit of the Seaway from a place set out in column 1 within a period after the clearance date established by the Manager and the Corporation set out in column 2 shall pay operational surcharges in the amount set out in column 3, prorated on a per-lock basis.
(c) A vessel that is authorized to transit the Seaway after the period of 96 hours after the clearance date established by the Manager and the Corporation shall pay, in addition to the operational surcharge, an amount equal to the incremental expenses incurred by the Manager to keep the Seaway open for the transit of the vessel.
In Canada, this Tariff and the tolls set forth herein come into force from the date on which this Tariff is filed with the Canadian Transportation Agency.
68 Stat. 92-96, 33 U.S.C. 981-990; Agreement between the Governments of United States and of Canada dated March 9, 1959, 10 U.S.T. 323, unless otherwise noted.
The Board shall hear complaints relating to the interpretation of the St. Lawrence Seaway Tariff of Tolls or allegations of unjust discrimination arising out of the operation of the said Tariff and shall conduct such other business as agreed to by the Board (Rule 1).
These rules govern practice and procedure before the Joint Tolls Review Board unless the Board directs or permits a departure therefrom in any proceeding [Rule 2].
In these rules, unless the context otherwise requires:
(a)
(b)
(c)
(d) Words in the singular include the plural and words in the plural include the singular [Rule 3].
(a) Every proceeding before the Board shall be commenced by an application made to it, which shall be in writing and signed by, or on behalf of, the applicant.
(b) An applicant shall file six copies of his application setting forth a clear and complete statement of the facts the grounds for the complaint, and the relief or remedy to which the applicant claims to be entitled.
(c) Applicants resident in Canada shall file their complaints with the St. Lawrence Seaway Joint Tolls Reviews Board, Tower “A”, Place de Ville, 320 Queen Street, Ottawa, Ontario KIR 5A3. Applicants resident in the United States of America shall file their complaints with the St. Lawrence Seaway Joint Tolls Review Board, 800 Independence Ave., SW., Washington, D.C. 20591. Other applicants may file their complaints with the Board at either address.
(d) One copy of each application received shall be held and be available for public inspection at the offices of the Board in Ottawa, Ontario, and Massena, N.Y.
(e) The Board shall publish notice of the receipt of applications in the “Canada Gazette” and the
(f) Interested parties shall have thirty days from date of publication of notice in which to make representations
(a) The Board shall meet at such time and place as the Chairman may decide.
(b) The Board may schedule hearings at such time and place as the Chairman may decide.
(c) If hearings are scheduled the Board shall so notify applicants on record by mail, and may cause notice of the time and place of hearings to be published in the “Canada Gazette” and the
(d) Three members of the Board, one of whom shall be the Chairman, shall constitute a quorum.
(e) The Chairman shall have the right to vote at meetings of the Board and in case of equal division shall also have a casting vote.
(f) The Chairman shall cause to be kept minutes of meetings and a record of proceedings at hearings. [Rule 5]
The Board may require further information, particulars or documents from any party. [Rule 6]
The Board may at any time require the whole or any part of an application, answers or reply to be verified by affidavit, by giving a notice to that effect to the party from whom the affidavit is required. It the notice is not complied with, the Board may set aside the application, answer or reply or strike out any part not verified according to the notice. [Rule 7]
The Board may stay proceedings or any part of the proceedings as it thinks fit or may from time to time adjourn any proceedings before it. [Rule 8]
The Board may direct, orally or in writing, parties or their representatives to appear before the Board or a member of the Board at a specified time and place for a conference prior to or during the course of a hearing or, in lieu of personally appearing, to submit suggestions in writing, for the purpose of formulating issues and considering:
(a) The simplification of issues;
(b) The procedure at the hearing;
(c) The necessity or desirability of amending the application, answer or reply for the purpose of clarification, amplification or limitation;
(d) The mutual exchange among the parties of documents and exhibits proposed to be submitted at the hearing; and
(e) Such other matters as may aid in the simplification of the evidence and disposition of the proceeding. [Rule 9]
(a) The witnesses at the hearings shall be examined viva voce, but the Board may, at any time, for sufficient reason, order that any particular facts may be proved by affidavit or that the affidavit of any witness may be read at the hearing, on such conditions as it may think reasonable, or that any witness whose attendance ought, for some sufficient reason to be dispensed with, be examined before a member of the Board. The evidence taken before a member of the Board shall be confined
(b) The Board may, whenever it deems it advisable to do so, require written briefs to be submitted by the parties.
(c) The hearing, when once commenced, shall proceed, so far as in the opinion of the Board may be practicable, from day to day. [Rule 10]
The Board shall report its findings and recommendations in writing to The St. Lawrence Seaway Authority and the Saint Lawrence Seaway Development Corporation and shall indicate whether the recommendations represent the unanimous agreement of the members of the Board and, if not, shall indicate those items on which unanimity was not achieved. [Rule 11]
A list of CFR titles, subtitles, chapters, subchapters and parts and an alphabetical list of agencies publishing in the CFR are included in the CFR Index and Finding Aids volume to the Code of Federal Regulations which is published separately and revised annually.
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations that were made by documents published in the
For the period before January 1, 2001, see the “List of CFR Sections Affected, 1949-1963, 1964-1972, 1973-1985, and 1986-2000,” published in 11 separate volumes.