[Title 33 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2010 Edition]
[From the U.S. Government Printing Office]



[[Page i]]

          

          33


          Part 200 to End

          Revised as of July 1, 2010


          Navigation and Navigable Waters
          



________________________

          Containing a codification of documents of general 
          applicability and future effect

          As of July 1, 2010
          With Ancillaries
                    Published by
                    Office of the Federal Register
                    National Archives and Records
                    Administration
                    A Special Edition of the Federal Register

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                            Table of Contents



                                                                    Page
  Explanation.................................................       v

  Title 33:
          Chapter II--Corps of Engineers, Department of the 
          Army, Department of Defense                                3
          Chapter IV--Saint Lawrence Seaway Development 
          Corporation, Department of Transportation                697
  Finding Aids:
      Table of CFR Titles and Chapters........................     743
      Alphabetical List of Agencies Appearing in the CFR......     763
      List of CFR Sections Affected...........................     773

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                     ----------------------------

                     Cite this Code: CFR
                     To cite the regulations in 
                       this volume use title, 
                       part and section number. 
                       Thus, 33 CFR 203.11 refers 
                       to title 33, part 203, 
                       section 11.

                     ----------------------------

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                               EXPLANATION

    The Code of Federal Regulations is a codification of the general and 
permanent rules published in the Federal Register by the Executive 
departments and agencies of the Federal Government. The Code is divided 
into 50 titles which represent broad areas subject to Federal 
regulation. Each title is divided into chapters which usually bear the 
name of the issuing agency. Each chapter is further subdivided into 
parts covering specific regulatory areas.
    Each volume of the Code is revised at least once each calendar year 
and issued on a quarterly basis approximately as follows:

Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1

    The appropriate revision date is printed on the cover of each 
volume.

LEGAL STATUS

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HOW TO USE THE CODE OF FEDERAL REGULATIONS

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OMB CONTROL NUMBERS

    The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires 
Federal agencies to display an OMB control number with their information 
collection request.

[[Page vi]]

Many agencies have begun publishing numerous OMB control numbers as 
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that volume.

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    Raymond A. Mosley,
    Director,
    Office of the Federal Register.
    July 1, 2010.







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                               THIS TITLE

    Title 33--Navigation and Navigable Waters is composed of three 
volumes. The contents of these volumes represent all current regulations 
codified under this title of the CFR as of July 1, 2010. The first and 
second volumes, parts 1-124 and 125-199, contain current regulations of 
the Coast Guard, Department of Homeland Security. The third volume, part 
200 to end, contains current regulations of the Corps of Engineers, 
Department of the Army, and the Saint Lawrence Seaway Development 
Corporation, Department of Transportation.

    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.


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                TITLE 33--NAVIGATION AND NAVIGABLE WATERS




                  (This book contains part 200 to End)

  --------------------------------------------------------------------
                                                                    Part

chapter ii--Corps of Engineers, Department of the Army, 
  Department of Defense.....................................         203

chapter iv--Saint Lawrence Seaway Development Corporation, 
  Department of Transportation..............................         401

Cross Reference: For research and development, laboratory research and 
  development and tests, work for others regulations, see 32 CFR part 
  555.


Abbreviation Used in Chapter II:
    CE = Corps of Engineers.

[[Page 3]]



 CHAPTER II--CORPS OF ENGINEERS, DEPARTMENT OF THE ARMY, DEPARTMENT OF 
                                 DEFENSE




  --------------------------------------------------------------------


  Editorial Note: 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.
Part                                                                Page
200-202

                [Reserved]

203             Emergency employment of Army and other 
                    resources, natural disaster procedures..           5
207             Navigation regulations......................          26
208             Flood control regulations...................         106
209             Administrative procedure....................         140
210             Procurement activities of the Corps of 
                    Engineers...............................         165
211             Real estate activities of the Corps of 
                    Engineers in connection with civil works 
                    projects................................         182
214             Emergency supplies of drinking water........         198
220             Design criteria for dam and lake projects...         201
221             Work for others.............................         202
222             Engineering and design......................         218
223             Boards, commissions, and committees.........         311
230             Procedures for implementing NEPA............         312
236             Water resource policies and authorities: 
                    Corps of Engineers participation in 
                    improvements for environmental quality..         324
238             Water resources policies and authorities: 
                    Flood damage reduction measures in urban 
                    areas...................................         326
239             Water resources policies and authorities: 
                    Federal participation in covered flood 
                    control channels........................         329
240             General credit for flood control............         331
241             Flood control cost-sharing requirements 
                    under the ability to pay provision......         337
242             Flood Plain Management Services Program 
                    establishment of fees for cost recovery.         343
245             Removal of wrecks and other obstructions....         344
263             Continuing authorities programs.............         348
273             Aquatic plant control.......................         366

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274             Pest control program for civil works 
                    projects................................         371
276             Water resources policies and authorities: 
                    Application of section 134a of Public 
                    Law 94-587..............................         375
277             Water resources policies and authorities: 
                    Navigation policy: Cost apportionment of 
                    bridge alterations......................         378
279             Resource use: Establishment of objectives...         386
320             General regulatory policies.................         391
321             Permits for dams and dikes in navigable 
                    waters of the United States.............         404
322             Permits for structures or work in or 
                    affecting navigable waters of the United 
                    States..................................         405
323             Permits for discharges of dredged or fill 
                    material into waters of the United 
                    States..................................         413
324             Permits for ocean dumping of dredged 
                    material................................         420
325             Processing of Department of the Army permits         421
326             Enforcement.................................         451
327             Public hearings.............................         462
328             Definition of waters of the United States...         465
329             Definition of navigable waters of the United 
                    States..................................         467
330             Nationwide permit program...................         472
331             Administrative appeal process...............         483
332             Compensatory mitigation for losses of 
                    aquatic resources.......................         498
334             Danger zone and restricted area regulations.         528
335             Operation and maintenance of Army Corps of 
                    Engineers civil works projects involving 
                    the discharge of dredged or fill 
                    material into waters of the U.S. or 
                    ocean waters............................         631
336             Factors to be considered in the evaluation 
                    of Army Corps of Engineers dredging 
                    projects involving the discharge of 
                    dredged material into waters of the U.S. 
                    and ocean waters........................         633
337             Practice and procedure......................         640
338             Other Corps activities involving the 
                    discharge of dredged material or fill 
                    into waters of the U.S..................         646
384             Intergovernmental review of Department of 
                    the Army Corps of Engineers programs and 
                    activities..............................         647
385             Programmatic regulations for the 
                    comprehensive Everglades Restoration 
                    Plan....................................         650

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                        PARTS 200	202 [RESERVED]



PART 203_EMERGENCY EMPLOYMENT OF ARMY AND OTHER RESOURCES, NATURAL 
DISASTER PROCEDURES--Table of Contents



                         Subpart A_Introduction

Sec.
203.11 Purpose.
203.12 Authority.
203.13 Available assistance.
203.14 Responsibilities of non-Federal interests.
203.15 Definitions.
203.16 Federally recognized Indian Tribes and the Alaska Native 
          Corporations.

                     Subpart B_Disaster Preparedness

203.21 Disaster preparedness responsibilities of non-Federal interests.

                     Subpart C_Emergency Operations

203.31 Authority.
203.32 Policy.

 Subpart D_Rehabilitation Assistance for Flood Control Works Damaged by 
 Flood or Coastal Storm: The Corps Rehabilitation and Inspection Program

203.41 General.
203.42 Inspection of non-Federal flood control works.
203.43 Inspection of Federal flood control works.
203.44 Rehabilitation of non-Federal flood control works.
203.45 Rehabilitation of Federal flood control works.
203.46 Restrictions.
203.47 Modifications to non-Federal flood control works.
203.48 Inspection guidelines for non-Federal flood control works.
203.49 Rehabilitation of Hurricane and Shore Protection Projects.
203.50 Nonstructural alternatives to rehabilitation of flood control 
          works.
203.51 Levee owner's manual.
203.52 [Reserved]

   Subpart E_Emergency Water Supplies: Contaminated Water Sources and 
                           Drought Assistance

203.61 Emergency water supplies due to contaminated water source.
203.62 Drought assistance.

                       Subpart F_Advance Measures

203.71 Policy.
203.72 Eligibility criteria and procedures.

            Subpart G_Local Interests/Cooperation Agreements

203.81 General.
203.82 Requirements of local cooperation.
203.83 Additional requirements.
203.84 Forms of local participation--cost sharing.
203.85 Rehabilitation of Federal flood control projects.
203.86 Transfer of completed work to local interests.

    Authority: 33 U.S.C. 701n.

    Source: 68 FR 19359, Apr. 21, 2003, unless otherwise noted.



                         Subpart A_Introduction



Sec. 203.11  Purpose.

    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.



Sec. 203.12  Authority.

    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

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storm. This law authorizes the Secretary of the Army (Secretary) to 
construct wells and to transport water within areas determined by the 
Secretary to be drought-distressed. The Secretary of the Army has 
delegated the authority vested in the Secretary under Public Law 84-99 
through the Assistant Secretary of the Army (Civil Works) to the Chief 
of Engineers, subject to such further direction as the Secretary may 
provide.



Sec. 203.13  Available assistance.

    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) Disaster preparedness. Technical assistance for many types of 
disasters is available to State and local interests. Primary Corps 
efforts are focused on technical assistance for, and inspections of, 
flood control works, and related flood fight preparedness and training 
activities. Technical assistance for specialized studies, project 
development, and related activities, and requirements for long term 
assistance, are normally beyond the scope of disaster preparedness 
assistance, and are appropriately addressed by other Corps authorities 
and programs. Subpart B addresses disaster preparedness responsibilities 
and activities.
    (b) Emergency operations. Emergency operations, consisting of Flood 
Response (flood fight and rescue operations) and Post Flood Response 
assistance, may be provided to supplement State and local emergency 
operations efforts. Subpart C of this part addresses emergency 
operations assistance.
    (c) Rehabilitation. The Corps may rehabilitate flood control works 
damaged or destroyed by floods and coastal storms. The Corps 
Rehabilitation and Inspection Program (RIP) incorporates both disaster 
preparedness activities and Rehabilitation Assistance. The RIP consists 
of a process to inspect flood control works; a status determination, 
i.e., an inspection-based determination of qualification for future 
potential Rehabilitation Assistance; and the provision of Rehabilitation 
Assistance to those projects with Active status that are damaged in a 
flood or coastal storm event. Subpart D addresses Rehabilitation 
Assistance and the RIP.
    (d) Emergency water supplies due to contaminated water source. The 
Corps may provide emergency supplies of clean water to any locality 
confronted with a source of contaminated water causing, or likely to 
cause, a substantial threat to the public health and welfare of the 
inhabitants of the locality. Subpart E addresses emergency water supply 
assistance.
    (e) Drought assistance. Corps assistance may be provided to drought-
distressed areas (as declared by the Secretary of the Army or his 
delegated nominee) to construct wells and to transport water for human 
consumption. Subpart E addresses drought assistance.
    (f) Advance Measures. Advance Measures assistance may be provided to 
protect against imminent threats of predicted, but unusual, floods. 
Advance Measures projects must be justified from an engineering and 
economic standpoint, and must be capable of completion in a timely 
manner. Advance Measures assistance may be provided only to protect 
against loss of life and/or significant damages to improved property due 
to flooding. Subpart F of this part addresses Advance Measures 
assistance.



Sec. 203.14  Responsibilities of non-Federal interests.

    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) Disaster preparedness. Disaster preparedness is a basic tenet of 
State and local responsibility. Disaster preparedness responsibilities 
of non-Federal interests include:
    (1) Operation and maintenance of flood control works;

[[Page 7]]

    (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) Emergency operations. During emergency operations, non-Federal 
interests must commit available resources, to include work force, 
supplies, equipment, and funds. Requests for Corps emergency operations 
assistance will be in writing from the appropriate State, tribal, or 
local official. For flood fight direct assistance and Post Flood 
Response assistance, non-Federal interests must furnish formal written 
assurances of local cooperation by entering into Cooperation Agreements 
(CA's), as detailed in subpart G of this regulation. (For Corps work 
authorized under Public Law 84-99, the term ``Cooperation Agreement'' is 
used to differentiate this agreement from a Project Cooperation 
Agreement (PCA) that addresses the original construction of a project.) 
Following Flood Response or Post Flood Response assistance, it is a non-
Federal responsibility to remove expedient flood control structures and 
similar works installed by the Corps under Public Law 84-99.
    (c) Rehabilitation of non-Federal flood control projects. Prior to 
Corps rehabilitation of non-Federal flood control projects, non-Federal 
interests must furnish formal written assurances of local cooperation by 
entering into a CA, as detailed in subpart G of this part. Requirements 
of local participation include such items as provision of lands, 
easements, rights-of-way, relocations, and suitable borrow and dredged 
or excavated material disposal areas (LERRD's), applicable cost-sharing, 
and costs attributable to deficient and/or deferred maintenance.
    (d) Rehabilitation of Federal flood control projects. Sponsors of 
Federal flood control projects are usually not required to furnish 
written assurances of local cooperation, if the PCA for the original 
construction of the project is sufficient. (Note: The PCA may also be 
referred to as a local cooperation agreement (LCA), cooperation and 
participation agreement (C&P), or similar terms.) In lieu of a new PCA, 
the Corps will notify the sponsor of the sponsor's standing 
requirements, including such items as LERRD's, costs attributable to 
deficient or deferred maintenance, removal of temporary works, 
relocations, and any cost-sharing requirements contained in subpart G of 
Sec. 203.82. Modifications to the existing Operation and Maintenance 
Manual may be required based on the Rehabilitation Assistance required.
    (e) Emergency water supplies due to contaminated water source. 
Except for federally recognized Indian Tribes or Alaska Native 
Corporations, Non-Federal interests must first seek emergency water 
assistance through the Governor of the affected State. If the State is 
unable to provide the needed assistance, then the Governor or his or her 
authorized representative must request Corps assistance in writing. 
Similarly, requests for Corps assistance for Indian Tribes or Alaska 
Native Corporations must be submitted in writing. A CA (see subpart G of 
this part) is required prior to assistance being rendered. Requests for 
assistance must include information concerning the criteria prescribed 
by subpart E of this part.
    (f) Drought assistance. Except for federally recognized Indian 
Tribes or Alaska Native Corporations, non-Federal interests must first 
seek emergency drinking water assistance through the Governor of the 
affected State. Requests for Corps assistance will be in writing from 
the Governor or his or her authorized representative. Similarly, 
requests for Corps assistance for Indian Tribes or Alaska Native 
Corporations must be submitted in writing. A CA (see subpart G of this 
part) is required prior to assistance being rendered. Assistance can be 
provided to those drought-distressed areas (as declared by the Secretary 
of the Army) to construct wells and to transport water for

[[Page 8]]

human consumption. Requests for assistance must include information 
concerning the criteria prescribed by subpart E of this part.
    (g) Advance Measures. Advance Measures assistance should complement 
the maximum non-Federal capability. Requests for assistance must be made 
by the Governor of the affected State, except requests for assistance on 
tribal lands held in trust by the United States, or on lands of the 
Alaska Natives, may be submitted directly by the affected Federally 
recognized Indian Tribe or Alaska Native Corporation, or through the 
regional representative of the Bureau of Indian Affairs, or through the 
Governor of the State in which the lands are located. A CA (see subpart 
G of this part) is required prior to assistance being rendered. Non-
Federal participation may include either financial contribution or 
commitment of non-Federal physical resources, or both.



Sec. 203.15  Definitions.

    The following definitions are applicable throughout this part:
    Federal project. A project constructed by the Corps, and 
subsequently turned over to a local sponsor for operations and 
maintenance responsibility. This definition also includes any project 
specifically designated as a Federal project by an Act of Congress.
    Flood control project: A project designed and constructed to have 
appreciable and dependable effects in preventing damage from irregular 
and unusual rises in water level. For a multipurpose project, only those 
components that are necessary for the flood control function are 
considered eligible for Rehabilitation Assistance.
    Governor. All references in part 203 to the Governor of a State also 
refer to: the Governors of United States commonwealths, territories, and 
possessions; and the Mayor of Washington, D.C.
    Hurricane/Shore Protection Project (HSPP). A flood control project 
designed and constructed to have appreciable and predictable effects in 
preventing damage to developed areas from the impacts of hurricanes, 
tsunamis, and coastal storms. These effects are primarily to protect 
against wave action, storm surge, wind, and the complicating factors of 
extraordinary high tides. HSPP's include projects known as shore 
protection projects, shore protection structures, periodic nourishment 
projects, shore enhancement projects, and similar terms. Components of 
an HSPP may include both hard (permanent construction) and soft 
(sacrificial, i.e., sand) features.
    Non-Federal project. A project constructed with non-Federal funds, 
or a project constructed by tribal, State, local, or private interests, 
or a component of such a project. A project constructed under Federal 
emergency disaster authorities, such as Public Law 84-99 or the Robert 
T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 
U.S.C. 5121, et seq.) (hereinafter referred to as the Stafford Act), is 
a non-Federal project unless it repairs or replaces an existing Federal 
project. Works Progress Administration (WPA) projects, and projects 
funded completely or partially by other (non-Corps) Federal agencies, 
are considered non-Federal projects for the application of Public Law 
84-99 authority.
    Non-Federal sponsor. A non-Federal sponsor is a public entity that 
is a legally constituted public body with full authority and capability 
to perform the terms of its agreement as the non-Federal partner of the 
Corps for a project, and able to pay damages, if necessary, in the event 
of its failure to perform. A non-Federal sponsor may be a State, County, 
City, Town, Federally recognized Indian Tribe or tribal organization, 
Alaska Native Corporation, or any political subpart of a State or group 
of states that has the legal and financial authority and capability to 
provide the necessary cash contributions and LERRD's necessary for the 
project.
    Repair and rehabilitation. The term ``repair and rehabilitation'' 
means the repair or rebuilding of a flood control structure, after the 
structure has been damaged by a flood, hurricane, or coastal storm, to 
the level of protection provided by the structure prior to the flood, 
hurricane, or coastal storm. ``Repair and rehabilitation'' does not 
include improvements (betterments) to

[[Page 9]]

the structure, nor does ``repair and rehabilitation'' include any repair 
or rebuilding of a flood control structure that, in the normal course of 
usage, has become structurally unsound and is no longer fit to provide 
the level of protection for which it was designed.



Sec. 203.16  Federally recognized Indian Tribes and the Alaska Native Corporations.

    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.



                     Subpart B_Disaster Preparedness



Sec. 203.21  Disaster preparedness responsibilities of non-Federal interests.

    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) Operation and maintenance of flood control works. Flood control 
works must be operated and maintained by non-Federal interests. 
Maintenance includes both short-term activities (normally done on an 
annual cycle, or more frequently) such as vegetation control and control 
of burrowing animals, and longer term activities such as repair or 
replacement of structural components (e.g., culverts) of the project.
    (b) Procurement/stockpiling. Procurement and stockpiling of 
sandbags, pumps, and/or other materials or equipment that might be 
needed during flood situations is a non-Federal responsibility. The 
Corps is normally a last resort option for obtaining such materials. 
Local interests should request such materials from State assets prior to 
seeking Corps assistance. Local interests are responsible for 
reimbursing (either in kind or in cash) the Corps for expendable flood 
fight supplies and materials, and returning items such as pumps. When a 
flood is of sufficient magnitude to receive a Stafford Act emergency or 
disaster declaration, then the District Engineer may waive reimbursement 
of expendable supplies.
    (c) Training and plans. Training personnel to operate, maintain, and 
patrol flood control projects during crisis situations is a non-Federal 
responsibility. Specific plans should be developed and in place to 
address known problem areas. For instance, the non-Federal sponsor of a 
levee reach prone to boils should have personnel specifically trained in 
flood fighting boils. In addition, contingency plans must be made when 
needed to address short term situations. For instance, if a culvert 
through a levee is being replaced, then the contingency plan should 
address all actions needed should a flood event occur during the 
construction period when levee integrity is lacking.
    (d) Corps Rehabilitation and Inspection Program for Flood Control 
Works. To be eligible for Rehabilitation Assistance under Public Law 84-
99, it is a non-Federal responsibility to take 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.



                     Subpart C_Emergency Operations



Sec. 203.31  Authority.

    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

[[Page 10]]

property, or to protect against significant threats to public health and 
welfare, and are intended to bridge the time frame between the 
occurrence of a disaster and the provision of disaster relief efforts 
under authority of The Stafford Act.
    (a) Flood Response. Flood Response measures are applicable to any 
flood control work where assistance is supplemental to tribal, State, 
and local efforts, except that Corps assistance is not appropriate to 
protect flood control works constructed, previously repaired, and/or 
maintained by other Federal agencies, where such agencies have emergency 
flood fighting authority. Further, Flood Response measures (except 
technical assistance) are not appropriate for flood control works 
protecting strictly agricultural lands. Corps assistance in support of 
other Federal agencies, or State and local interests, may include the 
following: technical advice and assistance; lending of flood fight 
supplies, e.g., sandbags, lumber, polyethylene sheeting, or stone; 
lending of Corps-owned equipment; hiring of equipment and operators for 
flood operations; emergency contracting; and similar measures.
    (b) Post Flood Response. The Corps may furnish Post Flood Response 
assistance for a period not to exceed 10 days (the statutory limitation) 
from the date of the Governor's request to the Federal Emergency 
Management Agency for an emergency or disaster declaration under 
authority of the Stafford Act. Requests for Post Flood Response 
assistance must be made by the Governor of the affected State, except 
that requests for assistance on lands held in trust by the United 
States, or on lands of the Alaska Natives, may be submitted 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 in which 
the lands are located. Assistance from the Corps may include the 
following: provision of technical advice and assistance; cleaning of 
drainage channels, bridge openings, or structures blocked by debris 
deposited during a flood event, where the immediate threat of flooding 
of or damage to public facilities has not abated; removal of debris 
blockages of critical water supply intakes, sewer outfalls, etc.; 
clearance of the minimum amounts of debris necessary to reopen critical 
transportation routes or public services/facilities; other assistance 
required to prevent imminent loss of life or significant damage to 
public property, or to protect against significant threats to public 
health and welfare. Post Flood Response assistance is supplemental to 
the maximum efforts of non-Federal interests.



Sec. 203.32  Policy.

    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, i.e., residential/commercial/industrial developments, 
and public facilities/services. Direct assistance to individual 
homeowners, individual property owners, or businesses is not permitted. 
Assistance will be temporary to meet the immediate threat, and is not 
intended to provide permanent solutions. All Corps activities will be 
coordinated with the State Emergency Management Agency or equivalent. 
Reimbursement of State or local emergency costs is not authorized. The 
local assurances required for the provision of Corps assistance apply 
only to the work performed under Public Law 84-99, and will not prevent 
State or local governments from receiving other Federal assistance for 
which they are eligible.
    (a) Flood Response. Requests for Corps assistance will be in writing 
from the appropriate requesting official, or his or her authorized 
representative. When time does not permit a written request, a verbal 
request from a responsible tribal, State, or local official will be 
accepted, followed by a written confirmation.
    (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.

[[Page 11]]

    (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) Post Flood Response. A written request from the Governor is 
required to receive Corps assistance. Corps assistance will be limited 
to major floods or coastal storm disasters resulting in life threatening 
situations. The Governor's request will include verification that the 
Federal Emergency Management Agency (FEMA) has been requested to make an 
emergency or disaster declaration; a statement that the assistance 
required is beyond the State's capability; specific damage locations; 
and the extent of Corps assistance required to supplement State and 
local efforts. Corps assistance is limited to 10 days following receipt 
of the Governor's written request, or on assumption of activities by 
State and local interests, whichever is earlier. After a Governor's 
request has triggered the 10-day period, subsequent request(s) for 
additional assistance resulting from the same flood or coastal storm 
event will not extend the 10-day period, or trigger a new 10-day period. 
The Corps will deny any Governor's request for Post Flood Response if it 
is received subsequent to a Stafford Act Presidential disaster 
declaration, or denial of such a declaration. Shoreline or beach erosion 
damage reduction/prevention actions under Post Flood Response will 
normally not be undertaken unless there is an immediate threat to life 
or critical public facilities.
    (c) Loan or issue of supplies and equipment. (1) Issuance of 
Government-owned equipment or materials to non-Federal interests is 
authorized only after local resources have been fully committed.
    (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.



 Subpart D_Rehabilitation Assistance for Flood Control Works Damaged by 
 Flood or Coastal Storm: The Corps Rehabilitation and Inspection Program



Sec. 203.41  General.

    (a) Authority. Public Law 84-99 authorizes repair and restoration of 
the following types of projects to ensure their continued function:
    (1) Flood control projects.
    (2) Federally authorized and constructed hurricane/shore protection 
projects.
    (b) Implementation of authority. The Rehabilitation and Inspection 
Program (RIP) implements Public Law 84-99 authority to repair and 
rehabilitate flood control projects damaged by floods and coastal storm 
events. The RIP consists of a process to inspect flood control work; a 
status determination, i.e., an inspection-based determination of 
qualification for future Rehabilitation Assistance; and the provision of 
Rehabilitation Assistance to those projects with Active status that are 
damaged in a flood or coastal storm event.
    (c) Active status. In order for a flood control work to be eligible 
for Rehabilitation Assistance, it must be in an Active status at the 
time of damage from a flood or coastal storm event. To gain an Active 
status, a non-Federal flood control work must meet certain

[[Page 12]]

engineering, maintenance, and qualification criteria, as determined by 
the Corps during an Initial Eligibility Inspection (IEI). To retain an 
Active status, Federal and non-Federal flood control works must continue 
to meet inspection criteria set by the Corps, as determined by the Corps 
during a Continuing Eligibility Inspection (CEI). All flood control 
works not in an Active status are considered to be Inactive, regardless 
of whether or not they have previously received a Corps inspection, or 
Corps assistance.
    (d) Modification of flood control projects. Modification of a flood 
control project to increase the level of protection, or to provide 
protection to a larger area, is beyond the scope of Public Law 84-99 
assistance. Such modifications to Federal projects are normally 
accomplished under congressional authorization and appropriation, or 
under Continuing Authorities Programs of the Corps. Such modifications 
to non-Federal projects are normally accomplished by the non-Federal 
sponsor and local interests. Modifications necessary to preserve the 
structural integrity of an existing non-Federal flood control project 
may be funded by the RIP, but such work must meet the criteria 
established in Sec. 203.47 to be eligible for funding under Public Law 
84-99.



Sec. 203.42  Inspection of non-Federal flood control works.

    (a) Required inspections. The Corps will conduct inspections of non-
Federal flood control works. These inspections are IEI's and CEI's. 
Conduct of IEI's and CEI's will be as provided for in Sec. 203.48.
    (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 Sec. 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 Sec. 203.48) on a CEI is required in order to 
retain an Active status in the RIP.
    (b) Advice and reporting. Information on the results of IEI and CEI 
inspections will be furnished in writing to non-Federal sponsors, and 
will be maintained in Corps district offices.
    (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.



Sec. 203.43  Inspection of Federal flood control works.

    (a) Required inspections. A completed Federal flood control project, 
or completed functional portions thereof, is granted Active status in 
the RIP upon transfer of the operation and maintenance of the project 
(or functional portion thereof) to the non-Federal sponsor. Federal 
flood control works will be periodically inspected in accordance with 33 
CFR 208.10 and Engineer Regulation (ER) 1130-2-530, Flood Control 
Operations and Maintenance Policies. These periodic inspections of 
Federal flood control works are also, for simplicity, known as CEI's. If 
a Federal project is found to be inadequately maintained on a CEI, then 
it will be placed in an Inactive status in the RIP. [Note: This is a 
separate and distinct action from project deauthorization, which is not 
within the scope of PL 84-99 activities.] A Federal project will remain 
in an Inactive status until such

[[Page 13]]

time as an adequate maintenance program is restored, and the project is 
determined by the Corps to be adequately maintained.
    (b) Advice and reporting. Information on the results of CEI 
inspections will be furnished in writing to non-Federal sponsors, and 
will be maintained in Corps district offices. 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 not eligible for 
Rehabilitation Assistance. 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.



Sec. 203.44  Rehabilitation of non-Federal flood control works.

    (a) Scope of work. The Corps will provide assistance in the 
rehabilitation of non-Federal projects only when repairs are clearly 
beyond the normal physical and financial capabilities of the project 
sponsor. The urgency of the work required will be considered in 
determining the sponsor's capability.
    (b) Eligibility for Rehabilitation Assistance. A flood control 
project is eligible for Rehabilitation Assistance provided that the 
project is in an Active status at the time of the flood event, the 
damage was caused by the flood event, the work can be economically 
justified, and the work is not otherwise prohibited by this subpart D.
    (c) Work at non-Federal expense. At the earliest opportunity prior 
to commencement of or during authorized rehabilitation work, the Corps 
will inform the project sponsor of any work that must be accomplished at 
non-Federal cost. This includes costs to correct maintenance 
deficiencies, and any modifications that are necessary to preserve the 
integrity of the project.
    (d) Nonconforming works. Any non-Federal project constructed or 
modified without the appropriate local, State, tribal, and/or Federal 
permits, or waivers thereof, will not be rehabilitated under Public Law 
84-99.
    (e) Cooperation Agreements. A Cooperation Agreement is required in 
accordance with subpart G of this part.



Sec. 203.45  Rehabilitation of Federal flood control works.

    Rehabilitation of Federal flood control projects will be identical 
to rehabilitation of non-Federal projects (Sec. 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 Sec. 203.49.



Sec. 203.46  Restrictions.

    (a) Restrictions to flood control works. Flood control works are 
designed and constructed to have appreciable and dependable protection 
in preventing damage from irregular and unusual rises in water levels. 
Structures built primarily for the purposes of channel alignment, 
navigation, recreation, fish and wildlife enhancement, land reclamation, 
habitat restoration, drainage, bank protection, or erosion protection 
are generally ineligible for Public Law 84-99 Rehabilitation Assistance.
    (b) Non-flood related rehabilitation. Rehabilitation of flood 
control structures damaged by occurrences other than floods, hurricanes, 
or coastal storms will generally not be provided under Public Law 84-99.
    (c) Maintenance and deterioration deficiencies. Rehabilitation under 
Public Law 84-99 will not be provided for either Federal or non-Federal 
flood control projects that, as a result of poor maintenance or 
deterioration, require substantial reconstruction. All deficient or 
deferred maintenance existing when flood damage occurs will be 
accomplished by, or at the expense of, the non-Federal sponsor, either 
prior to or concurrently with authorized rehabilitation work. When work 
accomplished by the Corps corrects deferred or deficient maintenance, 
the estimated deferred or deficient maintenance cost will not be 
included as contributed non-Federal funds, and will be in addition to 
cost-sharing requirements addressed in Sec. 203.82. Failure of project 
sponsors to correct deficiencies noted

[[Page 14]]

during Continuing Eligibility Inspections may result in ineligibility to 
receive Rehabilitation Assistance under Public Law 84-99.
    (d) Economic justification. No flood control work will be 
rehabilitated unless the work required satisfies Corps criteria for a 
favorable benefit-to-cost ratio, and the construction cost of the work 
required exceeds $15,000. Construction costs greater than $15,000 do not 
preclude the Corps from making a determination that the required work is 
a maintenance responsibility of the non-Federal sponsor, and not 
eligible for Corps Rehabilitation Assistance.



Sec. 203.47  Modifications to non-Federal flood control works.

    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) Cash contributions. Non-Federal contributions will be only in 
cash. In-kind services are not permitted for modification work.
    (b) Protection of additional areas. Modifications designed to 
provide protection to additional area are not authorized.



Sec. 203.48  Inspection guidelines for non-Federal flood control works.

    (a) Intent. The intent of these guidelines is to facilitate 
inspections of the design, construction, and maintenance of non-Federal 
flood control works. The guidelines are not intended to establish design 
standards for non-Federal flood control works, but to provide uniform 
procedures within the Corps for conducting required inspections. The 
results of these inspections determine Active status in the RIP, and 
thus determine eligibility for Rehabilitation Assistance. The contents 
of this section are applicable to both IEI's and CEI's.
    (b) Level of detail. Evaluations of non-Federal flood control works 
will be made through on site inspections and technical analyses by Corps 
technical personnel. The level of detail required in an inspection will 
be commensurate with the complexity of the inspected project, the 
potential for catastrophic failure to cause significant loss of life, 
the economic benefits of the area protected, and other special 
circumstances that may occur. Technical evaluation procedures are 
intended to establish the general capability of a non-Federal flood 
control work to provide reliable flood protection.
    (c) Purposes. The IEI assesses the integrity and reliability of the 
flood control work. In addition, other essential information required to 
help determine the Federal interest in future repairs/rehabilitation to 
the flood control work will be obtained. The IEI will establish the 
estimated level of protection and structural reliability of the existing 
flood control work. Subsequent CEI's will seek to detect changed project 
conditions that may have an impact on the reliability of the flood 
protection provided by the flood control work, to include the level of 
maintenance being performed on the flood control work.
    (d) Inspection components--(1) Hydrologic/hydraulic analyses. The 
level of protection provided by a non-Federal flood control work will be 
evaluated and expressed in terms of exceedence frequency (e.g., a 20% 
chance of a levee being overtopped in any given year). These analyses 
also include an evaluation of existing or needed erosion control 
features for portions of a project that may be threatened by stream 
flows, overland flows, or wind generated waves.
    (2) Geotechnical analyses. The Geotechnical evaluation will be based 
primarily on a detailed visual inspection. As a minimum, for levees, the 
IEI will identify critical sections where levee stability appears 
weakest and

[[Page 15]]

will document the location, reach, and cross-section at these points.
    (3) Maintenance. Project maintenance analysis will evaluate the 
maintenance performance of the non-Federal sponsor, and deficiencies of 
the project. This evaluation should reflect the level of maintenance 
needed to assure the intended degree of flood protection, and assess the 
performance of recent maintenance on the project. The effects of 
structures on, over, or under the flood control work, such as buried 
fiber optic cables, gas pipelines, etc., will be evaluated for impact on 
the stability of the structure.
    (4) Other structural features. Other features that may be present, 
such as pump stations, culverts, closure structures, etc., will be 
evaluated.
    (e) Ratings. Inspected flood control works will receive a rating in 
accordance with the table below. The table below provides the general 
assessment parameters used in assigning a rating to the inspected flood 
control work.

------------------------------------------------------------------------
                 Rating                             Assessment
------------------------------------------------------------------------
A--Acceptable..........................  No immediate work required,
                                          other than routine
                                          maintenance. The flood control
                                          project will function as
                                          designed and intended, and
                                          necessary cyclic maintenance
                                          is being adequately performed.
M--Minimally Acceptable................  One or more deficient
                                          conditions exist in the flood
                                          control project that need to
                                          be improved/corrected.
                                          However, the project will
                                          essentially function as
                                          designed and intended.
U--Unacceptable........................  One or more deficient
                                          conditions exist which can
                                          reasonably be foreseen to
                                          prevent the project from
                                          functioning as designed,
                                          intended, or required.
------------------------------------------------------------------------

    (f) Sponsor reclama. If the results of a Corps evaluation are not 
acceptable to the project sponsor, the sponsor may choose, at its own 
expense, to provide a detailed engineering study, preferably certified 
by a qualified Professional Engineer, as a reclama to attempt to change 
the Corps evaluation.



Sec. 203.49  Rehabilitation of Hurricane and Shore Protection Projects.

    (a) Authority. The Chief of Engineers is authorized to rehabilitate 
any Federally authorized hurricane or shore protection structure damaged 
or destroyed by wind, wave, or water action of an other than ordinary 
nature when, in the discretion of the Chief of Engineers, such 
rehabilitation is warranted for the adequate functioning of the project.
    (b) Policies. (1) Rehabilitation of HSPP's is limited to the repair/
restoration of the HSPP to a pre-storm condition that allows for the 
adequate functioning of the project, provided that the damage was caused 
by an extraordinary storm.
    (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) Definition of extraordinary storm. An extraordinary storm is a 
storm that, due to prolongation or severity, creates weather conditions 
that cause significant amounts of damage to a Hurricane/Shore Protection 
Project. ``Prolongation or severity'' means a Category 3 or higher 
hurricane as measured on the Saffir-Simpson scale, or a storm that has 
an exceedance frequency equal to or greater than the design storm of the 
project. ``Significant

[[Page 16]]

amounts of damage'' have occurred when:
    (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) Procedural requirements. Rehabilitation of HSPP'S will be done 
in accordance with Sec. 203.45, except as modified by this section.
    (d) Combined rehabilitation and periodic nourishment. In some cases, 
the non-Federal sponsor may wish to fully restore the sacrificial 
features of a project where only a partial restoration is justifiable as 
Rehabilitation Assistance. In these cases, a cost allocation between 
Rehabilitation Assistance and periodic nourishment under the terms of 
the project PCA will be determined by the Director of Civil Works.



Sec. 203.50  Nonstructural alternatives to rehabilitation of flood 
control works.

    (a) Authority. Under Public Law 84-99, the Chief of Engineers is 
authorized, when requested by the non-Federal sponsor, to implement 
nonstructural alternatives (NSA's) to the rehabilitation, repair, or 
restoration of flood control works damaged by floods or coastal storms.
    (b) Policy. (1) The option of implementing an NSA project (NSAP) in 
lieu of a structural repair or restoration is available only to non-
Federal sponsors of flood control works eligible for Rehabilitation 
Assistance in accordance with this regulation, and only upon the request 
of such non-Federal sponsors.
    (2) A sponsor is required for implementation of an NSAP. The NSAP 
sponsor must be either a non-Federal sponsor as defined in Sec. 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,

    Note to paragraphs (b)(5)(i) and (ii): 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) Limitation on Corps expenditures. Exclusive of the costs of 
investigation, report preparation, engineering and design work, and 
related costs, Corps expenditures for implementation of an NSAP are 
limited to the lesser of the Federal share of rehabilitation 
construction costs of the project were the flood control work to be 
structurally rehabilitated in accordance with subpart D of this part, or 
the Federal share of computed benefits which would be derived from such 
structural rehabilitation. This limitation on Corps expenditures may be 
waived by the Director of Civil Works or the Chief, Operations Division, 
Directorate of Civil Works when compelling reasons exist.

[[Page 17]]

    (d) Responsibilities of the NSAP non-Federal sponsor. (1) Operate 
and maintain the NSAP;
    (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) Responsibilities of other Federal agencies acting as NSAP 
sponsor. The Corps may participate with one or more Federal agencies in 
NSAP's. If the Corps is the lead Federal agency, based on mutual 
agreement of the Federal agencies, then a non-Federal NSAP sponsor is 
required. (See paragraph (d) of this section.) If another Federal agency 
is the lead Federal agency, then Corps participation in the NSAP will be 
based on the content of this section, with appropriate allowances for 
effecting an NSAP in accordance with the authority and ultimate goal of 
the lead Federal agency. In such cases, a Memorandum of Agreement 
between the Corps and the lead Federal agency is required, in accordance 
with paragraph (1) of this section.
    (f) Responsibilities of the requesting flood control work project 
sponsor. (1) The flood control work project sponsor must request the 
Corps undertake an NSA project in lieu of rehabilitation of the flood 
control work, in accordance with the sponsor's applicable laws, 
ordinances, rules, and regulations.
    (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) Allowable Public Law 84-99 expenses for NSAP's. (1) Acquisition 
of land or interests in land.
    (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) Time limitation. Corps participation in development and 
implementation of an NSAP may cease, at the sole discretion of the 
Corps, one year after the date of approval of rehabilitation of the 
damaged flood control work or the date of receipt of the flood control 
work public sponsor's request for an NSAP, whichever is earlier, if 
insufficient progress is being made to develop and implement the NSAP 
for reasons beyond the control of the Corps. In such circumstances, the 
Corps may, at its sole discretion, determine that Rehabilitation 
Assistance for the damaged flood control project may also be denied.
    (i) Participation and involvement of other Federal, State, tribal, 
local, and private agencies. Nothing in this section shall be construed 
to limit the participation of other Federal, State, tribal, local, and 
private agencies in the development, implementation, or future 
operations and maintenance of an NSAP under this section, subject to the 
limitations of such participating agency's authorities and regulations.
    (j) Future assistance. After transfer of NSAP operation and 
maintenance responsibility to the NSAP sponsor or the lead Federal 
agency, flood-related assistance pursuant to Public Law 84-

[[Page 18]]

99 will not be provided anywhere within the formerly protected area of 
the flood control work, except for rescue operations provided in 
accordance with Sec. 203.13(b). As an exception, on a case-by-case 
basis, certain structural flood control works (or elements thereof) 
repaired or set back as part of the implementation of an NSAP having a 
non-Federal sponsor may be considered for future flood-related 
assistance.
    (k) Environmental considerations. NSAP's are subject to the same 
environmental requirements, restrictions, and limitations as are 
structural rehabilitation projects.
    (l) Requirements for Cooperation Agreement (CA)/Items of Local 
Cooperation--(1) Requirement for Local Cooperation. In order to clearly 
define the obligations of the Corps and of non-Federal interests, a CA 
with the NSAP non-Federal sponsor is required. Requirements are 
addressed in paragraphs (l)(2) through (10) of this section. When 
another Federal agency is the lead Federal agency, a Memorandum of 
Agreement (MOA) between the Corps and that agency is required. Wording 
of MOA's will be similar to, and consistent with, requirements detailed 
in paragraphs (l)(2) through (10) of this section for CA's, with 
appropriate modifications based on the other Federal agencies' 
authorized expenditures and programs.
    (2) The CA requirements of subpart G of this part are not applicable 
to NSAP's.
    (3) Items of Local Cooperation. For NSAP's, non-Federal interests 
shall:
    (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) Cost sharing. The Corps may assume up to 100 percent of the 
costs of implementing an NSAP, subject to the limitations set forth in 
paragraph (c) of this section.
    (5) Eligibility under other Federal programs. NSAP CA's shall not 
prohibit non-Federal interests from accepting funding from other Federal 
agencies, so long as the provision of such other Federal agency funding 
is not prohibited by statute.
    (6) Contributed funds. Contributed funds may be accepted without 
further approval by the Chief of Engineers upon execution of the CA by 
all parties. The required certificate of the district commander will 
cite 33 U.S.C. 701h as the pertinent authority.
    (7) Obligation of contributed funds. In accordance with OMB Circular 
A-34, all contributed funds must be received in cash and deposited with 
the Treasury before any obligations can be made against such funds.
    (8) Prohibition of future assistance. The prohibition of future 
assistance described in paragraph (j) of this section must be included 
in the NSAP CA.
    (9) Assurance of compliance with Executive Order 11988. NSAP CA's 
shall include acknowledgment of, and a statement of planned adherence 
to, Executive Order 11988, Floodplain Management, 3 CFR 117 (1977 
Compilation), or as it may be revised in the future, by the NSAP 
sponsor.
    (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) Acquisition of LERRD's. (1) For the acquisition of LERRD's, 
reimbursement may be made to the non-Federal sponsor of an NSAP. Such 
reimbursements are subject to the normal Corps land acquisition process, 
funding caps set forth in (c) of this section, and availability of 
appropriations.
    (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.



Sec. 203.51  Levee owner's manual.

    (a) Authority. In accordance with section 202(f) of Public Law 104-
303, the Corps will provide a levee owner's manual to the non-Federal 
sponsor of all flood control works in an Active status in the RIP.

[[Page 19]]

    (b) Policies--(1) Active non-Federal projects. A levee owner's 
manual developed and distributed by the Corps will be provided to all 
sponsors of Active non-Federal projects. The levee owner's manual will 
include the standards that must be met to maintain an Active status in 
the Rehabilitation and Inspection Program. Levee owner's manuals will 
also be provided, upon request, to sponsors of Inactive non-Federal 
projects so that the sponsors may evaluate their projects and prepare 
for an IEI to gain an Active status in the RIP.
    (2) Federal projects. The Operation and Maintenance Manual specified 
by 33 CFR 208.10(a)(10) will fulfill the requirement of providing a 
levee owner's manual if the Corps has not provided a separate levee 
owner's manual to the sponsor of a Federal project.
    (c) Procedural requirements. Levee Owner's Manuals will be initially 
provided to non-Federal sponsors of Active flood control works during 
scheduled CEI's and IEI's. Sponsors of Inactive projects and private 
levee owners will be provided manuals upon written request to the 
responsible Corps district.



Sec. 203.52  [Reserved]



   Subpart E_Emergency Water Supplies: Contaminated Water Sources and 
                           Drought Assistance



Sec. 203.61  Emergency water supplies due to contaminated water source.

    (a) Authority. The Chief of Engineers is authorized to provide 
emergency supplies of clean water to any locality confronted with a 
source of contaminated water causing, or likely to cause, a substantial 
threat to the public health and welfare of the inhabitants of the 
locality.
    (b) Policies. (1) Any locality faced with a threat to public health 
and welfare from a contaminated source of drinking water is eligible for 
assistance.
    (2) Eligibility for assistance will be based on one or more of the 
following factors:
    (i) The maximum contaminant level or treatment technique for a 
contaminant, as established by the Environmental Protection Agency 
pursuant to the Safe Drinking Water Act (see 40 CFR 141), is exceeded.
    (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. (See subpart G 
of this part.) Extension of this 30-day period requires agreement (as an 
amendment to the previously signed CA) between the

[[Page 20]]

State and the Corps. This agreement must cover specified services and 
responsibilities of each party, and provision of a firm schedule for 
local interests to provide normal supplies of water.
    (9) State, tribal, and local governments must make full use of their 
own resources, including National Guard capabilities.
    (c) Governor's request. A letter signed by the Governor, or his or 
her authorized representative, requesting Corps assistance and 
addressing the State's commitments and capabilities in response to the 
emergency situation, is required. All requests should identify the 
following information:
    (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) Non-Federal responsibilities. Non-Federal interests are 
responsible for restoration of the routine supply of clean drinking 
water, including correcting any situations that cause contamination. If 
assistance is furnished by the Corps, local interests must furnish the 
basic requirements of local cooperation as detailed in the Cooperation 
Agreement. In all cases, reasonable water conservation measures must be 
implemented. Local interests will be required to operate and maintain 
any loaned equipment, and to remove and return such equipment to Federal 
interests, in a fully maintained condition, after the situation is 
resolved.



Sec. 203.62  Drought assistance.

    (a) Authority. The Chief of Engineers, acting for the Secretary of 
the Army, has the authority under certain statutory conditions to 
construct wells for farmers, ranchers, political subdivisions, and to 
transport water to political subdivisions, within areas determined to be 
drought-distressed.
    (b) General policy. (1) It is a non-Federal responsibility for 
providing an adequate supply of water to local inhabitants. Corps 
assistance to provide emergency water supplies will only be considered 
when non-Federal interests have exhausted reasonable means for securing 
necessary water supplies, including assistance and support from other 
Federal agencies.
    (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) Governor's request. A letter signed by the Governor, requesting 
Corps assistance and addressing the State's commitments and capabilities 
with response to the emergency situation, is required. All requests 
should identify the following information:
    (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) Definitions applicable to this section--(1) Construction. This 
term includes initial construction, reconstruction, or repair.
    (2) Drought-distressed area. An area that the Secretary of the Army 
determines, due to drought conditions, has an inadequate water supply 
that is causing, or is likely to cause, a substantial threat to the 
health and welfare of the inhabitants of the impacted area, including 
the threat of damage or loss of property.
    (3) Eligible applicant. Any rancher, farmer or political subdivision 
within a designated drought-distressed area that is experiencing an 
inadequate supply of water due to drought.
    (4) Farmer or rancher. An individual who realizes at least one-third 
of his or her gross annual income from agricultural sources, and is 
recognized in the community as a farmer or rancher. A farming 
partnership, corporation, or similar entity engaged in farming or

[[Page 21]]

ranching, which receives its majority income from such activity, is also 
considered to be a farmer or rancher, and thus an eligible applicant.
    (5) Political subdivision. A city, town, borough, county, parish, 
district, association, or other public body created by, or pursuant to, 
Federal or State law, having jurisdiction over the water supply of such 
public body.
    (6) Reasonable cost. In connection with the Corps construction of a 
well, means the lesser of:
    (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) State. Any State, the District of Columbia, the Commonwealth of 
Puerto Rico, the Virgin Islands, Guam, Northern Marianas Islands, 
American Samoa, and the Trust Territory of the Pacific Islands.
    (e) Guidance--construction of wells. (1) Assistance to an eligible 
applicant for the construction of a well may be provided on a cost-
reimbursable basis if:
    (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) Guidance--transport of water. (1) Assistance to an applicant in 
the transportation of water may be provided if:
    (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,

[[Page 22]]

to include Government-leased 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) Request for assistance. A written request must be made to the 
district commander with Civil Works responsibility for the affected 
area. Upon receipt of a written request, the appropriate State and 
Federal agencies will be notified, and coordination will continue as 
appropriate throughout the assistance.

[68 FR 36468, June 18, 2003]



                       Subpart F_Advance Measures



Sec. 203.71  Policy.

    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.



Sec. 203.72  Eligibility criteria and procedures.

    (a) Threat of flooding. An imminent threat of unusual flooding must 
exist before Advance Measures projects can be approved. The threat may 
be established by National Weather Service predictions, or by Corps of 
Engineers determinations of unusual flooding from adverse or unusual 
conditions. The threat must be clearly defined to the extent that it is 
readily apparent that damages will be incurred if preventive action is 
not taken immediately.
    (b) Governor's request. A letter signed by the Governor, requesting 
Corps assistance and addressing the State's commitments and capabilities 
with response to the emergency situation, is required. All requests 
should identify the following information:
    (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) Feasibility. The proposed work should be temporary in nature, 
technically feasible, designed to deal effectively and efficiently with 
the specific threat, and capable of construction in time to prevent 
anticipated damages.
    (d) Economic justification. All work undertaken under this category 
must have a favorable benefit-to-cost ratio, under Corps of Engineers 
economic guidelines.
    (e) Local cooperation/responsibilities. Subpart G of this part 
provides requirements for a Cooperation Agreement needed to provide 
local assurances. The project sponsor must remove temporary works 
constructed by the Corps when the operation is over, at no cost to the 
Corps.
    (f) Contingency planning efforts for potential Advance Measures 
activities. Occasionally weather phenomena occur which produce a much 
higher than normal probability or threat of flooding which may be 
predicted several months in advance of occurrence or significant impact. 
Impacts on specific locations may be unpredictable, but regional impacts 
may have a high likelihood of occurrence. In such situations, the Corps 
may provide technical and contingency planning assistance to tribal, 
State, and local agencies, commensurate with the predicted weather 
phenomenon, based on requests for assistance from such tribal, State, 
and local agencies. Specific Advance Measures projects must be addressed 
as specified in paragraph (b) of this section.
    (g) Definitions--(1) Imminent threat. A subjective statistical 
evaluation of how quickly a threat scenario can develop, and how likely 
that threat is to develop in a given geographical location. Implicit in 
the timing aspect can be considerations of available time (when the next 
flood or storm event is likely

[[Page 23]]

to occur), season (e.g., a snowpack that will melt in the coming spring 
runoff), or of known cyclical activities.
    (2) Unusual flooding. A subjective determination that considers 
potential ability to approach an area's flood of record, a catastrophic 
level of flooding, or a greater than 50-year level of flooding.



            Subpart G_Local Interests/Cooperation Agreements



Sec. 203.81  General.

    (a) Requirements for Cooperation Agreements. In order to maintain a 
firm understanding between the Corps and non-Federal interests 
concerning the responsibilities of each party in responding to or 
recovering from a natural disaster, division or district commanders 
shall negotiate a cooperation agreement (CA) with a non-Federal sponsor 
whenever assistance (other than short term technical assistance) is 
furnished. CA's do not require approval by HQUSACE unless they contain 
special or unusual conditions. For assistance to other than a public 
entity, a public agency is required to be the non-Federal sponsor, co-
sign the agreement, and be responsible, from the Corps perspective, for 
accomplishment of all work and conditions required in the CA. Project 
sponsors must meet the definition contained in Sec. 203.15.
    (b) Request for assistance. (1) For urgent situations involving 
Flood Response activities, division/district commanders may respond to 
oral requests from responsible representatives of local interests. 
However, all oral requests must be confirmed in writing. Assistance can 
be furnished before the written statement is received.
    (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.



Sec. 203.82  Requirements of local cooperation.

    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) Furnishing of LERRD's. This item provides for sites of 
structures, for borrow and disposal areas, and for access. It also 
provides for all other rights in, upon, through, or over private 
property as needed by the United States in connection with the 
authorized work. Performance by the local interests under their 
assurance to furnish LERRD's will normally not be considered a 
contribution. If more advantageous to the Federal Government, borrow and 
disposal areas may be assumed as a Federal responsibility. Easements 
must be provided for future Federal inspection of maintenance or 
removal. If a public agency sponsors a project for a non-public 
applicant, the applicant must provide an easement to the sponsor for 
future maintenance or removal, as well as for Federal inspection. 
Easements should extend to the life of the project.
    (b) Hold and save clause. This clause serves as legal protection of 
the government. Where property concerned is under tenancy, both the 
property owner and the tenant should acknowledge the non-Federal 
sponsor's signed CA.

[[Page 24]]

    (c) Maintain and operate clause. This item is intended to protect 
the investment of government resources and provide proper stewardship of 
resources entrusted to the Corps. This clause must include: ``It is 
understood that the foregoing maintenance and operation requirement 
extends to interrelated features of all protective work under the 
control of (insert name of sponsor, and owner if appropriate).''
    (d) Removal of temporary works. Local interests are responsible for 
the removal of all temporary works constructed by the Corps, which are 
unsuitable for upgrade to permanent structures. Structures may be deemed 
unsuitable due to inherent health, access, or safety problems that could 
result from their location. The wording of this clause must not preclude 
the use of other Federal assistance programs to fund removal.
    (e) Request for retention of temporary flood control works. Local 
interests may ask to retain a temporary structure for protection from 
future floods. This will not be approved by the Corps unless the works 
are upgraded to meet all Corps criteria for permanent projects. Public 
Law 84-99 funds will not be used to upgrade the structure. An upgraded 
project must comply with permitting, environmental, and other regulatory 
and legal requirements. Unless upgraded, such projects are not eligible 
for rehabilitation, and must be removed in accordance with paragraph (d) 
of this section. Unless upgraded, temporary projects which are not 
removed by the local sponsor will cause all projects with the same 
sponsor to lose eligibility for Public Law 84-99 assistance. Local 
interests must initiate action to upgrade or remove the temporary works 
within 30 days after the flood threat has passed.
    (f) Cost sharing. (1) The Federal Government may assume up to 80 
percent of the eligible construction costs for rehabilitation of non-
Federal flood control projects, and up to 100 percent of the eligible 
construction costs for rehabilitation of Federal flood control projects. 
The Federal Government may assume up to 100 percent of the eligible 
construction costs for rehabilitation of HSPP's. Sponsors will provide 
their share of costs as provided for in Sec. 203.84. The sponsor's 
share is in addition to providing costs for LERRD's, and any costs for 
correction of any deferred/deficient maintenance. The Corps will 
determine the dollar value of any in-kind services provided by the local 
sponsor.
    (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.



Sec. 203.83  Additional requirements.

    (a) Maintenance deficiencies. Rehabilitation, Emergency Water, Post 
Flood Response, and Advance Measures authorities may not be used to 
correct deferred or deficient maintenance. Such correction must be 
accomplished by, or at the expense of, local interests. This may include 
restoring normal levee or dune height after subsidence, replacement of 
deteriorated components such as outlet structures and pipes, removal of 
debris, and new construction items such as protection against erosion. 
This restriction on use of these authorities does not preclude 
furnishing flood fight assistance during an emergency.
    (b) Areas of minor damage, flood control works. Separable areas with 
minor damage will be included in the maintenance program of local 
interests.
    (c) Minor completion items. Local interests should be responsible 
for minor completion items, such as dressing fills, placing sod, or 
seeding completed work.
    (d) Adequacy of requirements of local cooperation. In determining 
the adequacy of the pledge of local cooperation, district/division 
commanders must consider the local sponsor's performance capability, 
taking into account any shortcomings in meeting prior commitments. Local 
sponsors should make provisions to establish and provide resources for a 
``Contingency Fund'' to meet future maintenance requirements if apparent 
inadequacies of protective works indicate maintenance costs will be 
unusually high. Local sponsors should make provisions to establish and 
provide resources for a ``Capital Improvement Fund'' to meet future 
costs of capital

[[Page 25]]

improvement projects such as replacement of culverts in levees, pump 
station equipment, etc.
    (e) Eligibility under other Federal programs. The Cooperation 
Agreement must be worded to allow local interests to accept funding from 
other Federal programs for meeting the local responsibility. For 
example, removal of temporary works will be without cost under Corps 
Public Law 84-99 assistance, but will not be ``at no cost to the United 
States.'' Use of another Federal agency's funds is contingent upon that 
agency providing the Corps written assurance that such usage does not 
violate any existing laws or rules concerning the usage or expenditure 
of such funds.



Sec. 203.84  Forms of local participation--cost sharing.

    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) Contributed funds. Contributed funds may be accepted, or 
refunded, without further reference or approval by the Chief of 
Engineers. The required certificate of the district commander will cite 
33 U.S.C. 701h as the pertinent authority.
    (b) Obligation of contributed funds. Per OMB Circular A-34, all 
contributed funds must be received in cash and deposited with the 
Treasury before any obligations can be made against such funds. Public 
Law 84-99 assistance for well construction is exempted from this 
requirement because financing is specifically authorized. However, the 
CA for such well construction assistance (see subpart G of this part) 
must be signed in advance of any obligations. To reduce administrative 
problems, CA terms for well construction should be for no longer a 
period than that which will allow for payments within the means of the 
applicant. Public Law 84-99 limits the term to a maximum of 30 years.
    (c) Provision of work or services in kind. To the extent 
practicable, local interests should be allowed to minimize the amount of 
contributed funds by providing equivalent work or services in kind. Such 
services do not include LERRD's.



Sec. 203.85  Rehabilitation of Federal flood control projects.

    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 Sec. 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.



Sec. 203.86  Transfer of completed work to local interests.

    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

[[Page 26]]

sponsor will vary according to organization and other circumstances.



PART 207_NAVIGATION REGULATIONS--Table of Contents



Sec.
207.9 Mystic River, Mass.; dam of Commonwealth of Massachusetts, 
          Metropolitan District Commission.
207.10 Charles River, Mass.; dam of Charles River Basin Commission.
207.20 Cape Cod Canal, Mass.; use, administration, and navigation.
207.50 Hudson River Lock at Troy, N.Y.; navigation.
207.60 Federal Dam, Hudson River, Troy, N.Y.; pool level.
207.100 Inland waterway from Delaware River to Chesapeake Bay, Del. and 
          Md. (Chesapeake and Delaware Canal); use, administration, and 
          navigation.
207.160 All waterways tributary to the Atlantic Ocean south of 
          Chesapeake Bay and all waterways tributary to the Gulf of 
          Mexico east and south of St. Marks, Fla.; use, administration, 
          and navigation.
207.169 Oklawaha River, navigation lock and dam at Moss Bluff, Fla.; 
          use, administration and navigation.
207.170 Federal Dam, Oklawaha River, Moss Bluff, Fla.; pool level.
207.170a Eugene J. Burrell Navigation Lock in Haines Creek near Lisbon, 
          Florida; use, administration, and navigation.
207.170b Apopka-Beauclair Navigation Lock in Apopka-Beauclair Canal in 
          Lake County, Fla.; use, administration, and navigation.
207.170c Kissimmee River, navigation locks between Lake Tohopekaliga and 
          Lake Okeechobee, Fla.; use, administration, and navigation.
207.170d Taylor Creek, navigation lock (S-193) across the entrance to 
          Taylor Creek at Lake Okeechobee, Okeechobee, Fla.; use, 
          administration, and navigation.
207.175a Carlson's Landing Dam navigation lock, Withlacoochee River, 
          Fla.; use, administration, and navigation.
207.180 All waterways tributary to the Gulf of Mexico (except the 
          Mississippi River, its tributaries, South and Southwest Passes 
          and the Atchafalaya River) from St. Marks, Fla., to the Rio 
          Grande; use, administration, and navigation.
207.185 Taylors Bayou, Tex., Beaumont Navigation District Lock; use, 
          administration and navigation.
207.187 Gulf Intracoastal Waterway, Tex.; special floodgate, lock and 
          navigation regulations.
207.200 Mississippi River below mouth of Ohio River, including South and 
          Southwest Passes; use, administration, and navigation.
207.249 Ouachita and Black Rivers, Ark. and La., Mile 0.0 to Mile 338.0 
          (Camden, Ark.) above the mouth of the Black River; the Red 
          River, La., Mile 6.7 (Junction of Red, Atchafalaya and Old 
          Rivers) to Mile 276.0 (Shreveport, La.); use, administration, 
          and navigation.
207.260 Yazoo Diversion Canal, Vicksburg, Miss., from its mouth at 
          Kleinston Landing to Fisher Street; navigation.
207.270 Tallahatchie River, Miss., between Batesville and the mouth; 
          logging.
207.275 McClellan-Kerr Arkansas River navigation system: use, 
          administration, and navigation.
207.300 Ohio River, Mississippi River above Cairo, Ill., and their 
          tributaries; use, administration, and navigation.
207.306 Missouri River; administration and navigation.
207.310 Mississippi River at Keokuk, Iowa; operation of power dam by 
          Mississippi River Power Co.
207.320 Mississippi River, Twin City Locks and Dam, St. Paul and 
          Minneapolis, Minn.; pool level.
207.330 Mississippi River between Winnibigoshish and Pokegama dams, 
          Leech River between outlet of Leech Lake and Mississippi 
          River, and Pokegama reservoir; logging.
207.340 Reservoirs at headwaters of the Mississippi River; use and 
          administration.
207.350 St. Croix River, Wis. and Minn.
207.360 Rainy River, Minn.; logging regulations for portions of river 
          within jurisdiction of the United States.
207.370 Big Fork River, Minn.; logging.
207.380 Red Lake River, Minn.; logging regulations for portion of river 
          above Thief River Falls.
207.390 [Reserved]
207.420 Chicago River, Ill.; Sanitary District controlling works, and 
          the use, administration, and navigation of the lock at the 
          mouth of river, Chicago Harbor.
207.425 Calumet River, Ill.; Thomas J. O'Brien Lock and Controlling 
          Works and the use, administration and navigation of the lock.
207.440 St. Marys Falls Canal and Locks, Mich.; use, administration, and 
          navigation.
207.441 St. Marys Falls Canal and Locks, Mich.; security.
207.460 Fox River, Wis.
207.470 Sturgeon Bay and Lake Michigan Ship Canal, Wis.; use and 
          navigation.
207.476 The Inland Route--lock in Crooked River, Alanson, Mich.; use, 
          administration, and navigation.
207.480 Lake Huron, Mich.; Harbor of refuge, Harbor Beach; use and 
          navigation.
207.560 Sandusky Harbor, Ohio; use, administration, and navigation.

[[Page 27]]

207.565 Vermilion Harbor, Ohio; use, administration, and navigation.
207.570 Harbors of Huron, Lorain, Cleveland, Fairport, Ashtabula, 
          Conneaut, Ohio; use, administration, and navigation.
207.580 Buffalo Harbor, N.Y.; use, administration, and navigation.
207.590 Black Rock Canal and Lock at Buffalo, N.Y.; use, administration 
          and navigation.
207.600 Rochester (Charlotte) Harbor, N.Y.; use, administration, and 
          navigation.
207.610 St. Lawrence River, Cape Vincent Harbor, N.Y.; use, 
          administration, and navigation of the harbor and U.S. 
          breakwater.
207.640 Sacramento Deep Water Ship Channel Barge Lock and Approach 
          Canals; use, administration, and navigation.
207.680 Willamette River, Oreg.; use, administration, and navigation of 
          canal and locks at Willamette Falls, Oreg.
207.718 Navigation locks and approach channels, Columbia and Snake 
          Rivers, Oreg. and Wash.
207.750 Puget Sound Area, Wash.
207.800 Collection of navigation statistics.

    Authority: 40 Stat. 266 (33 U.S.C. 1).



Sec. 207.9  Mystic River, Mass.; dam of Commonwealth of Massachusetts,
Metropolitan District Commission.

    (a) Definition and authority of superintendent. The term 
superintendent as used in the regulations in this section shall mean 
himself and/or his personnel then on duty at the dam. The positioning 
and movements of all watercraft of every description while in the locks 
or within 100 yards of the locks or dam shall be subject to the 
direction of the superintendent whose orders must be obeyed. This order 
does not relieve the master of the responsibility for the safety of his 
vessel.
    (b) Description of locks. There are three (3) locks to be used for 
the passage of vessels; one large lock 325 feet long, 45 feet wide, 
shall be used for vessels with draft up to seventeen (17) feet; two 
small locks each 120 feet long and 22 feet wide shall be used for boats 
up to six (6) feet draft.
    (c) Maximum draft. Vessels drawing within six (6) inches of depth 
over the sills shall not be permitted lockage except under special 
permission of the superintendent. Every vessel using the locks and 
drawing more than ten (10) feet shall be accurately and distinctly 
marked at bow and stern showing the exact draft of water at such 
portions of the vessel. Gages set into the walls or the locks, both 
upstream and downstream of each gate, indicate the depth in feet of 
water over the sill of the gate.
    (d) Vessels denied lockage. The superintendent may deny passage 
through the locks to any craft with sharp, rough projecting corners, 
overhanging equipment or cargo, or any craft or two that is in sinking 
condition or in any way unseaworthy or insufficiently manned and 
equipped, or any craft failing to comply with the regulations in this 
section or with any orders given in pursuance thereof.
    (e) Protection of lock gates. (1) In no case shall boats be 
permitted to enter or leave any of the locks until directed to do so by 
the superintendent. Boats shall not be permitted to enter or start to 
leave until the lock gates are at rest within the gate recesses. All 
persons, whether in charge of vessels or not, are prohibited from 
willfully or carelessly damaging the locks or any of the appurtenances 
or the grounds adjacent thereto, and from throwing or allowing any 
material of any kind to fall from the barge, scow or other vessel into 
the locks.
    (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) Damage to walls. The sides of all craft passing through the 
locks must be free from projection of any kind which might injure the 
lock walls. All craft must be provided with suitable fenders. One or 
more men as the superintendent may direct shall be kept at the head of 
every tow until it has cleared the lock and guide walls, and shall 
protect the walls by use of the fenders.
    (g) Unnecessary delay at locks. No person shall cause or permit any 
craft of which he is in charge to remain in the locks or their 
approaches for a longer period of time than is necessary for the passage 
of the locks unless he is especially permitted to do so by the 
superintendent, and if such craft is, in the opinion of such 
superintendent, in a position to obstruct navigation, it shall be 
removed at once as requested or directed by the superintendent.

[[Page 28]]

    (h) Procedure at locks. The locks shall be operated promptly for the 
passage of all craft upon signal, excepting only in such cases as are 
specifically provided for in the regulations in this section. All 
registered merchant vessels shall pass through the locks in the order 
directed by the superintendent. Other craft shall be allowed to pass 
through the locks at the discretion of the superintendent.
    (i) Navigation of the locks. (1) All barges navigating the locks 
whether approaching or leaving the locks are required to be assisted by 
one or more tugs of sufficient power to insure full control at all 
times. All craft approaching the locks while any other vessel going in 
the opposite direction is in or about to enter shall be stopped where 
they will not obstruct the free passage of such other vessel.
    (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) Mooring. When a craft is in position in the lock, it shall be 
securely fastened in a manner satisfactory to the superintendent to 
prevent the craft moving about while the lock is being filled or 
emptied, and the lines, cables, or hawsers used for this purpose shall 
be attended as far as is necessary or required while the filling or 
empting is in progress.
    (k) [Reserved]
    (l) Signals. (1) All craft desiring lockage shall, on approaching 
the locks, signal by two long and two short blasts of a whistle or other 
sound device. Two long blasts from the lock in reply will indicate a 
delayed opening and direct the craft not to enter the lock.
    (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) Operating machinery. Lock employees only shall be permitted to 
operate the lock gates, signals or other appliances. No person shall 
deface or injure any part of the Amelia Earhart Dam, or any pier, wall 
or other structure or any mechanism connected

[[Page 29]]

therewith; nor shall any person, without the consent of the 
superintendent, make fast to the dam, guard, guide wall, pier, or any 
appurtenance thereof any vessel, scow, raft, or float.
    (n) Vessel to carry regulations. A copy of the regulations in this 
section shall be kept at all times on board each vessel regularly 
engaged in navigating the locks. Copies may be obtained without charge 
from the superintendent; the Commonwealth of Massachusetts, M.D.C. Parks 
Division, Boston, Mass.; New England Division, Corps of Engineers, 
Division Engineer, Waltham, Mass.

[32 FR 8716, June 17, 1967, as amended at 56 FR 13764, Apr. 4, 1991]



Sec. 207.10  Charles River, Mass.; dam of Charles River Basin Commission.

    (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

[[Page 30]]

used to check the speed of and stop the vessel.
    (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.

[Regs., May 6, 1909]



Sec. 207.20  Cape Cod Canal, Mass.; use, administration, and navigation.

    (a) Limit of Canal. The canal, including approaches, extends from 
the Canal Station Minus 100 in Cape Cod Bay, approximately one and six-
tenths (1.6) statute miles seaward of the Canal Breakwater Light, 
through dredged channels and land cuts to Cleveland Ledge Light in 
Buzzards Bay approximately four (4) statute miles southwest of Wings 
Neck.
    (b) Supervision. (1) The movement of ships, boats and craft of every 
description through the canal and the operation and maintenance of the 
waterway and all property of the United States pertaining thereto shall 
be under the supervision of the Division Engineer, U.S. Army Engineer 
Division, New England, Corps of Engineers, Waltham, Massachusetts, or 
the authorized representative of the division engineer, the Engineer-In-
Charge of the Cape Cod Canal. The division engineer or the Engineer-In-
Charge from time to time will prescribe rules governing the dimensions 
of vessels which may transit the waterway, and other special conditions 
and requirements which will govern the movement of vessels using the 
waterway.
    (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) Communications. There is a marine traffic controller on duty 24 
hours a day, seven days a week, in the traffic control center located at 
the Canal Administrative Office. The primary method of communications 
between the canal and vessels transiting will be by

[[Page 31]]

VHF-FM Marine radio. The traffic controller can also be contacted by 
telephone.
    (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) Vessels allowed passage. The canal is open for passage to all 
adequately powered vessels properly equipped and seaworthy, of sizes 
consistent with safe navigation as governed by the controlling depths 
and widths of the channel and the vertical and horizontal clearances of 
the bridges over the waterway. The granting of permission for any vessel 
to proceed through the waterway shall not relieve the owners, agents and 
operators of full responsibility for its safe passage. No vessel having 
a greater draft forward than aft will be allowed to transit the canal. 
Craft of low power and wind driven are required to have and use 
auxiliary power during passage throughout the canal as defined in 
paragraph (a) of this section. Low powered vessels will be required to 
await slack water or favorable current for canal transit.
    (e) Tows. (1) Tows shall be made-up outside the canal entrances. All 
vessels engaged in towing other vessels not equipped with a rudder shall 
use two lines or a bridle and one tow line. If the vessel in tow is 
equipped with a rudder or a ship shaped bow, one tow line may be used. 
All tow lines of hawsers must be hauled as short as practicable for safe 
handling of the tows. No towboat will be allowed to enter the waterway 
with more than two barges in tow unless prior approval is granted by the 
Engineer-In-Charge; requests must be submitted 12 hours in advance of 
the passage.
    (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) Dangerous cargoes. The master or pilot of any vessel or tow 
carrying dangerous cargoes must notify the Marine Traffic Controller 
prior to entering the canal. Dangerous cargoes are defined as those 
items listed in 33 CFR 126.10 when carried in bulk (i.e., quantities 
exceeding 110 U.S. gallons in one tank) plus Class A explosives 
(commercial or military) as listed in 49 CFR 173.53 (commercial) and 46 
CFR 146.29-100 (military), liquified natural gas and liquified petroleum 
gas. Transportation of dangerous cargoes through the canal shall be in 
strict accordance with existing regulations prescribed by law. In 
addition, vessels carrying dangerous cargoes shall comply with the 
following requirements.
    (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.

[[Page 32]]

    (g) Obtaining clearance. (1) Vessels under 65 feet in length may 
enter the canal without obtaining clearance. All craft are required to 
make a complete passage through the canal except excursion craft which 
may operate and change direction within the canal in accordance with 
procedures coordinated with the marine traffic controller on duty. When 
the railroad bridge span is in the closed (down) position, all vessels 
are directed not to proceed beyond the points designated by stop signs 
posted east and west of the railroad bridge. Vessels proceeding with a 
fair tide (with the current) should turn and stem the current at the 
designated stop points until the railroad bridge is in the raised (open) 
position.
    (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 \1/2\ mile. Other 
vessels may transit the canal in thick weather by use of radar with the 
understanding that the U.S. Government will assume no responsibility: 
And provided, That clearance has been obtained from the marine traffic 
controller.
    (h) Traffic lights. There are three sets of traffic lights showing 
red, green, and yellow that are operated on a continuous basis at the 
canal. The traffic lights apply to all vessels 65 feet in length and 
over. The traffic lights are a secondary system that is operated in 
support of the radio communications system. The traffic lights are 
located at the easterly canal entrance, Sandwich, and at the westerly 
entrance to Hog Island Channel at Wings Neck. A third traffic light is 
located at the Canal Electric Terminal basin on the south side of the 
canal in Sandwich, and applies only to vessels arriving and departing 
that terminal.
    (1) Westbound traffic. When the green light is on at the eastern 
(Cape Cod Bay) entrance, vessels may proceed westward through the canal. 
When the red light is on, any type of vessel 65 feet in length and over 
must stop clear of the Cape Cod Bay entrance channel. When the yellow 
light is on, vessels 65 feet in length and over and drawing less than 25 
feet may proceed as far as the East Mooring Basin where they must stop. 
Prior to continuing passage through the canal, clearance must be 
obtained from the marine traffic controller.
    (2) Eastbound traffic. When the green light is on at Wings Neck, 
vessels may proceed eastward through the canal. When the red light is 
on, vessels 65 feet and over in length and drawing less than 25 feet 
must keep southerly of Hog Island Channel Entrance Buoys Nos. 1 and 2 
and utilize the general anchorage areas adjacent to the improved 
channel. Vessel traffic drawing 25 feet and over are directed not to 
enter the canal channel at the Cleveland Ledge Light entrance and shall 
lay to or anchor in the vicinity of Buzzards Bay Buoy No. 11 (FLW & 
Bell) until clearance is granted by the canal marine traffic controller 
or a green traffic light at Wings Neck is displayed. When the yellow 
light is on, vessels may proceed through Hog Island Channel as far as 
the West Mooring Basin where they must stop. Prior to continuing passage 
through the canal, clearance must be obtained from the marine traffic 
controller.

[[Page 33]]

    (i) Railroad Bridge Signals. The following signals at the Buzzards 
Bay Railroad Bridge will be given strict attention.
    (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) Speed. All vessels are directed to pass mooring and boat basin 
facilities, the state pier, and all floating plant engaged in 
maintenance operations of the waterway at a minimum speed consistent 
with safe navigation. In order to coordinate scheduled rail traffic with 
the passage of vessels, to minimize erosion of the canal banks and dikes 
from excessive wave wash and suction, and for the safety of vessels 
using the canal, the following speed regulations must be observed by 
vessels of all types, including pleasure craft. The minimum running time 
for the land cut between the East Mooring Basin (Station 35) and the 
Administration Office in Buzzards Bay (Station 388) is prescribed as 
follows:

Head Tide--60 Minutes
Fair Tide--30 Minutes
Slack Tide--45 Minutes


The minimun running time between the Administration Office (Station 388) 
and Hog Island Channel westerly entrance Buoy No. 1 (Station 661) is 
prescribed as follows:

Head Tide--46 Minutes
Fair Tide--23 Minutes
Slack Tide--35 Minutes


The running time at slack water will apply to any vessel which enters 
that portion of the canal between stations 35 and 661, within the period 
of one-half hour before or after the predicted time of slack water as 
given in the National Ocean Survey publication ``Current Tables, 
Atlantic Coast, North America.'' The minimum running time during a head 
tide or a fair tide shall apply to any vessel which enters that portion 
of the canal between Station 35 and 661 at any time other than 
designated above for time requirements at slack tide. Vessels of any 
kind unable to make a through transit of the land cut portion of the 
canal against a head current of 6.0 knots within a maximum time limit of 
2 hours 30 minutes shall be required to obtain the assistance of a 
helper tug at the vessel owner's expense or await favorable tide 
conditions prior to receiving clearance from the marine traffic 
controller. In the event vessels within the confines of the canal fail 
to perform and are unable to make sufficient headway against the 
currents, the marine traffic controller may activate a helper tug in 
accordance with paragraph (k) of this section.
    (k) Management of vessels. (1) Vessels within the limits of the 
canal shall comply with applicable navigation rules.
    (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

[[Page 34]]

against the current. All craft up to 65 feet in length shall be operated 
so as not to interfere with the navigation of vessels of greater length.
    (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) Grounded, wrecked or damaged vessels. In the event a vessel is 
grounded, or so damaged by accident as to render it likely to become an 
obstruction and/or hazard to navigation in the waterway, the division 
engineer or the division engineer's authorized representative shall 
supervise and direct all operations that may be necessary to remove the 
vessel to a safe locality.
    (m) [Reserved]
    (n) Deposit of refuse. No oil or other allied liquids, ashes, or 
materials of any kind shall be thrown, pumped or swept into the canal or 
its approaches from any vessel or craft using the waterway, nor shall 
any refuse be deposited on canal grounds, marine structures, or 
facilities.
    (o) Trespass to property. Subject to the provisions of paragraph (q) 
of this section trespass upon the canal property is prohibited.
    (p) Bridges over the canal. The government owns, operates and 
maintains all bridges across the canal which include one railroad bridge 
and two highway bridges. The division engineer or his/her authorized 
representative may establish rules and regulations governing the use of 
these bridges.
    (q) Recreational use of canal--(1) Policy. (i) It is the policy of 
the Secretary of the Army acting through the Chief of Engineers to 
provide the public with

[[Page 35]]

safe and healthful recreational opportunities within all water resource 
development projects administered by the Chief of Engineers, including 
the canal and government lands part thereof. Any recreational use of the 
canal and those lands shall be at the users own risk.
    (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) Motor vehicles. Operation of motor vehicles, motorcycles, 
minibikes, mopeds, motorbikes, snowmobiles, and all types of off-road 
vehicles is prohibited on government lands and service roads except in 
areas specifically designated for such operation.
    (3) Swimming. Swimming, skin diving, snorkling, and scuba diving in 
the canal between the east entrance in Cape Cod Bay and the west 
entrance at Cleveland Ledge Light are prohibited. Diving operations may 
be authorized by the Engineer-In-Charge in conjunction with operation 
and maintenance of the canal.
    (4) Camping. Overnight tenting or camping on governmment land is 
prohibited except in areas designated by the division engineer. Bourne 
Scenic Park and Scusset Beach State Reservation are designated camping 
areas. Persons asleep during hours of darkness in or out of vehicles 
shall be considered as campers.
    (5) Fishing. Persons may fish with rod and line from the banks of 
the canal on Federally owned property except areas designated by the 
division engineer. Fishing and lobstering by boat in the Cape Cod Canal 
between the east entrance in Cape Cod Bay and the west entrance at 
Cleveland Ledge Light are prohibited. Fishing by boat is permitted in 
the area west of the State Pier in Buzzards Bay, provided that all craft 
stay out of the channel defined by U.S. Coast Guard buoys and beacons. 
Fish and game laws of the United States and the Commonwealth of 
Massachusetts will be enforced.
    (6) Hunting. Hunting is permitted in accordance with game laws of 
the United States and the Commonwealth of Massachusetts.
    (7) Fires. No open fires will be allowed at any time except by 
special permission and then shall be continuously overseen and in 
compliance with state or town laws.
    (8) Control of animals and pets. (i) No person shall bring or have 
horses in camping, picnic, swimming beaches or developed recreation 
areas.
    (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) Restrictions. (i) The division engineer may establish a 
reasonable schedule of visiting hours for all or portions of the project 
area and close or restrict the public use of all or any portion of the 
project by the posting of appropriate signs indicating the extent and 
scope of closure. All persons shall observe such posted restrictions.
    (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) Explosives, firearms, other weapons and fireworks. (i) The 
possession of loaded firearms, ammunition, projectile firing devices, 
bows and arrows, crossbows, and explosives of any kind is prohibited 
unless in the possession of a law enforcement officer or Government 
employee on official duty or used for hunting during the hunting season 
as permitted under paragraph (q)(6) of this section, or unless written 
permission has been received from the division engineer.
    (ii) The possession or use of fireworks is prohibited unless written 
permission has been received from the division engineer.
    (11) Public property. Destruction, injury, defacement or removal of 
public property including natural formations, historical and 
archeological features and vegetative growth is prohibited

[[Page 36]]

without written permission of the division engineer.
    (12) Abandonment of personal property. (i) Abandonment of personal 
property is prohibited. Personal property shall not be left unattended 
upon the lands or waters of the project except in accordance with this 
regulation. After a period of 24 hours, abandoned or unattended personal 
property shall be impounded and stored at a storage point designated by 
the division engineer. The division engineer shall assess a reasonable 
impoundment fee, which shall be paid before the impounded property is 
returned to its owners.
    (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) Lost and found articles. All abandoned/lost articles shall be 
deposited by the finder at the Canal Administration office or with Canal 
ranger. The finder shall leave his/her name, address, and phone number. 
All lost articles shall be disposed of in accordance with procedures set 
forth in paragraph (q)(12) of this section.
    (14) Advertisement. Advertising by the use of billboards, signs, 
markers, audio devices or any other means whatever is prohibited unless 
written permission has been received from the division engineer.
    (15) Commercial activities. The engaging in or solicitation of 
business without the written permission of the division engineer is 
prohibited.
    (16) Unauthorized structures. The construction or placing of any 
structure of any kind under, upon or over the project lands or water is 
prohibited unless a permit has been issued by the division engineer. 
Structures not under permit are subject to summary removal by the 
division engineer.
    (17) Special events. Prior approval must be obtained from the 
Engineer-In-Charge for special events, recreational programs and group 
activities. The public shall not be charged any fee by the sponsor of 
such event unless the division engineer has approved in writing the 
proposed schedule of fees.
    (18) Interference with government employees. Interference with any 
government employee in the conduct of official duties pertaining to the 
administration of these regulations is prohibited.

[45 FR 51552, Aug. 4, 1980; 45 FR 60430, Sept. 12, 1980, as amended at 
56 FR 13765, Apr. 4, 1991]



Sec. 207.50  Hudson River Lock at Troy, N.Y.; navigation.

    (a) Authority of lockmaster. The lockmaster shall be charged with 
the immediate control and management of the lock, and of the area set 
aside as the lock area, including the lock approach channels. He shall 
see that all laws, rules and regulations for the use of the lock and 
lock area are duly complied with, to which end he is authorized to give 
all necessary orders and directions in accordance therewith, both to 
employees of the Government and to any and every person within the 
limits of the lock or lock area, whether navigating the lock or not. No 
one shall cause any movement of any vessel, boat, or other floating 
thing in the lock or approaches except by or under the direction of the 
lockmaster or his assistants.
    (b) Signals. Steamboats or tows desiring lockage in either direction 
shall give notice to the lock tenders, when not more than three-fourths 
mile from

[[Page 37]]

the lock, by one long blast of (10 seconds' duration), followed by one 
short blast (of three seconds' duration), or a whistle or horn. When the 
lock is ready for entrance a green light will be shown from the river 
wall. An amber light will indicate that the lock is being made ready for 
entrance. A red light will indicate that the approaching vessel must 
wait. Whenever local conditions make it advisable the visual signals 
will be supplemented by sound signals as follows:
    (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) Draft of boats. Deep-draft boats must clear the miter sills by 
at least 3 inches. Boats drawing too much water will not be allowed to 
lighter cargo in the entrances.
    (d) Precedence at the lock. The vessel arriving first at the lock 
shall be first to lock through; but precedence shall be given to vessels 
belonging to the United States and to commercial vessels in the order 
named. Arrival posts or markers may be established ashore above or below 
the lock. Vessels arriving at or opposite such posts or markers will be 
considered as having arrived at the lock within the meaning of this 
paragraph. If the traffic is crowded in both directions; up and down 
lockages will usually be made alternately, but the lock tender may 
permit two or more lockages to be made at one time in the same direction 
when this will not cause unreasonable delay. In case two or more boats 
or tows are to enter for the same lockage, they shall enter as directed 
by the lock tender. No boat shall run ahead of another while in the 
lock. The boat that enters first shall leave first.
    (e) Lockage of pleasure boats. The lockage of pleasure boats, house 
boats or like craft shall be expedited by locking them through with 
commercial craft (other than barges carrying gasoline or highly 
hazardous materials) in order to utilize the capacity of the lock to its 
maximum. Lockage of pleasure craft may be made with commercial craft 
carrying petroleum products other than gasoline, provided a clear 
distance of at least 100 feet between such vessels can be maintained in 
the lock. 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.
    (f) Stations while waiting. Boats waiting their turn to enter the 
lock must lie at a sufficient distance from the lock and in such a 
position as to leave sufficient room for the passage of boats leaving 
the lock.
    (g) Unnecessary delay. (1) Boats must not cause delay in entering or 
leaving the lock. Masters and pilots will be held to a strict 
accountability in this matter, and those with tows must provide enough 
men to move barges promptly. Boats failing to enter the lock with 
reasonable promptness after being signaled will lose their turn.
    (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) Mooring. Boats in the lock or waiting in the entrance shall be 
moored where directed by the lock tender, by bow, stern, and spring 
lines, to the snubbing posts or line hooks. Tying boats to the lock 
ladders is strictly prohibited.
    (i) Protection of lock gates. Boats will not be permitted to enter 
or leave the lock until the lock gates are at rest in the gate recesses 
and the lock tender has directed the boat to start.
    (j) Damage to walls, etc. All craft passing through the lock must be 
free from projections or sharp corners which might scar the walls or 
injure other parts. Steamboats must be provided with suitable fenders, 
etc. One man shall be kept at the head of every tow till it has cleared 
the lock and guide walls, and shall use the fender to prevent scarring 
the walls.
    (k) Handling machinery. None but employees of the United States will 
be allowed to move any valve, gate, or other machinery belonging to the 
lock.

[[Page 38]]

    (l) Refuse in lock. Throwing ashes, refuse, or other obstruction in 
the entrances or in the lock, or on the walls thereof, and passing coal 
from flats or barges to a steamboat while in the lock is prohibited.
    (m) [Reserved]
    (n) Trespass on U.S. property. Trespass on U.S. property, or willful 
injury to the banks, masonry, fences, trees, houses, machinery, or other 
property of the United States at or near the lock is strictly 
prohibited.
    (o) Penalties. In addition to the penalties prescribed by law, boats 
which fail to comply with the regulations in this section will 
thereafter be refused lockage until assurances have been received, 
satisfactory to the District Engineer, Corps of Engineers, New York, New 
York, that the regulations will be complied with.

[Regs., Mar. 24, 1916, as amended at 16 FR 7210, July 24, 1951; 26 FR 
352, Jan. 18, 1961; 56 FR 13765, Apr. 4, 1991]



Sec. 207.60  Federal Dam, Hudson River, Troy, N.Y.; pool level.

    (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: Provided, That 
the flashboards are so erected as to drop automatically when the pool 
level rises to an elevation of +18.5 feet mean sea level, and conform in 
other respects to the plans attached thereto.
    (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.

[Regs., Dec. 2, 1924, as amended at 25 FR 8907, Sept. 16, 1960]



Sec. 207.100  Inland waterway from Delaware River to Chesapeake Bay, Del.
and Md. (Chesapeake and Delaware Canal); use, administration, and navigation.

    (a) Applicability. The regulations in this section are applicable to 
that part of the inland waterway from Delaware River to Chesapeake Bay, 
Del. and Md., between Reedy Point, Delaware River, and Old Town Point 
Wharf, Elk River.
    (b) Supervision. The District Engineer, Corps of Engineers, 
Philadelphia, Pa., has administrative supervision over the waterway and 
is charged with the enforcement of these regulations. The District 
Engineer from time to time will prescribe rules governing the dimensions 
of vessels which may transit the waterway, and other special conditions 
and requirements which will govern the movement of vessels using the 
waterway. The District Engineer's representative is the Chesapeake City 
Resident Engineer. The Chesapeake City Resident Engineer through the 
dispatcher on duty will enforce these regulations and monitor traffic 
through the canal.
    (c) Safe navigation required. Clearance for any vessel to enter or 
pass through any part of the waterway will be contingent on the vessel's 
having adequate personnel, machinery, and operative devices for safe 
navigation. In the event of question as to the ability of any vessel to 
navigate the waterway safely, a ruling will be made by the dispatcher. 
The owner, agent, master, pilot, or other person in charge of the vessel 
concerned may appeal the dispatcher's ruling to the District Engineer 
whose decision shall be final. A clearance by the dispatcher for a 
vessel's passage through the waterway shall not relieve the owners, 
agents, and operators of the vessel of full responsibility for its safe 
passage.
    (d) Radio equipment. Requirements for radio equipment on vessels 
transiting the waterway are as described in rules

[[Page 39]]

governing traffic through the waterway issued by the District Engineer. 
Vessels not having the mandatory radio equipment will not be permitted 
to transit the canal.
    (e) Anchorage and wharfage facilities. The anchorage basin at 
Chesapeake City and free wharfage facilities on the west side of the 
anchorage basin are available for small vessels only. These facilities 
are of limited capacity, and permission to occupy them for periods 
exceeding 24 hours must be obtained in advance from the dispatcher at 
Chesapeake City.
    (f) Projections from vessels. No vessel carrying a deck load which 
overhangs or projects beyond the sides of the vessel will be permitted 
to enter or pass through the waterway. Vessels carrying rods, poles, or 
other gear extending above the top of the vessel's mast will be required 
to lower such equipment to a level with the top of the mast before 
entering the waterway.
    (g) [Reserved]
    (h) Tows--(1) Integrated pusher-type tows. The maximum overall 
length and extreme breadth of this type of tow which may transit the 
canal are as described in rules governing traffic through the waterway 
issued by the District Engineer.
    (2) All other types of tows. All ships or tugs engaged in towing 
vessels not equipped with a rudder, whether light or loaded, shall use 
two towlines or a bridle on one towline. If the vessel in tow is 
equipped with a rudder, one towline without a bridle may be used. All 
towlines must be hauled as short as practicable for safe handling of the 
tows. No towboat will be permitted to enter the waterway with more than 
two loaded, or three light barges. Two or more barges or other vessels, 
not self-propelled, shall be towed abreast and not in tandem, using two 
towlines unless the towboat is made fast alongside the tow.
    (i) [Reserved]
    (j) Traffic lights. Traffic lights are located at Reedy Point and 
Old Town Point Wharf. These traffic lights are described in the rules 
governing traffic through the waterway issued by the District Engineer.
    (k) Drawbridges. Operation of the Penn Central vertical lift bridge 
across the canal will be in accordance with regulations promulgated by 
the U.S. Coast Guard, Sec. 117.235a Chesapeake and Delaware Canal, 
Del., of this chapter.
    (l) [Reserved]
    (m) Refuse and oil. The depositing of trash, refuse, debris, oil, or 
other material in the waterway or upon the banks or right-of-way is 
prohibited. Violators are subject to penalties as prescribed by Federal 
law.
    (n) Damage to waterway property. Damage to the waterway, lands, 
banks, bridges, jetties, piers, fences, buildings, trees, telephone 
lines, lighting structures, or any other property of the United States 
pertaining to the waterway is prohibited.
    (o) Fish and game. The fish and game laws of the United States and 
of the States of Delaware and Maryland, within their respective bounds, 
will be enforced upon the waters and lands pertaining to the waterway 
owned by the United States.
    (p) Grounded, wrecked, or damaged vessels. In the event a vessel is 
grounded or wrecked in the waterway or is damaged by accident or 
successive mechanical breakdown, the owner, agent, or operator shall 
take prompt action to prevent the vessel from becoming or remaining an 
obstruction to navigation, and such persons shall also respond to such 
instructions as may be issued by the District Engineer to prevent the 
vessel from becoming or remaining a menace to navigation. The lack of 
reasonable response from owner, agent, or operator may be deemed 
sufficient cause for the District Engineer to undertake repair or 
removal of the vessel as he may determine to be in the best interest to 
the Government.
    (q)-(s) [Reserved]
    (t) Pilotage. Any pilot who pilots in the canal shall comply with 
State laws or Coast Guard regulations and must be licensed for this 
waterway by the U.S. Coast Guard.
    (u) Vessels difficult to handle. Vessels which are observed by the 
pilot or master in charge, to be difficult to handle, or which are known 
to have handled badly on previous trips, must transit the canal during 
daylight hours and must have tug assistance. Such vessels

[[Page 40]]

must obtain permission from the dispatcher to enter the canal and must 
be provided with the number of tugs sufficient to afford safe passage. 
Agents must make their own arrangements for tug assistance. Such 
eastbound vessels must clear Reedy Point Bridge, and such westbound 
vessels the Chesapeake City Bridge, before dark.

[37 FR 9670, May 16, 1972, as amended at 42 FR 57961, Nov. 7, 1977; 56 
FR 13765, Apr. 4, 1991]



Sec. 207.160  All waterways tributary to the Atlantic Ocean south of 
Chesapeake Bay and all waterways tributary to the Gulf of Mexico east 

and south of St.  Marks, Fla.; use, administration, and navigation.

    (a) Description. This section applies to the following:
    (1) Waterways. All navigable waters of the United States, natural or 
artificial, including bays, lakes, sounds, rivers, creeks, intracoastal 
waterways, as well as canals and channels of all types, which are 
tributary to or connected by other waterways with the Atlantic Ocean 
south of Chesapeake Bay or with the Gulf of Mexico east and south of St. 
Marks, Florida.
    (2) Locks. All Government owned or operated locks and hurricane gate 
chambers and appurtenant structures in any of the waterways described in 
paragraph (a)(1) of this section.
    (3) U.S. property. All river and harbor lands owned by the United 
States in or along the waterways described in paragraph (a)(1) of this 
section, including lock sites and all structures thereon, other sites 
for Government structures and for the accommodation and use of employees 
of the United States, and rights of way and spoil disposal areas to the 
extent of Federal interest therein.
    (4) Vessels and rafts. The term ``vessel'' as used in this section 
includes all floating things moved over these waterways other than 
rafts.
    (b) Authority of District Engineers. The use, administration, and 
navigation of these waterways, Federal locks and hurricane gate chambers 
shall be under the direction of the officers of the Corps of Engineers, 
U.S. Army, detailed in charge of the respective sections, and their 
authorized assistants. The cities in which the U.S. District Engineers 
are located are as follows:

    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) Bridges. (For regulations governing the operation of bridges, 
see Sec. Sec. 117.1, 117.240 and 117.245 of this title.)
    (e) Locks--(1) Authority of lockmasters. (i) Locks staffed with 
Government personnel. The provisions of this subparagraph apply to all 
waterways in this Section except for the segment of the Atlantic 
Intracoastal Waterway identified in (e)(1)(ii). The lockmaster shall be 
charged with the immediate control and management of the lock, and of 
the area set aside as the lock area, including the lock approach 
channels. He/she shall see that all laws, rules and regulations for the 
use of the lock and lock area are duly complied with, to which end he/
she is authorized to give all necessary orders and directions in 
accordance therewith, both to employees of the Government and to any and 
every person within the limits of the lock and lock area, whether 
navigating the lock or not. No one shall cause any movement of any 
vessel, boat, or other floating thing in the lock or approaches except 
by or under the direction of the lockmaster or his/her assistants.
    (ii) Locks staffed with contract personnel. The provisions of this 
subparagraph apply to the segment of the Atlantic Intracoastal Waterway 
comprising the Albermarle and Chesapeake Canal and the Dismal Swamp 
Canal including Great Bridge Lock, Chesapeake, Virginia; Deep Creek 
Lock, Chesapeake, Virginia; and South Mills Lock, North Carolina. 
Contract personnel shall give all necessary orders and directions for 
operation of the locks. No one shall cause any movement of any vessel, 
boat or other floating thing in the locks or approaches except by or 
under the direction of the contract lock operator. All duties and 
responsibilities of the lockmaster set forth in this section shall be 
performed

[[Page 41]]

by the contract lock operator except that the responsibility for 
enforcing all laws, rules and regulations shall be vested in a 
government employee designated by the Norfolk District Engineer. The 
District Engineer will notify waterway users and the general public 
through appropriate notices and media concerning the location and 
identity of the designated government employee.
    (2) Signals. Vessels desiring lockage in either direction shall give 
notice to the lockmaster at not more than three-quarters of a mile nor 
less than one-quarter of a mile from the lock, by two long and two short 
blasts of a whistle. When the lock is available, a green light, 
semaphore or flag will be displayed; when not available, a red light, 
semaphore or flag will be displayed. No vessels or rafts shall approach 
within 300 feet of any lock entrance unless signalled to do so by the 
lockmaster.
    (3) Precedence at locks. (i) The vessel arriving first at a lock 
shall be first to lock through; but precedence shall be given to vessels 
belonging to the United States and to commercial vessels in the order 
named. Arrival posts or markers may be established ashore above or below 
the locks. Vessels arriving at or opposite such posts or markers will be 
considered as having arrived at the locks within the meaning of this 
paragraph.
    (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) Entrance to and exit from locks. No vessel or raft shall enter 
or leave the locks before being signalled to do so. While waiting their 
turns, vessels or rafts must not obstruct traffic and must remain at a 
safe distance from the lock. They shall take position in rear of any 
vessels or rafts that may precede them, and there arrange the tow for 
locking in sections if necessary. Masters and pilots of vessels or in 
charge of rafts shall cause no undue delay in entering or leaving the 
lock, and will be held to a strict accountability that the approaches 
are not at any time unnecessarily obstructed by parts of a tow awaiting 
lockage or already passed through. They shall provide sufficient men to 
move through the lock promptly without damage to the structures. Vessels 
or tows that fail to enter the locks with reasonable promptness after 
being signalled to do so will lose their turn.
    (5) Lockage of vessels. (i) Vessels must enter and leave the locks 
carefully at slow speed, must be provided with suitable lines and 
fenders, must always use fenders to protect the walls and gates, and 
when locking at night must be provided with suitable lights and use them 
as directed.
    (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) Lockage of rafts. Rafts shall be locked through in sections as 
directed by the lockmaster. No raft will be locked that is not 
constructed in accordance with the requirements stated in paragraph (g) 
of this section. The

[[Page 42]]

party in charge of a raft desiring lockage shall register with the 
lockmaster immediately upon arriving at the lock and receive 
instructions for locking.
    (7) Number of lockages. Tows or rafts locking in sections will 
generally be allowed only two consecutive lockages if one or more single 
vessels are waiting for lockage, but may be allowed more in special 
cases. If tows or rafts are waiting above and below a lock for lockage, 
sections will be locked both ways alternately whenever practicable. When 
there are two or more tows or rafts awaiting lockage in the same 
direction, no part of one shall pass the lock until the whole of the one 
preceding it shall have passed.
    (8) Mooring. (i) Vessels and rafts when in the lock shall be moored 
where directed by the lockmaster by bow, stern and spring lines to the 
snubbing posts or hooks provided for that purpose, and lines shall not 
be let go until signal is given for vessel or raft to leave. Tying boats 
to the lock ladders is prohibited.
    (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) Maneuvering locks. The lock gates, valves, and accessories will 
be moved only under the direction of the lockmaster; but if required, 
all vessels and rafts using the locks must furnish ample help on the 
lock walls for handling lines and maneuvering the various parts of the 
lock under the direction of the lockmaster.
    (f) [Reserved]
    (g) Rafts, logging. (1) Rafts will be permitted to navigate a 
waterway only if properly and securely assembled. The passage of ``bag'' 
or ``sack'' rafts, ``dog'' rafts, or of loose logs over any portion of a 
waterway, is prohibited. Each section of a raft will be secured within 
itself in such a manner as to prevent the sinking of any log, and so 
fastened or tied with chains or wire rope that it cannot be separated or 
bag out so as to materially change its shape. All dogs, chains and other 
means used in assembling rafts shall be in good condition and of ample 
size and strength to accomplish their purposes.
    (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.

[[Page 43]]

    (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) Dumping of refuse or oil in waterway, obstructions. Attention is 
invited to the provisions of sections 13 and 20 of the River and Harbor 
Act of March 3, 1899 (30 Stat. 1152, 1154; 33 U. S. C. 407, 415), and of 
sections 2, 3, and 4 of the Oil Pollution Act of June 7, 1924 (43 Stat. 
604, 605; 33 U.S.C. 432-434), which prohibit the depositing of any 
refuse matter in these waterways or along their banks where liable to be 
washed into the waters; authorize the immediate removal or destruction 
of any sunken vessel, craft, raft, or other similar obstruction, which 
stops or endangers navigation; and prohibit the discharge of oil from 
vessels into the coastal navigable waters of the United States.
    (i) Damage. Masters and owners of vessels using the waterways are 
responsible for any damage caused by their operations to canal 
revetments, lock piers and walls, bridges, hurricane gate chambers, 
spillways, or approaches thereto, or other Government structures, and 
for displacing or damaging of buoys, stakes, spars, range lights or 
other aids to navigation. Should any part of a revetment, lock, bridge, 
hurricane gate chamber, spillway or approach thereto, be damaged, they 
shall report the fact, and furnish a clear statement of how the damage 
occurred, to the nearest Government lockmaster or bridge tender, and by 
mail to the District Engineer, U.S. Engineer Office, in local charge of 
the waterway in which the damage occurred. Should any aid to navigation 
be damaged, they shall report that fact immediately to the 
Superintendent of Lighthouses at Norfolk, Virginia, if north of New 
River Inlet, North Carolina; to the Superintendent of Lighthouses at 
Charleston, South Carolina, if between New River Inlet, North Carolina, 
and St. Lucie Inlet, Florida; to the Superintendent of Lighthouses at 
Key West, Florida, if between St. Lucie Inlet and Suwanee River, 
Florida; and to the Superintendent of Lighthouses, New Orleans, 
Louisiana, if between Suwanee River and St. Marks, Florida.
    (j) Trespass on property of the United States. Trespass on waterway 
property or injury to the banks, locks, bridges, piers, fences, trees, 
houses, shops or any other property of the United States pertaining to 
the waterway is strictly prohibited. No business, trading or landing of 
freight or baggage will be allowed on or over Government piers, bridges, 
or lock walls.
    (k) Copies of regulations. Copies of the regulations in this section 
will be furnished free of charge upon application to the nearest 
District Engineer.

[Regs., Apr. 30, 1938, as amended at 8 FR 15381, Nov. 9, 1943; 25 FR 
8908, Sept. 16, 1960; 26 FR 353, Jan. 18, 1961; 34 FR 4967, Mar. 7, 
1969; 42 FR 57961, Nov. 7, 1977; 48 FR 6335, Feb. 11, 1983; 56 FR 13765, 
Apr. 4, 1991]



Sec. 207.169  Oklawaha River, navigation lock and dam at Moss Bluff,
Fla.; use, administration, and navigation.

    (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.

[35 FR 10520, June 27, 1970, as amended at 38 FR 5468, Mar. 1, 1973]



Sec. 207.170  Federal Dam, Oklawaha River, Moss Bluff, Fla.; pool level.

    (a) The level of the pool shall normally be maintained at elevation 
56.5 feet above sea level: Provided, That the level of the pool may be 
raised to not exceeding 58.5 feet above sea level at such times as may 
be authorized in writing by the District Engineer, Jacksonville, Fla., 
and subject to such conditions as he may specify.

[[Page 44]]

    (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.

[Regs., Dec. 3, 1928]



Sec. 207.170a  Eugene J. Burrell Navigation Lock in Haines Creek near Lisbon,
Fla.; use, administration, and navigation.

    (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.

[24 FR 1461, Feb. 27, 1959]



Sec. 207.170b  Apopka-Beauclair Navigation Lock in Apopka-Beauclair Canal in
Lake County, Fla.; use, administration, and navigation.

    (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.

[24 FR 5151, June 24, 1959]



Sec. 207.170c  Kissimmee River, navigation locks between Lake Tohopekaliga
and Lake Okeechobee, Fla.; use, administration, and navigation.

    (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:

 
------------------------------------------------------------------------
                       Locks S-61, S-65, and S-65E
------------------------------------------------------------------------
Monday through Friday...........  All year..........  7:00 a.m. to 6:00
                                                       p.m.
Saturday and Sunday.............  Mar. 1 through      5:30 a.m. to 7:30
                                   Oct. 31.            p.m.
 Do.............................  Nov. 1 through      5:30 a.m. to 6:30
                                   Feb. 28.            p.m.
------------------------------------------------------------------------
                               Lock S-65A
------------------------------------------------------------------------
Seven days a week...............  All year..........  8:00 a.m. to 5:00
                                                       p.m.
------------------------------------------------------------------------
                      Locks S-65B, S-65C, and S-65D
------------------------------------------------------------------------
Monday through Friday...........  All year..........  8:00 a.m. to 5:00
                                                       p.m.
Saturday and Sunday.............  Mar. 1 through      5:30 a.m. to 7:30
                                   Oct. 31.            p.m.
 Do.............................  Nov. 1 through      5:30 a.m. to 6:30
                                   Feb. 28.            p.m.
------------------------------------------------------------------------
 

    (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.

[29 FR 2384; Feb. 12, 1964, as amended at 31 FR 7566, May 26, 1966; 33 
FR 7626, May 23, 1968]



Sec. 207.170d  Taylor Creek, navigation lock (S-193) across the entrance to 
Taylor Creek at Lake Okeechobee, Okeechobee, Fla.; use, administration, and 

          navigation.

    (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

[[Page 45]]

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.

[Regs., July 17, 1973, 1522-01 (Taylor Creek, Fla.) DAEN-CWO-N]

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

[38 FR 21404, Aug. 8, 1973]



Sec. 207.175a  Carlson's Landing Dam navigation lock, Withlacoochee River,
Fla.; use, administration, and navigation.

    (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.

[30 FR 6161, May 1, 1965]



Sec. 207.180  All waterways tributary to the Gulf of Mexico (except the 
Mississippi River, its tributaries, South and Southwest Passes

and the Atchafalaya 
          River) from St. Marks, Fla., to the Rio Grande; use, 
          administration, and navigation.

    (a) The regulations in this section shall apply to:
    (1) Waterways. All navigable waters of the U.S. tributary to or 
connected by other waterways with the Gulf of Mexico between St. Marks, 
Fla., and the Rio Grande, Tex. (both inclusive), and the Gulf 
Intracoastal Waterway; except the Mississippi River, its tributaries, 
South and Southwest Passes, and the Atchafalaya River above its junction 
with the Morgan City-Port Allen Route.
    (2) Locks and floodgates. All locks, floodgates, and appurtenant 
structures in the waterways described in paragraph (a)(1) of this 
section.
    (3) Bridges, wharves, and other structures. All bridges, wharves, 
and other structures in or over these waterways.
    (4) Vessels. The term ``vessels'' as used in this section includes 
all floating craft other than rafts.
    (5) Rafts. The term ``raft'' as used in this section includes any 
and all types of assemblages of floating logs or timber fastened 
together for support or conveyance.
    (b) Authority of District Engineers. The use, administration, and 
navigation of the waterways and structures to which this section applies 
shall be under the direction of the officers of the Corps of Engineers, 
U.S. Army, in charge of the respective districts, and their authorized 
assistants. The location of these Engineer Districts, and the limits of 
their jurisdiction, are as follows:
    (1) U.S. District Engineer, Mobile, Ala. The St. Marks River, Fla., 
to the Pearl River, Mississippi and Louisiana; and the Gulf Intracoastal 
Waterway from Apalachee Bay, Fla., to mile 36.4 east of Harvey Lock.
    (2) U.S. District Engineer, Vicksburg, Miss. The Pearl River and its 
tributaries, Mississippi and Louisiana.
    (3) U.S. District Engineer, New Orleans, La. From Pearl River, 
Mississippi and Louisiana, to Sabine River, Louisiana and Texas; and the 
Gulf Intracoastal Waterway from mile 36.4 east of Harvey Lock, to mile 
266 west of Harvey Lock.
    (4) U.S. District Engineer, Galveston, Tex. The Sabine River, 
Louisiana and Texas, to the Rio Grande, Tex.; and the Gulf Intracoastal 
Waterway from mile 266 west of Harvey Lock, to Brownsville, Tex.
    (c) [Reserved]
    (d) Locks and floodgates. (1) The term ``lock'' as used in this 
section shall include locks, floodgates, and appurtenant structures, and 
the area designated as the lock area including the lock approach 
channels.
    (2) Authority of lockmasters. The term ``lockmaster'' as used in 
this section means the official in charge of operating a lock or 
floodgate. The lockmaster is responsible for the immediate management 
and control of

[[Page 46]]

the lock and lock area and for the enforcement of all laws, rules, and 
regulations for the use of the lock. He is authorized to give all 
necessary and appropriate orders and instructions to every person in the 
lock area, whether navigating the lock or not; and no one shall cause 
any movement of any vessel within the lock area unless instructed to do 
so by the lockmaster or his duly authorized assistants. The lockmaster 
may refuse passage through the lock to any vessel which, in his 
judgment, fails to comply with the regulations of this section.
    (3) Sound signals. Vessels desiring passage through a lock shall 
notify the lockmaster by three long and distinct blasts of a horn, 
whistle, or calls through a megaphone, when within a reasonable distance 
from the lock. When the lock is ready for entrance, the lockmaster shall 
reply with three long blasts of a horn, whistle, or calls through a 
megaphone. When the lock is not ready for entrance, the lockmaster shall 
reply by four or more short, distinct blasts of a horn, whistle, or 
calls through a megaphone (danger signal). Permission to leave the lock 
shall be indicated by the lockmaster by one long blast.
    (4) Visual signals. Signal lights and discs shall be displayed at 
all locks as follows:
    (i) From sunset to sunrise. One green light shall indicate the lock 
is open to approaching navigation; one red light shall indicate the lock 
is closed to approaching navigation.
    (ii) From sunrise to sunset. Large discs, identical in color and 
number to the light signals prescribed in paragraph (d)(4)(i) of this 
section will be displayed from a mast on or near the lock wall.
    (5) Radiophone. Locks will moior continously VHF--Channel 14 
(``Safety and Calling'' Channel) and/or AM-2738 kHz for initial 
communication with vessels. Upon arrival at a lock, a vessel equipped 
with radio-phone will immediately advise the lock by radio of its 
arrival so that the vessel may be placed on proper turn. Information 
transmitted or received in these communications shall in no way affect 
the requirements for use of sound signals or display of visual signals, 
as provided in paragraphs (d) (3) and (4) of this section.
    (6) Precedence at locks. The order of precedence for locking is:
    (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) Entrance to and exits from locks. No vessel or tow shall enter 
or exit from a lock before being signaled to do so. While awaiting turn, 
vessels or tows must not obstruct navigation and must remain at a safe 
distance from the lock, taking position to the rear of any vessel or 
tows that precede them; and rearranging the tow for locking in sections, 
if necessary. Masters and pilots of vessels or tows shall enter or exit 
from a lock with reasonable promptness after receiving the proper 
signal. Appropriate action will be taken to insure that the lock 
approaches are not obstructed by sections of a tow either awaiting 
lockage or already locked through. Masters of vessels shall provide 
sufficient men to assist in the locking operation when deemed necessary 
by the lockmaster. Care shall be taken to insure prompt and safe passage 
of the vessel without damage to the structure.
    (8) Lockage and passage of vessels. Vessels or tows shall enter and 
exit from locks under sufficient control to prevent damage to the lock, 
gates, guide

[[Page 47]]

walls, fenders, or other parts of the structure. Vessels shall be 
equipped with and use suitable fenders and adequate lines to protect the 
lock and to insure safe mooring during the locking operation. Vessels 
shall not meet or pass anywhere between the gate walls or fender system 
or in the approaches to locks.
    (9) Vessels prohibited from locks. The following vessels shall not 
be permitted to enter locks or approach channels:
    (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) Number of lockages. Tows locking in sections will generally be 
allowed only two consecutive lockages if other vessels are waiting for 
lockage unless otherwise decided by the lockmaster. If other tows are 
waiting above and below a lock, lockages will be made both ways 
alternately whenever practicable.
    (11) Mooring in locks. (i) When in a lock, vessels and tows shall be 
moored where directed by the lockmaster by bow, stern, and spring lines 
to the snubbing posts or hooks provided for that purpose, and lines 
shall not be let go until the signal is given for the vessel to exit. 
Tying to the lock ladders is prohibited.
    (ii) Mooring near the approaches to locks is prohibited except when 
the vessels or tows are awaiting lockage.
    (12) Lock operating personnel. Vessels and tows using the locks may 
be required to furnish personnel to assist in locking through; however, 
the operation of the structure is the responsibility of the lockmaster, 
and personnel assisting in the lockage of the vessels and tows will 
follow the direction of the appropriate official on duty at the lock. No 
gates, valves or other accessories or controls will be operated unless 
under his direction.
    (13) [Reserved]
    (14) Lockage of rafts. Rafts shall be locked through as directed by 
the lockmaster. No raft will be locked that is not constructed in 
accordance with the requirements stated in paragraph (f) of this 
section. The person in charge of a raft desiring lockage shall register 
with the lockmaster immediately upon arriving at the lock and receive 
instructions for locking.
    (e) Waterways. (1)-(5)(i) [Reserved]
    (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) Projections from vessels. Vessels or tows carrying a deck load 
which overhangs or projects over the side, or whose rigging projects 
over the side, so as to endanger passing vessels, wharves, or other 
property, shall not enter or pass through any of the narrow parts of the 
waterway without prior approval of the District Engineer.
    (7) Meeting and passing. Passing vessels shall give the proper 
signals and pass in accordance with the Federal Rules of the Road. At 
certain intersections where strong currents may be encountered, sailing 
directions may be issued through navigation bulletins or signs posted on 
each side of the intersection.

[[Page 48]]

    (f) Rafts. The navigation regulations in this paragraph shall apply 
fully to the movement of rafts.
    (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) Damage. Should any damage be done to a revetment, lock, 
floodgates, bridge, or other federally owned or operated structure, the 
master of the vessel shall report the accident to the nearest lockmaster 
or bridgetender as soon as possible after the accident. Damage to aids 
to navigation and to nonfederally owned bridges must be reported to the 
Commander, Eighth Coast Guard District, New Orleans, La.
    (h) Marine accidents. Masters, mates, pilots, owners, or other 
persons using the waterways covered by this section shall report to the 
District Engineer at the earliest possible date any accident on the 
waterway which causes any vessel to become an obstruction to navigation. 
The information to be furnished the District Engineer shall include the 
name of the vessel, its location, and the name and address of the owner. 
The owner of a sunken vessel shall properly mark the vessel as soon as 
practicable after sinking.
    (i) Trespass on U.S. property. (1) Trespass on or injury to waterway 
property of the United States is prohibited. No business, trading, or 
landing of freight, will be allowed on Government property without 
permission of the District Engineer.
    (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) Liability. The regulations of this section will not affect the 
liability of the owners and operators of vessels for any damage caused 
by their operations to the waterway or to the structures therein.

[36 FR 8866, May 14, 1971, as amended at 37 FR 26419, Dec. 12, 1972; 42 
FR 57961, Nov. 7, 1977; 48 FR 6707, Feb. 15, 1983; 54 FR 6519, Feb. 13, 
1989; 56 FR 13765, Apr. 4, 1991]



Sec. 207.185  Taylors Bayou, Tex., Beaumont Navigation District Lock;
use, administration, and navigation.

    (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 Sec. 
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.

[4 FR 1719, Apr. 29, 1939]



Sec. 207.187  Gulf Intracoastal Waterway, Tex.; special floodgate, lock 
and navigation regulations.

    (a) Application. The regulations in this section shall apply to the 
operation of the Brazos River Floodgates and the Colorado River Locks at 
Mile 400.8 and Mile 441.5, respectively, west of Harvey Lock, La., on 
the Gulf Intracoastal Waterway, and navigation of the tributary Colorado 
River Channel in the vicinity of said locks.
    (b) Definitions. The term current means the velocity of flow of 
water in the river. It is expressed in statute miles per hour. The term 
``head differential'' means the difference measured in feet between the 
water level in the river and that in the waterway when the floodgates or 
lock gates are closed. The term ``Lockmaster'' means the official in 
charge of the floodgates or locks.

[[Page 49]]

    (c) Operation of floodgates and locks--(1) Unlimited passage. The 
floodgates and locks shall be opened for the passage of single vessels 
and towboats with single or multiple barges when the current in the 
river is less than 2 miles per hour and the head differential is less 
than 0.7 foot. When the head differential is less than 0.7, the Colorado 
River locks shall normally be operated as floodgates, using only the 
riverside gates of each lock.
    (2) Limited passage. When the current in either river exceeds 2 
miles per hour or the head differential at the Brazos River floodgates 
is between the limits of 0.7 foot and 1.8 feet, both inclusive, or the 
head differential at the Colorado River locks is 0.7 foot or greater, 
passage shall be afforded only for single vessels or towboats with 
single loaded barges or two empty barges. When two barges are rigidly 
assembled abreast of each other and the combined width of both together 
is 55 feet or less, they shall be considered as one barge. Each section 
of an integrated barge shall be considered as one barge, except when it 
is necessary to attach a rake section to a single box section to 
facilitate passage, the two sections shall be considered as one barge. 
It shall be the responsibility of the master, pilot or other person in 
charge of a vessel to determine whether a safe passage can be effected, 
give due consideration to the vessel's power and maneuverability, and 
prevailing current velocity, head differential, weather and visibility. 
If conditions are not favorable, passage shall be delayed until 
conditions improve and a safe crossing is assured.
    (3) Gate closures. The Brazos River Floodgates shall be closed to 
navigation when the head differential exceeds 1.8 feet. The Colorado 
River Locks shall be closed to navigation when the current in the river 
exceeds a critical velocity as determined by the District Engineer, U.S. 
Army Engineer District, Galveston, Tex. The Brazos River Floodgates or 
the Colorado River Locks shall be closed to navigation when in the 
opinion of said District Engineer it is required for the protection of 
life and property, or it is to the advantage of the Government to permit 
uninterrupted emergency or maintenance operations, including dredging.
    (4) Mooring facilities. Mooring facilities located on both banks of 
the Gulf Intracoastal Waterway on the approaches to the floodgates and 
locks are for the mooring of vessels when the floodgates or locks are 
closed to navigation or tows are limited to single barges. Vessels 
awaiting passage shall be moored parallel to the bank and as close to 
the bank as possible. Barges shall be moored fore and aft with two 
lines, each to a separate mooring facility. Beaching of vessels in lieu 
of mooring them is prohibited. The mooring facilities are numbered and 
vessels making fast to them shall notify the Lockmaster giving the 
number of each facility being used.
    (5) [Reserved]
    (6) Communication--(i) Radio. The floodgates and locks are equipped 
with short wave radio equipment transmitting and receiving on VHF--FM 
Channels 12, 13, 14 and 16. Call letters for the floodgates are WUI 411 
and for the locks are WUI 412.
    (ii) Telephone. The floodgates and locks are equipped with telephone 
facilities. The floodgates may be reached by phoning Freeport, Tx, 713-
233-1251; the locks may be reached by phoning Matagorda, Tx, 713-863-
7842.
    (7) Arrival posts. Arrival posts 10 feet high and 10 inches in 
diameter have been established on the approaches to the locks and 
floodgates. They are painted with alternate horizontal bands of red and 
white 3 inches wide. Arrival at the floodgates or locks shall be 
determined as provided in paragraph (d)(4) of Sec. 207.180.
    (d) Navigation of the Colorado River Channel--(1) Traffic signals. 
(i) Light and sound signals directed both upstream and downstream on the 
Colorado River are mounted on top of a galvanized skeleton steel tower 
85 feet high located on the northeast point of land at the Gulf 
Intracoastal Waterway crossing of the river. They will be operated from 
the control house of the East Lock of the Colorado River Locks to direct 
the interchange of traffic in the Colorado River and the Gulf 
Intracoastal Waterway.
    (ii) Vessels navigating the Colorado River and desiring passage 
either upstream or downstream through the crossing, or into the crossing 
and

[[Page 50]]

through a lock into the Gulf Intracoastal Waterway, shall give notice to 
the Lockmaster by two long and distinct blasts of a whistle or horn when 
within a distance of not more than one-half mile nor less than one-
fourth mile from the Gulf Intracoastal Waterway crossing. When the locks 
and the crossing are clear of vessels, the Lockmaster shall reply by two 
long and distinct blasts of a whistle or horn and display a green light 
from the signal tower indicating that the vessel in the river may 
proceed across the crossing or into the main stem of the Gulf 
Intracoastal Waterway either eastbound or westbound. When there are 
vessels in the river crossing or in the locks, the Lockmaster shall 
reply by four or more short blasts of a whistle or horn (danger signal) 
and display a red light from the signal tower indicating the vessel in 
the river shall wait at least a quarter of a mile from the crossing for 
clearance. When the locks and crossing are clear of vessels, the 
lockmaster shall indicate to the waiting vessel by two long and distinct 
blasts of a whistle or horn and display of a green light from the signal 
tower indicating that the vessel may proceed across the crossing or into 
the main stem of the Gulf Intracoastal Waterway either eastbound or 
westbound. During periods when the red light may be obscured by fog, 
mist, or rain, an audible signal consisting of a long blast followed by 
a short blast of a whistle or horn, repeated every 30 seconds, shall be 
sounded from the signal tower as an adjunct to the red light.
    (2) Signs. Large signs with silver reflective background and stop 
sign red letters are erected one-fourth mile upstream and downstream 
from the Gulf Intracoastal Waterway on the Colorado River. The legend 
states ``DO NOT PROCEED BEYOND THIS POINT WHEN SIGNAL TOWER LIGHT IS 
RED.'' These signs must be obeyed.
    Note: The foregoing regulations are supplementary to the regulations 
in Sec. 207.180.

[31 FR 15310, Dec. 7, 1966, as amended at 34 FR 15797, Oct. 14, 1969; 48 
FR 6707, Feb. 15, 1983]



Sec. 207.200  Mississippi River below mouth of Ohio River, including South
and Southwest Passes; use, administration, and navigation.

    (a) Mississippi River bank protection works provided by United 
States. 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. Information as to the location of revetted 
areas may be obtained from, and will be published from time to time by, 
the District Engineers, Corps of Engineers, New Orleans, Louisiana, 
Vicksburg, Mississippi, and Memphis, Tennessee, and the President, 
Mississippi River Commission, Vicksburg, Mississippi.
    (b) Mississippi River below Baton Rouge, La., including South and 
Southwest Passes--(1) Supervision. The use, administration, and 
navigation of the waterways to which this paragraph applies shall be 
under the supervision of the District Engineer, Corps of Engineers, New 
Orleans, Louisiana.
    (2)-(3) [Reserved]
    (4) Cable and pipeline crossings. Any cable or pipeline crossing or 
extending into the waterways shall be marked by large signs with 12-inch 
black letters on a white background readable from the waterway side, 
placed on each side of the river near the point where the cable or 
pipeline enters the water, and at a sufficient height to be readable 
above any obstructions normally to be expected at the locality such as 
weeds or moored vessels.
    (5) Marine accidents. Masters, mates, pilots, owners, or other 
persons using the waterway to which this paragraph applies shall notify 
the District Engineer by the most expeditious means available of all 
marine accidents, such

[[Page 51]]

as fire, collision, sinking, or stranding, where there is possible 
obstruction of the channel or interference with navigation or where 
damage to Government property is involved, furnishing a clear statement 
as to the name, address, and ownership of the vessel or vessels 
involved, the time and place, and the action taken. In all cases, the 
owner of the sunken vessel shall take immediate steps properly to mark 
the wreck.

[15 FR 3325, May 30, 1950, as amended at 17 FR 6594, July 18, 1952; 27 
FR 3166, Apr. 3, 1962; 33 FR 10456, July 23, 1968; 42 FR 51773, Sept. 
29, 1977; 42 FR 57961, 57962, Nov. 7, 1977]



Sec. 207.249  Ouachita and Black Rivers, Ark. and La., Mile 0.0 to Mile 338.0
(Camden, Ark.) above the mouth of the Black River; the Red River, La., Mile 6.7 

          (Junction of Red, Atchafalaya and Old Rivers) to Mile 276.0 
          (Shreveport, La.); use, administration, and navigation.

    (a) [Reserved]
    (b) Locks--(1) Authority of lockmasters. (i) Locks staffed with 
Government personnel. The lockmaster shall be charged with the immediate 
control and management of the lock and of the area set aside as the lock 
area, including the lock approach channels. He shall insure that all 
laws, rules, and regulations for the use of the lock and lock area are 
duly complied with, to which end he is authorized to give all necessary 
orders and directions in accordance therewith both to employees of the 
Government and to any and every person within the limits of the lock or 
lock area, whether navigating the lock or not. No one shall cause any 
movement of any vessel or other floating thing in the lock or approaches 
except by or under the direction of the lockmaster or his assistants. 
For the purpose of the regulations in this section, the ``lock area'' is 
considered to extend from the downstream to the upstream arrival posts.
    (ii) Locks staffed with contract personnel. Contract lock operators 
shall give all necessary orders and direction for operation of the 
locks. No one shall cause any movement of any vessel or other floating 
object in the locks or approaches except by or under the direction of 
the contract lock operator. All duties and responsibilities of the 
lockmasters set forth in this section shall be performed by the contract 
lock operator except that the responsibility for enforcing all laws, 
rules and regulations shall be vested in an offsite government employee 
designated by the Vicksburg District Engineer.
    (2) Sound signals. (i) Vessels desiring passage through a lock in 
either direction shall give notice to the lockmaster by one long and one 
short distinct blast of a horn or whistle when not less than three-
fourths mile from the lock. When carrying dangerous cargo, the signal 
will be one long and two short blasts of the horn or whistle. When the 
lock is ready for entrance, the lockmaster shall reply with one long 
blast of a horn or whistle. When the lock is not ready for entrance, the 
lockmaster shall reply by four or more short, distinct blasts of a horn 
or whistle (danger signal). Permission to leave the lock shall be 
indicated by the lockmaster by one short blast. A distinct blast is 
defined as a clearly audible blast of any length. A long blast means a 
blast of from 4 to 6 seconds' duration. A short blast is of about 1 
second's duration.
    (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) Visual signals. Signal lights will be displayed outside each 
lock gate to supplement the sound signals, as follows:
    (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.

[[Page 52]]

    (iv) A navigation pass is not provided as part of the Red River 
Locks and Dams. When water levels rise to within 2 feet of the top of 
the lock walls, operation of the locks will cease until the water level 
falls below this level. These stages can reasonably be expected to occur 
once in 10 years. No vessel, tow, or raft shall attempt to navigate over 
the lock or other structures at high river stages. United States Coast 
Guard radiotelephone broadcasts and U.S. Army Corps of Engineers 
navigation bulletins should be monitored for information on lock 
operations.
    (4) Radiotelephone. Two-way radio equipment is provided at all 
locks. The ``Safety and Calling'' channel (Channel 16, frequency of 
156.8 mhz), will be monitored at all times for initial communication 
with vessels. Information transmitted or received in these 
communications shall in no way affect the requirements for the use of 
sound signals or display of visual signals as provided in paragraphs 
(b)(2) and (3) of this section.
    (5) Precedence at locks. (i) The vessel arriving first at a lock 
will be first to lock through. In the case of vessels approaching the 
lock simultaneously from opposite directions, the vessel approaching at 
the same elevation as the water in the lock chamber will be locked 
through first. Precedence shall be given to vessels belonging to the 
United States, passenger vessels, commercial vessels, rafts, and 
pleasure craft, in the order named. Arrival posts or markers will be 
established ashore above and below the locks. Vessels arriving at or 
opposite such posts or markers will be considered as having arrived at 
the lock within the meaning of this paragraph (b)(5). The lockmaster may 
prescribe such departure from the normal order of precedence stated 
above, as in his judgment, is warranted under prevailing circumstances 
to achieve best lock utilization.
    (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) Entrance to an exit from locks. No vessel or raft shall enter or 
leave locks before being signaled to do so. While waiting their turn, 
vessels or rafts must not obstruct navigation and must remain at a safe 
distance from locks. Before entering a lock they shall take position in 
the rear of any vessels or rafts that precede them, and there arrange 
the tow for locking in sections if necessary. Masters and pilots of 
vessels or persons in charge of rafts shall cause no undue delay in 
entering or leaving locks upon receiving the proper signal. They shall 
take such action as will insure that the approaches are not at any time 
unnecessarily obstructed by parts of a tow awaiting lockage or already 
passed through. They shall provide sufficient men to move through locks

[[Page 53]]

promptly without damage to the structures. Vessels or tows shall enter 
locks with reasonable promptness after being signaled to do so.
    (7) Lockage and passage of vessels. (i) Vessels shall enter and 
leave locks under such control as to prevent any damage to the locks, 
gates, guide walls, guard walls, and fenders. Vessels shall be provided 
with suitable lines and fenders, shall always use fenders to protect the 
walls and gates, and when locking at night shall be provided with 
suitable lights and use them as directed. Fenders on vessels shall be 
water-soaked or otherwise fire proofed before being utilized in the lock 
or approaches. Vessels shall not meet or pass each other anywhere 
between the guide walls or fender system at the approaches to locks.
    (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) Number of lockages. Tows or rafts locking in sections will 
generally be allowed only two consecutive lockages if individual vessels 
are waiting for lockage, but may be allowed more in special cases. If 
tows or rafts are waiting above and below a lock for lockage, sections 
will be locked both ways alternately whenever practicable. When two or 
more tows or rafts are waiting lockage in the same direction, no part of 
one shall pass the lock until the whole of the one preceding it shall 
have passed.
    (9) Mooring. (i) Vessels and rafts when in a lock shall be moored 
where directed by the lockmaster by bow, stern, and spring lines to the 
bitts provided for that purpose and lines shall not be let go until the 
signal is given for the vessel or raft to leave. Tying to the lock 
ladders is prohibited.
    (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) Operating locks. The lock gates, valves, and accessories will 
be moved only under the direction of the lockmaster; but, if required, 
all vessels and rafts using the locks shall furnish ample help on the 
lock walls for handling lines under the direction of the lockmaster.
    (c) Trespass on U.S. property. Trespass on lock grounds or other 
waterway property or injury to the banks, lock entrances, locks, cribs, 
dams, piers, fences, trees, buildings, or any other property of the 
United States pertaining to the waterway is strictly prohibited. No 
landing of freight, passengers, or baggage will be allowed on or over 
Government piers, lock walls, guide or guard walls, except by permission 
of the lockmaster. No person except employees of the United States or 
persons assisting with the locking operations under the direction of the 
lockmaster will be allowed on the dam, lock walls, guide walls, guard 
walls, abutments, or appurtenant structures.
    (d) Vessels to carry regulations. A copy of the regulations in this 
section shall be kept at all times on board each vessel regularly 
navigating the waterways to which the regulations in this section apply. 
Copies may be obtained free of charge at any of the locks or from the 
Vicksburg District Engineer, Vicksburg, Mississippi, upon request.

[37 FR 14778, July 25, 1972, as amended at 52 FR 18235, May 14, 1987; 52 
FR 34775, Sept. 15, 1987; 56 FR 13765, Apr. 4, 1991; 63 FR 24428, May 4, 
1998]

[[Page 54]]



Sec. 207.260  Yazoo Diversion Canal, Vicksburg, Miss., from its mouth at
Kleinston Landing to Fisher Street; navigation.

    (a) Signals. Vessels navigating the canal will be governed by the 
Pilot Rules for Western Rivers (rivers emptying into the Gulf of Mexico 
and their tributaries) prescribed by the U.S. Coast Guard. (See part 95 
of this title.) \1\
---------------------------------------------------------------------------

    \1\ Part 95 was removed by CGD 82-029, 47 FR 19519, May 6, 1982.
---------------------------------------------------------------------------

    (b) Rafts. Rafts will be permitted to navigate the canal only if 
properly and securely assembled. Each section of a raft shall be so 
secured within itself as to prevent the sinking of any log, and so 
fastened with chains or wire rope that it cannot be separated or bag out 
or materially change its shape. All logs, chains, and other means used 
in assembling rafts shall be in good condition and of ample size and 
strength to accomplish their purpose. No section of a raft will be 
permitted to be towed unless the logs float sufficiently high in the 
water to make it evident that the section will not sink en route. Rafts 
shall not be of greater dimensions than 50 feet wide by 600 feet long, 
and if longer than 300 feet they shall be handled by two tugs; and in 
all cases they must be handled by sufficient tug power to make headway 
and guide the raft so as to give half the channel to passing vessels.
    (c) Mooring. At stages below 20 feet on the Vicksburg Gage, no 
vessel or raft shall be moored along the west bank of the canal between 
points Latitude 32[deg]21[min]16[sec], Longitude 90[deg]53[min]05[sec] 
and Latitude 32[deg]20[min]55[sec], Longitude 90[deg]53[min]18[sec], 
which is approximately 1200 feet above and 1200 feet below the public 
boat launch (foot of Clay Street) at Vicksburg City Front. No vessel or 
raft shall be moored along the west bank of the canal at any stage from 
the mouth of the Yazoo Diversion Canal where it enters into the 
Mississippi River to Latitude 32[deg]20[min]21[sec], Longitude 
90[deg]53[min]44[sec], which is approximately 1200 feet from the mouth 
of the canal. No vessel or raft shall be moored along the east bank of 
the canal at any stage from the mouth of the Yazoo Diversion Canal where 
it enters into the Mississippi River to Latitude 32[deg]20[min]12[sec], 
Longitude 90[deg]53[min]41[sec], which is approximately 750 feet from 
the mouth of the canal. When tied up, boats, barges, or rafts shall be 
moored by bow and stern lines parallel to the bank and as close in as 
practicable. Lines shall be secured at sufficiently close intervals to 
insure the vessel or raft will not be drawn away from the bank by winds, 
current, or other passing vessels. No vessel or raft shall be moored 
along the banks of the canal for a period longer than five (5) calendar 
days without written permission from the District Engineer, Corps of 
Engineers, Vicksburg District Office, 4155 E. Clay St., Vicksburg, 
Mississippi 39180-3435.
    (d) [Reserved]
    (e) Refuse in canal. No person shall roll or throw any stones, 
ashes, cinders, barrels, logs, log butts, sawdust, shavings, refuse, or 
any other material into the canal or the approach thereto, or place any 
such material on the bank or berm so that it is liable to be rolled, 
thrown, or washed into the canal.
    (f) Preservation of works of improvement. Masters and pilots of all 
craft using the canal shall avoid damaging any revetment, dike, 
floodwall, or other work of improvement placed in or adjacent to the 
canal. They shall not disturb any gages or marks set as aids to 
navigation in the canal or approaches thereto.
    (g) Fairway. A clear channel not less than 175 feet wide as 
established by the District Engineer shall be left open at all times to 
permit free and unobstructed navigation by all types of vessels.

[13 FR 9562, Dec. 31, 1948; 42 FR 57962, Nov. 7, 1977, as amended at 63 
FR 24428, May 4, 1998]



Sec. 207.270  Tallahatchie River, Miss., between Batesville and the mouth; 
logging.

    (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.

[[Page 55]]

    (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\4/10\ feet on the U.S. Weather Bureau 
gage at Greenwood, Miss.
    (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.

[Regs. Feb. 18, 1918, as amended at 25 FR 8908, Sept. 16, 1960]



Sec. 207.275  McClellan-Kerr Arkansas River navigation system: use,
administration, and navigation.

    (a) Applicability of regulations. These regulations apply to all 
locks and appurtenant structures, wharves, and other Corps of Engineers 
structures in the following waterways: The White River between 
Mississippi River and Arkansas Post Canal, Arkansas; Arkansas Post 
Canal, Arkansas; Arkansas River between Dam No. 2, Arkansas, and 
Verdigris River, Oklahoma; Verdigris River between Arkansas River and 
Catoosa, Oklahoma; and reservoirs on these waterways between Mississippi 
River, Arkansas, and Catoosa, Oklahoma.
    (b) Authority of district engineers. The use, administration, and 
navigation of the structures to which this section applies shall be 
under the direction of the officers of the Army Corps of Engineers, 
detailed in charge of the respective districts, and their authorized 
assistants. The cities in which these district engineers are located, 
and the limits of their jurisdictions, are as follows:
    (1) District Engineer, U.S. Army Engineer District, Little Rock, 
Arkansas. From Mississippi River, Arkansas, to Arkansas-Oklahoma State 
line at Fort Smith, Arkansas.
    (2) District Engineer, U.S. Army Engineer District, Tulsa, Oklahoma. 
From Arkansas-Oklahoma State line at Fort Smith, Arkansas, to Catoosa, 
Oklahoma.
    (c) Authority of lockmasters. The lockmaster shall be charge with 
the immediate control and management of the lock and of the area set 
aside as the lock area. The lockmaster shall ensure that all laws, 
rules, and regulations for the use of the lock and lock area are duly 
complied with, to which end he/she is authorized to give all necessary 
orders and directions both to employees of the Government and to any 
person within the limits of the lock area, whether navigating the lock 
or not. No one shall cause any movement of any vessel or other floating 
thing in the lock area except by or under the direction of the 
lockmaster. Failure to comply with directions given by the lockmaster 
pursuant to the regulations in this section may result in refusal of 
lockage. For the purpose of the regulations in this section, the ``lock 
area'' is considered to be between the upstream and downstream arrival 
points. The district engineer may extend the limits of the lock area 
consistent with the safe and efficient use of the waterway.
    (d) Precedence at locks. (1) Precedence shall be given to vessels 
owned by the United States, licensed commercial passenger vessels 
operating on a published schedule or regularly operating in the ``for 
hire'' trade, commercial tows, rafts, and pleasure craft, in the order 
named. Precedence being equal, the first vessel to arrive at a lock will 
normally be the first to lock through; however, the lockmaster may 
depart

[[Page 56]]

from this procedure to achieve optimum utilization of the lock or in 
accordance with the order of precedence stated above and in paragraphs 
(d)(2) and (h) of this section. Arrival points have been established 
ashore upstream and downstream of the locks. Vessels arriving at these 
markers or the mooring cells immediately upstream and downstream of the 
lock will be considered as having arrived at the lock within the meaning 
of this subparagraph.
    (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) Safety rules for vessels using navigation locks. (1) Leaking 
vessels may be excluded from the locks.
    (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) Dangerous cargo barges. The following rules are prescribed for 
all tows containing dangerous cargoes as defined in Title 46, Code of 
Federal Regulations. These rules are applicable to both loaded barges 
and empty barges.
    (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) General locking procedures. (1) In case two or more boats or 
tows are to enter for the same lockage, their order of entry and exit 
shall be determined by the lockmaster.
    (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

[[Page 57]]

stations while tows are moving adjacent to any part of a lock. They 
shall protect the lock walls by the use of hand-held fenders. In all 
cases, two deckhands shall be stationed at the bows of tows 100 feet 
wide or wider when entering locks. They shall remain at their stations 
until the bows of such tows pass the recessed miter gates.
    (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) Number of lockages. (i) Tows or rafts locking in sections will 
generally be allowed only two consecutive lockages if other vessels are 
waiting lockage, but may be allowed more in special cases. No part of a 
tow shall pass a lock until the whole of the one preceding it shall have 
passed. The lockmaster may prescribe a departure from the normal order 
of precedence to achieve the best lock utilization.
    (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) Lockage of pleasure craft. In order to fully utilize the 
capacity of the lock, lockmasters may expedite the lockage of pleasure 
craft by locking them through with commercial vessels, except vessels 
carrying volatile cargoes or other substances likely to emit toxic, 
flammable, or explosive vapors. If the lockage of pleasure craft cannot 
be accomplished within the time required for three single lockages, a 
separate lockage of pleasure craft shall be made. Pleasure craft 
operators are advised that the locks have a pull chain located at the 
end of each river wall which signals the lockmaster that lockage is 
desired.
    (i) Locking rafts and floating dredge discharge line. While awaiting 
lockage, rafts and tows containing floating dredge discharge line shall 
not obstruct the lock approaches. They shall be properly and securely 
assembled to assure adequate control while entering and exiting locks. 
The passage of loose logs through a lock is prohibited. Lockage will be 
refused to rafts unless the logs float sufficiently high to make it 
evident that the raft will not sink.
    (j) Mooring--(1) At locks. (i) When in the locks, all vessels shall 
be moored as directed by the lockmaster. Vessels shall be moored with 
bow and stern lines leading in opposite directions to prevent the vessel 
from ``running'' in the lock. All vessels will have one additional line 
available on the head of the tow for emergency use. The pilot of a 
vessel shall remain at his station in the pilot house and the deckhands 
shall stand by the mooring lines during the entire locking procedure. 
When the vessel is securely moored, the pilot shall not cause movement 
of the propeller except in an emergency or unless directed by the 
lockmaster. Tying to lock ladders is strictly prohibited.
    (ii) Mooring of any vessel will not be permitted at or between the 
arrival points without permission of the lockmaster.
    (2) Outside of locks. (i) Vessels over 40 feet in length shall not 
land or anchor against revetted banks without written permission of the 
district engineer, except in case of emergency. When an emergency 
landing is necessary, adjacent locks shall be notified. In all

[[Page 58]]

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 require the 
permission of the district engineer.
    (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) Locking signals. Vessels must approach the locks with caution 
and not enter or leave the locks until signaled to do so by the 
lockmaster.
    (1) Signal by radio. Requests for lockage by radio will be the 
primary signal for vessels equipped with VHF-FM radios operating in the 
FCC authorized Maritime Band. District engineers will advise all known 
interested parties of the channels available for use in communicating 
with the locks. Pilots of commercial tows should contact the locks at 
least one-half hour before arrival in order that they may be informed of 
current river and traffic conditions that may affect the safe passage of 
their tows.
    (2) Sound signals. In addition to radio communication, the following 
sound signals are prescribed for use during lockage. Sound signals given 
by vessels and locks shall be given by means of a horn. The term 
prolonged blast means a blast of from four to six second's duration. The 
term short blast means a blast of about one second's duration.
    (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) Visual signals. Signal lights are displayed outside each lock 
gate to supplement the radio and sound signals. Vessels will be governed 
as follows:
    (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) Navigation lights on locks and dams. (1) The following 
navigation lights will be displayed at all locks except Norrell Lock and 
Lock No. 2 during hours of darkness and heavy fog.
    (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.

[[Page 59]]

    (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) Restricted areas at locks and dams. All waters immediately above 
and below each dam, as posted by the respective district engineers, are 
hereby designated as restricted areas. No vessel or other floating craft 
shall enter any such restricted area without permission of the 
lockmaster. The limits of the restricted areas at each dam will be 
determined by the responsible district engineer and marked by signs 
installed in conspicuous and appropriate locations.
    (n) Trespass on lock and dam property. (1) Trespass on locks or dams 
or other United States property pertaining to the locks or dams is 
strictly prohibited except in those areas specifically permitted by the 
lockmaster. Any person committing a willful injury to any United States 
property or personnel will be prosecuted.
    (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) Repair and construction of navigation structures. To avoid 
damage to plant and structures connected with the construction or repair 
of locks and dams, vessels passing structures in the process of 
construction or repair shall reduce their speed and navigate with 
special caution while in the vicinity of such work.
    (p) Reporting the navigation incidents. In furtherance of 
maintaining navigation safety the following rules are prescribed for all 
navigation interests:
    (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

[[Page 60]]

vessels involved; the time and place; and the action taken. In all 
cases, the owner of a sunken vessel shall take immediate steps to mark 
the wreck properly.
    (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) Liability for damage. This section shall not affect the 
liability of the owners and operators of vessels for any damage caused 
by their operations. Should any Government property be damaged as the 
result of the operation of a vessel, the master of the vessel shall 
report the accident to the nearest lockmaster or the appropriate 
district engineer.
    (s) Persistent violation of regulations. If the owner or operator of 
any vessel persistently violates the regulations of this section or any 
orders given in pursuance thereof, after due notice of same, lockage may 
be refused by the district engineer. The lockmaster may refuse lockage 
if deemed necessary to protect government property in the vicinity of 
the lock.
    (t) Vessels to carry regulations. A copy of these regulations shall 
be kept at all times on board each commercial vessel engaged in 
navigating the waterway. Copies may be obtained from any lock or 
district engineer's office on request. Masters of such vessels are also 
required to have on board current copies of the navigation charts and 
applicable Notices to Navigation Interest.

[51 FR 30639, Aug. 28, 1986, as amended at 56 FR 13765, Apr. 4, 1991]



Sec. 207.300  Ohio River, Mississippi River above Cairo, Ill., and their
tributaries; use, administration, and navigation.

    (a) Authority of lockmasters--(1) Locks staffed with Government 
personnel. The provisions of this paragraph apply to all waterways in 
this section except for Cordell Hull Lock located at Mile 313.5 on the 
Cumberland River in Tennessee. The lockmaster shall be charged with the 
immediate control and management of the lock, and of the area set aside 
as the lock area, including the lock approach channels. He/she shall see 
that all laws, rules, and regulations for the use of the lock and lock 
area are duly complied with, to which end he/she is authorized to give 
all necessary orders and directions in accordance therewith, both to 
employees of the government and to any and every person within the 
limits of the lock and lock area, whether navigating the lock or not. No 
one shall cause any movement of any vessel, boat, or other floating 
thing in the lock or approaches except by or under the direction of the 
lockmaster or his/her assistants. In the event of an emergency, the 
lockmaster may depart from these regulations as he deems necessary. The 
lockmasters shall also be charged with the control and management of 
federally constructed mooring facilities.
    (2) Locks staffed with contract personnel. The provisions of this 
paragraph apply to Cordell Hull Lock located at Mile 313.5 on the 
Cumberland River in Tennessee. Contract personnel shall give all 
necessary orders and directions for operation of the lock. No one shall 
cause any movement of any vessel, boat or other floating thing in the 
locks or approaches except by or under the direction of the contract 
lock operator. All duties and responsibilities of the lockmaster set 
forth in this section shall be performed by the contract lock operator 
except that responsibility for enforcing all laws, rules, and 
regulations shall be vested in a government employee designated by the 
Nashville District Engineer. The district engineer will notify waterway 
users and the general public through appropriate notices and media 
concerning the location and identity of the designated government 
employee.

[[Page 61]]

    (b) Safety rules for vessels using navigation locks. The following 
safety rules are hereby prescribed for vessels in the locking process, 
including the act of approaching or departing a lock:
    (1) Tows with flammable or hazardous cargo barges, loaded or empty. 
(i) Stripping barges or transferring cargo is prohibited.
    (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) All vessels. (i) Leaking vessels may be excluded from locks 
until they have been repaired to the satisfaction of the lockmaster.
    (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) Reporting of navigation incidents. In furtherance of increased 
safety on waterways the following safety rules are hereby prescribed for 
all navigation interests:
    (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) Precedence at locks. (1) The vessel arriving first at a lock 
shall normally be first to lock through, but precedence shall be given 
to vessels belonging to the United States. Licensed commercial passenger 
vessels operating on a published schedule or regularly operating in the 
``for hire'' trade shall have precedence over cargo tows and like craft. 
Commercial cargo tows shall have precedence over recreational craft, 
except as described in paragraph (f) of this section.
    (2) Arrival posts or markers may be established ashore above and/or 
below

[[Page 62]]

the locks. Vessels arriving at or opposite such posts or markers will be 
considered as having arrived at the locks within the meaning of this 
paragraph. Precedence may be established visually or by radio 
communication. The lockmaster may prescribe such departure from the 
normal order of precedence as in his judgment is warranted to achieve 
best lock utilization.
    (e) Unnecessary delay at locks. 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 signalled 
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. This is not meant to curtail ``jackknifing'' or set-
overs where normally practiced.
    (f) Lockage of recreational craft. In order to fully utilize the 
capacity of the lock, the lockage of recreational craft shall be 
expedited by locking them through with commercial craft: Provided, That 
both parties agree to joint use of the chamber. When recreational craft 
are locked simultaneously with commercial tows, the lockmaster will 
direct, whenever practicable, that the recreational craft enter the lock 
and depart while the tow is secured in the lock. Recreational craft will 
not be locked through with vessels carrying volatile cargoes or other 
substances likely to emit toxic or explosive vapors. If the lockage of 
recreational craft cannot be accomplished within the time required for 
three other lockages, a separate lockage of recreational craft shall be 
made. Recreational craft operators are advised that many locks have a 
pull chain located at each end of the lock which signals the lockmaster 
that lockage is desired. Furthermore, many Mississippi River locks 
utilize a strobe light at the lock to signal recreational type vessels 
that the lock is ready for entry. Such lights are used exclusively to 
signal recreational craft.
    (g) Simultaneous lockage of tows with dangerous cargoes. 
Simultaneous lockage of other tows with tows carrying dangerous cargoes 
or containing flammable vapors normally will only be permitted when 
there is agreement between the lockmaster and both vessel masters that 
the simultaneous lockage can be executed safely. He shall make a 
separate decision each time such action seems safe and appropriate, 
provided:
    (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) Stations while awaiting a lockage. Vessels awaiting their turn 
to lock shall remain sufficiently clear of the structure to allow 
unobstructed departure for the vessel leaving the lock. However, to the 
extent practicable under the prevailing conditions, vessels and tows 
shall position themselves so as to minimize approach time when signaled 
to do so.
    (i) Stations while awaiting access through navigable pass. When 
navigable dams are up or are in the process of being raised or lowered, 
vessels desiring to use the pass shall wait outside the limits of the 
approach points unless authorized otherwise by the lockmaster.
    (j) Signals. Signals from vessels shall ordinarily be by whistle; 
signals from locks to vessels shall be by whistle, another sound device, 
or visual means. when a whistle is used, long blasts of the whistle 
shall not exceed 10 seconds and short blasts of the whistle shall not 
exceed 3 seconds. Where a lock is not provided with a sound or visual 
signal installation, the lockmaster will indicate by voice or by the 
wave of a hand when the vessel may enter or leave the lock. Vessels must 
approach the locks with caution and shall not enter nor leave the lock 
until signaled to do so by the lockmaster. The following lockage signals 
are prescribed:
    (1) Sound signals by means of a whistle. These signals apply at 
either a single lock or twin locks.
    (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;
    (a) If a single lockage only is required: One long blast of the 
whistle followed by one short blast.

[[Page 63]]

    (b) If a double lockage is required: One long blast of the whistle 
followed by two short blasts.
    (ii) When the lock is ready for entrance, the lock will give the 
following signals:
    (a) One long blast of the whistle indicates permission to enter the 
lock chamber in the case of a single lock or to enter the landward 
chamber in the case of twin locks.
    (b) Two long blasts of the whistle indicates permission to enter the 
riverward chamber in the case of twin locks.
    (iii) Permission to leave the locks will be indicated by the 
following signals given by the lock:
    (a) One short blast of the whistle indicates permission to leave the 
lock chamber in the case of a single lock or to leave the landward 
chamber in the case of twin locks.
    (b) Two short blasts of the whistle indicates permission to leave 
the riverward chamber in the case of twin locks.
    (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) Lock signal lights. At locks where density of traffic or other 
local conditions make it advisable, the sound signals from the lock will 
be supplemented by signal lights. Flashing lights (showing a one-second 
flash followed by a two-second eclipse) will be located on or near each 
end of the land wall to control use of a single lock or of the landward 
lock of double locks. In addition, at double locks, interrupted flashing 
lights (showing a one-second flash, a one-second eclipse and a one-
second flash, followed by a three-second eclipse) will be located on or 
near each end of the intermediate wall to control use of the riverward 
lock. Navigation will be governed as follows:
    (i) Red light. Lock cannot be made ready immediately. Vessel shall 
stand clear.
    (ii) Amber light. Lock is being made ready. Vessel may approach but 
under full control.
    (iii) Green light. Lock is ready for entrance.
    (iv) Green and amber. Lock is ready for entrance but gates cannot be 
recessed completely. Vessel may enter under full control and with 
extreme caution.
    (3) Radio communications. VHF-FM radios, operating in the FCC 
authorized Maritime Band, have been installed at all operational locks 
(except those on the Kentucky River and Lock 3, Green River). Radio 
contact may be made by any vessel desiring passage. Commercial tows are 
especially requested to make contact at least one half hour before 
arrival in order that the pilot may be informed of current river and 
traffic conditions that may affect the safe passage of his tow.
    (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) Rafts. Rafts to be locked through shall be moored in such manner 
as not to obstruct the entrance of the lock, and if to be locked in 
sections, shall be brought to the lock as directed by the lockmaster. 
After passing the lock the sections shall be reassembled at such 
distance beyond the lock as not to interfere with other vessels.
    (l) Entrance to and exit from locks. In case two or more boats or 
tows are to enter for the same lockage, their order of entry shall be 
determined by the lockmaster. Except as directed by the lockmaster, no 
boat shall pass another in the lock. In no case will boats be

[[Page 64]]

permitted to enter or leave the locks until directed to do so by the 
lockmaster. The sides of all craft passing through any lock shall be 
free from projections of any kind which might injure the lock walls. All 
vessels shall be provided with suitable fenders, and shall be used to 
protect the lock and guide walls until it has cleared the lock and guide 
walls.
    (m) Mooring--(1) At locks. (i) All vessels when in the locks shall 
be moored as directed by the lockmaster. Vessels shall be moored with 
bow and stern lines leading in opposite directions to prevent the vessel 
from ``running'' in the lock. All vessels will have one additional line 
available on the head of the tow for emergency use. The pilothouse shall 
be attended by qualified personnel during the entire locking procedure. 
When the vessel is securely moored, the pilot shall not cause movement 
of the propellers except in emergency or unless directed by the 
lockmaster. Tying to lock ladders is strictly prohibited.
    (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) Outside of locks. (i) No vessel or other craft shall regularly 
or permanently moor in any reach of a navigation channel. The 
approximate centerline of such channels are marked as the sailing line 
on Corps of Engineers' navigation charts. Nor shall any floating craft, 
except in an emergency, moor in any narrow or hazardous section of the 
waterway. Furthermore, all vessels or other craft are prohibited from 
regularly or permanently mooring in any section of navigable waterways 
which are congested with commercial facilities or traffic unless it is 
moored at facilities approved by the Secretary of the Army or his 
authorized representative. The limits of the congested areas shall be 
marked on Corps of Engineers' navigation charts. However, the District 
Engineer may authorize in writing exceptions to any of the above if, in 
his judgment, such mooring would not adversely affect navigation and 
anchorage.
    (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) Draft of vessels. No vessel shall attempt to enter a lock unless 
its draft is at least three inches less than the least depth of water 
over the guard sills, or over the gate sills if there be no guard 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.
    (o) Handling machinery. No one but employees of the United States 
shall move any lock machinery except as directed by the lockmaster. 
Tampering or meddling with the machinery or other parts of the lock is 
strictly forbidden.
    (p) Refuse in locks. Placing or discharging refuse of any 
description into the lock, on lock walls or esplanade, canal or canal 
bank is prohibited.
    (q) Damage to locks or other work. To avoid damage to plant and 
structures connected with the construction or repair of locks and dams, 
vessels passing

[[Page 65]]

structures in the process of construction or repair shall reduce their 
speed and navigate with special caution while in the vicinity of such 
work. The restrictions and admonitions contained in these regulations 
shall not affect the liability of the owners and operators of floating 
craft for any damage to locks or other structures caused by the 
operation of such craft.
    (r) Trespass of lock property. Trespass on locks or dams or other 
U.S. property pertaining to the locks or dams is strictly prohibited 
except in those areas specifically permitted. Parties committing any 
injury to the locks or dams or to any part thereof will be responsible 
therefor. Any person committing a willful injury to any U.S. property 
will be prosecuted. No fishing will be permitted from lock walls, guide 
walls, or guard walls of any lock or from any dam, except in areas 
designated and posted by the responsible District Engineer as fishing 
areas. Personnel from commercial and recreational craft will be allowed 
on the lock structure for legitimate business reasons; e.g., crew 
changes, emergency phone calls, etc.
    (s) Restricted areas at locks and dams. All waters immediately above 
and below each dam, as posted by the respective District Engineers, are 
hereby designated as restricted areas. No vessel or other floating craft 
shall enter any such restricted area at any time. The limits of the 
restricted areas at each dam will be determined by the responsible 
District Engineer and market by signs and/or flashing red lights 
installed in conspicuous and appropriate places.
    (t) [Reserved]
    (u) Operations during high water and floods in designated vulnerable 
areas. Vessels operating on these waters during periods when river 
stages exceed the level of ``ordinary high water,'' as designated on 
Corps of Engineers' navigation charts, shall exercise reasonable care to 
minimize the effects of their bow waves and propeller washes on river 
banks; submerged or partially submerged structures or habitations; 
terrestrial growth such as trees and bushes; and man-made amenities that 
may be present. Vessels shall operate carefully when passing close to 
levees and other flood protection works, and shall observe minimum 
distances from banks which may be prescribed from time to time in 
Notices to Navigation Interests. Pilots should exercise particular care 
not to direct propeller wash at river banks, levees, revetments, 
structures or other appurtenances subject to damage from wave action.
    (v) Navigation lights for use at all locks and dams except on the 
Kentucky River and Lock 3, Green River. (1) At locks at all fixed dams 
and at locks at all movable dams when the dams are up so that there is 
no navigable pass through the dam, the following navigation lights will 
be displayed during hours of darkness:
    (i) Three green lights visible through an arc of 360[deg] 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[deg] 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[deg] 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[deg] arranged in 
a vertical line on the upstream end of the river (guard) wall.
    (ii) Two red lights visible through an arc of 360[deg] 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[deg] on each 
end (upstream and downstream) of the land (guide) wall.

[[Page 66]]

    (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[deg] 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) Navigation lights for use at locks and dams on the Kentucky 
River and Lock 3, Green River. A single red light visible through an arc 
of 360[deg] shall be displayed during hours of darkness at each end of 
the river wall or extending guard structures until these structures are 
awash.
    (x) Buoys at movable dams. (1) Whenever the river (guard) wall of 
the lock and any portion of the dam are awash, and until covered by a 
depth of water equal to the project depth, the limits of the navigable 
pass through the dam will be marked by buoys located at the upstream and 
downstream ends of the river (guard) wall, and by a single buoy over the 
end or ends of the portion or portions of the dam adjacent to the 
navigable pass over which project depth is not available. A red nun-type 
buoy will be used for such structures located on the left-hand side 
(facing downstream) of the river and a black can-type buoy for such 
structures located on the right-hand side. Buoys will be lighted, if 
practicable.
    (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) Vessels to carry regulations. A copy of these regulations shall 
be kept at all times on board each vessel regularly engaged in 
navigating the rivers to which these regulations apply. Copies may be 
obtained from any lock office or District Engineer's office on request. 
Masters of such vessels are encouraged to have on board copies of the 
current edition of appropriate navigation charts.

                                  Notes

    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.

[[Page 67]]

    9. Operation of the Illinois and Michigan Canal has been 
discontinued.

[40 FR 32121, July 31, 1975, as amended at 50 FR 37580, Sept. 18, 1985; 
56 FR 13765, Apr. 4, 1991]



Sec. 207.306  Missouri River; administration and navigation.

    (a) [Reserved]
    (b) General. The regulations in this section shall implement those 
contained in paragraph(s) of Sec. 207.300.

[33 FR 17242, Nov. 21, 1968; 42 FR 57962, Nov. 7, 1977]



Sec. 207.310  Mississippi River at Keokuk, Iowa; operation of power dam
by Mississippi River Power Co.

    (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:

    Sec. 2. That the withdrawal of water from the Mississippi River and 
the discharge of water into the said river, for the purpose of operating 
the said power stations and appurtenant works, shall be under the 
direction and control of the Secretary of War, and shall at no time be 
such as to impede or interfere with the safe and convenient navigation 
of the said river by means of steamboats or other vessels or by rafts or 
barges. * * * (33 Stat. 713)

    (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.

[Regs., Jan. 12, 1918]



Sec. 207.320  Mississippi River, Twin City Locks and Dam, St. Paul and
Minneapolis, Minn.; pool level.

    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

[[Page 68]]

(Cairo datum), except after loss or lowering of flashboards and before 
replacement or raising of same, during the navigation season; nor below 
elevation 743.3 during the period when the river is closed to 
navigation. The variation of pool level shall not exceed 0.5 foot per 
day whenever the pool is below elevation 745.5, and in addition, during 
the period when the river is closed to navigation, the maximum rate of 
such variation shall not exceed 0.1 foot per hour; except that during 
the navigation season, increases in pool level at rates greater than 
that specified may be made to eliminate wasting of water during an 
increase in river flow.
    (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.

[Regs., Feb. 24, 1938]



Sec. 207.330  Mississippi River between Winnibigoshish and Pokegama dams, 
Leech River between outlet of Leech Lake and Mississippi River, and Pokegama 

          reservoir; logging.

    (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.

[Regs., Mar. 5, 1915]



Sec. 207.340  Reservoirs at headwaters of the Mississippi River;
use and administration.

    (a) Description. These reservoirs include Winnibigoshish, Leech 
Lake, Pokegama, Sandy Lake, Pine River and Gull Lake.
    (b) Penalties. The River and Harbor Act approved August 11, 1888 (25 
Stat. 419, 33 U.S.C. 601) includes the following provisions as to the 
administration of the headwater reservoirs:

    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

[[Page 69]]

conspicuous place or places for the information of the public. And any 
person knowingly and willfully violating such rules and regulations 
shall be liable to a fine not exceeding five hundred dollars, or 
imprisonment not exceeding six months, the same to be enforced by 
prosecution in any district court of the United States within whose 
territorial jurisdiction such offense may have been committed.

    (c) Previous regulations now revoked. In accordance with the above 
act, the Secretary of War prescribed regulations for the use and 
administration of the reservoirs at the headwaters of the Mississippi 
River under date of February 11, 1931, which together with all 
subsequent amendments are hereby revoked and the following substituted 
therefor.
    (d) Authority of officer in charge of the reservoirs. The 
accumulation of water in, and discharge of water from the reservoirs, 
including that from one reservoir to another, shall be under the 
direction of the U.S. District Engineer, St. Paul, Minnesota, and of his 
authorized agents subject to the following restrictions and 
considerations:
    (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:

Winnibigoshish, 150 cubic feet per second.
Leech Lake, 70 cubic feet per second.
Pokegama, 200 cubic feet per second.
Sandy Lake, 80 cubic feet per second.
Pine River, 90 cubic feet per second.
Gull Lake, 30 cubic feet per second.

    (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:

Winnebigoshish...................................................    6.0
Leech Lake.......................................................    0.0
Pokegama.........................................................    6.0
Sandy Lake.......................................................    7.0
Pine River.......................................................    9.0
Gull Lake........................................................    5.0
 

    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) Passage of logs and other floating bodies. Logs and other 
floating bodies may be sluiced or locked through the dams, but prior 
authority for the sluicing of logs must be obtained from the District 
Engineer when this operation necessitates a material change in 
discharge.
    (f) Obstructions to flow of water. No person shall place floating 
bodies in a stream or pond above or below a reservoir dam when, in the 
opinion of the

[[Page 70]]

officer in charge, such act would prevent the necessary flow of water to 
or from such dam, or in any way injure the dam and its appurtenances, 
its dikes and embankments; and should floating bodies lying above or 
below a dam constitute at any time an obstruction or menace as 
beforesaid, the owners of said floating bodies will be required to 
remove them immediately.
    (g) Trespass. No one shall trespass on any reservoir dam, dike, 
embankment or upon any property pertaining thereto.

[Regs., Feb. 4, 1936, as amended at 10 FR 414, Jan. 10, 1945]



Sec. 207.350  St. Croix River, Wis. and Minn.

    (a) Logging regulations for river above Lake St. Croix. (1) During 
the season of navigation from May 1 to September 30, the full natural 
run of water in the river shall be permitted to flow between 1 a.m. on 
Thursday and 4 p.m. on Sunday of each week, and during the time between 
1 p.m. on Wednesday and 4 p.m. on Sunday of each week no logs shall be 
sluiced into the river between St. Croix Falls, Wis., and Stillwater, 
Minn.
    (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) Power dam at Taylors Falls. (1) That between April 1 and October 
31, whenever the natural river flow exceeds 1,600 feet per second, the 
reduced flow shall be not less than 1,600 feet per second, and that 
whenever the natural flow be less than 1,600 feet per second, then the 
reduced flow shall not be less than such natural flow: Provided, That 
the District Engineer in charge of the locality may vary these 
requirements temporarily, as the interests of navigation, in his 
judgment, require, prompt report of his action in such instances to be 
made to the Chief of Engineers.
    (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.

[Regs., Apr. 20, 1907, Apr. 10, 1931, as amended at 25 FR 8908, Sept. 
16, 1960]



Sec. 207.360  Rainy River, Minn.; logging regulations for portions of 
river within jurisdiction of the United States.

    (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: 
Provided, A sufficient channel for safe navigation by boats is 
maintained between 7:00 a.m. and 11:00 p.m. from the opening of 
navigation to September 15th; between 8:00 a.m. and 11:00 p.m. from 
September 16th to October 31st; and between 9:00 a.m. and 11:00 p.m. 
from November 1st to the close of navigation.
    (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

[[Page 71]]

interfere with the general navigation of the river or with the 
approaches to regular boat landings.

[Regs., Nov. 6, 1935, as amended at 25 FR 8908, Sept. 16, 1960]



Sec. 207.370  Big Fork River, Minn.; logging.

    (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: Provided, A 
sufficient channel is maintained at all times for the navigation of 
steamboats, flatboats, and other small craft.
    (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.

[Regs., Feb. 24, 1905]



Sec. 207.380  Red Lake River, Minn.; logging regulations for portion of river 
above Thief River Falls.

    (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.

[Regs., Feb. 24, 1905]



Sec. 207.390  [Reserved]



Sec. 207.420  Chicago River, Ill.; Sanitary District controlling works,
and the use, administration, and navigation of the lock at the mouth 

of river, Chicago   Harbor.

    (a) Controlling works. The controlling works shall be so operated 
that the water level in the Chicago River will be maintained at a level 
lower than that of the lake, except in times of excessive storm run-off 
into the river or when the level of the lake is below minus 2 feet, 
Chicago City Datum.
    (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) Lock--(1) Operation. The lock shall be operated by the 
Metropolitan Sanitary District of Chicago under the general supervision 
of the U.S. District Engineer, Chicago, Illinois. The lock gates shall 
be kept in the closed position at all times except for the passage of 
navigation.
    (2) Description of lock.

------------------------------------------------------------------------
                                                                  Feet
------------------------------------------------------------------------
Clear length..................................................       600
Clear width...................................................        80
Depth over sills..............................................  \1\ 24.4
------------------------------------------------------------------------
\1\ This depth is below Chicago City Datum which is the zero of the
  gages mounted on the lock. The clear depth below Low Water Datum for
  Lake Michigan, which is the plane of reference for U. S. Lake Survey
  Charts, is 23.0 feet.


The east end of the northeast guide wall shall be marked by an 
intermittent red light, and by a traffic light showing a fixed red or 
fixed green light. The west end of the northwest gate block shall be 
marked by a traffic light showing a fixed red or fixed green light. The 
east end of the southeast guide wall and the west end of the southwest 
guide wall shall be marked by an intermittent white light.

[[Page 72]]

    (3) Authority of lockmasters. The lockmaster shall be charged with 
the immediate control and management of the lock, and of the area set 
aside as the lock area, including the lock approach channels. He shall 
see that all laws, rules and regulations for the use of the lock and 
lock area are duly complied with, to which end he is authorized to give 
all necessary orders and directions in accordance therewith, both to 
employees of the Government and to any and every person within the 
limits of the lock or lock area, whether navigating the lock or not. No 
one shall cause any movement of any vessel, boat, or other floating 
thing in the lock or approaches except by or under the direction of the 
lockmaster or his assistants.
    (4) Signals. (i) Signals from vessels for lockage shall be by 
whistle, horn or by idling or standing near the ends of the lock guide 
walls. Signals from the lockmaster shall be by the traffic light and 
horn and/or by voice with or without electrical amplification. In case 
of emergency, the lockmaster may signal the vessel by wave of hand or 
lantern, and the signals thus given shall have the same weight as though 
given by visual or sound devices at the lock. Vessels must approach the 
lock with caution and shall not enter or leave the lock until signaled 
to do so by the lockmaster. The following lockage signals and duration 
of sound signals are prescribed. A long blast shall be of 4 second 
duration; a short blast shall be of 1 second duration.
    (a) Vessel signals. Inbound vessels at a distance of not more than 
4,000 feet from the lock and outbound vessels immediately after crossing 
under the Lake Shore Drive bridge shall signal for lockage by 2 long and 
2 short blasts of a whistle or horn.
    (b) Lock signals. (1) When the lock is ready for entrance, the 
traffic light will show green, and vessels under 500 gross tons shall 
come ahead under caution and enter the lock; vessels of 500 gross tons 
or more shall come to a stop along the guide wall, as prescribed in 
paragraph (b)(5) of this section. Should the traffic light be out of 
order or be invisible due to thick weather, vessels shall upon 1 long 
blast of the lock horn approach and moor to the south guide wall or 
continue into the lock if so directed by the lockmaster.
    (2) When the lock is not ready for entrance, the traffic light will 
show red, and vessels shall not pass beyond the end of the south guide 
wall: Provided, however, That vessels may approach and moor to said wall 
if authorized by 1 long blast of the lock horn.
    (3) Permission to leave the lock shall be indicated by 1 short blast 
of the lock horn.
    (4) Caution or danger will be indicated by 4 or more flashes of the 
red traffic light or 4 or more short blasts of the lock horn delivered 
in rapid succession.
    (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) Stop before entering. All vessels or tows of 500 gross tons or 
more shall come to a full stop at the point indicated by the sign 
reading ``Stop'' on the south guide wall and shall not proceed into the 
lock until so directed by the lockmaster.
    (6) Maximum draft. Vessels drawing within 6 inches of the depth over 
the sills shall not be permitted lockage except under special permission 
from the lockmaster.
    (7) Precedence at locks. The vessel arriving first at a lock shall 
be first to lock through; but precedence shall be given to vessels 
belonging to the United States and to commercial vessels in the order 
named. Arrival posts or markers may be established ashore above or below 
the locks. Vessels arriving at or opposite such posts or markers will be 
considered as having arrived at the locks within the meaning of this 
paragraph.
    (8) Lockage of pleasure boats. 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,

[[Page 73]]

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.
    (9) Speed of approach and departure. Vessels of 500 gross tons or 
more when approaching the lock shall navigate at a speed not exceeding 2 
miles per hour, and when leaving the lock shall navigate at a speed not 
exceeding 6 miles per hour. While entering or leaving the lock, the 
propellers of vessels of 500 gross tons or more shall be operated at 
slow speed so as not to undermine or injure the concrete paving on the 
bottom of the lock chamber. Tugs assisting vessels in lockage, and Coast 
Guard and fire vessels, may navigate at a higher speed when authorized 
by the lockmaster. Vessels of less than 500 gross tons shall operate at 
reasonable speed.
    (10) Mooring. (i) Vessels shall be moored in the lock or along its 
approach walls in such manner as may be directed by the lockmaster. 
Tying to lock ladders, lamp standards, or railings is strictly 
prohibited. Commercial vessels and tows of 500 gross tons or more shall, 
in general, have at least one line out when entering the lock and shall 
be moored in the lock with two bow and two stern lines, which shall lead 
forward and aft at each end of the vessel or tow. When the gates are 
closed, commercial vessels shall not be permitted to work their wheels. 
Said vessels shall have at least two seamen ashore to handle the mooring 
lines while they are in the lock.
    (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) Unnecessary delay at lock. Masters and pilots must use every 
precaution to prevent unnecessary delay in entering of leaving the lock. 
Vessels failing to enter lock with reasonable promptness, when signaled 
to do so, shall lose their turn. Vessels arriving at the lock with their 
tows in such shape so as to impede lockage, shall lose their turn.
    (13) Depositing refuse prohibited. The depositing of ashes or refuse 
matter of any kind in the lock; the passing of coal from barges or flats 
while in the lock; and the emission of dense smoke from any vessel while 
passing through the lock, is forbidden.
    (14) Vessels denied lockage. The lockmaster may deny the privilege 
of passage through the lock to any vessel with sharp or rough projecting 
surfaces of any kind, or overhanging rigging, or any vessel which is 
badly leaking or in a sinking condition.
    (15) Fenders. All barges and oil tankers must be provided with 
suitable nonmetallic fenders so as to eliminate damage to the lock or 
approach walls and reduce fire hazard. Said fenders shall be used as may 
be directed by the lockmaster.
    (16) Operating machinery. Lock employees only shall be permitted to 
operate the lock gates, valves, signals or other appliances. Tampering 
or meddling with machinery or other parts of the lock is strictly 
forbidden.
    (17) [Reserved]
    (18) Vessels to carry regulations. A copy of the regulations in this 
section shall be kept at all times on board each vessel regularly 
engaged in navigating this lock. Copies may be obtained without charge 
from the lockmaster.
    (19) Failure to comply with regulations. Any vessel failing to 
comply with this section or any orders given in pursuance thereof, may 
in the discretion of the lockmaster be denied the privilege of passage 
through or other use of the lock or appurtenant structures.

[3 FR 2139, Sept. 1, 1938, as amended at 25 FR 8908, Sept. 16, 1960; 26 
FR 354, Jan. 18, 1961; 44 FR 67657, Nov. 27, 1979; 56 FR 13765, Apr. 4, 
1991]



Sec. 207.425  Calumet River, Ill.; Thomas J. O'Brien Lock and Controlling Works and the use, administration and navigation of the lock.

    (a) Controlling Works. (1) The controlling works shall be so 
operated that the water level at the downstream end of the lock will be 
maintained at a level lower than that of Lake Michigan, except in times 
of excessive storm

[[Page 74]]

run-off into the Illinois Waterway, or when the lake level is below 
minus 2 feet, Chicago City Datum.
    (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) Lock--(1) Operation. The Thomas J. O'Brien Lock and Dam is part 
of the Illinois Waterway which is a tributary of the Mississippi River. 
All rules and regulations defined in Sec. 207.300, Ohio River, 
Mississippi River above Cairo, Illinois, and their tributaries; use, 
administration and navigation shall apply.

[40 FR 57358, Dec. 9, 1975]



Sec. 207.440  St. Marys Falls Canal and Locks, Mich.; use, administration, and navigation.

    (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.
    Note: 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) Approach requirements. Upon approaching the canal, vessel 
masters shall request lock dispatch by radiotelephone to the Corps of 
Engineers Chief Lockmaster at St. Marys Falls Canal dispatch tower 
(Radio Call WUE-21). Every up bound vessel requiring lock transit shall 
request lock dispatch immediately before initiating the turn at Mission 
Point at the intersection of Course 1, Bayfield Channel, and Course 2, 
Little Rapids Cut. Every down bound vessel shall call when approximately 
one-half mile downstream from Big Point.
    (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) Manning requirements. On all vessels of 400 gross tons or 
over navigating the canal under their own power, the following ship's 
personnel shall be on duty. In the pilot house, on the bridge, the 
master. One mate and one able seaman shall be on watch and available to 
assist; in the engine room, the engineering watch officer. The chief 
engineer shall be available to assist. During transit of the locks, all 
vessels of 400 gross tons or over equipped with power operated mooring 
deck winches shall have, in addition to the winch operators, mates or 
signalman at the forward and after ends of the vessel to direct 
operations from points providing maximum vision of both the winch 
operators and canal linesmen.
    (2) Linehandlers--(i) Cargo vessels equipped with bow thrusters and 
friction winches. Two line handlers from the vessel are required on the 
piers under normal weather conditions. Lockmasters can ask for three 
persons under severe weather conditions. If a vessel is experiencing 
mechanical problems or in extreme severe weather situations, the 
lockmaster may require four vessel-supplied line handlers on the pier.
    (ii) Vessels with non-friction winches or lack of both bow and stern 
thrusters.

[[Page 75]]

Four vessel-supplied line handlers are required on the pier at all 
times.
    (f) Vessel restrictions--(1) Speed limits. Within the limits of the 
canal, vessels approaching the locks shall not navigate at a speed 
greater than 2\1/2\ miles per hour, and vessels leaving the locks shall 
not navigate at a speed greater than 6 miles per hour. Tugs assisting 
vessels in passing through the locks may be authorized by the District 
Engineer or his authorized agents to navigate at a higher speed when 
considered necessary to expedite canal operations.
    (2) Use of bow/stern thrusters. Bow and/or stern thruster use shall 
be kept to a minimum while transiting the Soo Locks. Thrusters shall not 
be used while the thrusters are opposite lock gates. They may be used 
sparingly for short durations within the lock to maintain the ship 
position near the mooring wall or in an emergency. Thrusters shall be at 
zero thrust during the period the ship is stopped and moored to the wall 
with all lines out, and during raising and lowering of pool levels 
within the chamber.
    (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) Vessel lockage order--(1) Arrival. All registered vessels will 
be passed through the locks in the order of their arrival at the 
dispatch point unless otherwise directed by the District Engineer or his 
authorized agents. When a vessel that has stopped on its own business is 
ready to proceed, it is not entitled to precedence over other vessels 
already dispatched.
    (2) Departure. The following order of departure procedure will apply 
to vessels leaving the MacArthur Lock and Poe Lock simultaneously or at 
approximately the same time:
    (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

[[Page 76]]

or canal, or the emission of dense smoke from the stack of any vessel 
while passing through the locks, is forbidden.
    (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) Tug assist procedure--(1) Self-powered vessels. Mariners are 
advised that often times adverse local weather conditions, i.e., high 
winds, current conditions and/or inclement weather, exists as vessels 
approach, enter and/or depart the Soo Locks. These conditions combined 
with close quarters slow speed maneuvering, particularly with large 
vessels not equipped with bow or stern thrusters, may cause control 
difficulties for certain classes of vessels. Therefore, any vessel 
requesting lockage which in the opinion of the vessel master in 
consultation with the pilot on board, where applicable may experience 
severe control problems due to the above conditions, must request 
assistance by one or more tugs to ensure full control over the vessel at 
all times. Vessel masters and pilots must consult with the lockmaster 
concerning local conditions well in advance of arrival at the lock to 
allow tug assistance to be arranged if necessary. These guidelines apply 
to all vessels.
    (2) Non self-powered vessels. All barges or other vessels navigating 
within the canal and not operating under their own power, whether 
approaching or leaving the locks, are required to be assisted by one or 
more tugs of sufficient power to ensure full control at all times.
    (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) Opening date. At least one lock will be placed in operation for 
the passage of vessels on March 25. Thereafter, additional locks will be 
placed in operation as traffic density demands.
    (2) Closing date. The locks will be maintained in operation only for 
the passage of down bound vessels departing from a Lake Superior port 
before midnight (2400 hours) of January 14, and of upbound vessels 
passing Detour before midnight (2400 hours) of January 15. Vessel owners 
are requested to report in advance to the Engineer in charge at Sault 
Ste. Marie, the name of vessel and time of departure from a Lake 
Superior port on January 14 before midnight, and of vessels passing 
Detour on January 15 before midnight, which may necessitate the 
continued operation of a lock to permit passage of vessel.
    (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

[[Page 77]]

provided in paragraph (v)(1) of this section. Further, any vessel of 
greater length than 600 feet must be equipped with deck winches adequate 
to safely control the vessel in the lock under all conditions including 
that of power failure.
    (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.

[10 FR 14451, Nov. 27, 1945, as amended at 21 FR 8285, Oct. 30, 1956; 22 
FR 401, Jan. 19, 1957; 22 FR 864, Feb. 12, 1957; 31 FR 4346, Mar. 12, 
1966; 34 FR 18458, Nov. 20, 1969; 40 FR 8347, Feb. 27, 1975; 40 FR 
20818, May 13, 1975; 42 FR 6582, Feb. 3, 1977; 42 FR 12172, Mar. 3, 
1977; 57 FR 10245, Mar. 24, 1992; 61 FR 55572, Oct. 28, 1996; 64 FR 
69403, Dec. 13, 1999]



Sec. 207.441  St. Marys Falls Canal and Locks, Mich.; security.

    (a) Purpose and scope of the regulations. The regulations in this 
section are prescribed as protective measures. They supplement the 
general regulations contained in Sec. 207.440 the provisions of which 
shall remain in full force and effect except as modified by this 
section.
    (b) Restrictions on transit of vessels. The following classes of 
vessels will not be permitted to transit the U.S. locks or enter any of 
the United States approach canals:
    (1)-(3) [Reserved]
    (4) Tanker vessels--(i) Hazardous material. Cleaning and gas freeing 
of tanks on all hazardous material cargo vessels (as defined in 49 CFR 
part 171) shall not take place in a lock or any part of the Soo Locks 
approach canals from the outer end of the east center pier to the outer 
end of the southwest pier.
    (ii) Approaching. Whenever a tank vessel is approaching the Soo 
Locks and within the limits of the lock piers (outer ends of the 
southwest and east center piers) either above or below the locks, no 
other vessel will be released from the locks in the direction of the 
approaching tank vessel, unless the tank vessel is certified gas free or 
is carrying non-combustible products, until the tank vessel is within 
the lock chamber or securely moored to the approach pier. Whenever a 
tank vessel is within a Soo Lock Chamber, the tank vessel, unless 
certified gas free or is carrying non-combustible products, will not be 
released from the lock until the channel within the limits of the lock 
piers either above or below the lock, in the direction of the tank 
vessel, is clear of vessels or vessels therein are securely moored to 
the approach pier. This limits movement to a single vessel whenever a 
tank vessel is within the limits of the lock piers either above or below 
the locks, unless the tank vessel is certified gas free or is carrying 
non-combustible products. Tank vessels to which this paragraph 
(b)(4)(ii) applies include those vessels carrying fuel oil, gasoline, 
crude oil or other flammable liquids in bulk, including vessels that are 
not certified gas free where the previous cargo was one of these 
liquids.

[[Page 78]]

    (iii) Locks park. Except as provided in paragraph (b)(5) of this 
section, tankers with any type cargo will be permitted to transit the 
MacArthur Lock when the locks park is closed. The exact dates and times 
that the park is closed varies, but generally these periods are from 
midnight to 6 a.m. June through September with one or two hour closure 
extensions in the early and late seasons. Tankers carrying non-
combustible products that will not react hazardously with water or 
tankers that have been purged of gas or hazardous fumes and certified 
gas free will be allowed to transit the MacArthur Lock when the park is 
open.
    (5) Carrying explosives. All vessels, except U.S. vessels of war and 
public vessels as defined in 46 U.S.C. 2101, carrying explosives are 
prohibited from transiting the U.S. Locks.
    (c) Personnel restrictions. Masters of vessels are responsible for 
the conduct of crew and passengers while transiting St. Marys Falls 
Canal and Locks and for strict compliance with the regulations. The 
following procedures are established for the control of persons 
embarking or debarking from vessels while transiting the locks:
    (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) Personnel--(i) Embarking. Personnel, including technicians, 
repairmen, and company officials will be permitted to embark at the 
locks if they are in possession of a letter addressed to the Area 
Engineer, St. Marys Falls Canal, Sault Ste. Marie, Michigan, from the 
vessel's master, the operators of the vessel, or the Lake Carriers' 
Association, requesting that the individual named therein be permitted 
to embark on a particular vessel. United States vessel personnel must 
also be in possession of a specially validated seaman's document issued 
by the U.S. Coast Guard. Their papers will be presented to the civilian 
guard on duty at the main gate on Portage Avenue who will arrange escort 
from the gate to the vessel. Luggage will be subject to inspection.
    (ii) Debarking. The vessel master will furnish prior notification to 
the Chief Lockmaster at St. Marys Falls Canal Tower (Radio Call WUD-31) 
that he has vessel personnel, technicians, repairmen or company 
officials aboard for whom he requests authority to debark. If authority 
to debark is granted such personnel will be furnished a letter by the 
vessel master, addressed to the Area Engineer, St. Marys Falls Canal, 
Sault Ste. Marie, Michigan, giving the name and position of the 
individual concerned. Personnel will not debark until they have been 
properly identified by a licensed officer of the vessel and the letter 
furnished to the escort provided from the civilian guard detail who will 
escort personnel to the gate. In the event a person debarking for 
medical attention is a litter case, notification will be given 
sufficiently in advance to permit the Chief Lockmaster to route the 
vessel to the MacArthur Lock in order that the long carry over the lock 
gates may be avoided. The Area Engineer will make the necessary 
arrangements for clearance of ambulances and medical personnel into the 
lock area.
    (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

[[Page 79]]

requests therefor should be promptly directed to him.

[19 FR 1275, Mar. 6, 1954, as amended at 21 FR 10253, Dec. 20, 1956; 23 
FR 2300, Apr. 9, 1958; 24 FR 4562, June 4, 1959; 32 FR 10652, July 20, 
1967; 35 FR 7512, May 14, 1970; 37 FR 4194, Feb. 2, 1972; 41 FR 3291, 
Jan. 22, 1976; 66 FR 30063, June 5, 2001; 66 FR 31277, June 11, 2001]



Sec. 207.460  Fox River, Wis.

    (a) Use, administration and navigation of the locks and canals--(1) 
Navigation. The Fox River and Wolf River navigation seasons will 
commence and close as determined by the district engineer, Corps of 
Engineers, in charge of the locality, depending on conditions and need 
for lock service. Days and hours of lock operation will also be 
determined by the district engineer. Public notices will be issued 
announcing or revising the opening and closing dates and operating 
schedules at least 10 days in advance of such dates.
    (2) Authority of lockmaster. The movement of all boats, vessels, 
tows, rafts and floating things, both powered and nonpowered, in the 
canals and locks, approaches to the canals, and at or near the dams, 
shall be subject to the direction of the lockmaster or his duly 
authorized representatives in charge at the locks.
    (3) Signals. All boats approaching the locks shall signal for 
lockage by four distinct whistles of short duration. Locks will not be 
opened on such audible signal during the period when advance notice is 
required if the services of the lock tender are required elsewhere to 
meet prior requests for lockages.
    (4) Mooring in locks. All craft being locked shall be secured to the 
mooring posts on the lock walls. Large craft shall use one head line and 
at least one spring line. Lines shall remain fastened until the signal 
is given by the lock tender for the craft to leave the lock.
    (5) Delays in canals. No boat, barge, raft or other floating craft 
shall tie up or in any way obstruct the canals or approaches, or delay 
entering or leaving the locks, except by permission from proper 
authority. Boats wishing to tie up for some hours or days in the canals 
must notify the Project Engineer directly or through a lock tender, and 
proper orders on the case will be given. Boats so using the canals must 
be securely moored in the places assigned, and if not removed promptly 
on due notice, will be removed, as directed by the Project Engineer at 
the owner's expense. Boats desiring to tie up in the canals for the 
purpose of unloading cargoes over the canal banks must, in each case, 
obtain permission in advance from the District Engineer. Request for 
such permission shall be submitted through the Project Engineer.
    (6) Provisions for lockage service. (i) Commercial vessels, barges, 
rafts and tows engaged in commerce will be provided lockages during the 
same period as provided for pleasure boats (see paragraph (a)(6)(iv) of 
this section).
    (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) Injury to locks or fixtures. Vessel operators shall use great 
care not to strike any part of the locks or sluice walls, or any gate or 
appurtenance thereto, or machinery for operating the gates, or the walls 
protecting the banks of the canals. All boats using the canals shall be 
free from projecting irons or rough surfaces that would be liable to 
damage the locks or any part of the canals, and they must be provided 
with fenders to be used in guarding the lock walls, etc., from injury. 
Boats will not be permitted to enter or leave the locks until the lock 
gates are fully in the gate recesses, and the lock tender has directed 
the boat to proceed. No vessel shall be raced or crowded alongside 
another vessel, or be

[[Page 80]]

moved at such speed as will cause excessive swells or wash. Speed shall 
be kept at a minimum consistent with safe navigation.
    (8) Handling gates. No one, unless authorized by the lock tender, 
shall open or close any gate, or valve, or in any way interfere with the 
employees in the discharge of their duties. The lock tender may call for 
assistance from the master of any boat using the lock should such aid be 
needed.
    (9) Draft of boats. No boat shall enter a canal or lock whose actual 
draft exceeds the least depth of water in the channel of the canal as 
given by the Project Engineer.
    (10) Right-of-way. Boats going downstream shall have the right-of-
way over boats going upstream. Ordinarily, the boats or tows arriving 
first at any of the locks shall have precedence in passage except that 
those vessels which have given advance notice, when such notice is 
required, shall have precedence over other vessels when such notifying 
vessel is ready for passage. In all cases boats and barges belonging to 
the United States, or employed upon public works, shall have precedence 
over all others, and commercial passenger boats shall have precedence 
over tows. All boats not taking advantage of the first lawful 
opportunity to pass shall lose their turn. When lockage has started on 
tows requiring multiple lockages, all units of the tow will be locked 
ahead of other vessels traveling in the same direction. In the case of 
tows requiring two lockages, any craft awaiting lockage in the opposite 
direction will have priority over the second lockage of the tow.
    (11) Boats and rafts without power. No boat or raft without power 
except small boats controlled by sails or oars shall be brought through 
the canal unless accompanied by a power operated boat.
    (12) Dumping of refuse in waterway. No refuse or other material 
shall be thrown or dumped from vessels into the natural river, improved 
channels, canals and locks or placed on any bank of the river or berm of 
the canals so that it is liable to be thrown or washed into the 
waterway. (Sec. 13 of the River and Harbor Act of Mar. 3, 1899 (30 Stat. 
1152; 33 U.S.C. 407), prohibits the depositing of any refuse matter in 
any navigable water or along the banks thereof where the same shall be 
liable to be washed into such navigable water.)
    (13) Drawing off water. No water shall be drawn by any party or 
parties from any portion of the Fox River canals, or of the Fox River, 
including its lakes, improved channels and unimproved channels, to such 
extent as to lower the water surface below the crest of that dam next 
below the place where such draft of water is affected.
    (14) Obstructing navigation. Anyone who shall willfully or through 
carelessness in any way obstruct the free navigation of the waterway, or 
by violation of any of the laws or regulations governing the waterway 
and those using it, delay or inconvenience any boat having the right to 
use the waterway, shall be responsible for all damages and delays, and 
for all expenses for removing the obstructions. (Sec. 20 of the River 
and Harbor Act of Mar. 3, 1899 (30 Stat. 1154; 33 U.S.C. 415), 
authorizes the immediate removal or destruction of any sunken vessel, 
craft or similar obstruction, which impedes or endangers navigation.)
    (15) [Reserved]
    (16) Trespass on U.S. property. Trespass on waterway property or 
injury to the banks, locks, dams, canals, piers, fences, trees, 
buildings or any other property of the United States pertaining to the 
waterway is strictly prohibited. No business, trading or landing of 
freight or baggage will be allowed on or over Government property, 
unless a permit or lease approved by the Secretary of the Army has been 
secured.
    (17) Neenah dam outlet works. (i) During periods of high water, when 
determined to be necessary by the District Engineer, U.S. Army Engineer 
District, Chicago, to reduce the threat of flooding, it shall be the 
duty of the person owning, operating, or controlling the dam across the 
Neenah Channel of the Fox River at Neenah, Wis., acting as agent of the 
United States, to open or close, or cause to be opened or closed, 
pursuant to paragraph (a)(17)(ii) of this section, the outlet works of 
said dam to regulate the passage of water through said outlet works.
    (ii) The outlet works of said dam shall be opened when and to the 
extent

[[Page 81]]

directed by the District Engineer or his authorized field 
representatives, and said outlet works shall thereafter be closed when 
and to the extent directed by the said District Engineer or his 
authorized field representative.
    (b) Use of the United States drydock on Fox River at Kaukauna, Wis. 
(1) The drydock being a part of the Fox River improvement, its use will 
be governed by the general regulations for the use, administration, and 
navigation of that river, so far as they may be applicable.
    (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

[[Page 82]]

agent, been so far completed as to permit safe removal from the dock, or 
after such removal has been ordered by the U.S. District Engineer or his 
authorized agent, shall be $50 per day or part of a day, in addition to 
any penalties incurred for violation of any of the regulations 
prescribed by law for the government of the dock and those using it.
    (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.

[Regs., Oct. 2, 1926, as amended at 33 FR 11544, Aug. 14, 1968; 36 FR 
1253, Jan. 27, 1971; 43 FR 26570, June 21, 1978; 48 FR 13985, Apr. 1, 
1983; 56 FR 13765, Apr. 4, 1991]



Sec. 207.470  Sturgeon Bay and Lake Michigan Ship Canal, Wis.;
use and navigation.

    (a) Authority of canal officers. The movement of all boats and 
floating things in the canal and in the approaches thereto shall be 
under the direction of the superintendent or his authorized assistants, 
and their orders and instructions must be obeyed.
    (b) Signals. On entering the canal at either entrance, steamers or 
tugs must blow their whistles for 1 minute in order to warn craft 
approaching from opposite direction and give them time to guard against 
collisions, by tying up if necessary. All steamers approaching others 
going in the opposite direction shall slacken speed so as to pass in 
safety. Compliance is required with rule V of the rules and regulations 
for the government of pilots, adopted by the U.S. Coast Guard.

    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) Speed. The rate of speed while passing through the canal shall 
not exceed 5 miles per hour.
    (d) Keeping in the center. The center must be kept all the way 
through, except in passing other craft. In case of grounding, the rapid 
or strong working of boat's engines is strictly forbidden.
    (e)-(g) [Reserved]
    (h) Rafts. (1) The passage of bag or sack rafts, or of loose logs, 
into or through the canal is prohibited.
    (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

[[Page 83]]

the earliest possible moment to the superintendent or his authorized 
assistants.
    (i)-(l) [Reserved]
    (m) Refuse in canal. No person shall roll or throw any stones, 
ashes, cinders, or other material into the canal or the approaches 
thereto, or place any such material on any bank or berm of the canal so 
that it is liable to be thrown or roll in.
    (n)-(o) [Reserved]

[Regs., Feb. 15, 1895, as amended Apr. 14, 1908; 42 FR 57962, Nov. 7, 
1977; 56 FR 13765, Apr. 4, 1991]



Sec. 207.476  The Inland Route--lock in Crooked River, Alanson, Mich.; 
use, administration, and navigation.

    (a) General. The use, administration, and navigation of the lock 
shall be under the direction and supervision of the District Engineer, 
U.S. Army Engineer District, Detroit, Mich., and his authorized agents.
    (b) Authority of lockmaster. The lockmaster shall be charged with 
the immediate control and management of the lock, and of the area set 
aside as the lock area, including the lock approach channels. He shall 
see that all laws, rules, and regulations for the use of the lock and 
lock area are duly complied with, to which end he is authorized to give 
all necessary orders and directions in accordance therewith, both to the 
employees of the Government and to any and every person within the 
limits of the lock area, whether navigating the lock or not. No one 
shall cause any movement of any boat, craft or other floating object in 
the lock or approaches except by or under the direction of the 
lockmaster or his assistants.
    (c) Operation. The lock operating season will commence and close as 
determined by the district engineers, Corps of Engineers in charge of 
the locality, depending on conditions and the need for lockage services. 
Public notices will be issued announcing the opening and closing dates 
at least 15 days in advance of such dates.
    (d) Maximum allowable dimensions of craft. (1) Overall length--60 
feet.
    (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) Signals. (1) Craft desiring lockage in either direction shall 
give notice to the lock tenders, when not farther than 200 yards from 
the lock, by one long blast (of 10 seconds duration) followed by one 
short blast (of 3 seconds duration) of whistle, horn, or siren.
    (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) The procedures for transit of lock. (1) Stand clear of the lock 
while the red signal light shows.
    (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) Precedence at lock. The craft arriving first at the lock shall 
be first to lock through; but precedence will be given to craft 
belonging to the United States or other local government entities, such 
as state, county, or municipality. Arrival posts may be established 
above and below the lock. Craft arriving at or opposite such posts or 
markers will be considered as having arrived at the locks within the 
meaning of this paragraph.

[32 FR 9068, June 27, 1967, as amended at 48 FR 6707, Feb. 15, 1983]

[[Page 84]]



Sec. 207.480  Lake Huron, Mich.; Harbor of refuge, Harbor Beach; use 
and navigation.

    (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.

[Regs., Apr. 3, 1906]



Sec. 207.560  Sandusky Harbor, Ohio; use, administration, and navigation.

    (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.

[Regs., May 6, 1938, as amended at 25 FR 8908, Sept. 16, 1960; 42 FR 
57962, Nov. 7, 1977]



Sec. 207.565  Vermilion Harbor, Ohio; use, administration, and navigation.

    (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

[[Page 85]]

moved upon notification from, and within the time specified by, the 
District Engineer.

[13 FR 9564, Dec. 31, 1948, as amended at 42 FR 51773, Sept. 29, 1977; 
42 FR 57962, Nov. 7, 1977]



Sec. 207.570  Harbors of Huron, Lorain, Cleveland, Fairport, Ashtabula,
Conneaut, Ohio; use, administration, and navigation.

    (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.

[Regs., May 5, 1938, as amended at 25 FR 8908, Sept. 16, 1960; 42 FR 
57962, Nov. 7, 1977]



Sec. 207.580  Buffalo Harbor, N.Y.; use, administration, and navigation.

    (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.

[Regs., May 5, 1938, as amended at 25 FR 8908, Sept. 16, 1960; 42 FR 
57962, Nov. 7, 1977]



Sec. 207.590  Black Rock Canal and Lock at Buffalo, N.Y.; use, administration,
and navigation.

    (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 \1/4\-mile of a vessel 
bound in the same direction in the Black Rock Canal south of the Ferry 
Street Bridge. Tugs without tows, tugs towing a single barge under 150 
feet in length, and single vessels under 150 feet in length are exempt 
from this paragraph.
    (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.

[[Page 86]]

    (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) Radio control of vessel movement in Black Rock Canal. (1) The 
movement of vessels in the Black Rock Canal will be controlled by radio 
communication between the Black Rock Lock and the vessels desiring to 
use the canal. Vessels will not be permitted to meet or pass in the 
channel of restricted width between the southerly end of Bird Island 
(approximately 3,500 feet northerly along the canal from the North 
Breakwater South End Light) and the International Railway Bridge near 
the southerly entrance to the Black Rock Lock. Vessels less than 150 
feet in length and tugs towing a single barge under 150 feet in length 
are not to be included in this special condition. In addition to the 
control of vessel movements in the restricted section of the canal, 
radio communications will also be utilized to facilitiate the passage of 
vessels through the entire canal and the Black Rock Lock.
    (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[deg]50.1[min] and longitude W.

[[Page 87]]

78[deg]55.4[min]. Information to be furnished the Black Rock Lock 
Operator should include the name of the vessel, position, destination, 
length, draft (forward and aft) and the type of cargo. A second call 
shall be made to the lock when the vessel is abreast of the Buffalo 
Harbor Light on the southerly end of the detached West Breakwater. 
Information furnished the vessel by the Lock Operator will assure the 
vessel operator of the proper time to enter the Black Rock Canal with a 
view to safety and minimum delay.
    (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) Black Rock Lock. All vessels and boats desiring to use the lock 
shall signal by two long and two short whistle blasts.
    (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

[[Page 88]]

maximum of only four (4) men will be permitted to go ashore from any one 
ship.
    (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) Non-operational hours lockings. In addition to the above 
schedule of operating hours, commercial vessels may be locked through 
during non-operational hours with prior arrangements made through the 
U.S. Army Engineer District, Buffalo. Requests for non-operational hours 
lockings shall be made at lease 24 hours in advance by calling (716) 
876-5454, extension 2284 or by radio as described in paragraph (l) of 
this section, Monday through Friday, 9 a.m. to 4 p.m., except holidays. 
Requests shall include the approximate time of arrival and the name and 
call letters of the vessel or, if the vessel is not equipped to receive 
radio messages, a telephone number at which messages may be received for 
the vessel. If a requested lockage must be delayed, prompt notification 
shall be given by telephone or radio.

[30 FR 3382, Mar. 13, 1965; 30 FR 3881, Mar. 25, 1965, as amended at 41 
FR 34035, Aug. 12, 1976; 42 FR 57962, Nov. 7, 1977; 45 FR 51555, Aug. 4, 
1980; 56 FR 13765, Apr. 4, 1991]



Sec. 207.600  Rochester (Charlotte) Harbor, N.Y.; use, administration,
and navigation.

    (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.

[Regs., May 5, 1938, as amended at 25 FR 8908, Sept. 16, 1960; 42 FR 
57962, Nov. 7, 1977]



Sec. 207.610  St. Lawrence River, Cape Vincent Harbor, N.Y.; use,
administration, and navigation of the harbor and U.S. breakwater.

    (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

[[Page 89]]

be taken in or disposed of in such a manner as not to interfere with the 
departure of vessels moored between them and the breakwater.
    (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.

[Regs., May 6, 1938, as amended at 25 FR 8908, Sept. 16, 1960; 42 FR 
57962, Nov. 7, 1977]



Sec. 207.640  Sacramento Deep Water Ship Channel Barge Lock and Approach 
Canals; use, administration, and navigation.

    (a) Sacramento Deep Water Ship Channel Barge Lock and Approach 
Canals; use, administration and navigation--(1) General. The lock, its 
approach channels and all its appurtenances, including the highway and 
railroad bridge, shall be under the jurisdiction of the District 
Engineer, U.S. Army Engineer District, Sacramento, Federal and Courts 
Building, 650 Capitol Avenue, Sacramento, California. His designated 
representative at the locality shall be the lockmaster, who will be in 
immediate charge of movement and position of all water traffic while at 
or near the locks and in the barge canals.
    (2) Immediate control. The lockmaster shall be charged with the 
immediate control and management of the lock, bridge, and of the area 
set aside as the lock area, including the entrance channels. He shall 
see that all laws, rules and regulations for the use of the lock, bridge 
and the lock area are duly complied with, to which end he is authorized 
to give all necessary orders and directions in accordance therewith, 
both to employees of the Government and to any and every person within 
the Government lock area. Crews shall render such assistance in the 
lockage of their craft as may be required by the lockmaster.
    (3) Signals--(i) Sound. All craft desiring lockage shall signal by 
two long blasts followed by two short blasts of the whistle, delivered 
at a distance of one-half mile from the lock. When the lock is ready for 
entrance, notice will be given by one long blast from the control house. 
Permission to leave the lock will be one short blast given by the 
lockmaster.
    (ii) Visual lock traffic signals. Visual signals are located outside 
of each lock gate on the north guide wall, and will be used in 
conjunction with sound signals. When the red light is flashing, lock 
cannot be made ready for entrance immediately, vessel must stand clear. 
When the amber light is flashing, lock is being made ready, prepare for 
lockage. When the green light is flashing, lock is ready for entrance, 
the vessel may proceed with caution into the lock.
    (iii) Visual river traffic signals. Visual signals are located on 
the south bank of the barge canal at the confluence with the Sacramento 
River and also 1,950 feet upstream on the west bank of the Sacramento 
River. When the red light is on, a river-bound vessel of a size making 
passing in the canal hazardous is in the lock or canal. Approaching 
vessel shall stand clear of canal to permit out-going vessel to pass. 
When the amber light is on, a river-bound vessel of a size to permit 
passing is in the lock or canal. Vessel may enter canal with caution. 
When the green light is on, vessel may enter canal and proceed under 
full control.
    (iv) Radio. The lock is equipped with two-way radio operating on a 
frequency of 156.60 mc. The frequency is monitored by the lock 
personnel. Vessels equipped with two-way radio may communicate with the 
crew operating the lock but communications or signals so received will 
only augment and not replace the sound and visual signals.
    (4) Permissible dimensions of vessels and tows. The lock chamber has 
a maximum usable width of 86 feet and length of 600 feet. The sill at 
the harbor end and the bottom of the lock chamber are -13.0 feet 
elevation, CofE

[[Page 90]]

datum, and usually provides a depth of water ranging from 14.0 feet at 
LLW to 19.4 feet at HHW, with greater depths during large floods in the 
delta. The sill at the river end is at -10.0 feet elevation, CofE datum, 
and usually provides a depth of water ranging from 14.6 feet at LLW to 
16.8 feet at HHW, with greater depths when the river is high. The depth 
of water at any time is indicated by staff gages located on the south 
wall of the lock, riverward and harborward of each lock gate and at the 
center of the lock. A vessel must not attempt to enter the lock if its 
beam or length is greater than indicated above, or if its draft exceeds 
the depth of water indicated by the gages, with due allowance for 
clearance.
    (5) Precedence at lock. Ordinarily, craft will be locked through in 
order of arrival; however, depending upon whether the lock is full or 
empty, this precedence may be modified at the discretion of the 
lockmaster if boats are approaching from the opposite direction and are 
within reasonable distance of the lock at the time of the approach by 
the first boat. When several craft are to pass, precedence shall be 
given as follows:

First: Government owned or controlled craft.
Second: Commercial craft.
Third: Passenger boats.
Fourth: Small vessels and pleasure boats.

    (6) Loss of turn. Boats that fail to enter the lock with reasonable 
promptness, after being authorized to do so, shall lose their turn.
    (7) Multiple lockage. The lockmaster shall decide whether one or 
more vessels may be locked through at the same time.
    (8) Speed. Vessels shall not be raced or crowded alongside another 
in the barge canals. When entering the barge canals and lock, speed 
shall be reduced to a minimum consistent with safe navigation. As a 
general rule, when a number of vessels are entering the lock, the 
following vessel shall remain at least 200 feet astern of the vessel 
ahead. No overtaking, except when directed by lockmaster, will be 
permitted.
    (9) Lockage of small boats--(i) General. The lockage of pleasure 
boats, skiffs, fishing boats and other small craft will be coordinated 
with the lockage of commercial craft. If no commercial craft are 
scheduled to be locked through within a reasonable time, not to exceed 
one hour after the arrival of the small craft at the lock, separate 
lockage will be made for such small craft.
    (ii) Signals. Small boats desiring to use the lock will sound two 
long blasts followed by two short blasts of the horn. When the lock is 
ready for entrance, the lockmaster will notify the small boat by one 
long blast of the horn; or through the public address system. Permission 
to leave the lock will be given by the lockmaster by one short blast of 
the horn.
    (10) Mooring in lock. All boats, when in the lock, shall be moored 
to the fastenings provided for that purpose, by bow and stern lines and 
other spring lines as may be necessary, and the lines shall not be let 
go until the signal is given by the lockmaster for the craft to leave 
the lock.
    (11) Waiting for lockage. The mooring or anchoring of boats or other 
craft in the approaches to the lock, where such mooring will interfere 
with navigation of the lock is prohibited. All boats, barge tows and 
other craft to be passed through the lock shall lie in designated 
waiting areas in such manner as not to interfere with the navigation of 
the lock or its approaches, and, if a barge tow is to be divided into 
sections for locking, the sections shall be brought into the lock as 
directed by the lockmaster. After passing through the lock, the sections 
shall be reassembled at such a distance from the entrance as not to 
obstruct or interfere with navigation of the lock or its approaches.
    (12) Delay in lock. Boats or barges must not obstruct navigation by 
unnecessary delays in entering or leaving the lock.
    (13) Damage to lock or other structures. The regulations contained 
in this paragraph shall not relieve the owners and operators of vessels 
from liability for any damage by their operations to the lock or other 
structures. They must use great care not to strike any part of the lock, 
any gate or appurtenance thereto, or machinery for operating the gates, 
or the walls protecting the banks of the approach canals. All boats with 
metal nosings or projecting irons,

[[Page 91]]

or rough surfaces that would be liable to damage the gates or lock 
walls, will not be permitted to enter the lock unless provided with 
suitable buffers and fenders.
    (14) Tows. Tows shall be made up outside the canal entrance. All 
vessels engaged in towing other vessels not equipped with a rudder shall 
use two tow lines or a bridge and one tow line. If the vessel in tow is 
equipped with a rudder, one tow line may be used. All tow lines or 
hawsers must be hauled as short as practicable for safe handling of 
tows.
    (15) Crew to move craft. The pilots in charge of tows and persons in 
charge of other craft must provide a sufficient number of men to handle 
lines in mooring craft and to move barges and other craft into and out 
of the lock easily and promptly.
    (16) Handling valves, gates, bridges and machinery. No person, 
unless authorized by the lockmaster shall open or close any bridge, 
gate, valve or operate any machinery in connection with the lock; but 
the lockmaster may, under emergency conditions, call for assistance from 
the master of any boat using the lock, should such aid be necessary, and 
when rendering such assistance, the man so employed shall be strictly 
under the orders of the lockmaster.
    (17) Landing of freight. No one shall land freight or baggage on or 
over the walls of the lock so as in any way to delay or interfere with 
navigation or the operation of the lock.
    (18) Refuse in lock. No material of any kind shall be thrown or 
discharged into the lock, and no material of any kind shall be deposited 
into the lock area.
    (19) [Reserved]
    (20) Persistent violation of regulations. If the owner or pilot of 
any boat persistently violates the regulations of this paragraph after 
due notice of the same, lockage may be refused by the lockmaster at the 
time of the violation or subsequent thereto, as required in the interest 
of public safety or protection of Government property.
    (21) Other laws and regulations. In all other respects, the existing 
Federal laws, rules and regulations affecting navigable waters of the 
United States will govern in the use, administration and navigation of 
the ship channel, lock and its approaches.

[26 FR 11201, Nov. 28, 1961, as amended at 27 FR 4737, May 18, 1962; 27 
FR 10484, Oct. 27, 1962; 28 FR 8461, Aug. 17, 1963; 31 FR 6590, May 3, 
1966; 33 FR 14166, Sept. 19, 1968; 42 FR 17120, Mar. 31, 1977; 42 FR 
57962, Nov. 7, 1977; 48 FR 6708, Feb. 15, 1983; 50 FR 42696, Oct. 22, 
1985; 51 FR 25198, July 11, 1986; 56 FR 13765, Apr. 4, 1991]



Sec. 207.680  Willamette River, Oreg.; use, administration, and navigation
of canal and locks at Willamette Falls, Oreg.

    (a) Administration--(1) Administrative jurisdiction. The canal and 
locks and all appurtenances shall be in the charge of the District 
Engineer, Portland District, Corps of Engineers, Department of the Army, 
319 S.W. Pine Street, Portland, Oregon 97208. The representative of the 
District Engineer at the locality shall be the lockmaster, who shall 
receive his orders and instructions from the district engineer. In case 
of emergency, however, the lockmaster shall have authority to take such 
steps as may be immediately necessary without waiting for instruction 
from the district engineer.
    (2) Operational jurisdiction. The lock master shall be charged with 
the immediate control and management of the canal and locks and the 
grounds and public property pertaining thereto. He shall see that all 
laws, rules and regulations, for the use of the canal and grounds are 
duly complied with, to which end he is authorized to give all necessary 
orders and directions in accordance therewith, both to employees of the 
Government and to any and every person within the limits of the canal 
and locks or grounds pertaining thereto, whether navigating the canal or 
not. In case of the absence or disability of the lock master, his duty 
shall be performed by an assistant or other employee to be designated by 
the District Engineer.
    (b) Use and navigation--(1) Authority of lock master. The lock 
master or his assistants shall direct the movement, operation, and 
moorage of all vessels, boats, rafts, barges, or other floating things 
using the locks, while they are in the locks, the canal basin, or in 
either the upstream or downstream lock approaches. Crews of vessels, 
boats,

[[Page 92]]

rafts, barges, or other floating things seeking lockage shall render 
such assistance as the lock master or his assistants may require.
    (2) Signals. All vessels desiring lockage shall signal the same by 
one long and one short blast of the whistle, delivered at a distance of 
approximately 1,000 feet from the locks. Requests for lockage may also 
be made by contacting the lockmaster on VHF-FM radio on channel 14, at 
WUJ 363, Willamette Falls Locks or by telephone or otherwise notifying 
the lockmaster's office. Notice to vessels desiring lockage will be 
given by red and green traffic lights. Vessels may enter locks on green 
lights, but must await green signal when lights are red. Permission to 
leave the lock will be given in the same manner. In the event a failure 
occurs and the referenced lights cannot be operated, the lockmaster will 
indicate by voice or by hand or lantern signals when vessels may enter 
or leave the locks.
    (3) Controlling dimensions. For lockage purposes the maximum length 
of space available is 175 feet and the maximum clear width available is 
37 feet. All vessels, boats, rafts, barges, or other floating things of 
less size than the foregoing dimensions can pass through the locks. The 
controlling water depth over the intermediate miter sills throughout the 
locks is 6.5 feet. However, the depth on the sill of the upstream gate 
at low water is 7.5 feet and over the downstream sill is 8.4 feet. The 
elevation of the upstream sill is 43.7 feet and of the downstream sill 
is -6.4 feet, corresponding to the elevations shown on the gages 
provided at both the downstream and upstream approaches to the locks. 
All vessels, boats, rafts, barges, and other floating things of which 
the dimensions or draft are greater than will permit clearing any of the 
above indicated elevations shall be prohibited from entering the locks. 
All vessels, boats, rafts, barges or other floating things entering the 
locks in violation of the above shall be responsible for all resulting 
damages.
    (4) Precedence at locks. Ordinarily the vessel, boat, raft, barge, 
or other floating thing arriving first at the lock will be locked 
through first. In the event of a simultaneous approach from opposite 
directions ascending craft will ordinarily be locked through first. When 
several boats are to be passed through the locks, the order of 
precedence shall be as follows:
    (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.

The lock master shall have authority to digress from the above 
precedence in order to eliminate reversing the flow of traffic through 
the locks when both upbound and downbound lockages are in waiting.
    (5) Entrance to locks. The lock master shall decide whether one or 
more vessels may be locked through at the same time. No one shall 
attempt to enter the locks with a vessel or attempt to cause a vessel to 
enter the locks until he is authorized by the lock master to do so. No 
one shall take a vessel, or cause a vessel to be taken, within the 
limits of 500 feet above the upper gate and 300 feet below the lower 
gate, except for the purpose of entering the locks; and not for this 
purpose until it has been indicated to him by a proper person by signal 
that the lock is ready to receive the vessel. All vessels within the 
foregoing limits must be operated under ``slow bell'' and be kept 
constantly under control.
    (6) Lockage of small boats. Pleasure boats, skiffs, fishing boats, 
and other small craft may be passed through the locks singularly, in 
groups, or as part of a lockage of other than pleasure craft. A 
continual flow of traffic in one direction will not be interrupted or 
reversed to accommodate these small pleasure boats. However, any such 
small boat will be accommodated at such time as the lock master upon 
receipt of a request for lockage deems such action will not interfere 
with other traffic. The decision of the lock master shall be final as to 
whether craft requesting lockage is defined as a pleasure boat.
    (7) Use of canal locks. No person, unless authorized by the 
lockmaster or his assistants, shall open or close any

[[Page 93]]

bridge, lock gate, wicket gate, or operate any lock machinery, or in any 
way interfere with any mechanism or appliance connected with the 
operation of the locks, nor shall anyone interfere with the employees in 
the discharge of their duties. The lockmaster or his assistants may call 
for aid from the persons in charge of any craft, vessel, or raft using 
the lock should such aid be necessary. Persons rendering such assistance 
shall be strictly under the orders of the lockmaster. The Government 
reserves the right to refuse lockage to any vessel, craft or raft when 
the persons in charge thereof refuse to give such assistance when it is 
requested. The persons in charge of vessels with tows or rafts, barges 
and other craft must provide sufficient personnel, lines and towing 
equipment of sufficient power to insure at all times full control of 
such tows, rafts, barges and other craft while moving into and through 
the locks, unless otherwise prearranged with the lockmaster. A copy of 
these regulations shall be kept on board each vessel regularly engaged 
in navigating the locks. Copies may be obtained without charge from the 
lockmaster or from the District Engineer, Corps of Engineers, Department 
of the Army, 319 S.W. Pine Street, Post Office Box 2946, Portland, 
Oregon 97208.
    (8) Petroleum vessels. All tankers, barges, and other floating 
equipment, used for transporting inflammable liquids, either with or 
without cargo, shall be equipped with fixed timber fenders and, if not 
so equipped, shall have aboard an adequate number of suitable fenders of 
timber, rubber, or rope which are to be placed between the vessel and 
unfendered lock structures. All such barges or other vessels navigating 
without power within the canal or locks must be assisted by one or more 
tugs of sufficient power to insure full control at all times whether 
passing upstream or downstream through the locks with or without cargo.
    (9) Mooring in locks. All boats, barges, rafts, and other craft when 
in the locks shall be moored by head and spring lines and such other 
lines as may be necessary to the fastenings provided for that purpose; 
and the lines shall not be unloosed until the signal is given for the 
vessel to leave the lock.
    (10) Mooring while waiting for lockage. The mooring of boats, tows 
or other craft in the approaches to the locks where such mooring will 
interfere with navigation or other vessels to or from the locks is 
prohibited.
    (11) Delays. Boats, barges, rafts, or other craft must not obstruct 
navigation by unnecessary delay in entering or leaving the locks. 
Vessels failing to enter the locks with reasonable promptness, when 
signaled to do so, and vessels arriving at the locks with their tows in 
such shape so as to impede lockage shall forfeit their turn.
    (12) Landing of freight. No freight or baggage shall be unloaded on 
or over the walls of the canal or locks. Freight and baggage consigned 
to the Willamette Falls locks shall be unloaded only at such places as 
may be provided for this purpose or as directed by the lock master.
    (13) Refuse in canal or locks. No refuse or other material shall be 
thrown or dumped from vessels into the canal and locks, or deposited in 
the lock area, or placed on the berm of the canal so that it is liable 
to be thrown or washed into the waterway. Violations of this paragraph 
(b)(13) shall be subject to sections 13 and 16 of the River and Harbor 
Act of March 3, 1899 (33 U.S.C. 407, 411).
    (14) Damage to locks or other structures. The regulations contained 
in this section shall not affect the liability of the owners and 
operators of vessels for any damage caused by their operations to the 
locks or other structures. Persons in charge of vessels and log rafts 
passing through the locks must use great care to prevent the vessels or 
log rafts from striking any gate or appurtenance thereto. All boats or 
barges with metal nosings, or projecting irons, or rough surfaces, and 
log rafts with dragging cables that may damage any part of the lock 
structures will not be permitted to enter the locks unless said craft 
are provided with suitable protective buffers and fenders and log rafts 
are free of loose, dragging cables.
    (c) [Reserved]
    (d) Trespass. No one shall trespass on the grounds or buildings, and 
everyone shall be deemed guilty of trespass within the meaning of this 
paragraph who

[[Page 94]]

shall willfully or carelessly damage or disfigure the canal and locks or 
any part thereof, or any building or appliance on the grounds, or who 
shall carry on business or trading of any sort, or shall build any 
fishing stand or lead, or set any fish net within the limits of the 
reservation, or do any act to or on the grounds or buildings which would 
be recognized by law as a trespass.
    (e) Definitions. Except as otherwise provided in paragraph (b)(6) of 
this section, whenever such a word as ``vessel'', ``boat'', ``barge'', 
``raft'', or the like is used in this section, it shall include all 
types of floating things which may be subject to lockage. Failure to 
refer specifically to a type of floating thing by its name shall not 
mean exclusion thereof from applicability of this section.

[19 FR 5816, Sept. 9, 1954, as amended at 35 FR 14988, Sept. 26, 1970; 
48 FR 10062, Mar. 10, 1983; 56 FR 13765, Apr. 4, 1991]



Sec. 207.718  Navigation locks and approach channels, Columbia and Snake
Rivers, Oreg. and Wash.

    (a) General. All locks, approach channels, and all lock 
appurtenances, shall be under the jurisdiction of the District Engineer, 
Corps of Engineers, U.S. Army, in charge of the locality. The district 
engineer may, after issuing a public notice and providing a 30-day 
opportunity for public comment, set (issue) a schedule for the daily 
lockage of recreational vessels. Recreational vessels are pleasure boats 
such a row, sail, or motor boats used for recreational purposes. 
Commercial vessels include licensed commercial passenger vessels 
operating on a published schedule or regularly operating in the ``for 
hire'' trade. Any recreational schedule shall provide for a minimum of 
one scheduled recreation lockage upstream and downstream (two lockages) 
each day. At the discretion of the district engineer, additional 
lockages may be scheduled. Each schedule and any changes to the schedule 
will be issued at least 30 days prior to implementation. Prior to 
issuing any schedule or any change to the schedule, the district 
engineer will consider all public comments and will evaluate the 
expected energy situation, water supply, and recreation use of the lock 
to determine the seasonal need for the schedule or change in schedule. 
The district engineer's representative at the locks shall be the project 
engineer, who shall issue orders and instructions to the lockmaster in 
charge of the lock. Hereinafter, the term ``lockmaster'' shall be used 
to designate the person in immediate charge of the lock at any given 
time. In case of emergency and on all routine work in connection with 
the operation of the lock, the lockmaster shall have authority to take 
action without waiting for instructions from the project engineer.
    (b) Lockage control. The Lock Master shall be charged with immediate 
control and management of the lock, and of the area set aside as the 
lock area, including the lock approach channels. Upstream and downstream 
approach channels extend to the end of the wing or the guide wall, 
whichever is longer. At Bonneville lock the upstream approach channel 
extends to the mooring tie offs at Fort Rains and the downstream 
approach channel extends to the downstream tip of Robins Island. The 
Lock Master shall demand compliance with all laws, rules and regulations 
for the use of the lock and lock area and is authorized to issue 
necessary orders and directions, both to employees of the Government or 
to other persons within the limits of the lock or lock area, whether 
navigating the lock or not. Use of lock facilities is contingent upon 
compliance with regulations, Lock Master instructions and the safety of 
people and property.
    (c) Authority of Lock Master. No one shall initiate any movement of 
any vessel in the lock or approaches except by or under the direction of 
the Lock Master. (``Vessel'' as used herein includes all connected 
units, tugs, barges, tows, boats or other floating objects.)
    (d) Signals--(1) Radio. All locks are equipped with two-way FM radio 
operating on channel 14, frequency of 156.700 MHz, for both the calling 
channel and the working channel. Vessels equipped with two-way radio 
desiring a lockage shall call WUJ 33 Bonneville, WUJ 34 The Dalles, WUJ 
35 John Day, WUJ 41 McNary, WUJ 42 Ice Harbor, WUJ 43 Lower Monumental, 
WUJ 44 Little Goose, or WUJ 45 Lower Granite,

[[Page 95]]

at least one-half hour in advance of arrival since the Lock Master is 
not in constant attendance of the locks. Channel 14 shall be monitored 
constantly in the vessel pilot house from the time the vessel enters the 
approach channel until its completion of exit. Prior to entering the 
lock chamber, the commercial freight or log-tow vessel operator shall 
report the nature of any cargo, the maximum length, width and draft of 
the vessel and whether the vessel is in any way hazardous because of its 
condition or the cargo it carries or has carried.
    (2) Pull-cord signal stations. Pull-cord signal stations marked by 
large instructional signs and located near the end of the upstream and 
downstream lock entrance walls may be used in place of radios to signal 
the Lock Master for a lockage.
    (3) Entering and exit signals. Signal lights are located outside 
each lock gate. When the green (go) light is on, all vessels will enter 
in the sequence prescribed by the Lock Master. When the red (stop) light 
is on, the lock is not ready for entrance and vessels shall stand clear. 
In addition to the above visual signals, the Lock Master will signal 
that the lock is ready for entrance by sounding one long blast on the 
lock air horn. The Lock Master will signal that the lock is ready for 
exit by lighting the green exit light and sounding one short blast on 
the air horn.
    (4) Craft lockage-readiness signal. Upon query from Lock Master, a 
vessel operator will signal when he is properly moored and ready for the 
lockage to begin.
    (e) Permissible dimensions of vessels. Nominal overall dimensions of 
vessels allowed in the lock chamber are 84 feet wide and 650 feet long. 
Depth of water in the lock depends upon river levels which may vary from 
day to day. Staff gauges showing the minimum water level depth over gate 
sills are located inside the lock chamber near each lock gate and 
outside the lock chamber near the end of both upstream and downstream 
guide walls, except at Bonneville where the staff gauges show water 
levels in feet above MSL and are located on the southern guide walls at 
the upstream and downstream miter gates. Bonneville's upstream sill 
elevation is 51 feet MSL and the downstream sill elevation is -12 feet 
MSL. Depth over sill at Bonneville is determined by subtracting the sill 
elevation from the gauge reading. Vessels shall not enter the navigation 
lock unless the vessel draft is at least one foot less than the water 
depth over the sill. Information concerning allowable draft for vessel 
passage through the locks may be obtained from the Lock Master. Minimum 
lock chamber water level depth is 15 feet except at Ice Harbor where it 
is 14 feet and at Bonneville where it is 19 feet. When the river flow at 
Lower Granite exceeds 330,000 cubic feet per second the normal minimum 
15-foot depth may be decreased to as little as eight feet.
    (f) Precedence at lock. Subject to the order of precedence, the 
vessel or tow arriving first; at the lock will be locked through first, 
however, this precedence may be modified at the discretion of the 
lockmaster. If immediate passage is required, lockage of vessels owned 
or operated by the United States shall take precedence. The precedence 
of all other vessels shall be as follows:
    (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.

[[Page 96]]

    (g) Loss of turn. Vessels that fail to enter the lock with 
reasonable promptness, after being authorized to do so, shall lose their 
turn.
    (h) Lockage--(1) Multiple lockage. The Lock Master shall decide 
whether one or more vessels or tows may be locked through at the same 
time. Vessels with flammable or highly hazardous cargo will be passed 
separately from all other vessels. Hazardous materials are described in 
part 171, title 49, Code of Federal Regulations. Flammable materials are 
defined in the National Fire Code of the National Fire Protection 
Association.
    (2) Recreational craft. By mutual agreement of (all parties,) the 
lockmaster and the captains of the vessels involved, recreational 
vessels may be locked through with commercial vessels. Under the 
recreational vessel schedule, separate lockage will not be made by 
recreational vessels except in accordance with the recreational lockage 
schedule or when circumstances warrant, such as in an emergency. When 
recreational craft are locked simultaneously with commercial vessels, 
the recreational vessel will enter the lock chamber after the commercial 
vessel is secured in the chamber and when practicable will depart while 
the commercial vessel remains secured.
    (3) Special schedules. Recreational boating groups may request 
special schedules by contacting the district engineer. The schedule for 
the daily lockage of recreational vessels will indicate the number of 
boats required for a special schedule and how many days' notice is 
required in order to arrange a special schedule.
    (i) Mooring in approaches prohibited. Mooring or anchoring in the 
approaches to the lock is prohibited where such mooring will interfere 
with navigation.
    (j) Waiting for lockage. Vessels waiting for lockage shall wait in 
the clear outside of the lock approach channel, or contingent upon 
permission by the Lock Master, may at their own risk, lie inside the 
approach channel at a place specified by the Lock Master. At Bonneville, 
vessels may at their own risk, lay-to at the downstream moorage facility 
on the north shore downstream from the north guide wall provided a 100-
foot-wide open channel is maintained.
    (k) Mooring in lock. All vessels must be moored within the lock 
chamber so that no portion of any vessel extends beyond the lines 
painted on the lock walls. Moorage within the lock chamber will be to 
floating mooring bits only and will be accomplished in a proper no-slip 
manner. Small vessels will not be locked with a large vessel unless the 
large vessel is so moored (two mooring bits) that no lateral movement is 
possible. The vessel operator will constantly monitor the position of 
his vessel and his mooring bit ties to assure that there is no fore or 
aft movement of his vessel and lateral movement is minimized. Propulsion 
by vessels within the lock chamber will not be permitted during closure 
operation of a lock chamber gate or as otherwise directed by the Lock 
Master.
    (l) Crew to move craft. During the entire lockage, the vessel 
operator shall constantly attend the wheelhouse, be aware of the 
vessel's position, and monitor radio channel 14 on frequency 156.700 
MHz, or otherwise be constantly able to communicate with the Lock 
Master. At a minimum, vessels shall be as vigilantly manned as if 
underway.
    (m) Speed. Vessels shall be adequately powered to maintain a safe 
speed and be under control at all times. Vessels shall not be raced or 
crowded alongside another in the approach channels. When entering the 
lock, speed shall be reduced to a minimum consistent with safe 
navigation. As a general rule, when a number of vessels are entering the 
lock, the following vessel shall remain at least 200 feet astern of the 
vessel ahead.
    (n) Delay in lock. Vessels shall not unnecessarily delay any 
operation of the locks.
    (o) Landing of freight. No freight, baggage, personnel, or 
passengers shall be landed on or over the walls of the lock, except by 
permission and direction of the Lock Master.
    (p) Damage to lock or other structures. The regulations in this 
section shall not relieve owners and/or operators of vessels from 
liability for any damage to the lock or other structures or for

[[Page 97]]

the immediate removal of any obstruction. No vessel in less than stable 
floating condition or having unusual sinking potential shall enter the 
locks or its approaches. Vessels must use great care not to strike any 
part of the lock, any gate or appurtenance thereto, or machinery for 
operating the gates, or the walls protecting the banks of the approach 
channels. All vessels with projecting irons, or rough surfaces which may 
damage the gates or lock walls, shall not enter the lock unless provided 
with suitable buffers and fenders. 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.
    (q) Tows. Prior to a lockage, the person in charge of a vessel 
towing a second vessel by lines shall, at a safe distance outside of the 
incoming approach channel, secure the second vessel to the towing vessel 
and keep it secured during the entire course of a lockage and until 
safely clear of the outgoing approach channel.
    (r) Violation of regulations. Any violation of these regulations may 
subject the owner or master of any vessel to any or all of the 
following: (1) Penalties prescribed by law of the U.S. Government (33 
U.S.C. part 1); (2) Report of violation to the titled owner of the 
vessel; (3) Report of violation to the U.S. Coast Guard; (4) Refusal of 
lockage at the time of violation.
    (s) Refuse in locks. No material of any kind shall be thrown or 
discharged into the lock, or be deposited in the lock area. Vessels 
leaking or spilling cargo will be refused lockage and suitable reports 
will be made to the U.S. Coast Guard. Deck cargo will be so positioned 
so as not to be subject to falling overboard.
    (t) Handling valves, gates, bridges, and machinery. No person, 
unless authorized by the Lock Master, shall open or close any bridge, 
gate, valve, or operate any machinery in connection with the lock. 
However, the Lock Master may call for assistance from the master of any 
vessel using the lock, should such aid be necessary; and when rendering 
such assistance, the person so employed shall be directly under the 
orders of the Lock Master. Masters of vessels refusing to provide such 
assistance when it is requested of them may be denied the use of the 
lock by the Lock Master.
    (u)-(v) [Reserved]
    (w) Restricted areas. No vessel shall enter or remain in any 
restricted area at any time without first obtaining permission from the 
District Engineer, Corps of Engineers, U.S. Army, or his duly authorized 
representative.
    (1) At Bonneville Lock and Dam. The water restricted to all vessels, 
except Government vessels, are described as all waters of the Columbia 
River and Bradford Slough within 1,000 feet above the first powerhouse, 
spillway, and second powerhouse (excluding the new navigation lock 
channel) and all waters below the first powerhouse, spillway, second 
powerhouse, and old navigation lock. This is bounded by a line 
commencing from the westernmost tip of Robins Island on the Oregon side 
of the river and running in a South 65 degrees West direction a distance 
of approximately 2,100 feet to a point 50 feet upstream of the Hamilton 
Island Boat Ramp on the Washington shore. Signs designate the restricted 
areas. The approach channel to the new navigation lock is outside the 
restricted area.
    (2) At the Dalles Dam. The waters restricted to only Government 
vessels are described as all downstream waters other than those of the 
navigation lock downstream approach channel which lie between the Wasco 
County Bridge and the project axis including those waters between the 
powerhouse and the Oregon shore and all upstream waters other than those 
of the navigation lock upstream approach channel which lie between the 
project axis and a line projected from the upstream end of the 
navigation lock guide wall to the junction of the concrete structure 
with the earth fill section of the dam near the upstream end of the 
powerhouse.
    (3) At the John Day Dam. The waters restricted to only Government 
vessels are described as all of the waters within a distance of about 
1,000 yards above the dam lying south of the navigation channel leading 
to the lock and bounded by a line commencing at the upstream end of the 
guide wall, and running in a direction 54[deg]01[min]37[sec] true for a 
distance of 771 yards, thence 144[deg]01[min]37[sec] true across the 
river to the south

[[Page 98]]

shoreline. The downstream limit is marked by orange and white striped 
monuments on the north and south shores.
    (4) At McNary Lock and Dam. The waters restricted to all vessels, 
except to Government vessels, are described as all waters commencing at 
the upstream end of the Oregon fish ladder thence running in the 
direction of 39[deg]28[min] true for a distance of 540 yards; thence 
7[deg]49[min] true for a distance of 1,078 yards; thence 277[deg]10[min] 
for a distance of 468 yards to the upstream end of the navigation lock 
guidewall. The downstream limits commence at the downstream end of the 
navigation lock guidewall thence to the south (Oregon) shore at right 
angles and parallel to the axis of the dam. Signs designate the 
restricted areas.
    (5) At Ice Harbor Lock and Dam. The waters restricted to all 
vessels, except Government vessels, are described as all waters within a 
distance of about 800 yards upstream of the dam lying south of the 
navigation lock and bound by the line commencing at the upstream end of 
the guidewall, and running a direction of 91[deg]10[min] true for a 
distance of 575 yards; thence 162[deg]45[min] to the south shore, a 
distance of about 385 yards. The downstream limits commencing at the 
downstream end of the guidewall; thence to the south shore, at right 
angles and parallel to the axis of the dam. Signs designate the 
restricted areas.
    (6) At Lower Monumental Lock and Dam. The waters restricted to all 
vessels, except Government vessels, are described as all waters 
commencing at the upstream of the navigation lock guidewall and running 
in a direction of 46[deg]25[min] true for a distance of 344 yards; 
thence 326[deg]19[min] true for a distance of 362 yards; thence 
243[deg]19[min] true for a distance of 218 yards; thence 275[deg]59[min] 
true to the north shore a distance of about 290 yards. The downstream 
limits commence at the downstream end of the navigation lock guidewall; 
thence to the north shore, at right angles and parallel to the axis of 
the dam. Signs designate the restricted areas.
    (7) At Little Goose Lock and Dam. The waters restricted to all 
vessels, except Government vessels, are described as all waters 
commencing at the upstream of the navigation lock guidewall and running 
in a direction of 60[deg]37[min] true for a distance of 676 yards; 
thence 345[deg]26[min] true for a distance of 494 yards; thence 
262[deg]37[min]47[sec] true to the dam embankment shoreline. The 
downstream limits commence 512 yards downstream and at right angles to 
the axis of the dam on the south shore; thence parallel to the axis of 
the dam to the north shore. Signs designate the restricted areas.
    (8) At Lower Granite Lock and Dam. The waters restricted to all 
vessels, except Government vessels, are described as all waters 
commencing at the upstream of the navigation lock guidewall thence 
running in the direction of 131[deg]31[min] true for a distance of 608 
yards; thence 210[deg]46[min] true to the south shore, a distance of 
about 259 yards. The downstream limits commence at the downstream end of 
navigation lock guidewall; thence to the south shore, at right angles 
and parallel to the axis of the dam. Signs designate the restricted 
areas.

[43 FR 3115, Jan. 23, 1978, as amended at 52 FR 22310, June 11, 1987; 56 
FR 13765, Apr. 4, 1991; 65 FR 4125, Jan. 26, 2000; 71 FR 25503, May 1, 
2006]



Sec. 207.750  Puget Sound Area, Wash.

    (a) Waterway connecting Port Townsend and Oak Bay; use, 
administration and navigation--(1) Works to which the regulations apply. 
The ``canal grounds'' when used in this paragraph shall mean that area 
between the south end of the jetties in Oak Bay and the northern end of 
the dredge channel approximately 400 yards northwest of Port Townsend 
Canal Light. The ``canal'' is the water lying between these limits and 
the banks containing the same.
    (2) [Reserved]
    (3) Trading, landing, etc. No business, loading, or landing of 
freight or baggage will be allowed on or over the canal piers or 
bulkheads.
    (4) Refuse. No person shall throw material of any kind into the 
canal.
    (5) [Reserved]
    (6) Obstructions. On the canal's being obstructed by a vessel, raft, 
or other craft, by sinking, grounding, or otherwise, the District 
Engineer, Seattle, shall be notified by telephone or telegraph as soon 
as possible by the person

[[Page 99]]

in charge of the obstructing vessel, raft, or craft.
    (b) Lake Washington Ship Canal; use, administration and navigation--
(1) Definitions. The term ``canal'' as used in the regulations in this 
paragraph shall include the water area in the locks and the channel and 
adjacent waters from a point 5,500 feet northwest of the Burlington 
Northern, Inc. railway bridge to the east end of the channel opposite 
Webster Point, Lake Washington. The term ``canal grounds'' shall include 
all grounds set aside for the use of the canal or occupied in its 
construction.
    (2) Supervision. The canal and all its appurtenances shall be under 
the supervision of the District Engineer, Corps of Engineers, Seattle. 
The District Engineer will detail as many assistants as may be necessary 
for the efficient operation of the canal and the enforcement of the 
regulations in this paragraph. The movement of all vessels and other 
floating things in the canal and approaches thereto shall be under the 
direction of the District Engineer and his authorized assistants. All 
orders given under the regulations to any master or person in charge of 
any vessel, raft, or other watercraft by the District Engineer or his 
authorized assistants, either in person or through any canal operative, 
shall be acknowledged and obeyed. Failure to see, understand, or comply 
with signals or instructions shall constitute a violation of the 
regulations. Any person refusing to comply with the regulations or any 
orders given in pursuance thereof may be denied the privileges of the 
canal or canal grounds.
    (3) Speed. To avoid damage to other vessels and to property along 
the shores, all vessels shall proceed at reduced speed in the canal as 
follows:
    (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.
    Note: Signs are located along the canal to indicate permissible 
speeds.
    (4) Traffic signal lights. In addition to the lock signal lights 
described in paragraph (g)(5)(ii) of this section, a red light, and a 
green light are installed on the west side of the Ballard Bridge, on the 
east side of the Fremont Bridge, 1,000 feet west of the Montlake Bridge, 
and 1,000 feet east of the Montlake Bridge, for the guidance of vessels 
approaching the sections of the canal between Salmon Bay and Lake Union 
and between Lake Union and Lake Washington, respectively. Vessels of 300 
gross tons and over and all vessels with tows, except as hereinafter 
provided, shall not pass the red lights. The green lights will indicate 
that vessels may proceed. Vessels of less than 300 gross tons without 
tows may disregard these signals, but they shall travel at very slow 
speed when passing other vessels. Vessels of 300 gross tons and over and 
vessels with tows, except logs, whose destination is easterly between 
the Ballard Bridge and a point 2,500 feet east of the Ballard Bridge, 
may pass the red signals on the Ballard Bridge, provided, such passage 
will not interfere with approaching traffic.
    (5) Approaching and passing through locks--(i) Signals for locks. 
Vessels with tows desiring to use the locks shall so indicate by two 
long and three short blasts of a whistle, horn, or megaphone. All other 
vessels desiring to use the locks shall so indicate by two long and two 
short blasts.
    Note: 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 Sec. 
117.795 of chapter I.
    (ii) Lock signal lights. Red and green signal lights are installed 
on the guide pier west of the Burlington Northern, Inc. railway bridge 
below the locks. The green light will indicate to vessels bound for the 
large lock that the lock

[[Page 100]]

has been made ready. If the red light is burning, vessels bound for the 
large lock shall moor at the pier. Vessels bound for the small lock 
shall be guided into the small lock by traffic signals thereon. The 
masters of all vessels approaching the locks from Puget Sound shall be 
alert to receive and shall immediately comply with instructions by voice 
or signal from the employee on the west pier.
    (iii) Precedence at locks. All vessels approaching the locks shall 
stop at the points indicated by signs placed on the canal piers or as 
directed by a lockman until ordered to proceed into the lock. Unless 
otherwise directed by the District Engineer or his authorized 
assistants, vessels owned or operated by the United States or the City 
of Seattle and passenger vessels operating on a regular schedule shall 
have precedence over all others in passing through the locks. Registered 
merchant vessels shall have precedence over pleasure craft, which shall 
pass through in the order of their arrival at the locks, and both shall 
have precedence over vessels towing floated timber or logs. Tows of 
floated timber and logs may be denied the use of the locks during 
certain hours when both locks are busy passing other traffic. However, 
advance notice will be given towboat companies as to the periods when 
log tows will be denied lockage.
    (iv) Entering locks. Masters of vessels shall exercise the greatest 
care when entering either lock. The forward movement of vessels while 
taking position in the locks shall be very slow, and boats entering the 
small lock shall reduce their speed to not more than two and one-half 
miles per hour when within 200 feet of the outer gate and come to 
practically a full stop before entering the lock so that in case the 
engine mechanism fails to operate properly the momentum of the boat may 
be stopped easily by its lines. The masters of vessels entering either 
lock from either direction shall be alert to receive and shall 
immediately comply with instructions by voice or signal from the lock 
attendants.
    (v) Mooring in locks. Vessels entering the locks shall be equipped 
with adequate lines, at least 50 feet in length being required fore and 
aft. While in the large lock vessels and rafts will be moored at the top 
of the lock wall. While in the small lock vessels shall be moored to the 
floating mooring wall. Lines shall not be released until the signal has 
been given by the lock force to leave the lock, after which there shall 
be no delay in leaving. All vessels not equipped to handle tie-up lines 
with power winches shall be equipped with suitable mooring lines of 
manila, or other suitable fiber, of sufficient size and strength to hold 
the vessel against the currents to be met within the lock chamber. The 
use of wire rope for tie-up by vessels not equipped to handle such lines 
with power winches is prohibited. Vessels may be denied the use of the 
locks if their lines are not in good condition, or if the mooring bits 
on barges are not accessible or are not equipped to prevent lines from 
slipping off when the water is lowered in the lock. All vessels entering 
the locks should have, in addition to the master, at least one person on 
deck to handle lines. Mates and deckhands, when preparing to moor within 
the lock chambers, should not throw heavy mooring lines at the lockmen 
on the walls, but should wait for a heaving lie to be passed to them 
unless otherwise directed. All towboat crews, while locking or moving a 
tow out of the lock chamber, should station themselves so as to preclude 
the possibility of being injured by the parting of cable or lines under 
strain. Persons attempting to take vessels through the locks without 
assistance on deck may be required to wait until the lock is clear of 
other traffic before passing through. All operators of vessels are 
especially cautioned to use extreme care while crowded in the locks to 
avoid accident or fire on their boats. Under no circumstances will small 
craft, such as rowboats, launches and houseboats, or any other type of 
pleasure boats, be locked through with barges used for carrying any type 
of petroleum product or other hazardous material. At the discretion of 
the lockmaster, small craft as described above may be locked through 
with barge tows containing other than dangerous material. Operators of 
small vessels and larger vessels operating in the proximity of each

[[Page 101]]

other shall be alert to the danger arising from the limited 
maneuverability of the larger vessels, and shall exercise all 
precautions to prevent accident.
    (6) Damage to locks or other structures. (i) The regulations in this 
paragraph shall not affect the liability of the owners and operators of 
vessels for any damage caused by their operations to the locks or other 
structures. The sides and corners of all vessels and rafts passing 
through the locks should be free from spikes or projections of any kind 
which might damage the locks or other structures. Vessels with 
appurtenances or projections which might damage the locks or other 
structures shall be fitted with adequate fenders. Lockage of leaking 
vessels or vessels with overhanging loads may be refused. Such barge or 
craft shall be moored in a location outside of the channel approach to 
the lock so as to not interfere with passing navigation. Vessels of 
unusual dimensions, or other characteristics which, in the opinion of 
the lockmaster, pose a threat to the integrity or safety of the locks or 
canal will be refused passage until written permission to pass is 
provided by the District Engineer. Sufficient written data and drawings 
shall be provided the District Engineer that an engineering 
determination can be made as to the safety of the vessel. The District 
Engineer shall have the right to inspect any such vessels prior to 
passage. The operators of all vessels shall use care to avoid striking 
the guide walls or other structures pertaining to the canal.
    (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) Rafts. (i) No log raft exceeding 700 feet in length or 76 feet 
in width shall pass through the canal. Boom sticks shall be smooth, with 
rounded ends, and securely tied together with cables, chains, or log 
swifters to prevent the raft from spreading while in the lock. Rafts 
containing logs that do not float above water for their entire length, 
or are in danger of being submerged when they enter fresh water, shall 
not be towed in the canal until such logs are securely fastened so as to 
prevent their escape from the raft.
    (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

[[Page 102]]

these floats, only the portion of the raft that is to be taken through 
at a single lockage being brought into the canal. The remainder of the 
raft may be left at the float until the first portion has been towed to 
its destination above the lock.
    (9) Tows. All vessels engaged in towing shall use tow lines of the 
least practicable length and shall have full control of their tows at 
all times. Towing more than one craft abreast is forbidden if the total 
width of the tow, including the towboat, exceeds 70 feet.
    (10) Obstructing navigation. (i) All vessels and tows passing 
through the canal shall be kept as close as practicable to the center 
or, when safer, to the right side of the waterway, except when passing 
other craft or preparing to moor at a pier or wharf. Slowly moving log 
rafts, tows, or vessels shall, whenever practicable, pull out of the way 
when meeting other vessels or when other traffic proceeding in the same 
direction desires to pass. Vessels are forbidden to obstruct the canal 
in any way or to delay by slow passage through the canal the progress of 
other vessels. Small and readily maneuverable vessels operating in the 
vicinity of larger, less maneuverable vessels shall, in all cases, keep 
clear and operate with caution in order that the larger vessels may 
maintain safe steerage way and that hazards to all vessels may be 
reduced. All vessels shall operate with extreme caution and movements 
shall be made only when adequate precautions for the safety of other 
vessels and property are being effectively employed.
    (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) Turning. Vessels exceeding 100 feet in length shall not turn 
around, or attempt to turn around, in the concrete revetted portions of 
the canal at the Fremont Cut or Portage Cut sections of the canal.
    (12) Excessive working of propellers or engines. Excessive working 
of the propellers of a vessel for purposes of testing or for other 
purposes when this creates objectionable or dangerous currents in the 
canal is forbidden. In case of grounding, the rapid or strong working of 
the vessel's engines is forbidden.
    (13) Landing or mooring. No business, trading, or landing of 
passengers, freight, or baggage will be allowed on or over the canal 
piers or lock walls, or over the piers or grounds forming a part of the 
canal or its appurtenances. All persons in charge of or employed on any 
boat are prohibited from landing or mooring such boat at any of the 
canal piers, unless in transit through the canal or specially permitted 
to do so by the District Engineer or his authorized assistants.
    (14) Deposit of refuse. The deposit, either from watercraft or from 
the shore, of any oil or refuse matter in the canal or upon the canal 
grounds is prohibited, nor shall water discharged from the side of a 
vessel be allowed to spill on the lock wall.
    (15) Aids to navigation. Persons in charge of log rafts or other 
tows, and the masters of vessels and boats using the canal, shall keep a 
careful watch when passing buoys or other aids to navigation and 
promptly report to the District Engineering or his authorized assistants 
any displacement or damage to such aids.
    Note: Aids to navigation and other related data are shown on 
Nautical Chart No. 18447 published by the National Ocean Survey.
    (16) Operation of salt water barrier in the large lock of the Hiram 
M. Chittenden Locks. (i) A salt water barrier is installed across the 
east end of the large lock. This barrier, while in the depressed 
position, reduces the depth of the water available at the east end of 
this chamber from 36 feet to 33.75 feet at low lake elevation (20 feet 
above MLLW). In the raised position, the depth of water will be reduced 
to 16 feet. In comparison, the depth of water available for navigation 
at the west end of the large lock chamber is 29 feet at mean lower low 
water. The purpose of this barrier is to reduce salt water intrusion 
into Lake Washington through normal operations of the locks.
    (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

[[Page 103]]

be lighted only while the barrier is in a raised position.
    (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) West Waterway, Seattle Harbor; navigation. (1) The movement of 
vessels of 250 gross tons or over and all vessels with tows of any kind 
through the narrow section of West Waterway between the bend at Fisher's 
Flour Mill dock and the bend at the junction of East Waterway with 
Duwamish Waterway, and through the draws of the City of Seattle and 
Northern Pacific Railway Company bridges crossing this narrow section, 
shall be governed by red and green traffic signal lights mounted on the 
north and south sides of the west tower of the City Light power crossing 
at West Spokane Street.
    (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.

[26 FR 11203, Nov. 28, 1961]

    Editorial Note: For Federal Register citations affecting Sec. 
207.750, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 207.800  Collection of navigation statistics.

    (a) Definitions. For the purpose of this regulation the following 
terms are defined:
    (1) Navigable waters of the United States means those waters of the 
United States that are subject to the ebb and flow of the tide shoreward 
to the mean high water mark, and/or are presently used, or have been 
used in the past, or may be susceptible to use to transport interstate 
or foreign commerce. (See 33 CFR part 329 for a more complete definition 
of this term.)
    (2) Offenses and Violations mean:
    (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) Leased or chartered vessel means a vessel that is leased or 
chartered when the owner relinquishes control of the vessel through a 
contractual agreement with a second party for a specified period of time 
and/or for a specified remuneration from the lessee. Commercial 
movements on an affreightment basis are not considered a lease or 
charter of a particular vessel.

[[Page 104]]

    (4) Person or entity means an individual, corporation, partnership, 
or company.
    (5) Timely means vessel and commodity movement data must be received 
by the Waterborne Commerce Statistics Center within 30 days after the 
close of the month in which the vessel movement or nonmovement takes 
place.
    (6) Commercial vessel means a vessel used in transporting by water, 
either merchandise or passengers for compensation or hire, or in the 
course of business of the owner, lessee, or operator of the vessel.
    (7) Reporting situation means a vessel movement by an operator that 
is required to be reported. Typical examples are listed in the 
instructions on the various ENG Forms. Five typical movements that are 
required to be reported by vessel operating companies include the 
following examples:

Company A is the barge owner, and the barge transports corn from 
Minneapolis, MN to New Orleans, LA, with fleeting at Cairo, IL.
    (i) Lease/Charter: If Company A leases or charters the barge to 
Company B, then Company B is responsible for reporting the movements of 
the barge until the lease/charter expires.
    (ii) Interline movement: A barge is towed from Minneapolis to Cairo 
by Company A, and from Cairo to New Orleans by Company B. Since Company 
A is the barge owner, and the barge is not leased. Company A reports the 
entire movement of the barge with an origin of Minneapolis and a 
destination of New Orleans.
    (iii) Vessel swap/trade: Company A swaps barge with Company B to 
allow Company B to meet a delivery commitment to New Orleans. Since 
Company A has not leased/chartered the barge, Company A is responsible 
for filing the report. Company B is responsible for filing the report on 
the barge which is traded to Company A. The swap or trade will not 
affect the primary responsibility for reporting the individual vessel 
movements.
    (iv) Re-Consignment: Barge is reconsigned to Mobile, AL. Company A 
reports the movements as originating in Minneapolis and terminating in 
Mobile. The point from which barge is reconsigned is not reported, only 
points of loading and unloading.
    (v) Fleeting: Barge is deposited at a New Orleans fleeting area by 
Company A and towed by Company B from fleeting area to New Orleans area 
dock for unloading. Company A, as barge owner, reports entire movements 
from Minneapolis to the unloading dock in New Orleans. Company B does 
not report any barge movement.
    (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) Filing requirements. Except as provided in paragraph (b)(2) of 
this section, the person or entity receiving remuneration for the 
movement of vessels or for the transportation of goods or passengers on 
the navigable waters is responsible for assuring that the activity 
report of commercial vessels is timely filed.
    (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) Monthly reports. These reports shall be made on ENG Forms 
furnished upon written request of the vessel operating companies to the 
Army Corps of Engineers. The forms are available at the following 
address: U.S. Army Corps of Engineers, Waterborne Commerce Statistics 
Center, Post Office Box 61280, New Orleans, Louisiana 70161-1280.
    (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

[[Page 105]]

boats and supply boats to offshore locations, tugboat moves and 
movements of newly constructed vessels from the shipyard to the point of 
delivery.
    (B) Vessels idle during the month must also be reported.
    (C) Notwithstanding the above requirements, the following waterborne 
vessel movements need not be reported:
    (1) Movements of recreational vessels.
    (2) Movements of fire, police, and patrol vessels.
    (3) Movements of vessels exclusively engaged in construction (e.g., 
piledrivers and crane barges). Note: however, that movements of 
supplies, materials, and crews to or from the construction site must be 
timely reported.
    (4) Movements of dredges to or from the dredging site. However, 
vessel movements of dredged material from the dredging site to the 
disposal site must be reported.
    (5) Specific movements granted exemption in writing by the 
Waterborne Commerce Statistics Center.
    (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).
    (1) The name of the shipper of the commodity, and the shipper's 
Internal Revenue Service number or Social Security number, must be 
reported on the form.
    (2) If a specific exemption applies to the shipper, the shipper 
should list the appropriate exemption code. The specific exemption codes 
are listed in the directions for ENG Form 3925.
    (3) Refer to 19 CFR part 24 for detailed information on exemptions 
and ports subject to the Harbor Maintenance Tax.
    (ii) Annual reports. Annually an inventory of vessels available for 
commercial carriage of domestic commerce and vessel characteristics must 
be filed on ENG Forms 3931 and 3932.
    (iii) Transaction reports. The sale, charter, or lease of vessels to 
other companies must also be reported to assure that proper decisions 
are made regarding each company's duty for reporting vessel movements 
during the year. In the absence of notification of the transaction, the 
former company of record remains responsible until proper notice is 
received by the Corps.
    (iv) Reports to lockmasters and canal operators. Masters of self-
propelled non-recreational vessels which pass through locks and canals 
operated by the Army Corps of Engineers will provide the data specified 
on ENG Forms 3102b, 3102c, and/or 3102d to the lockmaster, canal 
operator, or his designated representative in the manner and detail 
dictated.
    (c) Penalties for noncompliance. The following penalties for 
noncompliance can be assessed for offenses and violations.
    (1) Criminal penalties. Every person or persons violating the 
provisions of this regulation shall, for each and every offenses, be 
liable to a fine of not more than $5,000, or imprisonment not exceeding 
two months, to be enforced in any district court in the United States 
within whose territorial jurisdiction such offense may have been 
committed.
    (2) Civil penalties. In addition, any person or entity that fails to 
provide timely, accurate, and complete statements or reports required to 
be submitted by this regulation may also be assessed a civil penalty of 
up to $2,500 per violation under 33 U.S.C. 555, as amended.
    (3) Denial of passage. In addition to these fines, penalties, and 
imprisonments, the lockmaster or canal operator can refuse to allow 
vessel passage.

[[Page 106]]

    (d) Enforcement policy. Every means at the disposal of the Army 
Corps of Engineers will be utilized to monitor and enforce these 
regulations.
    (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) Notice of violation. Once a reporting violation is determined to 
have occurred, the Chief of the Waterborne Commerce Statistics Center 
will notify the responsible party and allow 30 days for the reports to 
be filed after the fact. If the reports are not filed within this 30-day 
notice period, then appropriate civil or criminal actions will be 
undertaken by the Army Corps of Engineers, including the proposal of 
civil or criminal penalties for noncompliance. Typical cases for 
criminal or civil action include, but are not limited to, those 
violations which are willful, repeated, or have a substantial impact in 
the opinion of the Chief of the Waterborne Commerce Statistics Center.
    (3) Administrative assessment of civil penalties. Civil penalties 
may be assessed in the following manner.
    (i) Authorization. If the Chief of the Waterborne Commerce 
Statistics Center finds that a person or entity has failed to comply 
with any of the provisions specified herein, he is authorized to assess 
a civil penalty in accordance with the Class I penalty provisions of 33 
CFR part 326. Provided, however, that the procedures in 33 CFR part 326 
specifically implementing the Clean Water Act (33 U.S.C. 1319(g)(4)), 
public notice, comment period, and state coordination, shall not apply.
    (ii) Initiation. The Chief of the Waterborne Commerce Statistics 
Center will prepare and process a proposed civil penalty order which 
shall state the amount of the penalty to be assessed, describe by 
reasonable specificity the nature of the violation, and indicate the 
applicable provisions of 33 CFR part 326.
    (iii) Hearing requests. Recipients of a proposed civil penalty order 
may file a written request for a hearing or other proceeding. This 
request shall be as specified in 33 CFR part 326 and shall be addressed 
to the Director of the Water Resources Support Center, Casey Building, 
Fort Belvoir, Virginia 22060-5586, who will provide the requesting 
person or entity with a reasonable opportunity to present evidence 
regarding the issuance, modification, or revocation of the proposed 
order. Thereafter, the Director of the Water Resources Center shall 
issue a final order.
    (4) Additional remedies. Appropriate cases may also be referred to 
the local U.S. Attorney for prosecution, penalty collection, injunctive, 
and other relief by the Chief of the Waterborne Commerce Statistics 
Center.

[56 FR 13765, Apr. 4, 1991]



PART 208_FLOOD CONTROL REGULATIONS--Table of Contents



Sec.
208.10 Local flood protection works; maintenance and operation of 
          structures and facilities.
208.11 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.
208.19 Marshall Ford Dam and Reservoir (Mansfield Dam and Lake Travis), 
          Colorado River, Tex.
208.22 Twin Buttes Dam and Reservoir, Middle and South Concho Rivers, 
          Tex.
208.25 Pensacola Dam and Reservoir, Grand (Neosho) River, Okla.
208.26 Altus Dam and Reservoir, North Fork Red River, Okla.
208.27 Fort Cobb Dam and Reservoir, Pond (Cobb) Creek, Oklahoma.

[[Page 107]]

208.28 Foss Dam and Reservoir, Washita River, Oklahoma.
208.29 Arbuckle Dam and Lake of the Arbuckles, Rock Creek, Okla.
208.32 Sanford Dam and Lake Meredith, Canadian River, Tex.
208.33 Cheney Dam and Reservoir, North Fork of Ninnescah River, Kans.
208.34 Norman Dam and Lake Thunderbird, Little River, Okla.
208.82 Hetch Hetchy, Cherry Valley, and Don Pedro Dams and Reservoirs.

    Authority: Sec. 7, 58 Stat. 890; 33 U.S.C. 709.



Sec. 208.10  Local flood protection works; maintenance and operation
of structures and facilities.

    (a) General. (1) The structures and facilities constructed by the 
United States for local flood protection shall be continuously 
maintained in such a manner and operated at such times and for such 
periods as may be necessary to obtain the maximum benefits.
    (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) Levees--(1) Maintenance. The Superintendent shall provide at all 
times such maintenance as may be required to insure serviceability of 
the structures in time of flood. Measures shall be taken to promote the 
growth of sod,

[[Page 108]]

exterminate burrowing animals, and to provide for routine mowing of the 
grass and weeds, removal of wild growth and drift deposits, and repair 
of damage caused by erosion or other forces. Where practicable, measures 
shall be taken to retard bank erosion by planting of willows or other 
suitable growth on areas riverward of the levees. Periodic inspections 
shall be made by the Superintendent to insure that the above maintenance 
measures are being effectively carried out and, further, to be certain 
that:
    (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.

Such inspections shall be made immediately prior to the beginning of the 
flood season; immediately following each major high water period, and 
otherwise at intervals not exceeding 90 days, and such intermediate 
times as may be necessary to insure the best possible care of the levee. 
Immediate steps will be taken to correct dangerous conditions disclosed 
by such inspections. Regular maintenance repair measures shall be 
accomplished during the appropriate season as scheduled by the 
Superintendent.
    (2) Operation. During flood periods the levee shall be patrolled 
continuously to locate possible sand boils or unusual wetness of the 
landward slope and to be certain that:
    (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.

Appropriate advance measures will be taken to insure the availability of 
adequate labor and materials to meet all contingencies. Immediate steps 
will be taken to control any condition which endangers the levee and to 
repair the damaged section.
    (c) Flood walls--(1) Maintenance. Periodic inspections shall be made 
by the Superintendent to be certain that:
    (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.

Such inspections shall be made immediately prior to the beginning of the 
flood season, immediately following

[[Page 109]]

each major high water period, and otherwise at intervals not exceeding 
90 days. Measures to eliminate encroachments and effect repairs found 
necessary by such inspections shall be undertaken immediately. All 
repairs shall be accomplished by methods acceptable in standard 
engineering practice.
    (2) Operation. Continuous patrol of the wall shall be maintained 
during flood periods to locate possible leakage at monolith joints or 
seepage underneath the wall. Floating plant or boats will not be allowed 
to lie against or tie up to the wall. Should it become necessary during 
a flood emergency to pass anchor cables over the wall, adequate measures 
shall be taken to protect the concrete and construction joints. 
Immediate steps shall be taken to correct any condition which endangers 
the stability of the wall.
    (d) Drainage structures--(1) Maintenance. Adequate measures shall be 
taken to insure that inlet and outlet channels are kept open and that 
trash, drift, or debris is not allowed to accumulate near drainage 
structures. Flap gates and manually operated gates and valves on 
drainage structures shall be examined, oiled, and trial operated at 
least once every 90 days. Where drainage structures are provided with 
stop log or other emergency closures, the condition of the equipment and 
its housing shall be inspected regularly and a trial installation of the 
emergency closure shall be made at least once each year. Periodic 
inspections shall be made by the Superintendent to be certain that:
    (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.

Immediate steps will be taken to repair damage, replace missing or 
broken parts, or remedy adverse conditions disclosed by such 
inspections.
    (2) Operation. Whenever high water conditions impend, all gates will 
be inspected a short time before water reaches the invert of the pipe 
and any object which might prevent closure of the gate shall be removed. 
Automatic gates shall be closely observed until it has been ascertained 
that they are securely closed. Manually operated gates and valves shall 
be closed as necessary to prevent inflow of flood water. All drainage 
structures in levees shall be inspected frequently during floods to 
ascertain whether seepage is taking place along the lines of their 
contact with the embankment. Immediate steps shall be taken to correct 
any adverse condition.
    (e) Closure structures--(1) Maintenance. Closure structures for 
traffic openings shall be inspected by the Superintendent every 90 days 
to be certain that:
    (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.

Tools and parts shall not be removed for other use. Trial erections of 
one or more closure structures shall be made once each year, alternating 
the structures chosen so that each gate will be erected at least once in 
each 3-year period. Trial erection of all closure structures shall be 
made whenever a change is made in key operating personnel. Where 
railroad operation makes trial erection of a closure structure 
infeasible, rigorous inspection and drill of operating personnel may be 
substituted therefor. Trial erection of sand bag closures is not 
required. Closure materials will be carefully checked prior to and 
following flood periods, and damaged or missing parts shall be repaired 
or replaced immediately.
    (2) Operation. Erection of each movable closure shall be started in 
sufficient time to permit completion before flood waters reach the top 
of the structure sill. Information regarding the

[[Page 110]]

proper method of erecting each individual closure structure, together 
with an estimate of the time required by an experienced crew to complete 
its erection will be given in the Operation and Maintenance Manual which 
will be furnished local interests upon completion of the project. 
Closure structures will be inspected frequently during flood periods to 
ascertain that no undue leakage is occurring and that drains provided to 
care for ordinary leakage are functioning properly. Boats or floating 
plant shall not be allowed to tie up to closure structures or to 
discharge passengers or cargo over them.
    (f) Pumping plants--(1) Maintenance. Pumping plants shall be 
inspected by the Superintendent at intervals not to exceed 30 days 
during flood seasons and 90 days during off-flood seasons to insure that 
all equipment is in order for instant use. At regular intervals, proper 
measures shall be taken to provide for cleaning plant, buildings, and 
equipment, repainting as necessary, and lubricating all machinery. 
Adequate supplies of lubricants for all types of machines, fuel for 
gasoline or diesel powered equipment, and flash lights or lanterns for 
emergency lighting shall be kept on hand at all times. Telephone service 
shall be maintained at pumping plants. All equipment, including switch 
gear, transformers, motors, pumps, valves, and gates shall be trial 
operated and checked at least once every 90 days. Megger tests of all 
insulation shall be made whenever wiring has been subjected to undue 
dampness and otherwise at intervals not to exceed one year. A record 
shall be kept showing the results of such tests. Wiring disclosed to be 
in an unsatisfactory condition by such tests shall be brought to a 
satisfactory condition or shall be promptly replaced. Diesel and 
gasoline engines shall be started at such intervals and allowed to run 
for such length of time as may be necessary to insure their 
serviceability in times of emergency. Only skilled electricians and 
mechanics shall be employed on tests and repairs. Operating personnel 
for the plant shall be present during tests. Any equipment removed from 
the station for repair or replacement shall be returned or replaced as 
soon as practicable and shall be trial operated after reinstallation. 
Repairs requiring removal of equipment from the plant shall be made 
during off-flood seasons insofar as practicable.
    (2) Operation. Competent operators shall be on duty at pumping 
plants whenever it appears that necessity for pump operation is 
imminent. The operator shall thoroughly inspect, trial operate, and 
place in readiness all plant equipment. The operator shall be familiar 
with the equipment manufacturers' instructions and drawings and with the 
``Operating Instructions'' for each station. The equipment shall be 
operated in accordance with the above-mentioned ``Operating 
Instructions'' and care shall be exercised that proper lubrication is 
being supplied all equipment, and that no overheating, undue vibration 
or noise is occurring. Immediately upon final recession of flood waters, 
the pumping station shall be thoroughly cleaned, pump house sumps 
flushed, and equipment thoroughly inspected, oiled and greased. A record 
or log of pumping plant operation shall be kept for each station, a copy 
of which shall be furnished the District Engineer following each flood.
    (g) Channels and floodways--(1) Maintenance. Periodic inspections of 
improved channels and floodways shall be made by the Superintendent to 
be certain that:
    (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.

Such inspections shall be made prior to the beginning of the flood 
season and otherwise at intervals not to exceed 90 days. Immediate steps 
will be taken to

[[Page 111]]

remedy any adverse conditions disclosed by such inspections. Measures 
will be taken by the Superintendent to promote the growth of grass on 
bank slopes and earth deflection dikes. The Superintendent shall provide 
for periodic repair and cleaning of debris basins, check dams, and 
related structures as may be necessary.
    (2) Operation. Both banks of the channel shall be patrolled during 
periods of high water, and measures shall be taken to protect those 
reaches being attacked by the current or by wave wash. Appropriate 
measures shall be taken to prevent the formation of jams of ice or 
debris. Large objects which become lodged against the bank shall be 
removed. The improved channel or floodway shall be thoroughly inspected 
immediately following each major high water period. As soon as 
practicable thereafter, all snags and other debris shall be removed and 
all damage to banks, riprap, deflection dikes and walls, drainage 
outlets, or other flood control structures repaired.
    (h) Miscellaneous facilities--(1) Maintenance. Miscellaneous 
structures and facilities constructed as a part of the protective works 
and other structures and facilities which function as a part of, or 
affect the efficient functioning of the protective works, shall be 
periodically inspected by the Superintendent and appropriate maintenance 
measures taken. Damaged or unserviceable parts shall be repaired or 
replaced without delay. Areas used for ponding in connection with 
pumping plants or for temporary storage of interior run-off during flood 
periods shall not be allowed to become filled with silt, debris, or 
dumped material. The Superintendent shall take proper steps to prevent 
restriction of bridge openings and, where practicable, shall provide for 
temporary raising during floods of bridges which restrict channel 
capacities during high flows.
    (2) Operation. Miscellaneous facilities shall be operated to prevent 
or reduce flooding during periods of high water. Those facilities 
constructed as a part of the protective works shall not be used for 
purposes other than flood protection without approval of the District 
Engineer unless designed therefor.

(Sec. 3, 49 Stat. 1571, as amended; 33 U.S.C. 701c)

[9 FR 9999, Aug. 17, 1944; 9 FR 10203, Aug. 22, 1944]



Sec. 208.11  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.

    (a) Purpose. This regulation prescribes 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. The intent of this regulation is to establish an understanding 
between project owners, operating agencies, and the Corps of Engineers.
    (b) Responsibilities. The basic responsibilities of the Corps of 
Engineers regarding project operation are set out in the cited authority 
and described in the following paragraphs:
    (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: Provided, 
That this section shall not apply to the Tennessee Valley Authority, 
except that in case of danger from floods on the lower Ohio and 
Mississippi Rivers the Tennessee Valley Authority is directed to 
regulate the release of water from the Tennessee River into the Ohio 
River in accordance with such instructions as may be issued by the War 
Department.


[[Page 112]]


    (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.
    Note: 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 Federal Register in accordance with the requirements of paragraph 
6k. When agreement on a water control plan cannot be reached between the 
Corps and the project owner after coordination with all interested 
parties, the project name will be entered in the Federal Register and 
the Corps of Engineers plan will be the official water control plan 
until such time as differences can be resolved.

    (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 * * * Provided further, That no license affecting the 
navigable capacity of any navigable waters 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.

    (B) Sections 10(a) and 10(c) of the Federal Power Act specify 
conditions of project licenses including the following:
    (1) Section 10(a). ``That the project adopted * * * shall be such as 
in the judgment of the Commission will be best adapted to a 
comprehensive plan for improving or developing a waterway or waterways 
for the use or benefit of interstate or foreign commerce, for the 
improvement and utilization of waterpower development, and for other 
beneficial public uses * * *.''
    (2) Section 10(c). ``That the licensee shall * * * so maintain and 
operate said works as not to impair navigation, and shall conform to 
such rules and regulations as the Commission may from time to time 
prescribe for the protection of life, health, and property * * *.''
    (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

[[Page 113]]

times be controlled by such reasonable rules and regulations in the 
interest of navigation; including the control of the pool caused by such 
dam or diversion structure as may be made from time to time by the 
Secretary of the Army, * * *.

    (ii) Federal Power Commission Order No. 540 issued October 31, 1975, 
and published November 7, 1975 (40 FR 51998), amending Sec. 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) Scope and terminology. This regulation applies to Federal 
authorized flood control and/or navigation storage projects, and to non-
Federal projects which require the Secretary of the Army to prescribe 
regulations as a condition of the license, permit or legislation, during 
the planning, design and construction phases, and throughout the life of 
the project. In compliance with the authority cited above, this 
regulation defines certain activities and responsibilities concerning 
water control management throughout the Nation in the interest of flood 
control and navigation. In carrying out the conditions of this 
regulation, the owner and/or operating agency will comply with 
applicable provisions of Pub. L. 85-624, the Fish and Wildlife 
Coordination Act of 1958, and Pub. L. 92-500, the Federal Water 
Pollution Control Act Amendments of 1972. This regulation does not apply 
to local flood protection works governed by Sec. 208.10, or to 
navigation facilities and associated structures which are otherwise 
covered by part 207 (Navigation Regulations) of title 33 of the code. 
Small reservoirs, containing less than 12,500 acre-feet of flood control 
or navigation storage, may be excluded from this regulation and covered 
under Sec. 208.10, unless specifically required by law or conditions of 
the license or permit.
    (1) The terms reservoir and project as used herein include all water 
resource impoundment projects constructed or modified, including natural 
lakes, that are subject to this regulation.
    (2) The term project owner refers to the entity responsible for 
maintenance, physical operation, and safety of the project, and for 
carrying out the water control plan in the interest of flood control 
and/or navigation as prescribed by the Corps of Engineers. Special 
arrangements may be made by the project owner for ``operating agencies'' 
to perform these tasks.
    (3) The term letter of understanding as used herein includes 
statements which consummate this regulation for any given project and 
define the general provisions or conditions of the local sponsor, or 
owner, cooperation agreed to in the authorizing legislative document, 
and the requirements for compliance with section 7 of the 1944 Flood 
Control Act, the Federal Power Act or other special congressional act. 
This information will be specified in the water control plan and manual. 
The letter of understanding will be signed by a duly authorized 
representative of the Chief of Engineers and the project owner. A 
``field working agreement'' may be substituted for a letter of 
understanding, provided that the specified minimum requirements of the 
latter, as stated above, are met.
    (4) The term water control agreement refers to a compliation of 
water control criteria, guidelines, diagrams, release

[[Page 114]]

schedules, rule curves and specifications that basically govern the use 
of reservoir storage space allocated for flood control or navigation 
and/or release functions of a water control project for these purposes. 
In general, they indicate controlling or limiting rates of discharge and 
storage space required for flood control and/or navigation, based on the 
runoff potential during various seasons of the year.
    (5) For the purpose of this regulation, the term water control plan 
is limited to the plan of regulation for a water resources project in 
the interest of flood control and/or navigation. The water control plan 
must conform with proposed allocations of storage capacity and 
downstream conditions or other requirements to meet all functional 
objectives of the particular project, acting separately or in 
combination with other projects in a system.
    (6) The term real-time denotes the processing of current information 
or data in a sufficiently timely manner to influence a physicial 
response in the system being monitored and controlled. As used herein 
the term connotes * * * the analyses for and execution of water control 
decisions for both minor and major flood events and for navigation, 
based on prevailing hydrometeorological and other conditions and 
constraints, to achieve efficient management of water resource systems.
    (d) Procedures--(1) Conditions during project formulation. During 
the planning and design phases, the project owner should consult with 
the Corps of Engineers regarding the quantity and value of space to 
reserve in the reservoir for flood control and/or navigation purposes, 
and for utilization of the space, and other requirements of the license, 
permit or conditions of the law. Relevant matters that bear upon flood 
control and navigation accomplishment include: Runoff potential, 
reservoir discharge capability, downstream channel characteristics, 
hydrometeorological data collection, flood hazard, flood damage 
characteristics, real estate acquisition for flowage requirements (fee 
and easement), and resources required to carry out the water control 
plan. Advice may also be sought on determination of and regulation for 
the probable maximum or other design flood under consideration by the 
project owner to establish the quantity of surcharge storage space, and 
freeboard elevation of top of dam or embankment for safety of the 
project.
    (2) Corps of Engineers involvement. If the project owner is 
responsible for real-time implemenetation of the water control plan, 
consultation and assistance will be provided by the Corps of Engineers 
when appropriate and to the extent possible. During any emergency that 
affects flood control and/or navigation, the Corps of Engineers may 
temporarily prescribe regulation of flood control or navigation storage 
space on a day-to-day (real-time) basis without request of the project 
owner. Appropriate consideration will be given for other authorized 
project functions. Upon refusal of the project owner to comply with 
regulations prescribed by the Corps of Engineers, a letter will be sent 
to the project owner by the Chief of Engineers or his duly authorized 
representative describing the reason for the regulations prescribed, 
events that have transpired, and notification that the project owner is 
in violation of the Code of Federal Regulations. Should an impasse 
arise, in that the project owner or the designated operating entity 
persists in noncompliance with regulations prescribed by the Corps of 
Engineers, measures may be taken to assure compliance.
    (3) Corps of Engineers implementation of real-time water control 
decisions. The Corps of Engineers may prescribe the continuing 
regulation of flood control storage space for any project subject to 
this regulation on a day-to-day (real-time) basis. When this is the 
case, consultation and assistance from the project owner to the extent 
possible will be expected. Special requests by the project owner, or 
appropriate operating entity, are preferred before the Corps of 
Engineers offers advice on real-time regulation during surcharge storage 
utilization.
    (4) Water control plan and manual. Prior to project completion, 
water control managers from the Corps of Engineers will visit the 
project and the area

[[Page 115]]

served by the project to become familiar with the water control 
facilities, and to insure sound formulation of the water control plan. 
The formal plan of regulation for flood control and/or navigation, 
referred to herein as the water control plan, will be developed and 
documented in a water control manual prepared by the Corps of Engineers. 
Development of the manual will be coordinated with the project owner to 
obtain the necessary pertinent information, and to insure compatibility 
with other project purposes and with surcharge regulation. Major topics 
in the manual will include: Authorization and description of the 
project, hydrometeorology, data collection and communication networks, 
hydrologic forecasting, the water control plan, and water resource 
management functions, including responsibilities and coordination for 
water control decisionmaking. Special instructions to the dam tender or 
reservoir manager on data collection, reporting to higher Federal 
authority, and on procedures to be followed in the event of a 
communication outage under emergency conditions, will be prepared as an 
exhibit in the manual. Other exhibits will include copies of this 
regulation, letters of understanding consummating this regulation, and 
the water control agreements. After approval by the Chief of Engineers 
or his duly authorized representative, the manual will be furnished the 
project owner.
    (5) Water control agreement. (i) A water control diagram (graphical) 
will be prepared by the Corps of Engineers for each project having 
variable space reservation for flood control and/or navigation during 
the year; e.g., variable seasonal storage, joint-use space, or other 
rule curve designation. Reservoir inflow parameters will be included on 
the diagrams when appropriate. Concise notes will be included on the 
diagrams prescribing the use of storage space in terms of release 
schedules, runoff, nondamaging or other controlling flow rates 
downstream of the damsite, and other major factors as appropriate. A 
water control release schedule will be prepared in tabular form for 
projects that do not have variable space reservation for flood control 
and/or navigation. The water control diagram or release schedule will be 
signed by a duly authorized representative of the Chief of Engineers, 
the project owner, and the designated operating agency, and will be used 
as the basis for carrying out this regulation. Each diagram or schedule 
will contain a reference to this regulation.
    (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 Federal 
Register under this section (part 208) of the code prior to the date of 
this publication which are listed in Sec. 208.11(e) are hereby 
superseded.
    (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) Hydrometeorological instrumentation. The project owner will 
provide instrumentation in the vicinity of the damsite and will provide 
communication equipment necessary to record and transmit 
hydrometeorological and reservoir data to all appropriate Federal 
authorities on a real-time basis unless there are extenuating 
circumstances or are otherwise provided for as a condition of the 
license or permit. For those

[[Page 116]]

projects where the owner retains responsibility for real-time 
implementation of the water control plan, the owner will also provide or 
arrange for the measurement and reporting of hydrometeorological 
parameters required within and adjacent to the watershed and downstream 
of the damsite, sufficient to regulate the project for flood control 
and/or navigation in an efficient manner. When data collection stations 
outside the immediate vicinity of the damsite are required, and funds 
for installation, observation, and maintenance are not available from 
other sources, the Corps of Engineers may agree to share the costs for 
such stations with the project owner. Availability of funds and urgency 
of data needs are factors which will be considered in reaching decisions 
on cost sharing.
    (7) Project safety. The project owner is responsible for the safety 
of the dam and appurtenant facilities and for regulation of the project 
during surcharge storage utilization. Emphasis upon the safety of the 
dam is especially important in the event surcharge storage is utilized, 
which results when the total storage space reserved for flood control is 
exceeded. Any assistance provided by the Corps of Engineers concerning 
surcharge regulation is to be utilized at the discretion of the project 
owner, and does not relieve the owner of the responsibility for safety 
of the project.
    (8) Notification of the general public. The Corps of Engineers and 
other interested Federal and State agencies, and the project owner will 
jointly sponsor public involvement activities, as appropriate, to fully 
apprise the general public of the water control plan. Public meetings or 
other effective means of notification and involvement will be held, with 
the initial meeting being conducted as early as practicable but not 
later than the time the project first becomes operational. Notice of the 
initial public meeting shall be published once a week for 3 consecutive 
weeks in one or more newspapers of general circulation published in each 
county covered by the water control plan. Such notice shall also be used 
when appropriate to inform the public of modifications in the water 
control plan. If no newspaper is published in a county, the notice shall 
be published in one or more newspapers of general circulation within 
that county. For the purposes of this section a newspaper is one 
qualified to publish public notices under applicable State law. Notice 
shall be given in the event significant problems are anticipated or 
experienced that will prevent carrying out the approved water control 
plan or in the event that an extreme water condition is expected that 
could produce severe damage to property or loss of life. The means for 
conveying this information shall be commensurate with the urgency of the 
situation. The water control manual will be made available for 
examination by the general public upon request at the appropriate office 
of the Corps of Engineers, project owner or designated operating agency.
    (9) Other generalized requirements for flood control and navigation. 
(i) Storage space in the reservoirs allocated for flood control and 
navigation purposes shall be kept available for those purposes in 
accordance with the water control agreement, and the plan of regulation 
in the water control manual.
    (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; i.e., releases from reservoirs shall be restricted insofar as 
practicable to quantities which, in conjunction with uncontrolled runoff 
downstream of the dam, will not cause water levels to exceed the 
controlling stages currently in force. Although conflicts may arise with 
other purposes, such as hydropower, the plan or regulation may require 
releases to be completely curtailed in the interest of flood control or 
safety of the project.
    (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

[[Page 117]]

the watershed and downstream of the damsite, as necessary. This and any 
other pertinent information shall be reported to the Corps of Engineers 
on a timely basis, in accordance with standing instructions to the 
damtender or other means requested by the Corps of Engineers.
    (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) Revisions. The water control plan and all associated documents 
will be revised by the Corps of Engineers as necessary, to reflect 
changed conditions that come to bear upon flood control and navigation, 
e.g., reallocation of reservoir storage space due to sedimentation or 
transfer of storage space to a neighboring project. Revision of the 
water control plan, water control agreement, water control diagram, or 
release schedule requires approval of the Chief of Engineers or his duly 
authorized representative. Each such revision shall be effective upon 
the date specified in the approval. The original (signed document) water 
control agreement shall be kept on file in the respective Office the 
Division Engineer, Corps of Engineers, Department of the Army, located 
at division offices throughout the continental USA. Copies of these 
agreements may be obtained from the office of the project owner, or from 
the office of the appropriate Division Engineer, Corps of Engineers.
    (11) Federal Register. The following information for each project 
subject to section 7 of the 1944 Flood Control Act and other applicable 
congressional acts shall be published in the Federal Register prior to 
the time the projects becomes operational and prior to any significant 
impoundment before project completion or * * * at such time as the 
responsibility for physical operation and maintenance of the Corps of 
Engineers owned projects is transferred to another entity:
    (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

[[Page 118]]

space (intermingled) when flood control or navigation is one of the 
purposes, with corresponding elevations in feet above mean sea level, 
and area in acres, at the upper and lower limits of said space,
    (iv) The name of the project owner, and
    (v) Congressional legislation authorizing the project for Federal 
participation.
    (e) List of projects. The following tables, ``Pertinent Project 
Data--Section 208.11 Regulation,'' show the pertinent data for projects 
which are subject to this regulation.

[[Page 119]]



                                                                                        List of Projects
                                                                     [Non-Corps projects with Corps Regulation Requirements]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                  Elev limits feet      Area in acres
                                                                                           Project      Storage        M.S.L.       --------------------
      Project name \1\  (1)        State       County  (3)          Stream \1\  (4)      purpose \2\    1000 AF --------------------                     Authorizing legis. \3\  Proj. owner \4\
                                     (2)                                                     (5)          (6)      Upper     Lower     Upper     Lower             (11)                (12)
                                                                                                                    (7)       (8)       (9)      (10)
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Agency Valley Dam & Res..........    OR   Malheur..............  N Fork Malheur R.....  FICR.........      60.0    3340.0    3263.0      1900         0  PL 68-292.............  USBR.
Alpine Dam.......................    IL   Winnebago............  Keith Cr.............  F............       0.6     796.0     760.0        52         0  PWA Proj..............  Rkfd, IL.
Altus Dam & Res..................    OK   Jackson..............  N Fork Red R.........  F............      19.6    1562.0    1559.0      6800      6260  PL 761................  USBR.
                                                                                        IMR..........     132.6    1559.0   1517.5P      6260       735
Anderson Ranch Dam & Res.........    ID   Elmore...............  S Fk Boise R.........  FEI..........     423.2    4196.0    4039.6      4740      1150  Act of 1939 53 Stat     USBR.
                                                                                                                                                          1187.
Arbuckle Dam & Res...............    OK   Murray...............  Rock Cr..............  F............      36.4     885.3     872.0      3130      2350  PL 594................  USBR.
                                                                                        MRC..........      62.5     872.0     827.0      2350       606
Arrowrock Dam & Res..............    ID   Elmore...............  Boise R..............  FI...........     286.6    3216.0    2974.0      3100       200  Act of 1902 32 Stat     USBR.
                                                                                                                                                          388.
Bear Cr Dam......................    MO   Marion Ralls.........  Bear Cr..............  F............       8.7     546.5     520.0       540         0  PL 83-780.............  Hnbl, MO.
Bear Swamp Fife Brook (Lo).......    MA   Franklin.............  Deerfield R..........  E............       6.9     870.0     830.0       152       115  FERC 2669.............  NEPC.
Bear Swamp PS (Upper)............    MA   Franklin.............  Deerfield R Trib.....  E............       8.9    1600.0    1550.0       118       102  Fed Pwr Act...........  NEPC.
Bellows Falls Dam & Lk...........    VT   Cheshire.............  Connecticut R........  E............       7.5     291.6     273.6      2804       836  FERC 1885.............  NEPC.
Big Dry Creek and Div............    CA   Fresno...............  Big Dry Cr & Dog Cr..  F............      16.2     425.0     393.0      1530         0  PL 77-228.............  Rclm, B CA.
Blue Mesa Dam & Res..............    CO   Gunnison.............  Gunnison R...........  FER..........     748.5    7519.4    7393.0      9180      2790  PL 84-485.............  USBR
Boca Dam & Res...................    CA   Nevada...............  Little Truckee R.....  I............      32.8    5596.5    5521.0       873        52  PL 61-289.............  USBR.
                                                                                        FI...........       8.0    5605.0    5596.0       980       873  PL 68-292.............
Bonny Dam & Res..................    CO   Yuma.................  S Fork Republic R....  F............     128.2    3710.0    3672.0      5036      2042  PL 78-534.............  USBR.
                                                                                        ICR..........      39.2    3672.0    3638.0      2042       331  PL 79-732.............
Boysen Dam & Res.................    WY   Fremont..............  Wild R...............  F............     150.4    4732.2    4725.0     22170     19560  PL 78-534.............  USBR.
                                                                                        FEIQ.........     146.1    4725.0    4717.0     19560     16960
                                                                                        EIQ..........     403.8    4717.0    4685.0     16960      9280
Brantley Dam & Res...............    NM   Eddy.................  Pecos R..............  FIRQ.........     348.5    3283.0    3210.7     21294        38  PL 92-515.............  USBR.
Brownlee Dam & Res...............    OR   Baker................  Snake R..............  FE...........     975.3    2077.0    1976.0     13840      6650  FERC No 1971-C........  ID Pwr.
                                     ID   Washington...........
Bully Cr Dam & Res...............    OR   Malheur..............  Bully Cr.............  FI...........      31.6    2516.0    2456.8      1082       140  PL 86-248.............  USBR.
Camanche Dam & Res...............    CA   San Joaquin..........  Mokelumne R..........  FRIE.........     200.0     235.5     205.1      7600      5507  PL 86-645.............  EB-MUD.
                                                                                        RIE..........     230.9     205.1      92.0      5507         0
Canyon Ferry Dam & Lk............    MT   Lewis Clark..........  Missouri R...........  F............      99.5    3800.0    3797.0     33535     32800  PL 78-534.............  USBR.
                                                                                        FEI..........     795.1    3797.0    3770.0     32800     24125
                                                                                        EI...........     711.5    3770.0    3728.0     24125     11480
Cedar Bluff Dam & Res............    KS   Trego................  Smoky Hill R.........  F............     191.9    2166.0    2144.0     10790      6869  PL 78-534.............  USBR.
                                                                                        IMCR.........     149.8    2144.0    2107.8      6869      2086
Cheney Dam & Res.................    KS   Sedgwick.............  N Fork Ninnescah R...  F............      80.9    1429.9    1421.6     12420      9540  PL 86-787.............  USBR.
                                                                                        MC...........     151.8    1421.6    1392.9      9540      1970
                                                                                                            0.0       0.0       0.0         0         0
Clark Canyon Dam & Res...........    MT   Beaverhead...........  Beaverhead R.........  F............      79.1    5560.4    5546.1      5900      5160  PL 78-534.............  USBR.
                                                                                        FI...........      50.4    5546.1    5535.7      5160      4495
                                                                                        I............     126.1    5535.7    5470.6      4495       220

[[Page 120]]

 
Del Valle Dam & Res..............    CA   Alameda..............  Alameda Cr...........  F............      37.0     745.0     703.1      1060       710  PL 87-874.............  DWR.
                                                                                        FIM..........       1.0     703.1     702.2       710       700                          CA.
                                                                                        IMR..........      29.0     702.2     635.0       700       275
Don Pedro Dam & Lk...............    CA   Tuolumne.............  Tuolumne R...........  FIER.........     340.0     830.0     802.0     12900     11260  PL 78-534.............  M&T.
                                                                                        EIR..........    1381.0     802.0     600.0     11260      3520                          Irr.
                                                                                                          308.0     600.0     342.0      3520        29
East Canyon Dam & Res............    UT   Morgan...............  East Canyon Cr.......  FEIM.........      48.0    5705.5    5578.0       684       130  PL 81-273.............  USBR.
Echo Dam & Res...................    UT   Summit...............  Weber R..............  FEIM.........      74.0    5560.0    5450.0      1455         0  PL 81-83..............  USBR.
Emigrant Dam & Res...............    OR   Jackson..............  Emigrant Cr..........  FIR..........      39.0    2241.0    2131.5       801        80  PL 83-606.............  USBR.
Enders Dam & Res.................    NE   Chase................  Frenchman Cr.........  F............      30.0    3127.0    3112.3      2405      1707  PL 78-534.............  USBR.
                                                                                        ICR..........      34.5    3112.3    3082.4      1707       658  PL 84-505.............
Folsom Dam & Lk..................    CA   Sacramento...........  American R...........  FEIM.........     400.0     466.0     427.0     11450      9040  ......................  USBR.
                                                                                        EIM..........     610.0     427.0     210.0      9040         0
Fort Cobb Dam & Res..............    OK   Caddo................  Pond (Cobb) Cr.......  F............      63.7    1354.8    1342.0      5980      4100  PL 419................  USBR.
                                                                                        IMCR.........      78.3    1342.0    1300.0      4100       337
Foss Dam & Res...................    OK   Custer...............  Washita R............  F............     180.6    1668.6    1652.0     13140      8800  PL 419................  USBR.
                                                                                        IMRC.........     243.8    1652.0    1597.2      8800      1360
Friant Dam & Millerton Lk........    CA   Fresno...............  San Joaquin R........  FEIM.........     390.5     578.0     466.3      4850      2101  PL 75-392.............  USBR.
                                                                                                                                                         PL 76-868.............
Galesville Dam...................    OR   Douglas..............  Cow Cr...............  FEMCR........      42.2    1881.5    1780.0       760       150  FERC No. 71...........  Dgls, CO.
                                                                                                                                                         61001.................
Gaston Dam & Res.................    NC   Halifax..............  Roanoke R............  FE...........      63.0     203.0     200.0     22500     20300  Fed Pwr Act...........  VA Pwr.
                                          Northampton..........
Glen Elder Dam & Waconda Lk......    KS   Mitchel..............  Solomon R............  F............     722.3    1488.3    1455.6     33682     12602  PL 78-534.............  USBR.
                                                                                        IM...........     204.8    1455.6    1428.0     12602      3341  PL 79-526.............
Glendo Dam & Res.................    WY   Platte...............  N Platte R...........  F............     271.9    4653.0    4635.0     17990     12370  PL 78-534.............  USBR.
                                                                                        EIM..........     454.3    4635.0    4570.0     12370      3130
Grand Coulee Dam & FDR Lk........    WA   Okanogan Grant.......  Columbia R...........  FEI..........    5185.5    1290.0    1208.0     82280     45592  PL 89-561.............  USBR.
H Neely Henry Dam & Res..........    AL   Calhoun St. Clair....  Coosa R..............  FE...........      49.7     508.0     502.5     11235      7632  PL 83-436.............  AL Pwr.
Harris Dam & Res.................    AL   Randolph.............  Tallapoosa R.........  FE...........     215.0     793.0     785.0     10661      9012  PL 89-789.............  AL Pwr.
Heart Butte Dm & Lk Tschida......    ND   Grant................  Heart R..............  F............     147.9    2094.5    2064.5      6580      3400  PL 78-534.............  USBR.
                                                                                        IQ...........      69.0    2064.5    2030.0      3400       810
Hells Canyon Dam & Res...........    OR   Wallowa..............  Snake R..............  EN...........      11.7    1688.0    1683.0      2380      2280  FERC No 1971-A........  ID Pwr.
                                     ID   Adams................
Hoover Dam & Lk Mead.............    NV   Clark Mohave.........  Colorado R...........  F............    1500.0    1229.0    1219.6    162700    156500  PL 70-642.............  USBR.
                                     AZ                                                 FEIMCAR......      15.8    1219.6    1083.0    156500     83500
Hungry Horse Dam & Res...........    MT   Flathead.............  S Fork Flathead R....  FEI..........    2982.0    3560.0    3336.0     23800      5400  PL 78-329.............  USBR.
Indian Valley Dam & Res..........    CA   Lake.................  N Fork Cache Cr......  FIMR.........      40.0    1485.0    1474.0      3975      3734  PL 84-984.............  Yolo FC&W.
                                                                                        IMR..........     260.0    1474.0    1334.0      3734       308
Jamestown Dam & Res..............    ND   Stutsman.............  James R..............  F............     185.4    1454.0    1429.8     13210      2090  PL 78-534.............  USBR.
                                                                                        IQ...........      28.1    1429.8    1400.0      2090       160

[[Page 121]]

 
Jocassee Dam & Res...............    SC   Pickens..............  Keowee R.............  PRFC.........    1160.0    1110.0    1080.0      7565      6815  FERC 2503.............  USBR Pwr.
Keowee Dam & Lk..................    SC   Pickens..............  Keowee R.............  FPMCAR.......     392.0     800.0     775.0     18372     13072  FERC 2503.............  Duke Pwr.
Kerr Dam Flathead Lk.............    MT   Lake.................  Flathead R...........  FER..........    1219.0    2893.0    2883.0    125560    120000  FERC No 5.............  MT Pwr.
Kerr Dam & Lk Hudson (Markham        OK   Mayes................  Grand Neosho R.......  F............     244.2     636.0     619.0     18800     10900  PL 76-476.............  GRD Auth.
 Ferry Project).                                                                        E............      48.6     619.0     599.0     10900      4500
Keyhole Dam & Res................    WY   Crook................  Belle Fourche R......  F............     140.5    4111.5    4099.3     13730      9410  PL 78-534.............  USBR.
                                                                                        IQ...........     185.8    4099.3    4051.0      9410       820
Kirwin Dam & Res.................    KS   Phillips.............  N Fork Solomon R.....  F............     215.1    1757.3    1729.3     10640      5080  PL 78-534.............  USBR.
                                                                                        ICR..........      89.6    1729.2    1697.0      5080      1010  PL 79-732; PL 79-526..
Lake Kemp Dam & Res..............    TX   Wichita..............  Wichita R............  F............     234.9    1156.0    1144.0     23830     15590  SD 144................  WF&C.
                                                                                        MI...........     268.0    1144.0    1114.0     15590      3350  ......................  WID2.
Leesville Dam & Res..............    VA   Campbell Pttsylvnia..  Roanoke R............  EQ...........      37.8     613.0     600.0      3235      2400  Fed Pwr Act...........  Appl Pwr.
Lemon Dam & Res..................    CO   La Plata.............  Florida R............  FIM..........      39.0    8148.0    8023.0       622        62  PL 84-485.............  USBR.
Lewis M Smith Dam & Res..........    AL   Walker Culman........  Sipsey Fork; Black     F............     280.6     522.0     510.0     25700     21200  Fed Pwr Act...........  AL Pwr.
                                                                  Warrior R.            E............     394.3     510.0     488.0     21200     15097
Little Wood......................    ID   Blain................  Little Wood R........  FI...........      30.0    5237.3    5127.4       572         0  PL 84-993.............  USBR.
Logan Martin Dam & Res...........    AL   Talladega............  Cossa R..............  F............     245.3     477.0     465.0     26310     15260  PL 83-436.............  AL Pwr.
                                                                                        E............      67.0     465.0     460.0     15263     11887
Los Banos Dam & Detention........    CA   Merced...............  Los Banos Cr.........  R............      20.6     327.8     231.2       467         0  ......................  USBR.
Los Banos Dam & Detention Res....    CA   Merced...............  Los Banos Cr.........  F............      14.0     353.5     327.8       619       467  PL 86-488.............  USBR.
Lost Creek Dam & Res.............    UT   Morgan...............  Lost Cr..............  FEIM.........      20.0    6005.0    5912.0       365        93  PL 81-273.............  USBR.
Lovewell Dam & Res...............    KS   Jewell...............  White Rock Cr........  F............      50.5    1595.3    1582.6      5025      2986  PL 78-534.............  USBR.
                                                                                        ICR..........      24.9    1582.6    1571.7      2986      1704  PL 79-732.............
Marshall Ford Dam & Res..........    TX   Travis...............  Colorado R...........  F............     779.8     714.0     681.0     29060     18955  PL 73-392.............  USBR.
                                                                                        NEIM.........     810.5     681.0     618.0     18955      8050  PL 78-534.............
Mayfield Dam & Res...............    WA   Lewis................  Cowlitz R............  FER..........      21.4     425.0     415.0      2250      2030  FPC No 2016-A.........  Tac WN.
McGee Creek Dam & Res............    OK   Atoka................  McGee Cr.............  F............      85.3     595.5     577.1      5540      3810  PL 94-423.............  USBR.
                                                                                        MCR..........     108.0     577.7     515.1      3810       370
Medicine Cr Dam Harry Strunk Lk..    NE   Frontier.............  Medicine Cr..........  F............      52.7    2386.2    2366.1      3483      1840  PL 78-534.............  USBR.
                                                                                        ICR..........      26.8    2366.1    2343.0      1840       701  PL 84-505.............
Mossyrock Dam Davisson Lk........    WA   Lewis................  Cowlitz R............  FER..........    1397.0     778.5     600.0     11830      4250  FERC No 2016-B........  Tac, WN
Mt Park Dam Tom Steed Res........    OK   Kiowa................  W Otter Cr...........  F............      20.3    1414.0    1411.0      7130      6400  PL 90-503.............  USBR.
                                                                                        MRC..........      89.0    1411.0    1386.3      6400      1270
Navajo Dam & Res.................    NM   San Juan.............  San Juan R...........  FEIRQ........    1036.1    6085.0    5990.0     15610      7400  PL 84-485.............  USBR.
                                          Rio Arriba...........
New Bullards Bar Dam & Res.......    CA   Yuba.................  Yuba R...............  FEIMR........     170.0    1956.0    1918.3      4809      4225  PL 89-298.............  YCWA.
                                                                                        EIMR.........     790.9    1918.3    1447.5      4225       129
New Exchequer Dam & Lk...........    CA   Tuolumne.............  Merced R.............  FEIR.........     400.0     867.0     799.7      7110      4849  PL 86-645.............  Mrcd, Irr.
                                                                                        EIR..........     451.6     799.7     660.0      4849      1900
                                                                                        IR...........     171.0     660.0     467.0      1900       150
New Melones Dam & Lk.............    CA   Tuolumne.............  Stanislaus R.........  FEIMR........     450.0    1088.0    1049.5     12500     10900  PL 87-874.............  USBR.
                                          Calaveras............                         EIMR.........    1670.0    1049.5     808.0     10900      3500
                                                                                        IMR..........     300.0     808.0     540.0      3500         0
Northfield Mt (Up) PS............    MA   Franklin.............  Connecticut..........  E............      14.0     965.0     938.0       196       134  FERC 1889.............  WMEC.
Norton Dam & Kieth Sebelius Lk...    KS   Norton...............  Prairie Dog Cr.......  F............      98.8    2331.4    2304.3      5316      2181  PL 78-534.............  USBR.
                                                                                        IMRC.........      30.7    2304.3    2280.4      2181       587  PL 79-526.............
                                                                                                                                                         PL 79-732.............

[[Page 122]]

 
Ochoco Dam & Res.................    OR   Crook................  Ochoco Cr............  FICR.........      52.5    3136.2       0.0      1130       130  PL 84-992.............  USBR.
Oroville Dam & Lk................    CA   Butte................  Feather R............  FEIMAR.......     750.0     900.0     848.5     15800     13346  PL 85-500.............  CA.
                                                                                        EIMAR........    2788.0     848.5     210.0     13346         0
Pactola Dam & Res................    SD   Pennington...........  Rapid Cr.............  F............      43.1    4621.5    4580.2      1230       860  PL 78-534.............  USBR.
                                                                                        IM...........      55.0    4580.2    4456.1       860       100
Palisades Dam & Res..............    ID   Bonneville...........  Snake R..............  FIE..........    1202.0    5620.0    5452.0     16100      2170  PL 81-864.............  USBR.
Paonia Dam & Res.................    CO   Gunnision............  Muddy Cr.............  FIR..........      17.0    6447.5    6373.0       334       120  PL 80-177.............  USBR.
                                                                                                                                                         PL 84-485.............
Pensacola Dam Grand Lake O' the      OK   Mayes................  Grand (Neosho) R.....  F............     525.0     755.0     745.0     59200     46500  PL 77-228.............  Grd, Auth.
 Cherokees.                                                                             E............    1192.0     745.0     705.0     46500     17000
Pineview Dam & Res...............    UT   Weber................  Odgen R..............  FEIM.........     110.0    4900.0    4818.0      2874         0  PL 81-273.............  USBR.
Platoro Dam & Res................    CO   Conejos..............  Conejos R............  F............       6.0   10034.0   10027.5       947       920  PL 76-640.............  USBR.
                                                                                        IR...........      54.0   10027.5    9911.0       920         0
Priest Rapids Dam & Res..........    WA   Grant................  Columbia R...........  FER..........      44.0     488.0     481.5      7600      6500  FERC No 2114-A........  Grnt, PUD.
Prineville Dam & Res.............    OR   Crook................  Crooked R............  FIRC.........     233.0    3257.9    3114.0      3997       140  PL-84-992.............  USBR.
Prosser Cr Dam & Res.............    CA   Nevada...............  Prosser Cr...........  C............       8.6    5703.7    5661.0       334        86  PL 84-858.............  USBR.
                                                                                        FC...........      20.0    5761.0    5703.7       745       334  PL 85-706.............
Pueblo Dam & Res.................    CO   Pueblo...............  Arkansas R...........  F............      93.0    4898.7    4880.5      5671      4640  PL 87-590.............  USBR.
                                                                                        IR...........     261.4    4880.5    4764.0      4640       421
Red Willow Dam Hugh Butler Lk....    NE   Frontier.............  Red Willow Cr........  F............      48.9    2604.9    2581.8      2682      1629  PL 78-534.............  USBR.
                                                                                        IRC..........      27.3    2581.8    2558.0      1629       787  PL 85-783.............
                                                                                                                                                         PL 84-505.............
Ririe Dam & Res..................    ID   Bonneville...........  Willow Cr............  FIRC.........      99.0    5119.0    5023.0       150       360  PL 87-874.............  USBR.
Roanoke Rapids Dam & Res.........    NC   Halifax..............  Roanoke R............  EC...........      16.8     132.0     128.0      4600      4100  FPC 2009..............  VA, Pwr.
Rocky Reach Dam Lk Entiat........    WA   Chelan...............  Columbia R...........  FER..........      36.0     707.0     703.0      9920      9490  FERC No 2145..........  Chln PUD.
Rocky River PS Lk Candlewood.....    CT   Litchfield...........  Housatonic R.........  E............     142.5     430.0     418.0      5608      4692  FERC 2576.............  CLPC.
Ross Dam & Res...................    WA   Whatcom..............  Skagit R.............  E............    1052.0    1602.5    1475.0     11700      4450  FERC 553..............  Sttl.
Sanford Dam & Lk Meredith........    TX   Hutchison............  Canadian R...........  F............     462.1    2965.0    2941.3     21640     17320  PL 81-898.............  USBR.
                                                                                        IMCRQ........     761.3    2941.3    2860.0     17320      4500
Savage River Dam & Res...........    MD   Garrett..............  Savage R.............  FMA..........      20.0    1468.5    1317.0       366         0  PL 78-534.............  Ptmc Comm.
Scoggins Dam Henry Hagg Lk.......  .....  .....................  Scoggins Cr..........  FIR..........      56.3     305.8     235.3       116         4  PL 89-596.............  USBR.
Shadehill Dam & Res..............    SD   Perkins..............  Grand R..............  F............     218.3    2302.0    2271.9      9900      4800  PL 78-534.............  USBR.
                                                                                        IQ...........      80.9    2271.9    2250.8      4800      2800
Shasta Dam Lk....................    CA   Shasta...............  Sacramento R.........  FEIA.........    1300.0    1067.0    1018.6     29570     23894  PL 75-392.............  USBR.
                                                                                        EIA..........    3241.0    1018.6     735.8     23894      2200
Shepaug Dam & Lk.................    CT   Litchfield...........  Housatonic R.........  E............       5.0     200.0     172.0      1882      1125  FERC 2576.............  CLPC.
Smith Mtn Dam & Res..............    VA   Bedford..............  Roanoke R............  E............      40.8     795.0     793.0     20600     20200  Fed Pwr Act...........  Appl Pwr.
                                          Franklin.............
                                          Roanoke..............
                                          Pttsylvnia...........

[[Page 123]]

 
Stampede Dam & Res...............    CA   Sierra...............  Little Truckee R.....  FEM..........      22.0    5949.0    5942.1      3430      3230  PL 84-858.............  USBR.
                                                                                        EM...........     199.4    5942.0    5798.0      3230       210
Starvation Dam and Res...........    UT   Duchesne.............  Strawberry R.........  FIM..........     165.3    5712.0    5595.0      3310       689  PL 84-485.............  USBR.
Stevens Creek Dam & Res..........    GA   Columbia.............  Savannah River.......  P............      10.5     187.5     183.0      4300         0  FERC 2535.............  SC E&G.
Stevenson Dam Lk Zoar............    CT   Litchfield...........  Housatonic R.........  E............       5.0     108.0      80.0      1148       516  FERC 2576.............  CLPC.
Summer Dam & Lk..................    NM   De Baca..............  Pecos R..............  FI...........      51.4    4261.0    4200.0      2835         0  PL 83-780.............  USBR.
Tat Momolikot Dam & Lake.........    AZ   Pinal................  Santa Rosa Wash......  FIC..........     198.5    1539.0    1480.0     11790         0  PL 89-298.............  BIA.
Tiber Dam & Res..................    MT   Libert Toole.........  Marias R.............  F............     400.9    3012.5    2993.0     23150     17890  PL 78-534.............  USBR.
                                                                                        FIQ..........     268.0    2993.0    2976.0     17890     13790
                                                                                        IQ...........     121.7    2976.0    2966.4     13790     11710
Trenton Dam & Res................    NB   Hitchcock............  Republican R.........  F............     134.1    2773.0    2752.0      7940      4922  PL 78-534.............  USBR.
                                                                                        IRC..........      99.8    2752.0    2720.0      4922      1572  PL 84-505.............
Turners Falls (Low) Dam & Lk.....    MA   Franklin.............  Connecticut R........  E............       8.7     185.0     176.0      2110      1880  FERC 1889.............  WMEC
Twin Buttes Dam & Lake...........    TX   Tom Green............  Concho R.............  F............     454.4    1969.1    1940.2     23510     23510  PL 85-152.............  USBR
                                                                                        IM...........     150.0    1940.2    1885.0      9080       670  PL 78-534.............
Twitchell Dam & Res..............    CA   Santa Barbara........  Cuyama R.............  F............      89.8     651.5     623.0      3671      2556  PL 83-774.............  USBR
                                                                                        IM...........     135.6     623.0     504.0      2556         0
Upper Baker Dam Baker Lk.........    WA   Whatcom..............  Baker R..............  FE...........     184.6     724.0     674.0      4985      2375  PL 89-298.............  Pgt
                                                                                                                                                         FERC 2150B............  P&L
Vallecito Dam & Res..............    CO   La Plata.............  Los Pinos R..........  FEI..........     125.4    7665.0    7582.5      2720       350  PL 61-288.............  USBR
                                                                                                                                                         PL 68-292.............
Vernon Dam & Lk..................    VT   Windham..............  Connecticut R........  E............      18.3     220.1     212.1      2550      1980  FERC 1904.............  NEPC
Wanapum Dam & Res................    WA   Grant................  Columbia R...........  FER..........     151.6     571.5     560.0     14300     13350  FERC No 2114-B........  Grnt
                                                                                                                                                                                 PUD
Wanship Dam & Rockport...........    UT   Summit...............  Weber R..............  FEIM.........      61.0    6037.0    5930.0      1077       121  PL 81-273.............  USBR
Warm Springs Dam & Res...........    OR   Malheur..............  Middle Fork Malheur R  FICR.........     191.0    3406.0    3327.0       460        90  PL 78-534.............  Vale
                                                                                                                                                                                 USBR
Waterbury Dam & Res..............    VT   Washington...........  Little R.............  FP...........      27.7     617.5     592.0      1330       890  PL 78-534.............  VT
Webster Dam & Res................    KS   Rocks................  S Fork Solomon R.....  F............     183.4    1923.7    1892.5      8480      3772  PL 78-534.............  USBR
                                                                                        IRC..........      72.1    1892.5    1860.0      3772       906  PL 79-526.............
                                                                                                                                                         PL 79-732.............
Weiss Dam & Res..................    AL   Cherokee.............  Coosa R..............  F............     397.0     574.0     564.0     50000     30200  PL 83-436.............  AL Pwr
                                                                                        E............     148.4     564.0     558.0     30200     19545
Wells Dam L Pateros..............    WA   Douglas..............  Columbia R...........  FER..........      74.0     781.0     771.0     10000      8000  FERC No 2149..........  Dgls
                                                                                                                                                                                 PUD
Wilder Dam & Lk..................    VT   Windsor..............  Connecticut R........  E............      13.3     385.0     380.0      3100      2240  FERC 1893.............  NEPC
Yellowtail Dam & Bighorn Lk......    MT   Big Horn.............  Bighorn R............  F............     258.3    3657.0    3640.0     17280     12600  PL 78-534.............  USBR
                                                                                        FEIQ.........     240.3    3640.0    3614.0     12600      6915                          PUD
                                                                                        EIQ..........     336.1    3614.0    3547.0      6915      4150
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Cr--Creek; CS--Control Structure; Div--Diversion; DS--Drainage Structure; FG--Floodgate; Fk--Fork; GIWW--Gulf Intercoastal Waterway; Lk--Lake; L&D--Lock & Dam; PS--Pump Station; R--River;
  Res--Reservoir
\2\ F--Flood Control; N--Navigation; P--Corps Hydropower; E--Non Corps Hydropower; I--Irrigation; M--Municipal and/or Industrial Water Supply; C--Fish and Wildlife Conservation; A--Low Flow
  Augmentation or Pollution Abatement; R--Recreation; Q--Water Quality or Silt Control
\3\ FCA--Flood Control Act; FERC--Federal Energy Regulatory Comm; HD--House Document; PL--Public Law; PW--Public Works; RHA--River & Harbor Act; SD--Senate Document; WSA--Water Supply Act
\4\ Appl Pwr--Appalachian Power; Chln PUD--Chelan Cnty PUD 1; CLPC--CT Light & Power Co; Dgls PUD--Douglas Cnty PUD 1; DWR--Department of Water Resources; EB-MUD--East Bay Municipal Utility
  Dist; GRD--Grand River Dam Auth; Grnt PUD--Grant Cnty PUD 2; Hnbl--city of Hannibal; M&T Irr--Modesto & Turlock Irr; Mrcd Irr--Merced Irr; NEPC--New England Power Co; Pgnt P&L--Pugent Sound
  Power & Light; Ptmc Comm--Upper Potomac R Comm; Rclm B--Reclamation Board; Rkfd--city of Rockford; Sttl--city of Seattle; Tac--City of Tacoma; Vale USBR--50% Vale Irr 50% USBR; WF&CWID--City
  of Wichita Falls and Wichita Cnty Water Improvement District No. 2; WMEC--Western MA Electric Co; YCWA--Yuba City Water Auth; Yolo FC&W--Yolo Flood Control & Water Conserv Dist


[[Page 124]]


(Sec. 7, Pub. L. 78-534, 58 Stat. 890 (33 U.S.C. 709); the Federal Power 
Act, 41 Stat. 1063 (16 U.S.C. 791(A)); and sec. 9, Pub. L. 83-436, 68 
Stat. 303)

[43 FR 47184, Oct. 13, 1978, as amended at 46 FR 58075, Nov. 30, 1981; 
55 FR 21508, May 24, 1990]

[[Page 125]]



Sec. 208.19  Marshall Ford Dam and Reservoir (Mansfield Dam and Lake Travis),
Colorado River, Tex.

    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) Water Control Plan--(1) General objectives. The objectives of 
the Marshall Ford Reservoir (Lake Travis) are the improvement of 
navigation, flood control, stream regulation, generation of power, 
irrigation, water supply, and recreation uses.
    (2) Overall plan for water control. Within the Colorado River Basin, 
four Federal projects provide flood control protection: Twin Buttes, O. 
C. Fisher, Hords Creek, Marshall Ford Reservoir. The considerable 
distance (328 river miles) and large intervening area (19,990 square 
miles) separating Marshall Ford Reservoir and the three upper basin 
flood-control projects prevent realizing any significant benefits from 
coordinating releases to control the inflow into Marshall Ford. Marshall 
Ford Reservoir is the fifth project in a tandem of six lakes operated 
and controlled by the Lower Colorado River Authority for the generation 
of hydroelectric power. These six projects in downstream order are: Lake 
Buchanan, Lake Inks, Lake Lyndon B. Johnson (Alvin Wirtz Dam), Lake 
Marble Falls (Max Starcke Dam), Marshall Ford Reservoir (Lake Travis and 
Mansfield Dam) and Lake Austin (Tom Miller Dam). The releases from each 
of the six projects are closely coordinated by the LCRA System Operation 
Control Center. Three of the projects (Lake Inks, Lake Marble Falls, and 
Lake Austin) are run-of-the-river projects. The capabiity of the four 
upstream lakes to control the inflow of flood water into Marshall Ford 
depends on their antecedent lake elevations. The majority of inflows to 
Marshall Ford are comprised of the mainstream flows of the Colorado 
River, the tributary flows of the Llano River (entering the Colorado 
River between Lakes Inks and Lyndon B. Johnson) and the unregulated 
tributary flows of the Pedernales River (entering between Lake Marble 
Falls and Marshall Ford Reservoir). During flood conditions, the 
following upstream U.S. Geological Survey gaging stations are used as 
indicators of the magnitude of the inflows to Marshall Ford Reservoir:
    (i) Colorado River near San Saba (08147000).
    (ii) Pedernales River near Johnson City (08153500).
    (iii) Llano River at Llano (08151500).
    (3) Standing instructions to dam tender. During normal conditions, 
the dam tender will regulate the project in accordance with instructions 
received from the LCRA System Operator. During flood conditions, when 
the Marshall Ford Reservoir level is within the flood control zone, the 
LCRA System Operator will regulate the project in accordance with 
instructions received from the Corps of Engineers. In the event of a 
communication outage, the LCRA System Operator will rely on the 
Emergency Release Schedule, to make changes in the rate of releases from 
the lake.
    (4) Flood control regulation--(i) General. At all times, releases 
shall be coordinated such that the Colorado River, Texas, will be 
controlled when possible, to remain below control stages at downstream 
official U.S. Geological Survey (USGS) gaging stations; except that no 
curtailment of normal hydroelectric turbine releases shall result 
thereby at any time. The USGS river stations and their control stages 
are as follows:

                      Key Downstream Control Points
------------------------------------------------------------------------
                                                              Equivalent
                                                    Control   cubic feet
                     Station                         stage    per second
                                                    (feet)     (c.f.s.)
------------------------------------------------------------------------
Austin (08158000)...............................        20.5      30,000
                                                    \1\ 24.8  \1\ 50,000
Bastrop (08159200)..............................        25.1      45,000
                                                    \1\ 26.7  \1\ 50,000
Columbus (08161000).............................        25.5      50,000
------------------------------------------------------------------------
\1\ Control stage when elevation 710 is forecast to be exceeded.


Forecasted reservoir inflows and the upstream USGS gaging stations 
Pedernales River near Johnson City (08153500), Llano River at Llano 
(08151500), and Colorado River near San Saba (08147000) will be 
considered when scheduling flood releases.
    (ii) Flood control release schedule. Marshall Ford will be regulated 
to reduce

[[Page 126]]

flooding on the Colorado River below the dam. This plan of regulation 
will govern flood control releases from Marshall Ford Dam as follows:
    (A) Elevation 681-683. If the reservoir level is forecast to rise 
above elevation 681 feet, m.s.l. (top of conservation pool) but not to 
exceed elevation 683 feet, m.s.l., the releases shall be increased to 
3,000 c.f.s. and maintained until the reservoir level recedes to 
elevation 681 feet, m.s.l. These release rates may need to be reduced 
due to excessive downstream runoff to prevent exceeding the control 
stages specified in paragraph (a)(4)(i) of this section.
    (B) Elevation 683-685. If the reservoir elevation is forecast to 
rise above elevation 683 feet, m.s.l. but not to exceed elevation 685 
the releases shall be increased to 5,000 c.f.s. and maintained until the 
reservoir level recedes below 683 feet, m.s.l. These release rates may 
need to be reduced due to excessive downstream runoff to prevent 
exceeding the control stages specified in paragraph (a)(4)(i) of this 
section.
    (C) Elevation 685-691. Seasonal. (1) During the months of January 
through April, July through August, and November through December: If 
the reservoir elevation is forecast to rise above elevation 685 feet, 
m.s.l. but not to exceed elevation 691, the releases shall be increased 
to 5,000 c.f.s. and maintained until the reservoir level recedes below 
683 feet, m.s.l. These release rates may need to be reduced due to 
excessive downstream runoff to prevent exceeding the control stages 
specified in paragraph (a)(4)(i) of this section.
    (2) During the months of May, June, September, and October: Should 
the reservoir elevation be forecast to exceed 685 feet, m.s.l. but not 
to exceed elevation 691 feet, m.s.l: Releases will be made at 30,000 
c.f.s. from the project or at a rate such that, when combined with local 
inflows below the dam, will equal but not exceed downstream control 
stages on the Colorado River as specified in paragraph (a)(4)(i) of this 
section. These release rates will be maintained until the reservoir 
level falls below elevation 685 feet, m.s.l.
    (D) Elevation 691-710. Should the reservoir elevation be forecast to 
exceed 691 feet, m.s.l. (the top of the joint use pool) but not to 
exceed elevation 710 feet, m.s.l: Releases will be made at 30,000 c.f.s. 
from the project or at a rate such that, when combined with local 
inflows below the dam, will equal but not exceed downstream control 
stages on the Colorado River as specified in paragraph (a)(4)(i) of this 
section. These release rates will be so controlled until the reservoir 
level falls below elevation 691 feet, m.s.l.
    (E) Elevation 710-714. If the reservoir level is forecast to exceed 
710 feet, m.s.l. but not to exceed elevation 714 feet, m.s.l: Releases 
will be made at 50,000 c.f.s. from the project or at a rate such that, 
when combined with local inflows below the dam, will equal but not 
exceed the downstream control stages on the Colorado River as specified 
in paragraph (a)(4)(i) of this section. These release rates will be 
maintained until the reservoir level falls below elevation 710 feet, 
m.s.l.
    (F) Elevation 714-722. If the reservoir level is forecast to exceed 
714 feet, m.s.l. but not to exceed 722 feet, m.s.l: Releases will be 
made at 90,000 c.f.s. from the project. Releases shall not exceed the 
associated peak flood reservoir inflow.
    (G) Elevation 722 and above. If the reservoir level is forecast to 
exceed elevation 722 feet, m.s.l., the Bureau of Reclamation will 
schedule releases as required for the safety of the structure.
    (iii) Normal flood control regulation schedule. The following table, 
Flood Control Regulation Schedule, summarizes the flood control releases 
schedule for given reservoir levels and river conditions:

                    Marshall Ford Dam and Reservoir Normal Flood Control Regulation Schedule
----------------------------------------------------------------------------------------------------------------
      Condition           Reservoir level       Flood control release                Control points
----------------------------------------------------------------------------------------------------------------
Pool Rising..........  Forecast: 681-683 \1\  3,000 c.f.s.............  30,000 c.f.s. (20.5 ft.) at Austin.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  Forecast: 683-685....  5,000 c.f.s.............  30,000 c.f.s. (20.5 ft.) at Austin.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.

[[Page 127]]

 
 Do..................  Forecast: 685-691:...
                       (a) During January,    5,000 c.f.s.............  30,000 c.f.s. (20.5 ft.) at Austin.
                        February, March,
                        April, July, August,
                        November, December.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
                       (b) During May, June,  30,000 c.f.s............  30,000 c.f.s. (20.5 ft.) at Austin.
                        September, October.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  Forecast: 691-710....  30,000 c.f.s............  30,000 c.f.s. (20.5 ft.) at Austin.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  Forecast: 710-714....  50,000 c.f.s............  50,000 c.f.s. (24.8 ft.) at Austin.
                                                                        50,000 c.f.s. (26.7 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  Forecast: 714-722 \2\  90,000 c.f.s............  No controls.
 Do..................  Forecast: above 722..  The Bureau of
                                               Reclamation will
                                               specify the releases
                                               for safety of the
                                               structure.
Pool Falling.........  Above 722............  ......do................
 Do..................  722-714 \2\..........  90,000 c.f.s............  No controls.
 Do..................  714-710..............  50,000 c.f.s............  50,000 c.f.s. (24.8 ft.) at Austin.
                                                                        50,000 c.f.s. (26.7 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  710-691..............  30,000 c.f.s............  30,000 c.f.s. (20.5 ft.) at Austin.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  691-685:.............  30,000 c.f.s............  30,000 c.f.s. (20.5 ft.) at Austin.
                       (a) During May, June,
                        September, October.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
                       (b) During January,    5,000 c.f.s.............  30,000 c.f.s. (20.5 ft.) at Austin.
                        February, March,
                        April, July, August,
                        November, December.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  685-683..............  5,000 c.f.s.............  30,000 c.f.s. (20.5 ft.) at Austin.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
 Do..................  683-681..............  3,000 c.f.s.............  30,000 c.f.s. (20.5 ft.) at Austin.
                                                                        45,000 c.f.s. (25.1 ft.) at Bastrop.
                                                                        50,000 c.f.s. (25.5 ft.) at Columbus.
----------------------------------------------------------------------------------------------------------------
\1\ During flood conditions, when the reservoir level is below elevation 681 ft., m.s.l., the Corps of Engineers
  will provide recommendations to the Lower Colorado River Authority on flood control releases.
\2\ Releases shall not exceed the associated peak flood reservoir inflow.
 
Note: No curtailment of normal hydroelectric turbine releases shall be required due to flood control operations.

    (5) Deviation from normal regulation. (i) There are occasions when 
it is necessary or desirable to deviate from the water control plan for 
short periods of time as indicated in the following paragraphs:
    (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

[[Page 128]]

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.
    (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) Reports to the Corps of Engineers. (1) The Authority shall 
furnish the District Engineer, Fort Worth District, U.S. Army Corps of 
Engineers, by 0900 hours daily, with the following:
    (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.

(Sec. 7, Pub. L. 78-534, 58 Stat. 890 (33 U.S.C. 709))

[44 FR 24552, Apr. 26, 1979; 44 FR 29050, May 18, 1979]



Sec. 208.22  Twin Buttes Dam and Reservoir, Middle and South Concho Rivers, Tex.

    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

[[Page 129]]

the USGS gage on the Concho River near San Angelo, Tex. (river mile 
60.9); or a 22.8-foot stage (25,000 c.f.s.) on the USGS gage near Paint 
Rock, Tex. (river mile 19.6).
    (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.

[31 FR 12521, Sept. 22, 1966]



Sec. 208.25  Pensacola Dam and Reservoir, Grand (Neosho) River, Okla.

    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

[[Page 130]]

the reservoir and to limit the pool stage to elevation 755 at the dam.
    (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.

[10 FR 15044, Dec. 14, 1945]



Sec. 208.26  Altus Dam and Reservoir, North Fork Red River, Okla.

    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: Provided, That all preflood 
releases will have prior concurrence of the Bureau of Reclamation or its 
designated agent. The preflood releases shall not result in a reservoir 
level below elevation 1559 at the end of the flood.
    (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

[[Page 131]]

until the reservoir level recedes to elevation 1559, at which time 
releases will be made equal to inflow.
    (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.

[33 FR 12733, Sept. 7, 1968]



Sec. 208.27  Fort Cobb Dam and Reservoir, Pond (Cobb) Creek, Oklahoma.

    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,

[[Page 132]]

will not produce flows in excess of bankfull on Pond (Cobb) Creek 
downstream of the reservoir and on the Washita River downstream of their 
confluence. In order to accomplish this purpose, flows shall not exceed 
a 13.0-foot stage (1,300 cfs) on the USGS gage on Pond (Cobb) Creek near 
Fort Cobb, Oklahoma, river mile 5.0; a 19.0-foot stage (6,000 cfs) on 
the USGS gage on the Washita River near Anadarko, Oklahoma, river mile 
305.0; or a 19.0-foot stage on the USGS gage near Bradley, Oklahoma, 
river mile 210.6.
    (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.

[26 FR 3190, Apr. 14, 1961]



Sec. 208.28  Foss Dam and Reservoir, Washita River, Oklahoma.

    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

[[Page 133]]

gage on the Washita River near Carnegie, Oklahoma, river mile 353.9.
    (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.

[26 FR 6982, Aug. 3, 1961]



Sec. 208.29  Arbuckle Dam and Lake of the Arbuckles, Rock Creek, Okla.

    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.

[[Page 134]]

    (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.

[33 FR 263, Jan. 9, 1968]



Sec. 208.32  Sanford Dam and Lake Meredith, Canadian River, Tex.

    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

[[Page 135]]

River near Canadian, Tex., river mile 433.9.
    (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.

[31 FR 7751, June 1, 1966]



Sec. 208.33  Cheney Dam and Reservoir, North Fork of Ninnescah River, Kans.

    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

[[Page 136]]

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 North Fork of Ninnescah and 
Ninnescah River downstream of the reservoir and on the Arkansas River to 
Arkansas City, Kans. In order to accomplish this, flows shall not exceed 
a 90-foot stage (2,500 c.f.s.) on the U.S.G.S. gage on North Fork of 
Ninnescah River near Cheney, Kans., river mile 8.8; a 12-foot stage 
(7,000 c.f.s.) on the U.S.G.S. gage on Ninnescah River near Peck, Kans., 
river mile 31.6; and a 16-foot stage (18,000 c.f.s.) on the U.S.W.B. 
gage on Arkansas River at Arkansas City, Kans., river mile 701.4.
    (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.

[31 FR 7751, June 1, 1966]

[[Page 137]]



Sec. 208.34  Norman Dam and Lake Thunderbird, Little River, Okla.

    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'').

[[Page 138]]

    (h) All elevations stated in this section are at Norman Dam and are 
referred to the datum in use at that location.

[34 FR 4967, Mar. 7, 1969]



Sec. 208.82  Hetch Hetchy, Cherry Valley, and Don Pedro Dams and Reservoirs.

    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,

[[Page 139]]

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.
    (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

[[Page 140]]

Cherry Valley Reservoirs as are required to accomplish the flood-control 
objectives of the regulations of this section.
    (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.

[21 FR 2682, Apr. 26, 1956]



PART 209_ADMINISTRATIVE PROCEDURE--Table of Contents



Sec.
209.50 Mississippi River Commission: Public observation of Commission 
          meetings.
209.138a Authorization for exploratory drilling in the Gulf of Santa 
          Catalina, Calif.
209.140 Operations of the Corps of Engineers under the Federal Power 
          Act.
209.141 Coordination of hydroelectric power operations with power 
          marketing agencies.
209.155 Expenditure of Federal funds for work shoreward of harbor lines.
209.160 The California Debris Commission.
209.170 Violations of laws protecting navigable waters.
209.180 Temporary closure of waterway to navigation.
209.190 [Reserved]
209.200 Regulations governing navigable waters.
209.220 Flood control regulations.
209.230 Use of reservoir areas for recreation.
209.300 Flood control regulations.
209.310 Representation of submarine cables and pipelines on nautical 
          charts.
209.315 Public access to navigation works.
209.320 Policy on release of commercial statistics.
209.325 Navigation lights, aids to navigation, navigation charts, and 
          related data policy, practices and procedure.
209.335 Publication.
209.340 Laboratory investigations and materials testing.
209.345 Water resource policies and authorities.

Appendix A to Part 209--Public Law 90-483, 90th Congress, S. 3710, 
          August 13, 1968

    Authority: 5 U.S.C. 301; 33 U.S.C. 1; 10 U.S.C. 3012.

    Source: 33 FR 18670, Dec. 18, 1968, unless otherwise noted.



Sec. 209.50  Mississippi River Commission: Public observation of 
Commission meetings.

    (a) Purpose. (1) The purpose of this regulation is to afford to the 
public, to the fullest possible extent, information regarding the 
decisionmaking processes of the Mississippi River Commission and to open 
all meetings of the Mississippi River Commission to public observation 
except in instances where a portion or portions of a meeting may be 
closed to the public in accordance with this regulation in order to 
protect the rights of individuals and/or in order to permit the 
Mississippi River Commission to carry out its statutory and assigned 
functions and responsibilities. This regulation is issued in accordance 
with section (g) of the Government in the Sunshine Act and implements 
sections (b) through (f) of said Act (5 U.S.C. 552b (b) through (f)).
    (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) Definitions. The following definitions apply to the regulation 
in this section.
    (1) Commission means The Mississippi River Commission.
    (2) President means the duly appointed President and Executive 
Officer of the Commission.
    (3) Commissioner means a duly appointed member of the Commission.

[[Page 141]]

    (4) Secretary means the Secretary of the Commission.
    (5) Chief Legal Officer means the Division Counsel or the acting 
Division Counsel of the Lower Mississippi Valley Division, Corps of 
Engineers.
    (6) Meeting means the deliberations of at least a majority of the 
Commissioners where such deliberations determine or result in the joint 
conduct or disposition of official Commission business, but does not 
include:
    (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) Time, place, and agenda of meetings. (1) The meetings of the 
Commission, except those held on Government boats during inspection 
trips of the Commission, shall be held at Vicksburg, Mississippi. The 
time of such meetings shall be fixed by the President of the Commission, 
who shall cause due notice of such meetings to be given members of the 
Commission and the public.


(33 U.S.C. 646)

    (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) Public notices and Federal Register publication. (1) At least 
one week before each Commission meeting the Secretary shall issue a 
public announcement which (i) States the time and place of the meeting,
    (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,

[[Page 142]]

notice of the time, place, and subject matter of a meeting, whether a 
portion or portions of the meetings are open or closed to public 
observation, any change in one of the preceding, and the name and 
business telephone number of the official of the Commission who will 
respond to requests for information about the meeting, shall be 
submitted for publication in the Federal Register.
    (e) Closing a portion or portions of a meeting. (1) All Commission 
meetings shall be open to the public except when the Commission 
determines that public disclosure of information to be discussed in a 
portion or portions of a meeting is likely to:
    (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

[[Page 143]]

section shall be taken only when a majority of the entire membership of 
the Commission votes to take such action.
    (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) Records. (1) The Secretary shall maintain in the official files:
    (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) Public access to records. (1) All records required to be 
maintained in accordance with the provisions of (f)(1) of this section 
shall promptly be made available to the public by the Secretary except 
for information which the Commission has determined may be withheld from 
the public for the reasons stated in paragraphs (e)(1) (i) through (ix) 
of this section.
    (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.

(5 U.S.C. 552b)

[42 FR 13286, Mar. 10, 1977]



Sec. 209.138a  Authorization for exploratory drilling in the Gulf of
Santa Catalina, Calif.

    (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

[[Page 144]]

matters concerning offshore drilling, including environmental 
considerations, are the responsibility of the Department of the 
Interior.
    (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 \1/4\ mile buffer zones, or precautionary 
zone, authorizations will include the following conditions:
    (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, \1/4\ mile buffer zones, or the precautionary zone, 
at a depth of less than 100 feet, unless such equipment is marked with 
class I private aids to navigation in accordance with current Federal 
regulations.

(67 Stat. 462 (43 U.S.C. 1333(f))

[43 FR 28475, June 30, 1978]



Sec. 209.140  Operations of the Corps of Engineers under the Federal
Power Act.

    (a) General. This section outlines policies and procedures 
applicable to those operations in which the Corps of Engineers may be 
called upon to participate under the Federal Power Act. Such operations 
include: Investigations and reports on applications for permits and 
licenses for development of power affecting navigable waters; 
supervision of investigations, construction, and operation of projects 
under such permits and licenses; preparation of special reports as 
required by the Federal Power Commission; and review of plans of dams or 
other structures affecting navigation. The foregoing functions are 
performed by the Corps of Engineers only upon request of the Federal 
Power Commission.
    (b) Authority of Division and District Engineers. Section 2 of the 
revised Federal Power Act provides that the Federal Power 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, or in any other capacity, in 
field work outside the seat of government, their duties to be prescribed 
by the Commission. By authority of the Secretary of the Army, and in 
accordance with the instructions issued by the President in a letter to 
the Secretary of the Army dated May 18, 1931, Division Engineers will be 
detailed to serve the Commission as engineer officers in field work 
outside the seat of government, their duties to be prescribed by the 
Commission, and to be performed under the supervision of the Chief of 
Engineers. District Engineers will be designated to carry out the field 
inspections and investigations under supervision of the Division 
Engineer. When a Division Engineer is detailed by the Chief of Engineers 
to assist the Commission in either the investigation or supervision of

[[Page 145]]

a project he will be the accredited representative of the Commission. 
The actual field work will be done by the designated District Engineer 
who will make a report to the Division Engineer. All reports and such 
correspondence as would normally be forwarded to the Commission will be 
addressed to the Chief of Engineers.
    (c) Procedure for investigations and report on applications for 
permits and licenses. (1) Upon request by the Federal Power Commission, 
the Chief of Engineers will assign the investigation of an application 
for permit or license under the Federal Power Act to a Division 
Engineer, who will submit a report on the investigation as provided 
herein. The date that the report is to be submitted will be specified. 
The Division Engineer, upon assignment of an investigation involving 
extensive studies, will when requested by the Chief of Engineers submit 
an estimate of the cost of the investigation, listing the probable 
expenditures for salaries separate from the estimated costs of non-
personal services.
    (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.

[[Page 146]]

    (d) Procedure for supervision of operations under permits and 
licenses. (1) When supervision of the operations of an applicant under a 
permit or a license is requested by the Federal Power Commission, the 
Chief of Engineers will assign responsibility for supervision to the 
Division Engineer. The operations to be supervised, such as 
investigations being conducted by a permittee, construction of a project 
under a license or operation of completed projects, will be as specified 
by the Commission.
    (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) Reports on supervision and inspection of operations under 
Federal Power Commission permits licenses. Periodic reports, as 
appropriate to assigned responsibilities and as described in paragraphs 
(e) (1) through (3), inclusive, of this section will be submitted for 
each Federal Power Commission permit or license for which a Division 
Engineer has been assigned responsibility for supervision of operations 
under provisions of the Federal Power Act. All of the described reports 
will be submitted in triplicate to the Chief of Engineers for 
transmittal to the Federal Power Commission. Unless otherwise stated 
transmittal letters will not be required and the reports will be mailed 
so as to reach the Chief of Engineers not later than the 15th of the 
month following the end of the report period.
    (1) Reports on supervision of construction under a FPC License. When 
a Division Engineer is assigned responsibility for supervision and 
inspection of construction of a licensed project, the requirements for 
submission of reports will be specified.
    (2) Annual Report on operation of project under supervision of the 
Division Engineer. Reports on the operation and maintenance of each 
major and minor licensed project for which supervision of operations has 
been assigned to a Division Engineer will be submitted annually after 
the initial installation covered by the license has been completed. Such 
reports will be made on Federal Power Commission Form 10, ``Operation 
Report'' and, pursuant to paragraph 39u of AR 335-15, do not require a 
reports control symbol. A special report will be made in case of severe 
flood or interruption in operation due to failure of material or 
accident. Reports on operation and maintenance of transmission line 
projects are not required unless requested by the Commission.
    (3) Annual Report on operation of projects with licenses containing 
conditions prescribed in the interest of navigation. When the Federal 
Power Commission notifies the Chief of Engineers that it will assume the 
supervision of operation of a licensed project, the Division Engineer 
will not be required to make detailed inspections and reports. However, 
the Division Engineer will continue to be responsible for the project 
insofar as it affects the interest of navigation. The inspection of 
projects in this class is left to the discretion of the Division 
Engineer but annual reports will be submitted in triplicate, through the 
Chief of Engineers, on Federal Power Commission Form 10, ``Operation 
Report'', omitting the items under ``Supervision expense for period'', 
but including the following information only under ``Memorandum 
Report''.

[[Page 147]]

    (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) Delegation of authority for approval of structural plans for 
non-Federal hydroelectric projects affecting navigation. The authority 
vested in the Secretary of the Army by section 4(e) of the Federal Power 
Act is hereby delegated to the Chief of the Engineers for promulgation 
with regard to approval of plans of structures filed with the Federal 
Power Commission in connection with licensing of non-Federal 
hydroelectric projects.

(Sec. 4(e), 49 Stat. 840; 16 U.S.C. 797(e); Secretary of the Army 
memorandum for the Chief of Engineers, dated March 11, 1975)

[33 FR 18670, Dec. 18, 1968, as amended at 40 FR 17023, Apr. 16, 1975]

    Cross Reference: For regulations of the Federal Energy Regulatory 
Commission, see 18 CFR chapter I.



Sec. 209.141  Coordination of hydroelectric power operations with power
marketing agencies.

    (a) Purpose. This regulation establishes policies and procedures for 
coordinating the operation of the Corps of Engineers' hydroelectric 
generating facilities with the power marketing agencies.
    (b) Applicability. This regulation applies to all civil works field 
operating agencies (FOA) having generating facilities producing 
marketable electric power.
    (c) References. (1) Section 5, Pub. L. 534, 78th Congress, Flood 
Control Act of 1944, December 22, 1944 (58 Stat. 889).
    (2) Section 302, Pub. L. 95-91, 95th Congress, Department of Energy 
Organization Act, August 4, 1977 (91 Stat. 565).
    (d) Background. Section 5 of the Act of December 22, 1944 (Pub. L. 
534, 78th Congress), provides that electric power and energy generated 
at reservoir projects under the control of the Department of the Army 
and in the opinion of the Secretary of Army not required in the 
operation of such projects shall be delivered to the Secretary of 
Interior for transmittal and disposal in a manner to encourage the most 
widespread use thereof at the lowest possible rates to consumers 
consistent with sound business principles. Section 302 of the Department 
of Energy Organization Act (Pub. L. 95-91) transfers all functions of 
the Secretary of Interior under section 5 of the 1944 Act to the 
Secretary of Energy together with all other functions of the Secretary 
of Interior, and officers and components of the Department of the 
Interior, with respect to the Southeastern Power Administration; the 
Southwestern Power Administration; the Alaska Power Administration; the 
Bonneville Power Administration; and the power marketing functions of 
the Bureau of Reclamation.
    (e) Policies. (1) The Corps is responsible for operating the 
hydroelectric power projects and providing information affecting cost 
and availability of power to the power marketing agencies. Marketing the 
generated power declared excess to the needs of the projects and 
recovering Federal investment are the responsibilities of the power 
marketing agencies.
    (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) Delegation. Responsibility for coordinating the exchange of 
information may be delegated to the District Engineer at the discretion 
of the Division Engineer.
    (g) Procedures--(1) Specific requirements--(i) Continuing. Prompt 
written notification will be provided to the appropriate power marketing 
agency each time a change in power operations or conditions which could 
substantially affect costs or power availability is anticipated.
    (ii) Annual. Annually, when no changes in power operations or costs 
are expected for the succeeding 12-month period, the marketing agency 
will be notified of that fact in writing.
    (2) FOA responsibility. The FOA directly responsible for 
communicating

[[Page 148]]

with the marketing agency will develop appropriate reporting procedures 
in coordination with that agency.

[43 FR 8258, Mar. 1, 1978]



Sec. 209.155  Expenditure of Federal funds for work shoreward of harbor lines.

    (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.



Sec. 209.160  The California Debris Commission.

    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.



Sec. 209.170  Violations of laws protecting navigable waters.

    (a) [Reserved]
    (b) Injuries to Government works. Section 14 of the River and Harbor 
Act of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 408), makes it unlawful 
for any person or persons to take possession of or make use of for any 
purpose, or build upon, alter, deface, destroy, move, injure, obstruct 
by fastening vessels thereto or otherwise, or in any manner whatever 
impair the usefulness of any sea wall, bulkhead, jetty, dike, levee, 
wharf, pier, or other work built by the United States, or any piece of 
plant, floating or otherwise, used in the construction of such work 
under the control of the United States, in whole or in part, for the 
preservation and improvement of any of its navigable waters or to 
prevent floods, or as boundary marks, tide gauges, surveying stations, 
buoys, or other established marks, nor remove for ballast or other 
purposes any stone or other material composing such works. (The 
Secretary of the Army may, on the recommendation of the Chief of 
Engineers, grant permission for the temporary occupation or use of any 
of the aforementioned public works when in his judgment such occupation 
or use will not be injurious to the public interest).
    (c) Injurious deposits. (1) Section 13 of the River and Harbor Act 
of March 3, 1899 (30 Stat. 1152; 33 U.S.C. 407), makes it unlawful to 
throw, discharge, or deposit, or cause, suffer, or procure to be thrown, 
discharged, or deposited either from or out of any ship, barge, or other 
floating craft, or from the shore, wharf, manufacturing establishment, 
or mill, any refuse matter of any kind or description whatever other 
than that flowing from streets and sewers and passing therefrom in a 
liquid state, into any navigable water of the United States, or into any 
tributary of any navigable water from which the same shall float or be 
washed into such navigable water, or to deposit or cause, suffer, or 
procure to be deposited material of any kind in any place on the bank of 
any navigable water or on the bank of any tributary of any navigable 
water, where the same shall be liable to be washed into such navigable 
water, either by ordinary or high tides, or by storms or floods, or 
otherwise, whereby navigation shall or may be impeded or obstructed. 
Section 13 does not apply

[[Page 149]]

to the operations in connection with the improvement of navigable waters 
or construction of public works considered necessary and proper by the 
United States officers supervising such improvement or public work.
    (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) Penalties for violations. (1) Section 12 of the River and Harbor 
Act of March 3, 1899 (30 Stat. 1151; 33 U.S.C. 406), as amended, 
provides that every person and every corporation that shall violate any 
of the provisions of sections 9 and 10 shall be deemed guilty of a 
misdemeanor, and on conviction thereof shall be punished by fine, 
imprisonment, or both, in the discretion of the court. The removal of 
any structures or parts of structures erected in violation of the 
provisions of the said sections may be enforced by the injunction of any 
district court exercising jurisdiction in any district in which such 
structures may exist, and proper proceedings to this end may be 
instituted under the direction of the Attorney General.
    (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) Enforcement. (1) Section 17 of the River and Harbor Act of March 
3, 1899 (30 Stat. 1153; 33 U.S.C. 413) provides that the Department of 
Justice shall conduct the legal proceedings necessary to enforce the 
provisions of sections 9 to 16, inclusive, of the Act. It shall be the 
duty of district attorneys of the United States to prosecute vigorously 
all offenders against the same whenever requested to do so by the 
Secretary of the Army or by any of his designated representatives.
    (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

[[Page 150]]

be arrested without process for any offense not committed in the 
presence of some one of the aforesaid officials. Whenever any arrest is 
made under the provisions of the Act, the person so arrested shall be 
brought forthwith before a commissioner, judge, or court of the United 
States for examination of the offenses alleged against him. Such 
commissioner, judge, or court shall proceed as authorized by law in case 
of crimes against the United States.
    (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 (i.e., whether the fair value of the 
structure immediately after the repairs is greater than its fair value 
immediately before the damage occurred) is a matter to be determined 
from an actual survey of the structure and knowledge of its age and 
condition. Where maintenance has equalled depreciation there probably 
would be no 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

[[Page 151]]

good the damages suffered should be reported promptly to the Chief of 
Engineers in accordance with the above. It is the policy not to 
recommend prosecution when the violation of law is trivial, apparently 
unpremeditated, and results in no material public injury. Each report 
recommending prosecution should be accompanied by a full statement of 
the case and copies of correspondence relating thereto.
    (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.

[33 FR 18670, Dec. 18, 1968, as amended at 36 FR 17855, Sept. 4, 1971; 
51 FR 45765, Dec. 22, 1986; 53 FR 27512, July 21, 1988]



Sec. 209.180  Temporary closure of waterway to navigation.

    (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: Provided, That prior thereto the 
applicant will notify navigation interests by an advertisement in the 
press or otherwise as the District Engineer may approve and on the 
understanding that the waiver of objection does not affect the liability 
of the applicant for any damages that may arise by reason of the 
closure.'' The letter to the applicant will be signed ``By Authority of 
the Secretary of the Army'' and distribution made as prescribed for 
permits.
    (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.



Sec. 209.190  [Reserved]



Sec. 209.200  Regulations governing navigable waters.

    (a) Publication of regulations. (1) Regulations prescribed by or 
under the direction of the Secretary of the Army to govern navigation 
and navigable waters, are contained in the Code of Federal Regulations, 
title 33, Navigation and Navigable Waters, Chapter II.
    (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 Federal Register. In the 
case of regulations applicable to more than one division, distribution 
will be handled as agreed upon by the division engineers concerned. 
Under the Administrative Procedure Act (5 U.S.C. 551-553), publication 
in the Federal Register shall be not less than 30 days prior to the 
effective date except as

[[Page 152]]

otherwise provided upon good cause found and published with the 
regulations.
    (b) Navigation regulations. (1) Section 7 of the River and Harbor 
Act approved August 8, 1917 (40 Stat. 266; 33 U.S.C. 1) authorizes the 
Secretary of the Army to prescribe such regulations for the use, 
administration, and navigation of the navigable waters of the United 
States as public necessity may require for the protection of life and 
property, or for operations of the United States in channel improvement, 
covering all matters not specifically delegated by law to some other 
executive department. The statute provides for the posting of 
regulations and punishment for violations.
    (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) Danger zones. (1) The Secretary of the Army has authority to 
prescribe regulations for the use and navigation of any area of the 
navigable waters of the United States or waters under the jurisdiction 
of the United States likely to be endangered by Department of Defense 
operations. This authority is pursuant to the provisions of Chapter XIX 
of the Army Act of July 9, 1918, or of section 7 of the River and Harbor 
Act of August 8, 1917.
    (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) Dumping grounds. (1) Section 4 of the River and Harbor Act of 
March 3, 1905 (33 Stat. 1147; 33 U.S.C. 419), authorizes the Secretary 
of the Army to prescribe regulations to govern the

[[Page 153]]

transportation and dumping into any navigable water, or waters adjacent 
thereto, of dredgings and other refuse materials whenever in his 
judgment such regulations are required in the interest of navigation.
    (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) Public notice and consultation with interested parties. (1) When 
applications are received for the promulgation of regulations as 
outlined in paragraphs (b) through (f), inclusive, of this section, 
District Engineers will issue public notices to all parties deemed 
likely to be interested and specifically to the agencies referred to in 
these paragraphs. The notice should fix a limiting date within which 
comments will be received, normally a period not less than 30 days after 
the actual mailing of the notice. If time is an essential element when 
adequately explained by the applicant, the District Engineer is 
authorized to give interested parties a minimum of 10 days after receipt 
of the notice in which to present protests. A copy of every notice 
issued will be sent to the Chief of Engineers, Attention: ENGCW-ON.
    (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) Public hearings. (1) It is the policy of the Chief of Engineers 
to conduct his civil works activities in an atmosphere of public 
understanding, trust, and mutual cooperation and in a manner responsive 
to public needs and desires. To this end, public hearings are helpful 
and will be held whenever there appears to be sufficient public interest 
to justify such action. In case of doubt, a public hearing should be 
held.
    (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.

[33 FR 18670, Dec. 18, 1968, as amended at 51 FR 45765, Dec. 22, 1986; 
52 FR 24157, June 29, 1987]



Sec. 209.220  Flood control regulations.

    (a) Local protection works. On projects authorized subject to 
specified conditions of local cooperation, no construction is undertaken 
by the Department of the Army until satisfactory assurances of the 
required local cooperation have been accepted by the Secretary of

[[Page 154]]

the Army and until any lands, easements, and rights-of-way required to 
be furnished by local interests have been made available for at least a 
complete unit of the project. The District Engineers notify local 
interests concerned of the requirements of local cooperation and request 
assurances by registered mail prior to the preparation of final plans 
and specifications. Regulations prescribed by the Secretary of the Army 
for the maintenance and operation of local flood protection works are 
contained in Sec. 208.10 of this chapter. When assurances satisfactory 
to the District Engineer are received, they are forwarded through the 
Division Engineer to the Chief of Engineers for consideration of the 
Secretary of the Army. The District Engineers advise local interests of 
the action taken by the Department. Completed projects or completed 
useful units thereof are normally turned over to local interests for 
maintenance and operation as soon as the construction and testing of 
equipment is completed and the project is in proper condition for the 
assumption of maintenance and operation by local interests. The transfer 
is accomplished by formal notice from the District Engineer to the local 
interests that the completed facilities are being turned over to them 
for maintenance and operation as of a specific date. During 
construction, District Engineers keep the local interests concerned 
advised as to the probable date of transfer.
    (b) Use of storage allocated for flood control or navigation at 
reservoirs constructed wholly or in part with Federal funds. Regulations 
prescribed by the Secretary of the Army in accordance with section 7 of 
the Flood Control Act of December 22, 1944 (58 Stat. 890; 33 U.S.C. 709) 
are for the purpose of coordinating the operation of the flood control 
features of reservoirs constructed wholly or in part with Federal funds 
and other flood control improvements to obtain the maximum protection 
from floods which can reasonably be obtained with the proper operation 
of all flood control improvements. Proposed regulations are determined 
by the District Engineer in cooperation with the persons responsible for 
the maintenance and operation of the reservoir involved after a detailed 
study of the flood problems and the characteristics of the reservoir 
project. The proposed regulations are forwarded by the District Engineer 
through the Division Engineer to the Chief of Engineers for 
consideration of the Secretary of the Army. When approved by the 
Secretary of the Army, these regulations are published in part 208 of 
this chapter.



Sec. 209.230  Use of reservoir areas for recreation.

    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.

[[Page 155]]



Sec. 209.300  Flood control regulations.

    (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 Sec. 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 Sec. 
208.16 et seq. of this chapter.



Sec. 209.310  Representation of submarine cables and pipelines on
nautical charts.

    (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.)

[51 FR 45765, Dec. 22, 1986]



Sec. 209.315  Public access to navigation works.

    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:

[[Page 156]]

    (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.



Sec. 209.320  Policy on release of commercial statistics.

    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.



Sec. 209.325  Navigation lights, aids to navigation, navigation charts,
and related data policy, practices and procedure.

    (a) Purpose. This regulation prescribes the policy, practice and 
procedure to be used by all Corps of Engineers installations and 
activities in connection with aids to navigation, chart data, and 
publication of information on Civil Works activities.
    (b) This regulation will be applied by all elements of the Corps of 
Engineers with Civil Works responsibilities.
    (c) Reference. Public Law 85-480, Publication Authority (72 Stat. 
279).
    (d) Cooperation with Coast Guard. (1) District Engineers will 
consult with the Coast Guard District Commander during design of channel 
and harbor improvement projects to discuss the aids to navigation 
requirements and all other facets of the projects that involve Coast 
Guard responsibility. Project material furnished direct to Coast Guard 
Commanders will include:
    (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

[[Page 157]]

District Engineer will promptly furnish the Coast Guard District 
Commander, for settlement, an account of the expense incurred.
    (e) Navigation Aids of the Corps of Engineers. (1) Whenever channel 
dredging or other channel improvements are being performed, necessary 
temporary markers, such as ranges and light poles, should be installed 
and maintained by the District Engineer pending the installation of 
permanent aids by the Coast Guard. The Coast Guard desires that 
information regarding aids to navigation installed or maintained by 
District Engineers in connection with harbor or channel improvement be 
furnished promptly. Such information is needed for inclusion in Notice 
to Mariners as published by the Coast Guard, and where desirable on the 
charts of the waters concerned.
    (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) Colors of dredging buoys established by Corps of Engineers. (1) 
In order to distinguish buoys placed and maintained by the Corps of 
Engineers for dredging purposes from aids to navigation placed by the 
Coast Guard, Corps buoys will be painted white with the top 2 feet 
painted light green.
    (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) Information to be furnished by the Corps of Engineers. (1) 
District Engineers responsible for harbors and waterways shown on charts 
of the National Ocean Survey (NOAA), will report the channel conditions 
promptly, using standard tabular forms, to:

Director, Defense Mapping Agency, ATTN: Hydrographic Center, Washington, 
D.C. 20390.
National Oceanic and Atmospheric Administration, ATTN: National Ocean 
Survey C-32, Rockville, Md. 20852.
Commandant and District Commanders, U.S. Coast Guard.

    (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).

[[Page 158]]



                              [ ---------------- Harbor, ---------------- (State)]
----------------------------------------------------------------------------------------------------------------
                                                                 Project              Minimum depths in channel
                                                     ------------------------------     entering from seaward
                                                                                   -----------------------------
                                                                                                Mid-
              Name of channel                 Date                                    Left     channel    Right
                                             survey     Feet      Miles     Feet     outside  for half   outside
                                                        width    length     depth    quarter   project   quarter
                                                                                      feet      width     feet
                                                                                                feet
----------------------------------------------------------------------------------------------------------------
Kings Island Channel......................      3-78       300      1.14        26        24        23        26
Whitehall Channel.........................      3-78       200      1.81        26        27        26        25
----------------------------------------------------------------------------------------------------------------

ENG FORM 4021-R (Jul 59)

    (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

[[Page 159]]

``Advance Sheets'', and containing a description sufficient to identify 
the locality and to identify the source of the map, will be sufficient.
    (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) Special Reports. Changes affecting navigation will be made 
promptly whenever information of immediate concern to navigation becomes 
known. Items of information especially desired are channel conditions as 
revealed by surveys, changes in channel conditions, either by natural 
causes or by dredging or other work, changes in approved projects for 
improvement with statements of results expected from proposed 
operations, descriptions of proposed dredging or other Federal work of 
improvement such as breakwater, pier, and revetment construction or 
alterations, descriptions of proposed or completed municipal or private 
improvements in or affecting navigable waters. Additional items of 
information desired are descriptions of wrecks, uncharted shoals, and 
other obstructions to navigation and particulars as to proposed or 
completed removal of same, changes in buoys or lights, erection of new, 
or changes in existing bridges, new or revised Federal or local rules 
and regulations for harbors and channels, and establishment or existence 
of danger areas in navigable waters. Reproductions of drawings or 
sketches which will be helpful in interpreting the data shall accompany 
the reports. The reports will not be limited to a reference to an 
accompanying drawing or sketch, but will contain a complete description 
in form suitable for publication in notices to mariners and the monthly 
supplements to the U.S. Coast Pilot. In this respect, the reports will 
provide enough information that a single notification to navigational 
interests will suffice. In the case of dredging or construction work, 
the bare statement that work will commence or has commenced on a certain 
date is insufficient. All additional information possible, such as 
probable duration of operations and object of work, will be given--the 
latter in the case of dredging being such data as the area to be covered 
and the depth expected to be provided. The reports required by this 
paragraph will be identified by reference to the appropriate Engineer 
Manual or regulation and will be numbered consecutively by each District 
during the calendar year, starting with number 1 at the beginning of 
each year.
    (i) Information pamphlets, maps, brochures and other material. (1) 
Pub. L. 85-480, approved 2 July 1958, authorizes the Chief of Engineers 
to publish information pamphlets, maps, brochures, and other material on 
river and harbor, flood control, and other Civil Works activities, 
including related public park and recreation facilities under his 
jurisdiction, as he may deem to be of value to the general public.
    (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.''

[43 FR 19661, May 8, 1978]

[[Page 160]]



Sec. 209.335  Publication.

    (a) Section 4 of the Administrative Procedure Act requires 
publication of general notice of proposed rule making in the Federal 
Register (unless all persons subject thereto are named and either 
personally served or otherwise have actual notice thereof in accordance 
with law), except to the extent that there is involved: (1) Any 
military, naval, or foreign affairs function of the United States or (2) 
any matter relating to agency management or personnel or to public 
property, loans, grants, benefits, or contracts. Except where notice of 
hearing is required by statute, this requirement does not apply to 
interpretative rules, general statements of policy, rules of agency 
organization, procedure, or practice, or in any situation in which the 
agency for good cause finds (and incorporates the finding and a brief 
statement of the reasons therefor in the rules issued) that notice and 
public procedure thereon are impracticable, unnecessary, or contrary to 
the public interest.
    (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.



Sec. 209.340  Laboratory investigations and materials testing.

    (a) Purpose. The purpose of this section is to define and establish 
policies and procedures applicable to the performance of investigations 
and tests at Corps of Engineers laboratory installations for other 
governmental agencies and private organizations.
    (b) Applicability. This regulation applies to Corps of Engineers 
Divisions and Districts operating soils, concrete, water quality and 
hydraulic laboratories, and to the Inter-Agency Sedimentation Project.
    (c) References. (1) AR 37-20.
    (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) Policy. Subject to the authority limitations contained in 
paragraph (f) of this section, laboratory investigations and materials 
testing may be performed for other agencies of the Federal Government, 
State and local units of government, foreign governments and private 
firms under the following conditions:
    (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) Terms of providing reimbursement for work performed--(1) Federal 
agencies. Reimbursement for work for the Department of Defense, the 
Department of the Army, and other Federal Agencies will be in accordance 
with the procedures prescribed in AR 37-27.
    (2) State and local units of Government. Funds to cover the total 
estimated cost of the work or an initial increment of

[[Page 161]]

the esitmated cost based on an approved schedule of payment will be 
deposited with the installation performing the work before any 
obligations or expenses in connection with the work are incurred; and 
when funds are being deposited on an approved schedule no obligations or 
expenses will be incurred in connection with the work in excess of funds 
on deposit.
    (3) Private concerns and foreign governments. Funds will be 
deposited in advance of the work as required in paragraph (e)(2) of this 
section. Charges shall include a surcharge of 15 percent of all 
applicable costs, except under the following conditions.
    (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) Authority. The following delegations of authority to perform 
laboratory investigations and materials testing apply.
    (1) Division materials laboratories. Division Engineers are 
delegated the authority to approve laboratory work for Federal, State 
and local units of government when the total estimated cost of each 
investigation or test project is $15,000 or less. Division Engineers are 
also delegated the authority to approve laboratory work for private 
firms and foreign Governments when the total estimated cost of each 
investigation or test project is $5,000 or less. Approval is required 
when the estimated or actual costs exceed those delegations of 
authority. Requests for approval shall be addressed to DAEN-CWE-DC.
    (2) Hydraulic laboratories. Division Engineers and District 
Engineers operating hydraulic laboratories or hydraulic model 
laboratories are delegated the authority to approve laboratory work for 
others within the same limitations and in accordance with the same 
procedures as apply to Division Materials Laboratories.
    (3) Inter-Agency Sedimentation Project, St. Anthony Falls 
Laboratory, University of Minnesota, Minneapolis, Minnesota. The 
District Engineer, St. Paul is authorized to perform work required in 
procurement, testing and calibration of specialized sediment sampling 
equipment developed at the Inter-Agency Sedimentation Project. Equipment 
of this nature will be made available to Federal, State and local 
governmental agencies at cost. The District Engineer, St. Paul, is also 
authorized to approve the performance of testing and calibration work 
for U.S. private firms that fabricate this specialized equipment for 
commercial sale when the estimated cost for services of Corps personnel 
is $5,000 or less for a single order. Approval is required when the 
estimated single order cost for a private firm exceeds $5,000 and when 
the total cost of work during a fiscal year for any one private firm 
exceeds $15,000. Requests for approval shall be addressed to HQDA (DAEN-
CWE-HY) Washington, DC 20314.
    (g) Reports of testing results. Final reports of results will be 
submitted in accordance with instructions provided by the sponsoring 
organization, with two copies to HDQA (DAEN-CWE-DC) Washington, DC 
20314.

Copies of reports of scientific or technical activities will be 
transmitted to the Defense Documentation Center as required by AR 70-31. 
(RCS OSD-1366)

(Sec. 3012, 70A Stat 157; 10 U.S.C. 3012)

[44 FR 50338, Aug. 28, 1979]



Sec. 209.345  Water resource policies and authorities.

   Reimbursement for Advance Non-Federal Participation in Civil Works 
                                Projects

    (a) Purpose. This regulation gives general instructions on use of 
section 215 of the Flood Control Act of 1968 (Pub. L. 90-483) to 
reimburse a non-Federal public body for construction of part of an 
authorized Federal project, part of an authorized Federal project. It 
establishes general policies, outlines procedures to be followed in 
reaching

[[Page 162]]

an agreement with an eligible non-Federal entity, and provides guidance 
on the provisions of such an agreement. All authorized projects are 
subject to this Act and regulation.
    (b) Applicability. This regulation applies to all field operating 
agencies having Civil Works responsibilities.
    (c) References. (1) Section 215, FCA of 1968 (Pub. L. 90-483, 42 
U.S.C. 1962d-5a.). (APP A, this regulation).
    (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) General policy. (1) The specific limitations put upon the 
allotment of funds authorized by section 215 indicate that only limited 
use should be made of the authority. It will, therefore, be Corps of 
Engineers policy to restrict the use of this authority to cases that 
meet all of the following conditions:
    (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,

[[Page 163]]

(33 U.S.C. 426g); and Section 14, Pub. L. 79-526 (33 U.S.C. 701r).
    (e) Procedures. (1) Non-Federal entities desiring reimbursement 
under Section 215 for constructing part of an authorized Federal project 
should confer with the District Engineer and submit a written proposal 
to him. This proposal will form the basis for consulting, as needed, 
with OCE and for deciding whether the proposal meets the policy criteria 
of paragraph (d) of this section, and whether to continue under the 
procedures below and what sequence to follow.
    (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) Agreements. Agreements under Section 215 should follow the 
general format presented in paragraph (c)(6) of this section, adapted as 
warranted by the specific case. Each agreement shall:
    (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.

[[Page 164]]

    (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) Nature and amount of reimbursement. (1) The non-Federal entity 
may be reimbursed by a payment of cash, or, preferably, by reductions in 
any non-Federal contribution to the Federal project that may have been 
required by the legislation authorizing it, or by a combination of cash 
and such reductions.
    (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.



Sec. Appendix A to Part 209--Public Law 90-483, 90th Congress, S. 3710, 
                             August 13, 1968

    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

[[Page 165]]

requested has been performed in accordance with the agreement.
    (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.

                                * * * * *

[42 FR 24050, May 12, 1977]



PART 210_PROCUREMENT ACTIVITIES OF THE CORPS OF ENGINEERS--
Table of Contents



Sec.
210.1 Advance notice to prospective bidders.
210.2 Notice of award.
210.3 Notice to proceed.
210.4 Rules of the Corps of Engineers Board of Contract Appeals for 
          cases not subject to the Contract Disputes Act of 1978.
210.5 Rules of the Corps of Engineers Board of Contract Appeals for 
          cases subject to the Contract Disputes Act of 1978.

    Authority: Secs. 2301-2314, 3012, 70A Stat. 127-133, 157; 10 U.S.C. 
2301-2314, 3012.



Sec. 210.1  Advance notice to prospective bidders.

    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.

Information on several projects for which invitations are scheduled to 
be issued may be grouped in one advance notice provided that information 
on any project or projects is not unduly delayed in order to be grouped 
with others. When an advance notice is used to circularize bidders, 
copies of the invitation, when issued, will be furnished only to those 
prospective bidders who

[[Page 166]]

have returned a request card indicating a desire to submit a bid.

[26 FR 11732, Dec. 7, 1961]



Sec. 210.2  Notice of award.

    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.


Under supply contracts a written award mailed (or otherwise furnished) 
to the successful bidder either on Standard Form 26 or Standard Form 33, 
results in a binding contract without further action by either party.

[26 FR 11732, Dec. 7, 1961]



Sec. 210.3  Notice to proceed.

    (a) General. When the contract specifies the time when the 
contractor is to proceed with the work under the contract, a notice to 
proceed will not be required. However, in any case where the contract 
requires the issuance of a notice to proceed the notice will fix the 
time for the commencement of the work and also, if appropriate, will fix 
the time for the completion of the work. The notice to proceed should be 
issued on a form letter, reproduced on local letterhead paper from a 
master copy, which will preclude repetitive typing of stereotype data. 
The notice to proceed will be executed in a sufficient number of copies 
to meet the contract distribution requirements in paragraph 30-206, 
Engineer Contract Instructions (ER 1180-1-1), and will bear the contract 
number in the upper right-hand corner of the notice.
    (b) Contractor's acknowledgment. When a notice to proceed is issued, 
the contractor will acknowledge receipt thereof by signing and dating 
all copies of the acknowledgment and returning all but one copy to the 
contracting officer.
    (c) Proceeding before approval of bonds. It is not necessary to 
delay commencement under the contract pending approval of bonds by The 
Judge Advocate General. Such action will be at the discretion of the 
contracting officer. In the event exceptions are taken to the bonds the 
contractor will immediately take steps to remove such exceptions or 
submit new bonds.
    (d) Commencing performance. Contractors in no case will be required 
to commence performance prior to the commencement date fixed in the 
contract or in the notice to proceed. If they voluntarily do so and the 
contract is not ultimately signed, or approved when required, such 
action is at their own risk and without liability on the part of the 
Government. Contractors will not be required to commence performance 
until:
    (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.

[26 FR 11732, Dec. 7, 1961]



Sec. 210.4  Rules of the Corps of Engineers Board of Contract Appeals 
for cases not subject to the Contract Disputes Act of 1978.

    (a) Preface to rules. (1) The Corps of Engineers Board of Contract 
Appeals is the authorized representative of the Chief of Engineers for 
the purpose of hearing, considering and determining, as fully and 
finally as he might, appeals by contractors from decisions of 
contracting officers or their authorized representative or other 
authorities on disputed questions, taken pursuant to the provision of 
contracts requiring the determination of such appeals by the Chief of 
Engineers or his duly authorized representative or Board.
    (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

[[Page 167]]

the issue. In the consideration of an appeal, should it appear that a 
claim is involved which is not cognizable under the terms of the 
contract, the Board may make findings of fact with respect to such a 
claim without expressing an opinion on the question of liability.
    (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) Rule 1, Appeals, how taken. Notice of an appeal must be in 
writing and the original, together with two copies, may be filed with 
the contracting officer from whose decision the appeal is taken. The 
notice of appeal shall be mailed or otherwise filed within the time 
specified therefor in the contract or allowed by applicable provision of 
directive or law.
    (c) Rule 2, Notice of appeal, contents of. A notice of appeal should 
indicate that an appeal is thereby intended, and should identify the 
contract (by number) and the decision from which the appeal is taken. 
The notice of appeal should be signed personally by the appellant (the 
contractor making the appeal), or by an officer of the appellant 
corporation or member of the appellant firm, or by the contractor's duly 
authorized representative or attorney. The complaint referred to in Rule 
6 may be filed with the notice of appeal, or the appellant may designate 
the notice of appeal as a complaint, if it otherwise fulfills the 
requirements of a complaint.
    (d) Rule 3, Forwarding of appeals. When a notice of appeal in any 
form has been received by the contracting officer, he shall endorse 
thereon the date of mailing (or date of receipt, if otherwise conveyed) 
and within 10 days shall forward said notice of appeal, together with a 
copy of the decision appealed from, to the Board. Following receipt by 
the Board of the papers described in the next rule (Rule 4), the 
contractor will be promptly advised of its receipt and that the appeal 
is then considered docketed, and the contractor will be furnished a copy 
of these rules.
    (e) Rule 4, Preparation, contents, organization, forwarding and 
status of appeal file--(1) Duties of contracting officer. Following 
receipt of a notice of appeal or advice that an appeal has been filed, 
the contracting officer shall compile and transmit to the Board and the 
government trial attorney an appeal file consisting of all documents 
pertinent to the appeal including in particular:
    (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.

The contracting officer shall at the same time furnish to the appellant 
a copy of each document in the appeal file except those set forth in 
paragraph (e)(1)(ii) of this section, as to which a

[[Page 168]]

list furnished appellant indicating the specific contractual documents 
included in the file will suffice, and those set forth in paragraph 
(e)(4) of this section.
    (2) Supplementation of appeal file. Within 30 days after receipt of 
its copy of the appeal file the appellant may supplement the same by 
furnishing to the Board any document not contained therein which he 
considers pertinent to the appeal and furnishing two copies of each 
document to the government trial attorney.
    (3) Organization of appeal file. Documents in the appeal file may be 
originals or legible facsimiles or authenticated copies thereof and 
shall be arranged in chronological order, where practicable, numbered 
sequentially, tabbed and indexed to identify the contents of the file.
    (4) Lengthy documents. The Board, on motion of a party, may waive 
the requirement of furnishing to the other party copies of bulky, 
lengthy or out-of-size documents in the appeal file when a party has 
shown that doing so would impose an undue burden. At the time a party 
files with the Board a document as to which such a waiver has been 
granted, he shall notify the other party that the same or a copy is 
available for inspection at the office of the Board or of the party 
filing the same.
    (5) Status of documents in appeal file. Documents in the appeal file 
are considered as evidence in the case. A party to the appeal may at any 
time prior to the conclusion of a hearing or in the case of an appeal 
submitted on the record prior to the date of the notice that the case is 
ready for decision object to the inclusion of any document in the appeal 
file. The Administrative Judge hearing the case will rule on the 
objection as on any other objection to the admission of evidence.
    (f) Rule 5, Dismissal for lack of jurisdiction. Any motion addressed 
to the jurisdiction of the Board shall be promptly filed. Hearing on the 
motion shall be afforded on application of either party, unless the 
Board determines that its decision on the motion will be deferred 
pending hearing on both the merits and the motion. The Board shall have 
the right at any time and on its own motion to raise the issue of its 
jurisdiction to proceed with a particular case, and shall do so by an 
appropriate order, affording the parties an opportunity to be heard 
thereon.
    (g) Rule 6, Pleadings. (1) Within 30 days after receipt of notice of 
docketing of the appeal, as provided in the last sentence of Rule 3, the 
appellant shall file with the Board an original and two copies of a 
complaint setting forth simple, concise and direct statements of each of 
his claims, alleging the basis with appropriate reference to contract 
provisions for each claim, and the dollar amount claimed. This pleading 
shall fulfill the generally recognized requirements of a complaint, 
although no particular form or formality is required. Upon receipt 
thereof, the Recorder of the Board shall serve a copy upon the 
respondent. Should the complaint not be received within 30 days, 
appellant's claim and appeal may, if in the opinion of the Board the 
issues before the Board are sufficiently defined, be deemed to set forth 
his complaint and the respondent shall be so notified.
    (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) Rule 7, Ammendments of pleadings or record. (1) The Board upon 
its own initiative or upon application by a party may, in its 
discretion, order a party to make a more definite statement of the 
complaint or answer, or to reply to an answer.
    (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

[[Page 169]]

scope of the appeal, but not raised by the pleadings or the 
documentation described in Rule 4, are tried by express or implied 
consent of the parties, or by permission of the Board, they shall be 
treated in all respects as if they had been raised therein. In such 
instances motions to amend the pleadings to conform to the proof may be 
entered, but are not required. If evidence is objected to at a hearing 
on the ground that it is not within the issues raised by the pleadings 
or the rule 4 documentation (which shall be deemed part of the pleadings 
for this purpose), it may be admitted within the proper scope of the 
appeal, provided, however, that the objecting party may be granted a 
continuance if necessary to enable him to meet such evidence.
    (i) Rule 8, Hearing--election. (1) Upon receipt of respondent's 
answer or the notice referred to in the last sentence of Rule 6(b), 
appellant shall advise the Board whether he desires a hearing, as 
prescribed in Rules 17 through 25, or whether in the alternative he 
elects to submit his case on the record without a hearing, as prescribed 
in Rule 11.
    (2) In appropriate cases, the appellant shall also elect whether he 
desires the optional accelerated procedure prescribed in Rule 12.
    (j) Rule 9, Pre-hearing briefs. Based on an examination of the 
documentation described in Rule 4, the pleadings and a determination of 
whether the arguments and authorities addressed to the issues are 
adequately set forth therein, the Board may in its discretion require 
the parties to submit pre-hearing briefs in any case in which a hearing 
has been elected pursuant to Rule 8. In the absence of a Board 
requirement therefor, either party may in its discretion, and upon 
appropriate and sufficient notice to the other party, furnish a pre-
hearing brief to the Board. In any case where a pre-hearing brief is 
submitted, it shall be furnished so as to be received by the Board at 
least 15 days prior to the date set for hearing, and a copy shall 
simultaneously be furnished to the other party as previously arranged.
    (k) Rule 10, Pre-hearing or pre-submission conference. (1) When the 
case is to be submitted pursuant to Rule 11, or heard pursuant to Rules 
17 through 25, the Board may, upon its own initiative or upon the 
application of either party, call upon the parties to appear before an 
Administrative Judge of the Board for a conference to consider:
    (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) Rule 11, Submission without a hearing. Although both parties are 
entitled to a hearing under these rules, either party may elect to waive 
a hearing and to submit his case upon the Board record as settled 
pursuant to Rule 13. Such an election by one party shall not preclude 
the other party from requesting and obtaining a hearing. Affidavits, 
depositions, answers to interrogatories and stipulations may be employed 
to supplement other documentary evidence in the Board record. The Board 
may permit such submission to be supplemented by oral arguments, 
transcribed if requested, and by briefs arranged in accordance with Rule 
23.
    (m) Rule 12, Optional accelerated procedure. (1) In appeals 
involving $25,000 or less the appellant may elect to have the appeal 
processed under this rule. The election may be made in the notice of 
appeal, the complaint or by separate correspondence. In the event of 
such election the case will be assigned to a single Administrative Judge 
who will make every effort to render his decision within 30 days of the 
settlement of the record and without regard to the place of the appeal 
on the docket. To

[[Page 170]]

assist in expediting decisions the parties should consider waiving 
pleadings and submitting the case on the record.
    (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) Rule 13, Settling the record. (1) The record upon which a Board 
decision is rendered shall consist of the pleadings, the appeal file 
described in Rule 4, pre-hearing orders, memoranda of pre-hearing 
conferences and all evidence admitted by the Board both documentary and 
oral as appearing in the transcript. The record shall at all reasonable 
times be available for inspection by the parties at the office of the 
Board.
    (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) Rule 14, Discovery--depositions--(1) General policy. Parties may 
obtain discovery regarding any matter, not privileged, which is relevant 
to the subject matter involved in the appeal. The parties are encouraged 
to engage in voluntary discovery procedures.
    (2) When permitted. The Board may, upon timely motion filed by a 
party after the answer has been filed, order the taking of the testimony 
of any person by deposition upon oral examination or by written 
questions for the purpose of discovery or for use as evidence or for 
both.
    (3) Before who taken--time and place. Depositions shall be taken 
before a person authorized to administer oaths at the place of 
examination. The time, place and manner of taking depositions shall be 
as mutually agreed by the parties or as set forth in the order of the 
Board.
    (4) Protective orders. The Board may in connection with the taking 
of any deposition make any order which justice requires to protect a 
party from annoyance, embarrassment, oppression or undue burden or 
expense.
    (5) Use as evidence. No testimony taken by deposition shall be 
considered as part of the evidence in the hearing of an appeal until it 
is offered and received as evidence at the hearing. It will not 
ordinarily be received in evidence if the deponent is present and can 
testify personally at the hearing. In such cases, however, the 
deposition may be used to contradict or impeach testimony of the witness 
given at the hearing. In cases submitted on the record the Board may in 
its discretion receive depositions as evidence.
    (6) Expenses. Each party shall bear its own expenses associated with 
taking of any deposition.
    (p) Rule 15, Interrogatories; inspection of documents; admission of 
facts. (1) The Board may upon a timely motion filed by either party 
after the filing of the answer permit a party to serve written 
interrogatories upon the opposing party, order a party to produce and 
permit inspection and copying or photographing of designated documents 
or permit the service on a party of a request for the admission of 
facts. The Board in its order shall establish the date for responding to 
the motion.
    (2) The Board may issue protective orders as in the case of 
depositions.
    (q) Rule 16, Service of papers. Service of papers in all proceedings 
pending before the Board may be made personally, or by mailing the same 
in a sealed envelope, registered, or certified, postage prepaid, 
addressed to the party upon whom service shall be made and the date of 
delivery as shown by return

[[Page 171]]

receipt shall be the date of service. Waiver of the service of any 
papers may be noted thereon or on a copy thereof or on a separate paper, 
signed by the parties and filed with the Board.
    (r) Rule 17, Hearings--Where and when held. Hearings will ordinarily 
be held in Washington, D.C., except that, upon request reasonably made 
and upon good cause shown, the Board may in its discretion set the 
hearing at another location. Hearings will be scheduled at the 
discretion of the Board with due consideration to the regular order of 
appeals and other pertinent factors. On request or motion by either 
party and upon good cause shown, the Board may in its discretion advance 
a hearing.
    (s) Rule 18, Notice of hearings. The parties shall be given at least 
15 days notice of the time and place set for hearings. In scheduling 
hearings, the Board will give due regard to the desires of the parties, 
and to the requirement for just and inexpensive determination of appeals 
without unnecessary delay. Notices of hearings shall be promptly 
acknowledged by the parties.
    (t) Rule 19, Unexcused absence of a party. The unexcused absence of 
a party at the time and place set for hearing will not be occasion for 
delay. In the event of such absence, the hearing will proceed and the 
case will be regarded as submitted by the absent party as provided in 
Rule 11.
    (u) Rule 20, Nature of hearings. Hearings shall be as informal as 
may be reasonable and appropriate under the circumstances. Appellant and 
respondent may offer at a hearing on the merits such relevant evidence 
as they deem appropriate and as would be admissible under the generally 
accepted rules of evidence applied in the courts of the United States in 
nonjury trials, subject, however, to the sound discretion of the 
presiding Administrative Judge in supervising the extent and manner of 
presentation of such evidence. In general, admissibility will hinge on 
relevancy and materiality. Letters or copies thereof, affidavits and 
other evidence not ordinarily admissible under the generally accepted 
rules of evidence may be admitted in the discretion of the presiding 
Administrative Judge. The weight to be attached to evidence presented in 
any particular form will be within the discretion of the Board, taking 
into consideration all the circumstances of the particular case. 
Stipulations of fact agreed upon by the parties may be regarded and used 
as evidence at the hearing. The parties may stipulate the testimony that 
would be given by a witness if the witness were present. The Board may 
in any case require evidence in addition to that offered by the parties.
    (v) Rule 21, Examination of witnesses. Witnesses before the Board 
will be examined orally under oath or affirmation, unless the facts are 
stipulated or the presiding administrative Judge shall otherwise order. 
If the testimony of a witness is not given under oath the Board may, if 
it seems expedient, warn the witness that his statements may be subject 
to the provisions of title 18, United States Code, sections 287 and 1001 
and any other provisions of law imposing penalties for knowingly making 
false representations in connection with claims against the United 
States or in any matter within the jurisdiction of any department or 
agency thereof.
    (w) Rule 22, Copies of papers. When books, records, papers or 
documents have been received in evidence, a true copy thereof or of such 
part thereof as may be material or relevant may be substituted therefor, 
during the hearing or at the conclusion thereof.
    (x) Rule 23, Post hearing briefs--(1) General. Briefs must be 
compact, concise, logically arranged and free from burdensome, 
irrelevant, immaterial and scandalous matter. Briefs not complying with 
this rule may be disregarded by the Board.
    (2) Time of submittal. Briefs, including reply briefs, shall be 
submitted at such times and upon such terms as may be agreed to by the 
parties and the presiding Administrative Judge at the conclusion of the 
hearing.
    (3) Length of briefs. Except by permission of the Board on motion, 
principal briefs shall not exceed 100 8\1/2\ by 11 
pages typewritten double space exclusive of any table of contents and 
table of statutes, regulations and cases cited. Reply briefs shall not 
exceed 20 such pages.
    (y) Rule 24, Transcript of proceedings. Testimony and argument at 
hearings

[[Page 172]]

shall be reported verbatim, unless the Board otherwise orders. 
Transcripts of the proceedings shall be supplied to the parties at such 
rates as may be fixed by contract between the Board and the reporter. If 
the proceedings are reported by an employee of the Government, the 
appellant may receive transcripts upon payment to the Government at the 
same rates as those set by contract between the Board and the 
independent reporter.
    (z) Rule 25, Withdrawal of exhibits. After a decision has become 
final the Board may, upon request and after notice to the other party, 
in its discretion permit the withdrawal of original exhibits, or any 
part thereof, by the party entitled thereto. The substitution of true 
copies of exhibits or any part thereof may be required by the Board in 
its discretion as a condition of granting permission for such 
withdrawal.
    (aa) Rule 26, Representation--The appellant. An individual appellant 
may appear before the Board in person, a corporation by an officer 
thereof, a partnership or joint venture by a member thereof, or any of 
these by an attorney at law duly licensed in any state, Commonwealth, 
Territory or in the District of Columbia.
    (bb) Rule 27, Representation--The respondent. Government counsel 
shall be designated to represent the interests of the Government before 
the Board. They shall file notice of appearance with the Board, and 
notice thereof will be given appellant or his attorney in the form 
specified by the Board from time to time. Whenever at any time it 
appears that appellant and Government counsel are in agreement as to 
disposition of the controversy, the Board may suspend further processing 
of the appeal in order to permit reconsideration by the contracting 
officer: Provided, however, That if the Board is advised thereafter by 
either party that the controversy has not been disposed of by agreement, 
the case shall be restored to the Board's calendar without loss of 
position.
    (cc) Rule 28, Decisions. Decisions of the Board will be made in 
writing and authenticated copies thereof will be forwarded 
simultaneously to both parties. The rules of the Board and all final 
orders and decisions (except those required for good cause to be held 
confidential and not cited as precedents) shall be open for public 
inspection at the offices of the Board in Washington, D.C.
    (dd) Rule 29, Motions for reconsideration. A motion for 
reconsideration, if filed by either party, shall set forth specifically 
the ground or grounds relied upon to sustain the motion, and shall be 
filed within 30 days from the date of the receipt of a copy of the 
decision of the Board by the party filing the motion.
    (ee) Rule 30, Dismissal without prejudice. In certain cases, appeals 
docketed before the Board are required to be placed in a suspense status 
and the Board is unable to proceed with disposition thereof for reasons 
not within the control of the Board. In any such case where the 
suspension has continued, or it appears that it will continue, for an 
inordinate length of time, the Board may in its discretion dismiss such 
appeals from its docket without prejudice to their restoration when the 
cause of suspension has been removed.
    (ff) Rule 31, Dismissal for failure to prosecute. Whenever a record 
discloses the failure of the appellant to file documents required by 
these rules, respond to notice or correspondence from the Board, comply 
with orders of the Board or otherwise to indicate an intention to 
continue the prosecution of an appeal filed, the Board may issue an 
order requiring appellant to show cause within thirty days why the 
appeal should not be dismissed for lack of prosecution. If the appellant 
shall fail to show such cause, the appeal may be dismissed with 
prejudice.
    (gg) Rule 32, Ex Parte communications. No Administrative Judge or 
member of the Board's staff shall entertain, nor shall any person 
directly or indirectly involved in an appeal submit to the Board or the 
Board's staff, off the record, any evidence, explanation, analysis or 
advice, whether written or oral, regarding any matter at issue in an 
appeal. This provision does not apply to consultation among Board 
members nor to ex parte communications concerning the Board's 
administrative functions or procedures.

[[Page 173]]

    (hh) Rule 33, Effective date and applicability. These revised rules 
shall take effect on January 14, 1975. They govern all proceedings in 
appeals after they take effect and also all further proceedings in 
appeals then pending, except to the extent that in the opinion of the 
Board, their application in a particular appeal pending when the Rules 
take effect would not be feasible or would work an injustice, in which 
event the former procedure applies.

[Regs., Jan. 7, 1975, DAEN]

[40 FR 2582, Jan. 14, 1975, as amended at 45 FR 19202, Mar. 24, 1980]



Sec. 210.5  Rules of the Corps of Engineers Board of Contract Appeals 
for cases subject to the Contract Disputes Act of 1978.

    (a) Preface to rules--(1) Jurisdiction for considering appeals. The 
Corps of Engineers Board of Contract Appeals (referred to herein as the 
``Board'') shall consider and determine appeals from decisions of 
contracting officers pursuant to the Contract Disputes Act of 1978 (Pub. 
L. 95-563, 41 U.S.C. 601-613) relating to: (i) Civil Works Contracts of 
the Corps of Engineers, (ii) contracts made by any other executive 
agency when such agency or the Administrator for Federal Procurement 
Policy has designated the Board to decide the appeal, or (iii) with the 
approval of the Chief of Engineers, contracts made by any other agency 
when such agency has designated the Board to decide the appeal.
    (2) Location and organization of the Board. (i) The Board's address 
is Room 4108, Pulaski Building, 20 Massachusetts Avenue, NW., 
Washington, DC 20314, telephone (202) 272-0369.
    (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) Applicability of the Contract Disputes Act of 1978. (i) If a 
contract with an executive agency was awarded before 1 March 1979, and 
if the contracting officer's final decision was issued 1 March 1979 or 
thereafter, the contractor may elect to proceed under the Contract 
Disputes Act of 1978.
    (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) General guidelines. (i) 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.
    (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) Rule 1, Appeals, how taken. (1) Notice of an appeal shall be in 
writing and mailed or otherwise furnished to the Board within 90 days 
from the date of

[[Page 174]]

receipt of a contracting officer's decision. A copy thereof shall be 
furnished to the contracting officer from whose decision the appeal is 
taken.
    (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) Rule 2, Notice of appeal, contents of. A notice of appeal should 
indicate that an appeal is being taken and should identify the contract 
(by number), the agency involved in the dispute, the decision from which 
the appeal is taken, and the amount in dispute, if known. The notice of 
appeal should be signed personally by the appellant (the contractor 
taking the appeal), or by the appellant's duly authorized representative 
or attorney. The complaint referred to in Rule 6 may be filed with the 
notice of appeal, or the appellant may designate the notice of appeal as 
a complaint, if it otherwise fulfills the requirements of a complaint.
    (d) Rule 3, Docketing of appeals. When a notice of appeal in any 
form has been received by the Board, it shall be docketed promptly. 
Notice in writing shall be given to the appellant with a copy of these 
rules, and to the contracting officer.
    (e) Rule 4, Preparation, content, organization, forwarding, and 
status of appeal file--(1) Duties of Contracting Officer. Within 30 days 
of receipt of an appeal, or notice that an appeal has been filed, the 
contracting officer shall assemble and transmit to the Board an appeal 
file consisting of all documents pertinent to the appeal, including:
    (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.

Within the same time above specified the contracting officer shall 
furnish the appellant a copy of each document he transmits to the Board, 
except those in paragraph (e)(1)(ii) of this section. As to the latter, 
a list furnished appellant indicating specific contractual documents 
transmitted will suffice.
    (2) Duties of the appellant. Within 30 days after receipt of a copy 
of the appeal file assembled by the contracting officer, the appellant 
shall transmit to the Board any documents not contained therein which he 
considers relevant to the appeal, and furnish two copies of such 
documents to the government trial attorney.
    (3) Organization of appeal file. Documents in the appeal file may be 
originals or legible facsimiles or authenticated copies, and shall be 
arranged in chronological order where practicable, numbered 
sequentially, tabbed, and indexed to identify the contents of the file.
    (4) Lengthy documents. Upon request by either party, the Board may 
waive the requirement to furnish to the other party copies of bulky, 
lengthy, or out-of-size documents in the appeal file

[[Page 175]]

when inclusion would be burdensome. At the time a party files with the 
Board a document as to which such a waiver has been granted he shall 
notify the other party that the document or a copy is available for 
inspection at the offices of the Board or of the party filing same.
    (5) Status of documents in appeal file. Documents contained in the 
appeal file are considered, without further action by the parties, as 
part of the record upon which the Board will render its decision. 
However, a party may object, for reasons stated, to consideration of a 
particular document or documents reasonably in advance of hearing or, if 
there is no hearing, of settling the record. If such objection is made 
the Board shall remove the document or documents from the appeal file 
and permit the party offering the document to move its admission as 
evidence in accordance with Rules 13 and 20.
    (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) Rule 5, Motions. (1) Any motion addressed to the jurisdiction of 
the Board shall be promptly filed. Hearing on the motion shall be 
afforded on application of either party. However, the Board may defer 
its decision on the motion pending hearing on both the merits and the 
motion. The Board shall have the right at any time and on its own 
initiative to raise the issue of its jurisdiction to proceed with a 
particular case, and shall do so by an appropriate order, affording the 
parties an opportunity to be heard thereon.
    (2) The Board may entertain and rule upon other appropriate motions.
    (g) Rule 6, Pleadings--(1) Appellant. Within 30 days after receipt 
of notice of docketing of the appeal, the appellant shall file with the 
Board an original and two copies of a complaint setting forth simple, 
concise and direct statements of each of its claims. Appellant shall 
also set forth the basis, with appropriate reference to contract 
provisions, of each claim and the dollar amount claimed, to the extent 
known. This pleading shall fulfill the generally recognized requirements 
of a complaint, although no particular form is required. Upon receipt of 
the complaint, the Board shall serve a copy of it upon the Government. 
Should the complaint not be received within 30 days, appellant's claim 
and appeal may, if in the opinion of the Board the issues before the 
Board are sufficiently defined, be deemed to set forth its complaint and 
the Government shall be so notified.
    (2) Government. Within 30 days from receipt of the complaint, or the 
aforesaid notice from the Board, the Government shall prepare and file 
with the Board an original and two copies of an answer thereto. The 
answer shall set forth simple, concise and direct statements of 
Government's defenses to each claim asserted by appellant, including any 
affirmative defenses available. Upon receipt of the answer, the Board 
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) Rule 7, Amendments of pleadings or record. The Board upon its 
own initiative or upon application by a party may order a party to make 
a more definite statement of the complaint or answer, or to reply to an 
answer. The Board may, in its discretion, and within the proper scope of 
the appeal, permit either party to amend its pleading upon conditions 
fair to both parties. When issues within the proper scope of the appeal, 
but not raised by the pleadings, are tried by express or implied consent 
of the parties, or by permission of the Board, they shall be treated in 
all respects as if they had been raised therein. In such instances, 
motions to amend the pleadings to conform to the proof may be entered, 
but are not required. If evidence is objected to at a hearing on the 
ground that it is not within the issues raised by the pleadings, it may 
be admitted within the proper scope of the appeal, provided, however, 
that the objecting party may be granted a continuance if necessary to 
enable it to meet such evidence.
    (i) Rule 8, Hearing election. After filing of the Government's 
answer or notice from the Board that it has entered

[[Page 176]]

a general denial on behalf of the Government, each party shall advise 
whether it desires a hearing as prescribed in Rules 17 through 25, or 
whether it elects to submit its case on the record without a hearing, as 
prescribed in Rule 11.
    (j) Rule 9, Prehearing briefs. Based on an examination of the 
pleadings, and its determination of whether the arguments and 
authorities addressed to the issues are adequately set forth therein, 
the Board may, in its discretion, require the parties to submit 
prehearing briefs in any case in which a hearing has been elected 
pursuant to Rule 8. If the Board does not require prehearing briefs 
either party may, in its discretion and upon appropriate and sufficient 
notice to the other party, furnish a prehearing brief to the Board. In 
any case where a prehearing brief is submitted, it shall be furnished so 
as to be received by the Board at least 15 days prior to the date set 
for hearing, and a copy shall simultaneously be furnished to the other 
party as previously arranged.
    (k) Rule 10, Prehearing or presubmission conference. (1) Whether the 
case is to be submitted pursuant to Rule 11, or heard pursuant to Rules 
17 through 25, the Board may upon its own initiative, or upon the 
application of either party, arrange a telephone conference or call upon 
the parties to appear before an administrative judge or examiner of the 
Board for a conference to consider:
    (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) Rule 11, Submission without a hearing. Either party may elect to 
waive a hearing and to submit its case upon the record before the Board, 
as settled pursuant to Rule 13. Submission of a case without hearing 
does not relieve the parties from the necessity of proving the facts 
supporting their allegations or defenses. Affidavits, depositions, 
admissions, answers to interrogatories, and stipulations may be employed 
to supplement other documentary evidence in the Board record. The Board 
may permit such submissions to be supplemented by oral argument 
(transcribed if requested), and by briefs arranged in accordance with 
Rule 23.
    (m) Rule 12, Optional SMALL CLAIMS (EXPEDITED) and ACCELERATED 
procedures. These procedures are available solely at the election of the 
appellant.
    (1) Sub-Rule 12.1 Elections to utilize SMALL CLAIMS (EXPEDITED) and 
ACCELERATED procedures. (i) In appeals where the amount in dispute is 
$10,000 or less, the appellant may elect to have the appeal processed 
under a SMALL CLAIMS (EXPEDITED) procedure requiring decision of the 
appeal, whenever possible, within 120 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 12.2 of this Rule. An 
appellant may elect the ACCELERATED procedure rather than the SMALL 
CLAIMS (EXPEDITED) procedure for any appeal eligible for the SMALL 
CLAIMS (EXPEDITED) procedure.
    (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.

[[Page 177]]

    (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) Sub-Rule 12.2, The SMALL CLAIMS (EXPEDITED) procedure. (i) In 
cases proceeding under the SMALL CLAIMS (EXPEDITED) procedure, the 
following time periods shall apply:
    (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: (1) Identify and simplify the 
issues; (2) establish a simplified procedure appropriate to the 
particular appeal involved; (3) determine whether either party wants a 
hearing, and if so, fix a time and place therefor; (4) require the 
Government to furnish all the additional documents relevant to the 
appeal; and (5) establish an expedited schedule for resolution of the 
appeal.
    (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) Sub-Rule 12.3, The ACCELERATED procedure. (i) In cases 
proceeding under the ACCELERATED procedure, the parties are encouraged, 
to the extent possible consistent with adequate presentation of their 
factual and legal positions, to waive pleadings, discovery, and briefs. 
The Board, in its discretion, may shorten time periods prescribed or 
allowed elsewhere in these Rules, including Rule 4, as necessary to 
enable the Board to decide the appeal within 180 days after the Board 
has received the appellant's notice of election of the ACCELERATED 
procedure, and may reserve 30 days for preparation of the decision.
    (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

[[Page 178]]

two and an additional designated member in case of desagreement. 
Alternatively, in cases where the amount in dispute is $10,000 or less 
as to which the Accelerated procedure has been elected and in which 
there has been a hearing, the single Administrative Judge presiding at 
the hearing may, with the concurrence of both parties, at the conclusion 
of the hearing and after entertaining such oral arguments as he deems 
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 date of commencement of the period for filing a motion for 
reconsideration under Rule 29.
    (4) Sub-Rule 12.4, Motions for reconsideration in Rule 12 Cases. 
Motions for Reconsideration of cases decided under either the SMALL 
CLAIMS (EXPEDITED) procedure or the ACCELERATED procedure need not be 
decided within the original 120-day or 180-day limit, but all such 
motions shall be processed and decided rapidly so as to fulfill the 
intent of this Rule.
    (n) Rule 13, Settling the record. (1) The record upon which the 
Board's decision will be rendered consists of the documents furnished 
under Rules 4 and 12, to the extent admitted in evidence, and the 
following items, if any: pleadings, prehearing conference memoranda or 
orders, prehearing briefs, depositions or interrogatories received in 
evidence, admissions, stipulations, transcripts of conferences and 
hearings, hearing exhibits, post-hearing briefs, and documents which the 
Board has specifically designated be made a part of the record. The 
record will, at all reasonable times, be available for inspection by the 
parties at the office of the Board.
    (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) Rule 14, Discovery--depositions--(1) General policy and 
protective orders. The parties are encouraged to engage in voluntary 
discovery procedures. In connection with any deposition or other 
discovery procedure, the Board may make any order required to protect a 
party or person from annoyance, embarrassment, or undue burden or 
expense. Those orders may include limitations on the scope, method, time 
and place for discovery, and provisions for protecting the secrecy of 
confidential information or documents.
    (2) When depositions permitted. After an appeal has been docketed 
and complaint filed, the parties may mutually agree to, or the Board 
may, upon application of either party, order the taking of testimony of 
any person by deposition upon oral examination or written 
interrogatories before any officer authorized to administer oaths at the 
place of examination, for use as evidence or for purpose of discovery. 
The application for order shall specify whether the purpose of the 
deposition is discovery or for use as evidence.
    (3) Orders on depositions. The time, place, and manner of taking 
depositions shall be as mutually agreed by the parties, or failing such 
agreement, governed by order of the Board.
    (4) Use as evidence. No testimony taken by depositions shall be 
considered as part of the evidence in the hearing of an appeal until 
such testimony is offered and received in evidence at such hearing. It 
will not ordinarily be received in evidence if the deponent is present 
and can testify at the hearing. In such instances, however, the 
deposition may be used to contradict or impeach the testimony of the 
deponent given at the hearing. In cases submitted on the record, the 
Board may, in its discretion, receive depositions to supplement the 
record.
    (5) Expenses. Each party shall bear its own expenses associated with 
the taking of any deposition.
    (6) Subpoenas. Where appropriate, a party may request the issuance 
of a

[[Page 179]]

subpoena under the provisions of Rule 21.
    (p) Rule 15, Interrogatories to parties, admission of facts, and 
production and inspection of documents. After an appeal has been 
docketed and complaint filed with the Board, a party may serve on the 
other party: (1) Written interrogatories to be answered separately in 
writing, signed under oath and answered or objected to within 30 days 
after service; (2) a request for the admission of specified facts and/or 
the authenticity of any documents, to be answered or objected to within 
30 days after service; the factual statements and the authenticity of 
the documents to be deemed admitted upon failure of a party to respond 
to the request; and (3) a request for the production, inspection and 
copying of any documents or objects not privileged, which reasonably may 
lead to the discovery of admissible evidence, to be answered or objected 
to within 30 days after service. Any discovery engaged in under this 
Rule shall be subject to the provisions of Rule 14(1) with respect to 
general policy and protective orders, and of Rule 35 with respect to 
sanctions.
    (q) Rule 16, Service of papers other than subpoenas. Papers shall be 
served personally or by mail, addressed to the party upon whom service 
is to be made. Copies of complaints, answers and briefs shall be filed 
directly with the Board. The party filing any other paper with the Board 
shall send a copy thereof to the opposing party, noting on the paper 
filed with the Board that a copy has been so furnished. Subpoenas shall 
be served as provided in Rule 21.
    (r) Rule 17, Hearings: Where and when held. Hearings will be held at 
such places determined by the Board to best serve the interests of the 
parties and the Board. Hearings will be scheduled at the discretion of 
the Board with due consideration to the regular order of appeals, Rule 
12 requirements, and other pertinent factors. On request or motion by 
either party and for good cause, the Board may, in its discretion, 
adjust the date of a hearing.
    (s) Rule 18, Notice of hearings. The parties shall be given at least 
15 days notice of the time and place set for hearings. In scheduling 
hearings, the Board will consider the desires of the parties and the 
requirements for just and inexpensive determination of appeals without 
unnecessary delay. Notices of hearings shall be promptly acknowledged by 
the parties.
    (t) Rule 19, Unexcused absence of a party. The unexcused absence of 
a party at the time and place set for hearing will not be occasion for 
delay. In the event of such absence, the hearing will proceed and the 
case will be regarded as submitted by the absent party as provided in 
Rule 11.
    (u) Rule 20, Hearings: Nature, examination of witnesses--(1) Nature 
of hearings. Hearings shall be as informal as may be reasonable and 
appropriate under the circumstances. Appellant and the Government may 
offer such evidence as they deem appropriate and as would be admissible 
under the Federal Rules of Evidence or in the sound discretion of the 
presiding administrative judge or examiner. Stipulations of fact agreed 
upon by the parties may be regarded and used as evidence at the hearing. 
The parties may stipulate the testimony that would be given by a witness 
if the witness were present. The Board may require evidence in addition 
to that offered by the parties.
    (2) Examination of witnesses. Witnesses before the Board will be 
examined orally under oath or affirmation, unless the presiding 
administrative judge or examiner shall otherwise order. If the testimony 
of a witness is not given under oath, the Board may advise the witness 
that his statements may be subject to the provisions of title 18, United 
States Code, sections 287 and 1001, and any other provision of law 
imposing penalties for knowingly making false representations in 
connection with claims against the United States or in any matter within 
the jurisdiction of any department or agency thereof.
    (v) Rule 21, Subpoenas--(1) General. Upon written request of either 
party filed with the recorder, or on his own initiative, the 
administrative judge to whom a case is assigned or who is otherwise 
designated by the chairman may issue a subpoena requiring:
    (i) Testimony at a deposition. The deposing of a witness in the city 
or county where he resides or is employed or transacts his business in 
person, or at

[[Page 180]]

another location convenient for him that is specifically determined by 
the Board;
    (ii) Testimony at a hearing. The attendance of a witness for the 
purpose of taking testimony at a hearing; and
    (iii) Production of books and papers. In addition to paragraph 
(v)(1) (i) or (ii) of this section, the production by the witness at the 
deposition or hearing of books and papers designated in the subpoena
    (2) Voluntary cooperation. Each party is expected: (i) To cooperate 
and make available witnesses and evidence under its control as requested 
by the other party, without issuance of a subpoena, and (ii) to secure 
voluntary attendance of desired third-party witnesses and production of 
desired third-party books, papers, documents, or tangible things 
whenever possible.
    (3) Requests for subpoenas. (i) A request for subpoena shall 
normally be filed at least:
    (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.

In its discretion the Board may honor requests for subpoenas not made 
within these time limitations.
    (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) Requests to quash or modify. Upon written request by the person 
subpoenaed or by a party, made within 10 days after service but in any 
event not later than the time specified in the subpoena for compliance, 
the Board may: (i) Quash or modify the subpoena if it is unreasonable 
and oppressive or for other good cause shown, or (ii) require the person 
in whose behalf the subpoena was issued to advance the reasonable cost 
of producing subpoenaed books and papers. Where ciurcumstances require, 
the Board may act upon such a request at any time after a copy has been 
served upon the opposing party.
    (5) Form; issuance. (i) Every subpoena shall state the name of the 
Board and the title of the appeal, and shall command each person to whom 
it is directed to attend and give testimony, and if appropriate, to 
produce specified books and papers at a time and place therein 
specified. In issuing a subpoena to a requesting party, the 
administrative judge shall sign the subpoena and may, in his discretion, 
enter the name of the witness and otherwise leave it blank. The party to 
whom the subpoena is issued shall complete the subpoena before service.
    (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) Service. (i) The party requesting issuance of a subpoena shall 
arrange for service.
    (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) Contumacy or refusal to obey a subpoena. In case of contumacy or 
refusal to obey a subpoena by a person who resides, is found, or 
transacts business within the jurisdiction of a United States District 
Court, the Board will apply to the Court through the Attorney General of 
the United States for an order requiring the person to appear before the 
Board or a member thereof to give testimony or produce evidence or both. 
Any failure of any such person to obey the order of the Court may be

[[Page 181]]

punished by the Court as a contempt thereof.
    (w) Rule 22, Copies of papers. When books, records, papers, or 
documents have been received in evidence, a true copy thereof or of such 
part thereof as may be material or relevant may be substituted therefor, 
during the hearing or at the conclusion thereof.
    (x) Rule 23, Post-hearing briefs. Post-hearing briefs may be 
submitted upon such terms as may be directed by the presiding 
administrative judge or examiner at the conclusion of the hearing.
    (y) Rule 24, Transcript of proceedings. Testimony and argument at 
hearings shall be reported verbatim, unless the Board otherwise orders. 
Waiver of transcript may be especially suitable for hearings under sub-
rule 12.2. Transcripts or copies of the proceedings shall be supplied to 
the parties at the actual cost of duplication.
    (z) Rule 25, Withdrawal of exhibits. After a decision has become 
final the Board may, upon request and after notice to the other party, 
in its discretion permit the withdrawal of original exhibits, or any 
part thereof, by the party entitled thereto. The substitution of true 
copies of exhibits or any part thereof may be required by the Board in 
its descretion as a condition of granting permission for such 
withdrawal.
    (aa) Rule 26, Representation: The Appellant. An individual appellant 
may appear before the Board in person, a corporation by one of its 
officers; and a partnership or joint venture by one of its members; or 
any of these by an attorney at law duly licensed in any state, 
commonwealth, territory, the District of Columbia, or in a foreign 
country. An attorney representing an appellant shall file a written 
notice of appearance with the Board.
    (bb) Rule 27, Representation: The Government. Government counsel 
may, in accordance with their authority, represent the interest of the 
Government before the Board. They shall file notices of appearance with 
the Board, and notice thereof will be given appellant or appellant's 
attorney in the form specified by the Board from time of time.
    (cc) Rule 28, Decisions. Decisions of the Board will be made in 
writing and authenticated copies of the decision will be forwarded 
simultaneously to both parties. The rules of the Board and all final 
orders and decisions (except those required for good cause to held 
confidential and not cited as precedents) shall be open for public 
inspection at the offices of the Board. Decisions of the Board will be 
made solely upon the record, as described in Rule 13.
    (dd) Rule 29, Motion for reconsideration. A motion for 
reconsideration may be file by either party. It shall set forth 
specifically the grounds relied upon to sustain the motion. The motion 
shall be filed within 30 days from the date of the receipt of a copy of 
the decision of the Board by the party filing the motion.
    (ee) Rule 30, Suspensions; dismissal without prejudice. The Board 
may suspend the proceedings by agreement of counsel for settlement 
discussions, or for good cause shown. In certain cases, appeals docketed 
before the Board are required to be placed in a suspense status and the 
Board is unable to proceed with disposition thereof for reasons not 
within the control of the Board. Where the suspension has continued, or 
may continue for an inordinate length of time, the Board may, in its 
discretion, dismiss such appeals from its docket without prejudice to 
their restoration when the cause of suspension has been removed. Unless 
either party or the Board acts within three years to reinstate any 
appeal dismissed without prejudice, the dismissal shall be deemed with 
prejudice.
    (ff) Rule 31, Dismissal or default for failure to prosecute or 
defend. Whenever a record discloses the failure of either party to file 
documents required by these rules, respond to notices or correspondence 
from the Board, comply with orders of the Board, or otherwise indicates 
an intention not to continue the prosecution or defense of an appeal, 
the Board may, in the case of a default by the appellant, issue an order 
to show cause why the appeal should not be dismissed or, in the case of 
a default by the Government, issue an order to show cause why the Board 
should not act thereon pursuant to Rule 35. If good

[[Page 182]]

cause is not shown, the Board may take appropriate action.
    (gg) Rule 32, Remand from court. Whenever any court remands a case 
to the Board for further proceedings, each of the parties shall, within 
20 days of such remand, submit a report to the Board recommending 
procedures to be followed so as to comply with the court's order. The 
Board shall consider the reports and enter special orders governing the 
handling of the remanded case. To the extent the court's directive and 
time limitations permit, such orders shall conform to these rules.
    (hh) Rule 33, Time, computation and extensions. (1) Where possible, 
procedural actions should be taken in less time than the maximum time 
allowed. Where appropriate and justified, however, extensions of time 
will be granted. All requests for extensions of time shall be in 
writing.
    (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) Rule 34, Ex parte communications. No member of the Board or of 
the Board's staff shall entertain, nor shall any person directly or 
indirectly involved in an appeal, submit to the Board or the Board's 
staff, off the record, any evidence, explanation, analysis, or advice, 
whether written or oral, regarding any matter at issue in an appeal. 
This provision does not apply to consultation among Board members or to 
ex parte communications concerning the Board's administrative functions 
or procedures.
    (jj) Rule 35, Sanctions. If any party fails or refuses to obey an 
order issued by the Board, the Board may then make such order as it 
considers necessary to the just and expeditious conduct of the appeal.
    (kk) Rule 36, Effective date. These rules shall apply: (1) 
Mandatorily, to all appeals relating to contracts entered into on or 
after 1 March 1979, and (2) at the contractor's election, to appeals 
relating to earlier contracts, with respect to claims pending before the 
contracting officer on 1 March 1979 or initiated thereafter.

[45 FR 19202, Mar. 24, 1980]



PART 211_REAL ESTATE ACTIVITIES OF THE CORPS OF ENGINEERS IN 
CONNECTION WITH CIVIL WORKS PROJECTS--Table of Contents



                          Real Estate; General

Sec.
211.1 Real estate defined.
211.2 Authority to acquire real estate.
211.3 Function of Chief of Engineers.
211.4 Acquisition of land.

           Temporary Use by Others of Civil Works Real Estate

211.5 Temporary use; how granted.
211.6 Rights which may be granted by the Secretary of the Army in river 
          and harbor and flood control property.
211.7 Rights which may be granted by Division and District Engineers.
211.8 Limitations on rights which may be granted.
211.9 Applications for leases, easements, licenses, and permits.

        Disposal of Real Estate Acquired for Civil Works Purposes

211.10 Disposition of lands.
211.11 Sale or salvage of buildings, improvements, or crops.
211.12 Exchange of lands.
211.13 Approval of the Office of the Chief of Engineers.

                           Real Estate Claims

211.14 Definition.
211.15 Statutory provisions.
211.16 Scope and application of Army Regulations.
211.17 Authority of Division Engineers, Corps of Engineers to settle 
          claims.
211.18 Action by claimant.
211.19 Place of filing claims.
211.20 Form of claim.
211.21 Evidence to be submitted by claimant.
211.22 Real estate Claims Officers.
211.23 Procedure.
211.24 Disposition of claims.

                  Federal Jurisdiction Over Real Estate

211.25 General considerations in the acquiring of Federal jurisdiction.
211.26 Functions in acquiring Federal jurisdiction.
211.27 Method of acquiring Federal jurisdiction.
211.28 Acceptance of jurisdiction.

[[Page 183]]

Sale of Lands in Reservoir Areas Under Jurisdiction of Department of the 
                Army for Cottage Site Development and Use

211.71 Statutory provisions.
211.72 Definitions.
211.73 Determination of land available for sale.
211.74 Public notice of the availability of land for sale.
211.75 Price.
211.76 Costs of surveys.
211.77 Sale procedure.
211.78 Maintenance and conveyance of access roads.
211.79 Contract of sale.
211.80 Conveyance.
211.81 Reservoir areas.

Reconveyance of Land or Interests Therein Acquired for Grapevine, Garza-
 Little Elm, Benbrook, Belton, and Whitney Reservoir Projects in Texas 
     and Also for the Verdigris River Portion of the McClellan-Kerr 
            Navigation Project in Oklahoma, to Former Owners

211.101 Statutory provisions.
211.102 Definitions.
211.103 Determination of whether land is required for public purposes, 
          including public recreational use.
211.104 Notice to former owners of availability of land for 
          reconveyance.
211.105 Filing of application.
211.106 Filing of objection by abutting owner.
211.107 Notice of agreement between former owner and abutting owner.
211.108 Determination of price.
211.109 Contract of sale.
211.110 Conveyance.
211.111 Certification terminating rights of former owners.

          Conveyances for Public Port or Industrial Facilities

211.141 Statutory provisions.
211.142 Definitions.
211.143 Delegations.
211.144 Notice.
211.145 Filing of application.
211.146 Price.
211.147 Conveyance.

    Authority: Sections 211.1 through 211.4 issued under 5 U.S.C. 301, 
unless otherwise noted.

    Source: 13 FR 8747, Dec. 30, 1948, unless otherwise noted.

                          Real Estate; General



Sec. 211.1  Real estate defined.

    The term real estate as used in this part includes land; buildings; 
piers and wharves; office and storage space; rights-of-way or easements, 
whether temporary or permanent; and any interests which may be acquired 
or held therein for the use or benefit of the United States by the 
Department of the Army or any branch thereof.



Sec. 211.2  Authority to acquire real estate.

    (a) Congressional authority necessary. No land shall be acquired on 
account of the United States except under a law authorizing such 
acquisition. (See R. S. 3736; 41 U. S. C. 14.)
    (b) Authority of the Secretary. The authority of the Secretary of 
the Army to acquire real estate for river and harbor improvements, flood 
control projects and allied purposes, is based upon enactments of the 
Congress authorizing the particular projects and appropriating funds 
therefor. These enactments are generally termed Flood Control Acts and 
are passed following the submission by the Secretary of the Army of 
preliminary plans and surveys to the Congress for consideration and 
approval.
    (c) Local cooperation. As a general rule in river and harbor and 
flood control projects, except channel improvements, channel 
rectifications, dam and reservoir, and certain other types of projects, 
local interests are required to provide without cost to the United 
States, all lands, easements and rights-of-way necessary for the 
construction of the projects.



Sec. 211.3  Function of Chief of Engineers.

    (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]



Sec. 211.4  Acquisition of land.

    (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.

[[Page 184]]

    (4) Lease or similar instrument.
    (5) Donation or gift.
    (b) Methods of acquisition--(1) Purchase. It is the policy of the 
Department of the Army to secure title to lands, or the desired interest 
therein, by direct negotiation and purchase, where possible. Each tract 
of land to be acquired is approved by qualified appraisers for the 
purpose of determining the market value. Options for the purchase of 
land will not be negotiated containing reservations or exceptions by 
landowners or subject to outstanding rights in third parties which may 
interfere with the use of the land for which it is being acquired. In no 
case will an option be negotiated in which a vendor excepts or reserves 
the right to repurchase the property, or undertakes to convey subject to 
rights in a third party. Generally, landowners or tenants are authorized 
to reserve, or except from the sale, crops, timber, buildings and 
improvements with the right to remove same within a specified period, 
provided such buildings, etc., are not required for use by the 
Department of the Army. Land is acquired subject to public highways, 
roads, railroads, pipelines, and other utilities, and if it is 
determined that they interfere with the Government's use of the 
property, will be relocated or extinguished by contract between the 
Government and State, county or utility involved. If at any time in the 
course of acquisition by direct purchase, it becomes apparent that 
acquisition by such means will involve substantial delay or cannot be 
accomplished because of title defects which cannot be eliminated within 
a reasonable time, or because of failure to agree on the price to be 
paid, action is taken to acquire the land by condemnation.
    (2) Condemnation. Condemnation of land is accomplished by the 
Secretary of the Army requesting the Attorney General to file a 
condemnation petition and procure an order from the court in the Federal 
Judicial District where the land is located, granting to the United 
States the right of immediate possession. The declaration of taking act 
(40 U.S.C. 258a-d) permits the Government to file a declaration of 
taking in conjunction with the condemnations proceedings, and provides 
that title to the property described therein vests immediately upon 
filing of the declaration in court and deposit of the Government's 
estimate of compensation, named in the declaration, in the registry of 
the court. The court may enter orders directing that all or part of the 
money deposited by the Government be paid to the owner of the land or 
other persons having an interest therein. This payment is without 
prejudice to the landowner's right to seek a higher value for his land 
in the trial of the case before the court. Pending or during the trial 
under condemnation proceedings, negotiations may still be conducted with 
the landowner for the direct purchase of his property, and in the event 
an agreement is reached, action is taken to dismiss the land in question 
from the condemnation proceedings.
    (3) Transfer of land. Transfer of land from other Government 
agencies to the Department of the army is generally accomplished by 
obtaining a use permit, or if the land is desired permanently, then by 
transfer under applicable legislative authority. In the absence of such 
authority, a permit is obtained pending enactment of special legislation 
by the Congress. Public domain land under the Department of the Interior 
may be withdrawn and set aside for the use of the Department of the Army 
by Executive order or a Public Land Order.
    (4) Lease. The negotiation of leases for river and harbor and flood 
control purposes must be approved by the Chief of Engineers or his duly 
authorized representative.

           Temporary Use by Others of Civil Works Real Estate

    Authority: Sections 211.5 through 211.9 issued under R.S. 161; 5 
U.S.C. 301.

    Source: 13 FR 8748, Dec. 30, 1948, unless otherwise noted.



Sec. 211.5  Temporary use; how granted.

    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.

[[Page 185]]



Sec. 211.6  Rights which may be granted by the Secretary of the Army 
in river and harbor and flood control property.

    (a) Leases. (1) The Secretary of the Army is authorized, whenever he 
shall deem it to be advantageous to the Government, to lease such real 
property under the control of his Department as is not surplus to the 
needs of the Department within the meaning of the act of October 3, 1944 
(58 Stat. 765), and is not for the time required for public use, to such 
lessee or lessees and upon such terms and conditions as in his judgment 
will promote the national defense or will be in the public interest. 
Each such lease shall be for a period not exceeding five years unless 
the Secretary of the Army shall determine that a longer period will 
promote the national defense or will be in the public interest. The 
Secretary of the Army may include, among other terms and conditions in 
the lease, a right of first refusal in the lessee to purchase the 
property in the event of the revocation of the lease in order to permit 
sale thereof by the Government, but this shall not be construed as 
authorizing the sale of any property unless the sale thereof is 
otherwise authorized by law. Each such lease shall contain a provision 
permitting the Secretary of the Army to revoke the lease at any time, 
unless he shall determine that the omission of such provision from the 
lease will promote the national defense or will be in the public 
interest. In any event each such lease shall be revocable by the 
Secretary of the Army during a national emergency declared by the 
President. Notwithstanding section 321 of the act of June 30, 1932 (47 
Stat. 412; 40 U.S.C. 303b), or any other provision of law, any such 
lease may provide for the maintenance, protection, repair, or 
restoration by the lessee, of the property leased or of the entire unit 
or installation where a substantial part thereof is leased, as a part or 
all of the consideration for the lease of such property. In the event 
utilities or services shall be furnished by the Department of the Army 
to the lessee in connection with any lease, payments for utilities or 
services so furnished may be covered into the Treasury to the credit of 
the appropriation or appropriations from which the costs of furnishing 
any such utilities or services to the lessee was paid. Except as 
otherwise provided in this paragraph, any money rentals received by the 
Government directly under any such lease shall be deposited and covered 
into the Treasury as miscellaneous receipts. The authority granted in 
this section shall not apply to oil, mineral, or phosphate lands (10 
U.S.C. 2667).
    (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: Provided, That leases to non-profit organizations 
may be granted at reduced or nominal rentals in recognition of the 
public service to be rendered in utilizing the leased premises: Provided 
further, That preference shall be given to Federal, State, or local 
governmental agencies, and licenses may be granted without monetary 
considerations to such agencies for the use of all or any portion of a 
reservoir area, when the Secretary of the Army determines such actions 
to be in the public interest, and for such periods of time and upon such 
conditions as he may find advisable. The water areas of all such 
reservoirs shall be open to the public use generally, without charge, 
for boating, swimming, bathing, fishing, and other recreational 
purposes, and ready access to and exit from such water areas along the 
shores of such reservoirs shall be maintained for general public use, 
when such use is determined by the Secretary of the Army not to be 
contrary to the public interest, all under such rules and regulations as 
the Secretary of the Army may deem necessary. No use of any area to 
which this section applies shall be permitted which is inconsistent with 
the laws for the protection of fish and game of the State in which such 
area is situated. All moneys received

[[Page 186]]

for leases or privileges shall be deposited in the Treasury of the 
United States as miscellaneous receipts. (Sec. 4, act of December 22, 
1944, 58 Stat. 887, 889, as amended by sec. 4, act of July 24, 1946, 60 
Stat. 641, as amended by Sec. 209, act of Sept. 3, 1954, 68 Stat. 1266.)
    (b) Easements. (1) The Secretary of the Army is authorized to grant 
easements for rights-of-way across real estate acquired for civil 
purposes as follows:
    (i) Poles and wires. The Secretary of the Army may grant easements 
for rights-of-way, for periods not exceeding 50 years, for poles and 
lines for the transmission and distribution of electrical power, and for 
poles and lines for telephone and telegraph purposes, over lands under 
his jurisdiction, upon a finding that the same is not incompatible with 
the public interest (see act of March 4, 1911; 36 Stat. 1253, as amended 
by the act of May 27, 1952, 66 Stat. 95; 43 U.S.C. 961). Form of 
easement is ENG Form 1360.
    (ii) Pipelines. The Secretary of the Army may grant easements for 
rights-of-ways for gas, water, and sewer pipelines across lands under 
his control provided that such grants will be in the public interest and 
will not substantially injure the interest of the United States in the 
property affected thereby (10 U.S.C. 2669). Form of easement is ENG Form 
1361.
    (iii) Other easements. The Secretary of the Army is authorized and 
empowered, under such terms and conditions as are deemed advisable by 
him, to grant easements for rights-of-way over, across, in and upon 
acquired lands under his jurisdiction and control, and public lands 
permanently withdrawn or reserved for the use of the Department of the 
Army, to any State, political subdivision thereof, or municipality, or 
to any individual, partnership, or corporation of any State, Territory, 
or possession of the United States, for:
    (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) Provided, That:
    (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).



Sec. 211.7  Rights which may be granted by Division and District Engineers.

    (a) Authority of Division and District Engineers. Division 
Engineers, the President of the Mississippi River Commission, and 
District Engineers of districts to which real estate functions have been 
or may be assigned are authorized to lease, in the name of and by 
authority of the Secretary of the Army, lands of the United States and 
improvements thereon, acquired for reservoirs for navigation and flood 
control, subject to the prior approval of the Chief of Engineers. 
Recommendations of District Engineers will be considered by Division 
Engineers and the President of the Mississippi River Commission in 
granting leases and District Engineers will administer the provisions of 
the leases, including the collection and deposit of payments.
    (b) [Reserved]



Sec. 211.8  Limitations on rights which may be granted.

    (a) Advertising. It is the policy to grant leases to the highest 
responsible bidders after advertising, where competition is practicable. 
Advertising consists of the circularization of notices among former 
owners of the land, owners of adjacent lands, and others known to be 
interested and by the

[[Page 187]]

posting of notices in public places, and publication of notices in 
newspapers where such publication is deemed advisable. Exceptions have 
been made to this policy in favor of former owners in granting leases 
for agricultural and grazing purposes in reservoir areas.
    (b) Consideration. Title 10 U.S.C. 2667 provides that 
notwithstanding section 321 of the act of June 30, 1932 (47 Stat 412; 40 
U.S.C. 303b) or any other provision of law, any such lease may provide 
for the maintenance, protection, repair, or restoration by the lessee, 
of the property leased or of the entire unit or installation where a 
substantial part thereof is leased, as a part or all of the 
consideration for the lease of such property. The consideration will be 
adequate but may consist of money and/or maintenance, protection, 
repair, or restoration by the lessee, of the property leased.
    (c) Consideration in easements and licenses. In order to fully 
protect the interests of the United States, the Secretary of the Army 
will not, without substantial compensation grant to non-government 
agencies, for the purpose of private profit, valuable rights in 
Government property. A fair charge will be made for such privileges, the 
amount to be determined by all the circumstances surrounding the case, 
including an estimate as to what private interest in the vicinity would 
charge for a similar privilege.



Sec. 211.9  Applications for leases, easements, licenses, and permits.

    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.

        Disposal of Real Estate Acquired for Civil Works Purposes

    Authority: Sections 211.10 through 211.13 issued under R.S. 161; 5 
U.S.C. 301.

    Source: 13 FR 8749, Dec. 30, 1948, unless otherwise noted.



Sec. 211.10  Disposition of lands.

    (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]



Sec. 211.11  Sale or salvage of buildings, improvements, or crops.

    (a) Authority of law. When any property (except land) which has been 
heretofore or may be hereafter purchased or acquired for the improvement 
of rivers and harbors or for flood control work is no longer needed, or 
is no longer serviceable, it may be sold in such manner as the Secretary 
of the Army may direct and the proceeds credited to the appropriation 
for the work for which it was purchased or acquired. (Section 5, act of 
June 13, 1902 (32 Stat. 373; 33 U.S.C. 558), as extended by section 3, 
act of March 1, 1917 (39 Stat. 450; 33 U.S.C. 701).)
    (b) Division Engineers. Sales are conducted by the Division 
Engineers, Corps of Engineers.
    (c) Removal of buildings, improvements, or crops other than by sale. 
If the buildings, improvements, or crops cannot be sold, they may be 
salvaged or razed as a part of the work under the project if they are in 
the way of new construction or interfere with the efficient operation of 
the project.



Sec. 211.12  Exchange of lands.

    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).)

[[Page 188]]



Sec. 211.13  Approval of the Office of the Chief of Engineers.

    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.

                           Real Estate Claims

    Authority: Sections 211.14 through 211.24 issued under R.S. 161; 5 
U.S.C. 301.

    Source: 13 FR 8749, Dec. 30, 1948, unless otherwise noted.



Sec. 211.14  Definition.

    The term real estate claims refers to those demands for payment 
submitted by individuals, partnerships, associations or corporations, 
including States, territories, and political subdivisions thereof, for 
rent, damages, utilities, out-of-pocket expenses and other payments, 
arising under the terms and conditions, whether express or implied, of 
leases or other contracts for the use and occupancy of real estate by 
the Department of the Army or the Army, including right of entry 
permits, options to purchase, and other instruments sufficient to 
support a contractual relationship between the United States and 
property owner, or arising from the use and occupancy of real estate by 
the Department of the Army or the Army with the express or implied 
consent of the owner thereof in the absence of any formal lease or other 
contract therefor.



Sec. 211.15  Statutory provisions.

    (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) Meritorious Claims Act. When there is filed in the General 
Accounting Office a claim or demand against the United States that may 
not lawfully be adjusted by the use of an appropriation theretofore 
made, but which claim or demand in the judgment of the Comptroller 
General of the United States contains such elements of legal liability 
or equity as to be deserving of the consideration of the Congress, he 
shall submit the same to the Congress, by a special report containing 
the material facts and his recommendations thereon (act of April 10, 
1928; c. 334, 45 Stat. 413; 31 U.S.C. 236).
    (c) Limitations of time on claims and demands under (a) and (b) of 
this section. The act of October 9, 1940 (54 Stat. 1061; 31 U.S.C. 71a) 
provides that every claim or demand (except a claim or demand by any 
State, Territory, possession or the District of Columbia) against the 
United States cognizable by the General Accounting Office under the act 
of June 10, 1921, and the act of April 10, 1928, will be forever barred 
unless such claim, bearing the signature and address of the claimant or 
of an authorized agent or attorney, will be received in said office 
within ten full years after the date such claim first accrued: Provided, 
however, That when such a claim of any person serving in the military or 
naval forces of the United States accrues in time of war, or when war 
intervenes within five years after its accrual, such claim may be 
presented within five years after peace is established. The act further 
provides that whenever any claim barred by the preceding provision will 
be received in the General Accounting Office, it will be returned to the 
claimant, with a copy of this act (act of October 9, 1940) and such 
action will be a complete response without further communication.
    (d) Domestic Claims Act. The act of July 3, 1943 (57 Stat. 372; 31 
U.S.C. 223b, 223c) as amended by the act of May 29, 1945 (Pub. L. 67, 
79th Congress) and as further amended by the act of June 28, 1946 (Pub. 
L. 466, 79th Congress), provides for the payment of claims arising on or 
after May 27, 1941, for damage to or loss or destruction of property, 
real or personal, caused by military personnel or civilian employees of 
the Department of the Army or of the Army while acting within the scope 
of their employment or otherwise incident to noncombat activities of the 
Department of the Army or of the Army, including claims for damages to 
real property incident to the use and occupation thereof, whether under 
a lease,

[[Page 189]]

express or implied, or otherwise, and including claims of the foregoing 
categories arising out of civil works, provided they do not exceed 
$1,000. The act further provides that the damage to or loss or 
destruction of property shall not have been caused in whole or in part 
by any negligence or wrongful act on the part of the claimant, his agent 
or employee; that no claim shall be settled under the act unless 
presented in writing within one year after the incident out of which 
such claim arises shall have occurred except that if the incident occurs 
in time of war, or if war intervenes within one year after its 
occurrence, any claim may, on good cause shown, be presented within one 
year after peace is established. The Secretary of the Army is authorized 
to report such claims as exceed $1,000 to Congress for its 
consideration.



Sec. 211.16  Scope and application of Army Regulations.

    (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.



Sec. 211.17  Authority of Division Engineers, Corps of Engineers to
settle claims.

    (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.



Sec. 211.18  Action by claimant.

    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.



Sec. 211.19  Place of filing claims.

    All real estate claims should be submitted to the United States 
Division Engineer in whose jurisdiction the claim arises.

[[Page 190]]



Sec. 211.20  Form of claim.

    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.



Sec. 211.21  Evidence to be submitted by claimant.

    (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.



Sec. 211.22  Real estate Claims Officers.

    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 
Sec. 211.23.



Sec. 211.23  Procedure.

    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.

The above obligations of the Claims Officer does not relieve the 
claimant from the burden of proving his claim and it is the duty and 
obligation of the claimant to furnish such evidence within his 
particular knowledge as the Claims Officer may require.

Upon completion of his investigation the Claims Officer prepares a 
report setting forth completely but briefly the nature and amount of the 
claim, all pertinent facts necessary to determine the rights and 
liabilities of the claimant and the Government, and the

[[Page 191]]

Claims Officer's conclusions and recommendations as to allowance or 
disallowance of the claim in whole or in part and reasons therefor, 
including citations to any laws, statutes, or other decisions which it 
is believed will substantiate his recommendation.



Sec. 211.24  Disposition of claims.

    (a) Real estate claims for damages. Real estate claims for damages 
not exceeding $1,000 may be settled by the Division Engineer. If the 
Division Engineer allows the claim in toto it is transmitted to the 
local Disbursing Officer who transmits a check to claimant in payment of 
the claim. Where the claim is disallowed by the Division Engineer, in 
whole or in part, the claimant is so advised and in the event that he is 
unwilling to accept the decision of the Division Engineer, he may appeal 
within 30 days after receipt of such notice, through the Division 
Engineer's Office, to the Secretary of the Army. This appeal should 
state in full reasons for not accepting the Division Engineer's award.
    (b) Claims for damages in excess of $1,000. Claims for damages in 
excess of $1,000 arising out of the use and occupancy of real estate 
under an agreement, express or implied, or otherwise, are forwarded to 
the General Accounting Office for settlement.
    (c) Claims for rent or other payments. Claims for rent or other 
payments of a contractual nature regardless of amount arising out of the 
use and occupancy of real estate under an agreement, express or implied, 
or otherwise, are forwarded to the General Accounting Office.
    (d) Mixed claims for rental and damages. When a claim arising from 
the use and occupancy of real estate has been received, the elements of 
the claim are first determined. If the claim is for damages not in 
excess of $1,000 and rental, these elements are if practicable, 
separated and the damages settled under AR 25-25, otherwise the claims 
are forwarded to the General Accounting Office for direct settlement.

                  Federal Jurisdiction Over Real Estate

    Authority: Sections 211.25 through 211.28 issued under R.S. 161; 5 
U.S.C. 301.

    Source: 13 FR 8751, Dec. 30, 1948, unless otherwise noted.



Sec. 211.25  General considerations in the acquiring of Federal jurisdiction.

    (a) Laws governing the acquisition of Federal jurisdiction--(1) 
Constitution of the United States. By Article 1, Section 8, Clause 17, 
of the Constitution, Congress has the power to exercise exclusive 
legislation in all cases in the District of Columbia and to exercise 
like authority over all land acquired by the United States with the 
consent of the legislature of the State in which the land is located for 
the erection of forts, magazines, arsenals, dockyards, and other needful 
buildings.
    (2) Section 355, Revised Statutes of the United States. Under this 
section as amended by the acts of Congress approved February 1, 1940 (54 
Stat. 19) and October 9, 1940 (54 Stat. 1083; 40 U.S.C. 255), 
jurisdiction over lands acquired by the Department of the Army does not 
vest until the Secretary of the Army has indicated acceptance of such 
jurisdiction by filing a notice of acceptance with the Governor of the 
State or in such manner as may be prescribed by the laws of the State 
where the land is situated.
    (3) State laws. The laws of the various States indicate the type of 
jurisdiction ceded or to be ceded, and prescribe the requirements, if 
any, to be complied with prior to the vesting of jurisdiction in the 
United States.
    (b) [Reserved]



Sec. 211.26  Functions in acquiring Federal jurisdiction.

    (a) The Division Engineer. Upon determination that Federal 
jurisdiction is desired over a Civil Works Project, the Office of the 
Division Engineer concerned prepares such maps and descriptions of the 
lands involved as may be required and forwards them to the Office of the 
Chief of Engineers with any further information called for by the laws 
of the State where the lands are located.

[[Page 192]]

    (b) Chief of Engineers. All letters and other papers required to 
procure cessions of jurisdiction and all notices of acceptance are 
prepared in the Office of the Chief of Engineers.



Sec. 211.27  Method of acquiring Federal jurisdiction.

    Jurisdiction is acquired in accordance with the laws of the various 
States.



Sec. 211.28  Acceptance of jurisdiction.

    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.

Sale of Lands in Reservoir Areas Under Jurisdiction of Department of the 
                Army for Cottage Site Development and Use

    Authority: Sections 211.71 through 211.81 issued under sec. 2, 70 
Stat. 1065; 16 U.S.C. 460f.

    Source: 28 FR 3450, Apr. 9, 1963, unless otherwise noted.



Sec. 211.71  Statutory provisions.

    The Act of Congress approved August 6, 1956 (70 Stat. 1065).



Sec. 211.72  Definitions.

    (a) The Act. The Act of Congress approved 6 August 1956 (70 Stat. 
1065; Pub. L. 999, 84th Congress).
    (b) Cottage site. Cottage site as used in Sec. Sec. 211.71 through 
211.80, includes:
    (1) Individual cottage site. A parcel of land developed or to be 
developed by the construction of a private cottage thereon and used, or 
to be used, for private recreational purposes.
    (2) Group cottage site. A parcel of land containing multiple cottage 
sites developed or to be developed individually by members of an 
organization to which the land is currently leased by the construction 
on each site of a private cottage owned individually and used, or to be 
used, for private recreational purposes.
    (3) Colony cottage site. A parcel of land containing (i) multiple 
cottage sites developed or to be developed individually by members of an 
organization to which the land is currently leased by the construction 
on each site of a private cottage owned individually and used or to be 
used for private recreational purposes, and (ii) a site or sites 
developed or to be developed by the lessee by construction of community 
recreational facilities for joint use by all members of the lessee 
organization incident to occupancy of their privately owned cottages on 
the leased premises and/or an area of land to be preserved in an 
undeveloped state for such joint use by all members of the lessee 
organization.



Sec. 211.73  Determination of land available for sale.

    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.



Sec. 211.74  Public notice of the availability of land for sale.

    Upon determination in accordance with Sec. Sec. 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

[[Page 193]]

District Engineer) will give public notice of the availability of such 
land for sale, subject to such conditions, reservations and restrictions 
as are required by the Act and such other conditions, reservations and 
restrictions as the Chief of Engineers or the Director of Civil Works 
(Assistant to the Chief of Engineers for Civil Works) may determine to 
be necessary for the management and operation of the project, or for the 
protection of lessees or owners of cottage sites within the area. Public 
notice of the availability of such land for sale will be by: (a) 
Publication at least twice, at no less than 15 day intervals, in two 
newspapers having general circulation in the vicinity in which the land 
is located; (b) written notification to any persons or organizations 
known to be interested in acquiring a cottage site in the area; (c) 
posting of notices in public places; and (d) in addition, where any site 
on which a lease for cottage site purposes existed on August 6, 1956, is 
available, notice will be given by registered letter to the lessee at 
his last known address.



Sec. 211.75  Price.

    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.



Sec. 211.76  Costs of surveys.

    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 Sec. Sec. 211.71 through 211.80 shall be 
borne by the grantee.



Sec. 211.77  Sale procedure.

    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.



Sec. 211.78  Maintenance and conveyance of access roads.

    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.



Sec. 211.79  Contract of sale.

    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 Sec. Sec. 211.71 through 211.80 
and to execute the contract of sale on behalf of the United States of 
America.

[[Page 194]]



Sec. 211.80  Conveyance.

    (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.



Sec. 211.81  Reservoir areas.

    Delegations, rules and regulations in Sec. Sec. 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.

[28 FR 4357, May 2, 1963, as amended at 30 FR 4475, Apr. 7, 1965]

Reconveyance of Land or Interests Therein Acquired for Grapevine, Garza-
 Little Elm, Benbrook, Belton, and Whitney Reservoir Projects in Texas 
     and also for the Verdigris River Portion of the McClellan-Kerr 
            Navigation Project in Oklahoma, to Former Owners

    Authority: Secs. 211.101 to 211.111 issued under sec. 205, 72 Stat. 
316.



Sec. 211.101  Statutory provisions.

    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).

[23 FR 7348, Sept. 28, 1958, as amended at 37 FR 15371, Aug. 1, 1972]



Sec. 211.102  Definitions.

    (a) General. Any term used in Sec. Sec. 211.101 to 211.111 which is 
defined in section 205 of the Act of Congress approved July 3, 1958 (72 
Stat. 316) or in section 11 of the Act of Congress approved December 23, 
1971 (85 Stat. 800), shall have the meaning given to it in said act.
    (b) Land. Any land or interest in land acquired by the United States 
for the Grapevine, Garza-Little Elm, Benbrook, Belton, and Whitney 
Reservoir projects, Texas, or for the Verdigris River portion of the 
McClellan-Kerr Navigation Project Oklahoma.
    (c) The Act. The term ``the act'' when used in Sec. Sec. 211.101 to 
211.111 shall mean either section 205 of the Act of Congress approved 
July 3, 1958 (72 Stat. 316), or section 11 of the Act of Congress 
approved December 23, 1971 (85 Stat. 800).
    (d) District Engineer. The term ``District Engineer'' when used in 
Sec. Sec. 211.101 to 211.111 shall mean the District Engineer, U.S. 
Army Engineer District, Fort Worth, at Fort Worth, Tex., or the District 
Engineer, U.S. Army Engineer District, Tulsa, at Tulsa, Okla.
    (e) Director of Civil Works. The term ``Director of Civil Works'' 
when used herein shall mean the Director of Civil Works, Office, Chief 
of Engineers or the

[[Page 195]]

Assistant Chief of Engineers for Civil Works.

[23 FR 7348, Sept. 28, 1958, as amended at 37 FR 15371, Aug. 1, 1972]



Sec. 211.103  Determination of whether land is required for public 
purposes, including public recreational use.

    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.

[23 FR 7348, Sept. 28, 1958, as amended at 37 FR 15371, Aug. 1, 1972]



Sec. 211.104  Notice to former owners of availability of land for reconveyance.

    Upon determination in accordance with Sec. Sec. 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.

[37 FR 15371, Aug. 1, 1972]



Sec. 211.105  Filing of application.

    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.

[37 FR 15371, Aug. 1, 1972]



Sec. 211.106  Filing of objection by abutting owner.

    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.

[37 FR 15371, Aug. 1, 1972]



Sec. 211.107  Notice of agreement between former owner and abutting owner.

    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

[[Page 196]]

appropriate District Engineer and the former owner. In the event an 
agreement in writing as prescribed herein is not mailed or delivered to 
the appropriate District Engineer, the appropriate District Engineer is 
hereby authorized to report the land involved to the General Services 
Administration for disposal as prescribed by the Act.

[37 FR 15371, Aug. 1, 1972]



Sec. 211.108  Determination of price.

    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.

[37 FR 15371, Aug. 1, 1972]



Sec. 211.109  Contract of sale.

    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 Sec. 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.

[37 FR 15371, Aug. 1, 1972]



Sec. 211.110  Conveyance.

    Reconveyance of the land will be by quitclaim deed executed by the 
Secretary of the Army.

[23 FR 7348, Sept. 28, 1958]



Sec. 211.111  Certification terminating rights of former owners.

    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 Sec. Sec. 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,

[[Page 197]]

and conditions, as the Chief of Engineers or the Director of Civil Works 
consider necessary for the operation of the project or in the public 
interest.

[37 FR 15372, Aug. 1, 1972]

          Conveyances for Public Port or Industrial Facilities

    Authority: Sections 211.141 through 211.147 issued under sec. 
108(d), 74 Stat. 487; 33 U.S.C. 578.

    Source: 26 FR 2117, Mar. 11, 1961, unless otherwise noted.



Sec. 211.141  Statutory provisions.

    Section 108 of the Act of Congress approved 14 July 1960 (74 Stat. 
486).



Sec. 211.142  Definitions.

    (a) This Act. The term ``this Act'' shall mean Section 108 of the 
Act of Congress approved 14 July 1960 (74 Stat. 486).
    (b) Land. Any land under the jurisdiction of the Department of the 
Army acquired for a project which was authorized for water resource 
development purposes.
    (c) Project. Any project under the jurisdiction of the Department of 
the Army which was authorized for water resource development purposes.
    (d) Agency. The term ``agency'' shall mean any state, political 
subdivision thereof, port district, port authority, or other body 
created by a state or through a compact between two or more states for 
the purpose of developing or encouraging the development of public port 
or industrial facilities.
    (e) District Engineer. The term ``District Engineer'' shall mean the 
District Engineer of the United States Army Engineer District having 
immediate jurisdiction over the land available for conveyance.



Sec. 211.143  Delegations.

    (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.



Sec. 211.144  Notice.

    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.



Sec. 211.145  Filing of application.

    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.

[[Page 198]]



Sec. 211.146  Price.

    No conveyance shall be made for a price less than the fair market 
value of the land.



Sec. 211.147  Conveyance.

    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.



PART 214_EMERGENCY SUPPLIES OF DRINKING WATER--Table of Contents



Sec.
214.1 Purpose.
214.2 Applicability.
214.3 Reference.
214.4 Additional authority.
214.5 Policy.
214.6 Discussion.
214.7 Delegation of authority.
214.8 Exclusions.
214.9 Requirements.
214.10 Types of assistance.
214.11 Costs.

    Authority: Pub. L. 84-99, as amended, Emergency Flood Control Work 
33 U.S.C. 701n; (69 Statute 186), dated June 28, 1955.

    Source: 41 FR 7506, Feb. 19, 1976, unless otherwise noted.



Sec. 214.1  Purpose.

    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).



Sec. 214.2  Applicability.

    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.



Sec. 214.3  Reference.

    (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.



Sec. 214.4  Additional authority.

    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.



Sec. 214.5  Policy.

    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.



Sec. 214.6  Discussion.

    (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).

[[Page 199]]

    (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 Sec. 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.



Sec. 214.7  Delegation of authority.

    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.



Sec. 214.8  Exclusions.

    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.

[[Page 200]]

    (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.



Sec. 214.9  Requirements.

    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 Sec. 
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.



Sec. 214.10  Types of assistance.

    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.



Sec. 214.11  Costs.

    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.

[[Page 201]]



PART 220_DESIGN CRITERIA FOR DAM AND LAKE PROJECTS--Table of Contents





Sec. 220.1  Low level discharge facilities for drawdown of impoundments.

    (a) Purpose. This regulation states the policy, objectives, and 
procedures in regard to facilities for drawdown of lakes to be impounded 
by Civil Works projects.
    (b) Applicability. This regulation is applicable to all Divisions 
and Districts having responsibility for design of Civil Works projects.
    (c) Policy. It is the policy of the Chief of Engineers that all 
future lakes impounded by Civil Works projects be provided with low 
level discharge facilities to meet the criteria for drawdown set forth 
in this ER. Low level discharge facilities, capable of essentially 
emptying the lake, provide flexibility in future project operation for 
unanticipated needs, such as, major repair of the structure, 
environmental controls or changes in reservoir regulation. The criteria 
set forth in this ER will govern in the majority of impoundment 
projects. However, it may be impracticable to provide the drawdown 
capability to meet the criteria for certain projects because of their 
size (unusually small or large) or because of their unique function. 
Such projects may be exempt from the criteria upon presentation of 
information in accordance with paragraph (e) of this section.
    (d) Design criteria. As a minimum, low level discharge facilities 
will be sized to reduce the pool, within a period of four months, to the 
higher of the following pool levels: (1) A pool level that is within 20 
feet of the pre-project ``full channel'' elevation, or (2) a pool level 
which will result in an amount of storage in the reservoir that is 10 
percent of that at the beginning pool level. The beginning pool level 
for drawdown will be assigned at spillway crest for uncontrolled 
spillways and at top of spillway gates for controlled spillways. Inflow 
into the lake during the drawdown period will be developed by obtaining 
the average flow for each month of the year. The drawdown period inflow 
will then be assumed equivalent to the average flow of the highest 
consecutive four-month period.
    (e) Design Study and Report Requirements. Feasibility (survey) 
reports and subsequent pertinent design memoranda should include the 
results of studies made to determine facilities required for drawdown of 
impoundments. The discharge capacity required to satisfy project 
purposes and diversion requirements during construction may be 
sufficient to meet the drawdown criteria set forth in paragraph (d) of 
this section. Where additional capacity is required, studies will be 
made to determine the most practical and economical means of increasing 
the capacity to meet the drawdown criteria. A synopsis of the 
alternatives considered and details of the recommended plan should be 
included in the Phase II General Design Memorandum or a feature design 
memorandum. The reporting should include the effects of the required 
discharge capacity on project costs, on existing downstream projects, 
and on the potential for downstream damage. When, due to specific 
project conditions, a drawdown capacity is recommended which does not 
meet the criteria set forth in paragraph (d) of this section, the 
following information should be presented:
    (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.

Reporting subsequent to the Phase I General Design Memorandum should 
include related discharge rating curves; hydrographs with inflow, 
outflow and pool stage plots; lake regulation plans needed for project 
purposes and needed to satisfy the drawdown criteria; and

[[Page 202]]

other data essential in evaluating the study.

(49 Stat. 1571, 33 U.S.C. 701c)

[40 FR 20081, May 8, 1975, as amended at 40 FR 36774, Aug. 22, 1975]



PART 221_WORK FOR OTHERS--Table of Contents



Sec.
221.1 Investigation and supervision of hydropower projects under the 
          Federal Power Act (ER 1140-2-4).

Appendix A to Part 221--Part 16-Procedures Relating to Takeover and 
          Relicensing of Licensed Projects
Appendix B to Part 221--Federal Energy Regulatory Commission Form L-3 
          (Revised October 1975)
List of FPC Standard Articles Forms Used in Permits and Licenses for 
          Hydroelectric Projects

    Authority: 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)

    Source: 43 FR 4979, Feb. 7, 1978, unless otherwise noted.



Sec. 221.1  Investigation and supervision of hydropower projects 
under the Federal Power Act (ER 1140-2-4).

    (a) Purpose. This regulation \1\ establishes procedures for 
executing Corps of Engineers functions under the authority of the 
Federal Power Act (FPA) administered by the Department of Energy, 
Federal Energy Regulatory Commission (FERC), formerly Federal Power 
Commission. Based on a specific request from FERC, these functions 
include:
---------------------------------------------------------------------------

    \1\ This regulation supersedes ER 1140-2-4, 8 December 1967, and ER 
1140-2-2, 10 September 1965.
---------------------------------------------------------------------------

    (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) Applicability. This regulation applies to all field operating 
agencies having Civil Works responsibilities.
    (c) References. (1) Federal Power Commission publication entitled 
``Federal Power Act'', as amended, dated 1 April 1975. The Act was 
originally enacted 10 June 1920 (41 Stat. 1063, 16 U.S.C. 791-823). This 
publication can be obtained from the U.S. Government Printing Office, 
Washington, D.C. 20402.
    (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), \2\ Permits for Activities in 
Navigable Waters or Ocean Waters.
---------------------------------------------------------------------------

    \2\ 33 CFR 209.120 was removed at 42 FR 37133, July 19, 1977.
---------------------------------------------------------------------------

    (4) ER 1140-2-1, Submission of Data for Headwater Benefits 
Determination.
    (d) Definitions--(1) Licensed project. A non-Federal hydroelectric 
project for which the FERC has issued a license granting authority for 
either construction, in the case of a proposed project, or for continued 
operation and maintenance of an existing project.
    (2) Major projects. Hydroelectric projects with more than 2,000 
horsepower installed capacity.
    (3) Minor projects. Hydroelectric projects having installed capacity 
of 2,000 horsepower or less.
    (4) Preliminary permit application. An application filed by a non-
Federal entity with the FERC as a preliminary step in anticipation of 
filing for a license to construct and operate a hydroelectric project. A 
preliminary permit does not authorize construction. It merely gives the 
permittee priority of application for a FERC license over other non-
Federal entities for a period of time. The permittee then develops 
information necessary for inclusion in an application for license to 
construct and operate a hydroelectric project. Analysis of this 
information may result in a decision to apply for the license or to 
withdraw the intent.
    (5) Relicensing. A procedure applicable to projects for which the 
original period of license (usually 50 years) will

[[Page 203]]

expire or has expired and application for new license has been or will 
be filed with the FERC.
    (6) Take over. An act whereby the Federal government assumes project 
ownership. Upon expiration of a license for a hydroelectric project, the 
United States, under certain specific conditions set forth in section 14 
of the Federal Power Act may ``take over'', maintain and operate the 
project. This does not apply to any project owned by a State or local 
government. Take over procedures are not applicable to ``Minor 
Projects.''
    (e) Authorities. The Federal Power Act as amended delegates to the 
Secretary of the Army, the Chief of Engineers and the Corps of Engineers 
certain functions necessary for the FERC's administration of the Act. 
Implementation was provided through instructions issued by the President 
in a letter dated 18 May 1931 to the Secretary of War. These functions 
are set forth in the following excerpts from the Act:
    (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) Investigation of application for permits, licenses, or 
relicensing of projects. Upon referral by the FERC, the Chief of 
Engineers will assign the investigation of an application for permit, 
license or relicensing to the appropriate Division Engineer who will 
submit a report on the investigation as specified herein to HQDA (DAEN-
CWE-HY) WASH DC 20314 (exempt from reports control, Paragraph 7-2y, AR 
335-15). The investigation should be coordinated with all interested 
organization elements including Engineering, Construction/Operations, 
Planning and Office of the Counsel. The date that the report is to be 
submitted will be specified. The nature of investigation and report by 
the Division Engineer will depend upon the nature of the request from 
the FERC. In general, reports as appropriate for the type of application 
filed with the Commission will consider the following items as pertinent 
and will include recommendation of pertinent license provisions:
    (1) License applications. (i) The effect of the project on 
navigation and flood control, including adequacies of the plans of the 
structures affecting navigation. Section 4(e) of the Federal Power Act 
provides for approval of plans for hydroelectric power projects as noted 
in paragraph (e)(2) of this section. Section 4(e) approval normally will 
obviate the need for a Department of Army permit under section 10 of the 
1899 River and Harbor Act. The basis for Corps approval under section 
4(e) will be limited to effects on navigation; however, section 4(e) 
does not obviate the need for a Department of the Army permit pursuant 
to section 404 of the Federal Water Pollution Control Act (see paragraph 
(i)(2)) of this section. Such a permit is subject to a full public 
interest review pursuant to 33 CFR part 320 and the application of the 
Environmental Protection Agency's guidelines in 40 CFR part 230.
    (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.

[[Page 204]]

Specific references should be made to pertinent published Congressional 
documents containing results of studies and/or to Congressional 
resolutions directing studies to be made to provide identification.
    (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) Relicensing (new license) application. (i) Consider paragraphs 
(f) (1) through (6) of this section.
    (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) Terms and conditions for insertion in FERC permits and licenses. 
In investigation of an application for FERC license or permit, 
consideration will be given to aspects of the project affecting 
authorized functions of the Corps as well as to the responsibilities 
assigned to the Corps by the Federal Power Act. Accordingly, the 
Division engineer in his report on an application to the Chief of 
Engineers will always consider the necessity for including in any 
license or permit terms and conditions to protect the interests of 
navigation. Recommendations involving other responsibilities of the 
Corps in the area of water control management such as flood control, low 
flow augmentation minimum instantaneous releases, and other purposes 
should also be considered.
    (h) Standard terms and conditions used by the FERC in its permits 
and licenses. Appendix B to this Regulation includes standard terms and 
conditions used by the FERC in licenses for projects affecting navigable 
waters of the U.S. The standard articles, included in Appendix B, are 
identified by the FERC in the following Forms:
    (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.


Any special terms and conditions pertaining to the Corps of Engineers 
responsibilities, in addition to those identifed in Appendix B should be 
tailored to suit the situation involved. Appendix B also provides a list 
of other FERC standard articles Forms that could be obtained from FERC 
offices.

[[Page 205]]

    (i) Distinction between Corps of Engineers and FERC jurisdiction 
with respect to non-Federal Hydroelectric projects. (1) The following 
procedures are currently being followed in connection with Department of 
Army permit responsibilities involving pre-1920 legislation:
    (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) Investigation of applications for surrender or termination of 
license. The period of the FERC license for hydroelectric projects is 
usually 50 years. During and/or upon the expiration of the period of a 
license, a licensee may file with the FERC an application for surrender 
or termination of its license. These applications may encompass requests 
for physical removal of an existing dam and/or powerhouse structures 
from a stream. Division Engineers who would be assigned by the Chief of 
Engineers to review such applications will consider, in their review and 
report to DAEN-CWE-HY, the possibility that sediment discharge resulting 
from removal of a dam structure from a navigable river or from any site 
that may

[[Page 206]]

affect navigable waters would impair the anchorage and navigation and/or 
flood carrying capacity of the stream. In cases where there is a 
possibility of significant downstream shoaling (sedimentation) as the 
result of removal of a dam and its appurtenant structures, 
recommendation may be made to the FERC, through DAEN-CWE-HY, requiring 
licensee as a condition of approval of dam removal to agree to bear the 
expense for removal of any shoaling at the navigable river(s) which 
would be determined by the Corps to be detrimental to navigation. Other 
recommendations to be considered include gradual lowering of a dam over 
a period of time and/or possibility of sediment removal prior to dam 
removal. It should also be noted that a Department of the Army permit 
under section 404 of the Federal Water Pollution Control Act amendments 
of 1972 (33 U.S.C. 1151), as discussed in Paragraph 9b of this 
regulation, may be needed in connection with removal of dams on or 
affecting the navigable waters if a discharge of dredged or fill 
material also occurs during the removal operation. Other recommendations 
within the Corps authority that should be considered in reviewing 
applications for surrender or termination of licenses for projects where 
their power facilities have been removed, or recommended for removal, is 
that upon any approval of such application by the FERC, continuation of 
existence of the nonpower project on or affecting the navigable waters 
of the U.S. will require a Department of the Army permit in compliance 
with section 10 of the River and Harbor Act of 1899. Furthermore, it 
should be noted that in the absence of FERC nonpower use license, 
pursuant to 16 U.S.C. 808(b), the structural safety and maintenance of 
dam and reservoir for a nonpower project will be governed by the laws 
and regulations of the State in which the project is located.
    (k) Supervision and inspection of operation of licensed 
hydroelectric projects. Corps Division and District Engineers 
responsibilities with respect to any project affecting navigable waters 
include surveillance of operation and maintenance to insure that the 
interests of navigation are not adversely affected. In addition, in 
certain cases the Corps, at the request of the FERC, may act as agent 
for the FERC for overall supervision of project operation and 
maintenance. Corps Division Engineers have, in the past, represented the 
FERC in supervision and inspection of a number of FERC licensed projects 
within their respective divisions. The Commission by letter dated March 
4, 1976 relieved the Corps of Engineers from acting as the Commission's 
representative for supervision and inspection of its licensed projects. 
This responsibility has been transferred by the Commission to its own 
regional engineers. There are no requirements for any periodic or annual 
reports from the Division offices regarding the operation of FERC 
licensed hydroelectric projects. However, Division Engineers will report 
to DAEN-CWE-HY on a current basis any significant detrimental effects 
with respect to Corps of Engineers responsibilities or other matters 
which come to their attention.
    (l) Safety of licensed hydroelectric projects. The Dam Safety Act, 
Public Law 92-367, provides that dams constructed pursuant to licenses 
issued under the authority of the Federal Power Act are specifically 
exempted from the national inspection program administered by the Corps. 
However, the law further provides that the Secretary of the Army upon 
request of the FERC may inspect dams which have been licensed under the 
Federal Power Act. The Commission by letter dated August 29, 1972 
informed the Corps that the Commission does not expect to request the 
Corps' assistance for inspecting the projects licensed under the Federal 
Power Act.
    (m) Supervision of construction of licensed hydroelectric projects. 
In cases where the FERC may request the Corps to supervise the actual 
construction of licensed hydroelectric project on behalf of the 
Commission, instructions will be furnished to the appropriate District 
Engineer through the Division Engineer at the time the request is made.
    (n) Other investigation under the Federal Power Act. Corps of 
Engineers operations under the Federal Power Act also include 
participation in FERC procedures in determining headwater benefits from 
Corps reservoir projects

[[Page 207]]

(RCS, 1461-FPC). This matter is discussed in ER 1140-2-1.
    (o) Funding of operations under the Federal Power Act. (1) The 
salaries of the Corps of Engineers personnel involved in investigations 
discussed herein will be charged against funds for ``Special 
Investigations'' under the appropriation for ``General Expenses.'' The 
FERC may provide reimbursement if requested by the Chief of Engineers to 
cover the nonpersonal expenses which may be incurred in the 
investigation and supervision of projects under permits and licenses.
    (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.



Sec. Appendix A to Part 221--Part 16-Procedures Relating to Takeover and 
                    Relicensing of Licensed Projects

Sec.

16.1 Purpose and coverage.
16.2 Public notice of projects under expiring license.
16.3 When to file.
16.4 Notice upon filing of application.
16.5 Annual licenses.
16.6 Applications for new license for projects subject to sections 14 
          and 15 of the Federal Power Act and all other major projects.
16.7 Application for nonpower license.
16.8 Departmental recommendations for takeover.
16.9 Commission recommendation to Congress.
16.10 Motion for stay by Federal department or agency.
16.11 Procedures upon congressional authorization of takeover.
16.12 Renewal of minor or minor part licenses not subject to sections 14 
          and 15.
16.13 Acceptance for filing or rejection of application.

    Authority: Federal Power Act, secs. 7(c), 14, 15, 309 (16 U.S.C. 
800, 807, 808, 825h.

    Source: Order 141, 12 FR 8461, Dec. 19, 1947; as amended by Order 
175, 19 FR 5212, Aug. 18, 1954; Order 260, 28 FR 814, Jan. 11, 1963; 28 
FR 1680, Feb. 21, 1963; 28 FR 2270, Mar. 8, 1963; Order 288, 29 FR 
14106, Oct. 14, 1964; Order 384, 34 FR 12269, July 25, 1969 and as 
otherwise noted.)

Sec. 16.1 Purpose and coverage.

    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.

Sec. 16.2 Public notice of projects under expiring license.

    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 Federal Register a table showing the 
projects which will expire during the succeeding 5 years. The table will 
list these licenses according to their expiration dates and will contain 
the following information: (a) License expiration date; (b) licensee's 
name; (c) project number; (d) type of principal project works licensed, 
e.g., dam and reservoir, powerhouse, transmission lines; (e) location by 
State, county,

[[Page 208]]

and stream; also by city or nearby city when appropriate; and (f) plant 
installed capacity.

Sec. 16.3 When to file.

    (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\1/2\ years of the issuance of 
this part, such applications or statements shall be filed within 6 
months from the effective date of this part. Applicants which have 
applications pending which were filed under previous Commission 
regulations shall supplement their applications in accordance with 
pertinent provisions of this part within 6 months of the effective date 
of this part.
    (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 Sec. 16.4 or 2\1/
2\ years before the expiration of the license, whichever is earlier.
    (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.

Sec. 16.4 Notice upon filing of application.

    When any timely application or statement within the meaning of Sec. 
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) Sec. Sec. 1.37 
and 2.1 of this chapter, the Fish and Wildlife Coordination Act, 48 
Stat. 401, as amended, 16 U.S.C. 661 et seq., and by publication in the 
Federal Register.

Sec. 16.5 Annual licenses.

    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.

Sec. 16.6 Applications for new license for projects subject to sections 
14 and 15 of the Federal Power Act and all other major projects.

    (a) Each application for a new license hereunder shall conform in 
form to Sec. 131.2 of this chapter, and shall set forth in appropriate 
detail all information and exhibits prescribed in Sec. Sec. 4.40 
through 4.42 of this chapter, inclusive and in Sec. 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 Sec. 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.)

Sec. 16.7 Application for nonpower license.

    Each application for ``non-power license'' shall generally follow 
the form prescribed in Sec. 131.6 of this chapter, except for 
subsections 7 and 8 thereof. It shall be accompanied by

[[Page 209]]

Exhibits K, L, R, and S prepared as described in section 4.41, and shall 
include the information specified in paragraphs (a) through (c) of this 
section. Unless otherwise specified, an original and 14 conformed copies 
of the application and all accompanying exhibits shall be submitted with 
one additional conformed copy for each interested State commission. 
Additional information may be requested by the Commission if desired.
    (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 ``non-power license'' shall be effective until such time as in the 
judgement of the Commission a State, municipal, interstate, or Federal 
agency is authorized and willing to assume regulatory supervision over 
the land, waterways, and facilities included within the ``non-power 
license'' or until the project structures are removed. Such State, 
municipal, interstate or Federal agency may petition the Commission for 
termination of a ``non-power license'' at any time. Where the existing 
project is located on the public lands or reservations of the United 
States, and there is no application for relicensing as a power project 
either by the original licensee, or some other entity, or a takeover 
recommendation, the Commission may, in its discretion, and upon a 
showing by the agency having jurisdiction over the lands or reservations 
that it is prepared to assume requisite regulatory supervision for the 
nonpower use of the project, terminate the proceeding without issuing 
any license for nonpower use.

Sec. 16.8 Departmental recommendations for takeover.

    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; Provided, however, That such recommendation shall 
not be filed later than 9 months after the issuance of a notice of 
application for a new license. Departments or agencies filing such 
recommendations shall thereby become parties to the relicensing-takeover 
proceeding. An original and 14 copies of the recommendation shall be 
filed together with one additional copy for each interested State 
commission. The recommendation shall specify the project works which 
would be taken over by the United States, shall include a detailed 
description of the proposed Federal operation of the project, including 
any plans for its redevelopment and shall indicate how takeover would 
serve the public interest as fully as non-Federal development and 
operation. It shall also include a statement indicating whether the 
agency making the recommendation intends to undertake operation of the 
project. A copy of the recommendation shall be served upon the licensee 
by the Commission's Secretary. Any applicant for a new license covering 
all or part of the project involved in the takeover recommendation shall 
have 120 days within which to serve a reply to the recommendation upon 
the Commission with copies to any parties in the proceeding.

Sec. 16.9 Commission recommendation to Congress.

    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 Sec. 1.34 of this chapter governing applications for 
rehearing, forward copies of its findings and recommendations to the 
Congress.

Sec. 16.10 Motion for stay by Federal department or agency.

    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

[[Page 210]]

which has become effective by reason of the expiration or termination of 
a stay.

Sec. 16.11 Procedures upon congressional authorization of takeover.

    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.

Sec. 16.12 Renewal of minor or minor part licenses not subject to 
sections 14 and 15.

    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.

Sec. 16.13 Acceptance for filing or rejection of application.

    Acceptance for filing or rejection of applications under this part 
shall be in accordance with the provisions of Sec. 4.31 of this 
chapter.



 Sec. Appendix B to Part 221--Federal Energy Regulatory Commission Form 
                       L-3 (Revised October 1975)

terms and conditions of license for constructed major project affecting 
                  navigable waters of the united states

    Article 1. The entire project, as described in this order of the 
Commission, shall be subject to all of the provisions, terms, and 
conditions of the license.
    Article 2. No substantial change shall be made in the maps, plans, 
specifications, and statements described and designated as exhibits and 
approved by the Commission in its order as a part of the license until 
such change shall have been approved by the Commission: Provided, 
however, That if the Licensee or the Commission deems it necessary or 
desirable that said approved exhibits, or any of them, be changed, there 
shall be submitted to the Commission for approval a revised, or 
additional exhibit or exhibits covering the proposed changes which, upon 
approval by the Commission, shall become a part of the license and shall 
supersede, in whole or in part, such exhibit or exhibits theretofore 
made a part of the license as may be specified by the Commission.
    Article 3. The project area and project works shall be in 
substantial conformity with the approved exhibits referred to in Article 
2 herein or as changed in accordance with the provisions of said 
article. Except when emergency shall require for the protection of 
navigation, life, health, or property, there shall not be made without 
prior approval of the Commission any substantial alteration or addition 
not in conformity with the approved plans to any dam or other project 
works under the license or any substantial use of project lands and 
waters not authorized herein; and any emergency alteration, addition, or 
use so made shall thereafter be subject to such modification and change 
as the Commission may direct. Minor changes in project works, or in uses 
of project lands and waters, or divergence from such approved exhibits 
may be made if such changes will not result in a decrease in efficiency, 
in a material increase in cost, in an adverse environmental impact, or 
in impairment of the general scheme of development; but any of such 
minor changes made without the prior approval of the Commission, which 
in its judgement have produced or will produce any of such results shall 
be subject to such alteration as the Commission may direct.
    Article 4. The project, including its operation and maintenance and 
any work incidental to additions or alterations authorized by the 
Commission, whether or not conducted upon lands of the United States, 
shall be subject to the inspection and supervision of the Regional 
Engineer, Federal Power Commission, in the region wherein the project is 
located, or of such other officer or agent as the Commission may 
designate, who shall be the authorized representative of the Commission 
for such purposes. The Licensee shall cooperate fully with said 
representative and shall furnish him such information as he may require 
concerning the operation and maintenance of the project, and any such 
alterations thereto, and shall notify him of the date upon which work 
with respect to any alteration will begin, as far in advance thereof as 
said representative may reasonably specify, and shall notify him 
promptly in writing of any suspension of work for a period of more than 
one week, and of its resumption and completion. The Licensee shall 
submit to said representative a detailed program of inspection by the 
Licensee that will provide for an adequate and qualified inspection 
force for construction of any such alterations to the project. 
Construction of said alterations or any feature thereof shall not be 
initiated until the program of inspection for the alterations or any 
feature thereof has been approved by said representative. The Licensee 
shall allow said representative and other officers or employees of the 
United States, showing proper credentials, free and unrestricted access 
to, through, and across the project lands and projects works in the 
performance of their

[[Page 211]]

official duties. The Licensee shall comply with such rules and 
regulations of general or special applicability as the Commission may 
prescribe from time to time for the protection of life, health, or 
property.
    Article 5. The Licensee, within five years from the date of issuance 
of the license, shall acquire title in fee or the right to use in 
perpetuity all lands, other than lands of the United States, necessary 
or appropriate for the construction, maintenance, and operation of the 
project. The Licensee or its successors and assigns shall, during the 
period of the license, retain the possession of all project property 
covered by the license as issued or as later amended, including the 
project area, the project works, and all franchises, easements, water 
rights, and rights of occupancy and use; and none of such properties 
shall be voluntarily sold, leased, transferred, abandoned, or otherwise 
disposed of without the prior written approval of the Commission, except 
that the Licensee may lease or otherwise dispose of interests in 
projects lands or property without specific written approval of the 
Commission pursuant to the then current regulations of the Commission. 
The provisions of this article are not intended to prevent the 
abandonment or the retirement from service of structures, equipment, or 
other project works in connection with replacements thereof when they 
become obsolete, inadequate, or inefficient for further service due to 
wear and tear; and mortgage or trust deeds or judicial sales made 
thereunder, or tax sales, shall not be deemed voluntary transfers within 
the meaning of this article.
    Article 6. In the event the project is taken over by the United 
States upon the termination of the license as provided in Section 14 of 
the Federal Power Act, or is transferred to a new licensee or to a non-
power licensee under the provisions of Section 15 of said Act the 
Licensee, its successors and assigns shall be responsible for, and shall 
make good any defect of title to, or of right of occupancy and use in, 
any of such project property that is necessary or appropriate or 
valuable and serviceable in the maintenance and operation of the 
project, and shall pay and discharge, or shall assume responsiblity for 
payment and discharge of, all liens or encumbrances upon the projects or 
project property created by the Licensee or created or incurred after 
the issuance of the license: Provided, That the provisions of this 
article are not intended to require the Licensee, for the purpose of 
transferring the project to the United States or to a new licensee, to 
acquire any different title to, or right of occupancy and use in, any of 
such project property than was necessary to acquire for its own purposes 
as the Licensee.
    Article 7. The actual legitimate original cost of the project, and 
of any addition thereto or betterment thereof, shall be determined by 
the Commission in accordance with the Federal Power Act and the 
Commission's Rules and Regulations thereunder.
    Article 8. The licensee shall install and thereafter maintain gages 
and stream-gaging stations for the purpose of determining the stage and 
flow of the stream or streams on which the project is located, the 
amount of water held in and withdrawn from storage, and the effective 
head on the turbines; shall provide for the required reading of such 
gages and for the adequate rating of such stations; and shall install 
and maintain standard meters adequate for the determination of the 
amount of electric energy generated by the project works. The number, 
character, and location of gages, meters, or other measuring devices, 
and the method of operation thereof, shall at all times be satisfactory 
to the Commission or its authorized representative. The Commission 
reserves the right, after notice and opportunity for hearing, to require 
such alterations in the number, character, and location of gages, 
meters, or other measuring devices, and the method of operation thereof, 
as are necessary to secure adequate determinations. The installation of 
gages, the rating of said stream or streams, and the determination of 
the flow thereof, shall be under the supervision of, or in cooperation 
with, the District Engineer of the United States Geological Survey 
having charge of stream-gaging operations in the region of the project, 
and the Licensee shall advance to the United States Geological Survey 
the amount of funds estimated to be necessary for such supervision, or 
cooperation for such periods as may be mutually agreed upon. The 
Licensee shall keep accurate and sufficient records of the foregoing 
determinations to the satisfaction of the Commission, and shall make 
return of such records annually at such time and in such form as the 
Commission may prescribe.
    Article 9. The Licensee shall, after notice and opportunity for 
hearing, install additional capacity or make other changes in the 
project as directed by the Commission, to the extent that it is 
economically sound and in the public interest to do so.
    Article 10. The Licensee shall, after notice and opportunity for 
hearing, coordinate the operation of the project, electrically and 
hydraulically, with such other projects or power systems and in such 
manner as the Commission may direct in the interest of power and other 
beneficial public uses of water resources, and on such conditions 
concerning the equitable sharing of benefits by the Licensee as the 
Commission may order.
    Article 11. Whenever the Licensee is directly benefited by the 
construction work of another licensee, a permittee, or the United States 
on a storage reservoir or other headwater improvement, the Licensee 
shall reimburse the owner of the headwater improvement for such part of 
the annual charges for

[[Page 212]]

interest, maintenance, and depreciation thereof as the Commission shall 
determine to be equitable, and shall pay to the United States the cost 
of making such determination as fixed by the Commission. For benefits 
provided by a storage reservoir or other headwater improvement of the 
United States, the Licensee shall pay to the Commission the amounts for 
which it is billed from time to time for such headwater benefits and for 
the cost of making the determinations pursuant to the then current 
regulations of the Commission under the Federal Power Act.
    Article 12. 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 time 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 in the 
interest of the fullest practicable conservation and utilization of such 
waters for power purposes and for other beneficial public uses, 
including recreational purposes, and the Licensee shall release water 
from the project reservoir at such rate in cubic feet per second, or 
such volume in acre-feet per specified period of time, 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.
    Article 13. On the application of any person, association, 
corporation, Federal agency, State or municipality, the Licensee shall 
permit such reasonable use of its reservoir or other project properties, 
including works, lands and water rights, or parts thereof, as may be 
ordered by the Commission, after notice and opportunity for hearing, in 
the interests of comprehensive development of the waterway or waterways 
involved and the conservation and utilization of the water resources of 
the region for water supply or for the purposes of steam-electric, 
irrigation, industrial, municipal or similar uses. The Licensee shall 
receive reasonable compensation for use of its reservoir or other 
project properties or parts thereof for such purposes, to include at 
least full reimbursement for any damages or expenses which the joint use 
causes the Licensee to incur. Any such compensation shall be fixed by 
the Commission either by approval of an agreement between the Licensee 
and the party or parties benefiting or after notice and opportunity for 
hearing. Applications shall contain information in sufficient detail to 
afford a full understanding of the proposed use, including satisfactory 
evidence that the applicant possesses necessary water rights pursuant to 
applicable State law, or a showing of cause why such evidence cannot 
concurrently be submitted, and a statement as to the relationship of the 
proposed use to any State or municipal plans or orders which may have 
been adopted with respect to the use of such waters.
    Article 14. In the construction or maintenance of the project works, 
the Licensee shall place and maintain suitable structures and devices to 
reduce to a reasonable degree the liability of contact between its 
transmission lines and telegraph, telephone and other signal wires or 
power transmission lines constructed prior to its transmission lines and 
not owned by the Licensee, and shall also place and maintain suitable 
structures and devices to reduce to a reasonable degree the liability of 
any structures or wires falling or obstructing traffic or endangering 
life. None of the provisions of this article are intended to relieve the 
Licensee from any responsibility or requirement which may be imposed by 
any other lawful authority for avoiding of eliminating inductive 
interference.
    Article 15. The Licensee shall, for the conservation and development 
of fish and wildlife resources, construct, maintain, and operate, or 
arrange for the construction, maintenance, and operation of such 
reasonable facilities, and comply with such reasonable modifications of 
the project structures and operation, as may be ordered by the 
Commission upon its own motion or upon the recommendation of the 
Secretary of the Interior or the fish and wildlife agency or agencies of 
any State in which the project or a part thereof is located, after 
notice and opportunity for hearing.
    Article 16. Whenever the United States shall desire, in connection 
with the project, to construct fish and wildlife facilities or to 
improve the existing fish and wildlife facilities at its own expense, 
the Licensee shall permit the United States or its designated agency to 
use, free of cost, such of the Licensee's lands and interests in lands, 
reservoirs, waterways and project works as may be reasonably required to 
complete such facilities or such improvements thereof. In addition, 
after notice and opportunity for hearing, the Licensee shall modify the 
proj- ect operation as may be reasonably prescribed by the Commission in 
order to permit the maintenance and operation of the fish and wildlife 
facilities constructed or improved by the United States under the 
provisions of this article. This article shall not be interpreted to 
place any obligation on the United States to construct or improve fish 
and wildlife facilities or to relieve the Licensee of any obligation 
under this license.
    Article 17. The Licensee shall construct, maintain, and operate, or 
shall arrange for

[[Page 213]]

the construction, maintenance, and operation of such reasonable 
recreational facilities, including modifications thereto, such as access 
roads, wharves, launching ramps, beaches, picnic and camping areas, 
sanitary facilities, and utilities, giving consideration to the needs of 
the physically handicapped, and shall comply with such reasonable 
modifications of the project, as may be prescribed hereafter by the 
Commission during the term of this license upon its own motion or upon 
the recommendation of the Secretary of the Interior or other interested 
Federal or State agencies, after notice and opportunity for hearing.
    Article 18. So far as is consistent with proper operation of the 
project, the Licensee shall allow the public free access, to a 
reasonable extent, to project waters and adjacent project lands owned by 
the Licensee for the purpose of full public utilization of such lands 
and waters for navigation and for outdoor recreational purposes, 
including fishing and hunting: Provided, That the Licensee may reserve 
from public access such portions of the project waters, adjacent lands, 
and project facilities as may be necessary for the protection of life, 
health, and property.
    Article 19. In the construction, maintenance, or operation of the 
project, the Licensee shall be responsible for, and shall take 
reasonable measures to prevent, soil erosion on lands adjacent to 
streams or other waters, stream sedimentation, and any form of water or 
air pollution. The Commission, upon request or upon its own motion, may 
order the Licensee to take such measures as the Commission finds to be 
necessary for these purposes, after notice and opportunity for hearing.
    Article 20. The Licensee shall clear and keep clear to an adequate 
width lands along open conduits and shall dispose of all temporary 
structures, unused timber, brush, refuse, or other material unnecessary 
for the purposes of the project which results from the clearing of lands 
or from the maintenance or alteration of the project works. In addition, 
all trees along the periphery of project reservoirs which may die during 
operations of the project shall be removed. All clearing of the lands 
and disposal of the unnecessary material shall be done with due 
diligence and to the satisfaction of the authorized representatives of 
the Commission and in accordance with appropriate Federal, State, and 
local statutes and regulations.
    Article 21. Material may be dredged or excavated from, or placed as 
fill in, project lands and/or waters only in the prosecution of work 
specifically authorized under the license; in the maintenance of the 
project; or after obtaining Commission approval, as appropriate. Any 
such material shall be removed and/or deposited in such manner as to 
reasonably preserve the environmental values of the project and so as 
not to interfere with traffic on land or water. Dredging and filling in 
a navigable water of the United States shall also be done to the 
satisfaction of the District Engineer, Department of the Army, in charge 
of the locality.
    Article 22. Whenever the United States shall desire to construct, 
complete, or improve navigation facilities in connection with the 
project, the Licensee shall convey to the United States, free of cost, 
such of its lands and rights-of-way and such rights of passage through 
its dams or other structures, and shall permit such control of its 
pools, as may be required to complete and maintain such navigation 
facilities.
    Article 23. The operation of any navigation facilities which may be 
constructed as a part of, or in connection with, any dam or diversion 
structure constituting a part of the project works shall at all times be 
controlled by such reasonable rules and regulations in the interest of 
navigation, including control of the level of the pool caused by such 
dam or diversion structure, as may be made from time to time by the 
Secretary of the Army.
    Article 24. The Licensee shall furnish power free of cost to the 
United States for the operation and maintenance of navigation facilities 
in the vicinity of the project at the voltage and frequency required by 
such facilities and at a point adjacent thereto, whether said facilities 
are constructed by the Licensee or by the United States.
    Article 25. The Licensee shall construct, maintain, and operate at 
its own expense such lights and other signals for the protection of 
navigation as may be directed by the Secretary of the Department in 
which the Coast Guard is operating.
    Article 26. If the Licensee shall cause or suffer essential project 
property to be removed or destroyed or to become unfit for use, without 
adequate replacement, or shall abandon or discontinue good faith 
operation of the project or refuse or neglect to comply with the terms 
of the license and the lawful orders of the Commission mailed to the 
record address of the Licensee or its agent, the Commission will deem it 
to be the intent of the Licensee to surrender the license. The 
Commission, after notice and opportunity for hearing, may require the 
Licensee to remove any or all structures, equipment and power lines 
within the project boundary and to take any such other action necessary 
to restore the project waters, lands, and facilities remaining within 
the project boundary to a condition satisfactory to the United States 
agency having jurisdiction over its lands or the Commission's authorized 
representative, as appropriate, or to provide for the continued 
operation and maintenance of nonpower facilities and fulfill such other 
obligations under the license as the Commission may prescribe. In 
addition, the Commission in its discretion, after notice and opportunity 
for hearing, may also agree to the

[[Page 214]]

surrender of the license when the Commission, for the reasons recited 
herein, deems it to be the intent of the Licensee to surrender the 
license.
    Article 27. The right of the Licensee and of its successors and 
assigns to use or occupy waters over which the United States has 
jurisdiction, or lands of the United States under the license, for the 
purpose of maintaining the project works or otherwise, shall absolutely 
cease at the end of the license period, unless the Licensee has obtained 
a new license pursuant to the then existing laws and regulations, or an 
annual license under the terms and conditions of this license.
    Article 28. The terms and conditions expressly set forth in the 
license shall not be constructed as impairing any terms and conditions 
of the Federal Power Act which are not expressly set forth herein.

                  Federal Energy Regulatory Commission

                    Form L-4 (Revised October, 1975)

    terms and conditions of license for unconstructed major project 
             affecting navigable waters of the united states

    Article 1. The entire project, as described in this order of the 
Commission, shall be subject to all of the provisions, terms, and 
conditions of the license.
    Article 2. No substantial change shall be made in the maps, plans, 
specifications, and statements described and designated as exhibits and 
approved by the Commission in its order as a part of the license until 
such change shall have been approved by the Commission: Provided, 
however, That if the Licensee or the Commission deems it necessary or 
desirable that said approved exhibits, or any of them, be changed, there 
shall be submitted to the Commission for approval a revised, or 
additional exhibit or exhibits covering the proposed changes which, upon 
approval by the Commission, shall become a part of the license and shall 
supersede, in whole or in part, such exhibit or exhibits theretofore 
made a part of the license as may be specified by the Commission.
    Article 3. The project works shall be constructed in substantial 
conformity with the approved exhibits referred to in Article 2 herein or 
as changed in accordance with the provisions of said article. Except 
when emergency shall require for the protection of navigation, life, 
health, or property, there shall not be made without prior approval of 
the Commission any substantial alteration or addition not in conformity 
with the approved plans to any dam or other project works under the 
license or any substantial use of project lands and waters not 
authorized herein; and any emergency alteration, addition, or use so 
made shall thereafter be subject to such modification and change as the 
Commission may direct. Minor changes in project works, or in uses of 
project lands and waters, or divergence from such approved exhibits may 
be made if such changes will not result in a decrease in efficiency, in 
a material increase in cost, in an adverse environmental impact, or in 
impairment of the general scheme of development; but any of such minor 
changes made without the prior approval of the Commission, which in its 
judgment have produced or will produce any of such results, shall be 
subject to such alteration as the Commission may direct.
    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.
    Article 4. The construction, operation, and maintenance of the 
project and any work incidental to additions or alterations shall be 
subject to the inspection and supervision of the Regional Engineer, 
Federal Power Commission, in the region wherein the project is located, 
or of such other officer or agent as the Commission may designate, who 
shall be the authorized representative of the Commission for such 
purposes. The Licensee shall cooperate fully with said representative 
and shall furnish him a detailed program of inspection by the Licensee 
that will provide for an adequate and qualified inspection force for 
construction of the project and for any subsequent alterations to the 
project. Construction of the project works or any feature or alterations 
thereof shall not be initiated until the program of inspection for the 
project works or any such feature thereof has been approved by said 
representative. The Licensee shall also furnish to said representative 
such further information as he may require concerning the construction, 
operation, and maintenance of the project, and of any alteration 
thereof, and shall notify him of the date upon which work will begin, as 
far in advance thereof as said representative may reasonably specify, 
and shall notify him promptly in writing of any suspension of work for a 
period of more than one week, and of its resumption and completion. The 
Licensee shall allow said representative and other officers or employees 
of the United States, showing proper credentials, free and unrestricted 
access to, through, and

[[Page 215]]

across the project lands and project works in the performance of their 
official duties. The Licensee shall comply with such rules and 
regulations of general or special applicability as the Commission may 
prescribe from time to time for the protection of life, health, or 
property.
    Article 5. The Licensee, within 5 years from the date of issuance of 
the license, shall acquire title in fee or other right to use in 
perpetuity all lands, other than lands of the United States, necessary 
or appropriate for the construction, maintenance, and operation of the 
project. The Licensee or its successors and assigns shall, during the 
period of the license, retain the possession of all project property 
covered by the license as issued or as later amended, including the 
project area, the project works, and all franchises, easements, water 
and rights of occupancy and use; and none of such properties shall be 
voluntarily sold, leased, transferred, abandoned, or otherwise disposed 
of without the prior written approval of the Commission, except that the 
Licensee may lease or otherwise dispose of interests in project lands or 
property without specific written approval of the Commission pursuant to 
the then current regulations of the Commission. The provisions of this 
article are not intended to prevent the abandonment or the retirement 
from service of structures, equipment, or other project works in 
connection with replacements thereof when they become obsolete, 
inadequate, or inefficient for further service due to wear and tear; and 
mortgage or trust deeds or judicial sales made thereunder, or tax sales, 
shall not be deemed voluntary transfers within the meaning of this 
article.
    Article 6. In the event the project is taken over by the United 
States upon the termination of the license as provided in Section 14 of 
the Federal Power Act, or is transferred to a new licensee or to a non-
power licensee under the provisions of Section 15 of said Act, the 
Licensee, its successors and assigns shall be responsible for, and shall 
make good any defect of title to, or of right of occupancy and use in, 
any of such project property that is necessary or appropriate or 
valuable and serviceable in the maintenance and operation of the 
project, and shall pay and discharge, or shall assume responsibility for 
payment and discharge of, all liens or encumbrances upon the project or 
project property created by the Licensee or created or incurred after 
the issuance of the License: Provided, That the provisions of this 
article are not intended to require the Licensee, for the purpose of 
transferring the project to the United States or to a new licensee, to 
acquire any different title to, or right of occupancy and use in, any of 
such project property than was necessary to acquire for its own purposes 
as the Licensee.
    Article 7. The actual legitimate original cost of the project, and 
of any addition thereto or betterment thereof, shall be determined by 
the Commission in accordance with the Federal Power Act and the 
Commission's Rules and Regulations thereunder.
    Article 8. The Licensee shall install and thereafter maintain gages 
and stream-gaging stations for the purpose of determining the stage and 
flow of the stream or streams on which the project is located, the 
amount of water held in and withdrawn from storage, and the effective 
head on the turbines; shall provide for the required reading of such 
gages and for the adequate rating of such stations; and shall install 
and maintain standard meters adequate for the determination of the 
amount of electric energy generated by the project works. The number, 
character, and location of gages, meters, or other measuring devices, 
and the method of operation thereof, shall at all times be satisfactory 
to the Commission or its authorized representative. The Commission 
reserves the right, after notice and opportunity for hearing, to require 
such alterations in the number, character, and location of gages, 
meters, or other measuring devices, and the method of operation thereof, 
as are necessary to secure adequate determinations. The installation of 
gages, the rating of said stream or streams, and the determination of 
the flow thereof, shall be under the supervision of, or in cooperation 
with, the District Engineer of the United States Geological Survey 
having charge of stream-gaging operations in the region of the project, 
and the Licensee shall advance to the United States Geological Survey 
the amount of funds estimated to be necessary for such supervision, or 
cooperation for such periods as may be mutually agreed upon. The 
Licensee shall keep accurate and sufficient records of the foregoing 
determinations to the satisfaction of the Commission, and shall make 
return of such records annually at such time and in such form as the 
Commission may prescribe.
    Article 9. The Licensee shall, after notice and opportunity for 
hearing, install additional capacity or make other changes in the 
project as directed by the Commission, to the extent that it is 
economically sound and in the public interest to do so.
    Article 10. The Licensee shall, after notice and opportunity for 
hearing, coordinate the operation of the project, electrically and 
hydraulically, with such other projects or power systems and in such 
manner as the Commission may direct in the interest of power and other 
beneficial public uses of water resources, and on such conditions 
concerning the equitable sharing of benefits by the Licensee as the 
Commission may order.
    Article 11. Whenever the Licensee is directly benefited by the 
construction work of another licensee, a permittee, or the United

[[Page 216]]

States on a storage reservoir or other headwater improvement, the 
Licensee shall reimburse the owner of the headwater improvement for such 
part of the annual charges for interest, maintenance, and depreciation 
thereof as the Commission shall determine to be equitable, and shall pay 
to the United States the cost of making such determination as fixed by 
the Commission. For benefits provided by a storage reservoir or other 
headwater improvement of the United States, the Licensee shall pay to 
the Commission the amounts for which it is billed from time to time for 
such headwater benefits and for the cost of making the determinations 
pursuant to the then current regulations of the Commission under the 
Federal Power Act.
    Article 12. 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 in the 
interest of the fullest practicable conservation and utilization of such 
waters for power purposes and for other beneficial public uses, 
including recreational purposes, and the Licensee shall release water 
from the project reservoir at such rate in cubic feet per second, or 
such volume in acre-feet per specified period of time, 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.
    Article 13. On the application of any person, association, 
corporation, Federal agency, State or municipality, the Licensee shall 
permit such reasonable use of its reservoir or other project properties, 
including works, lands and water rights, or parts thereof, as may be 
ordered by the Commission, after notice and opportunity for hearing, in 
the interests of comprehensive development of the waterway or waterways 
involved and the conservation and utilization of the water resources of 
the region for water supply or for the purposes of steam-electric, 
irrigation, industrial, municipal or similar uses. The Licensee shall 
receive reasonable compensation for use of its reservoir or other 
project properties or parts thereof for such purposes, to include at 
least full reimbursement for any damages or expenses which the joint use 
causes the Licensee to incur. Any such compensation shall be fixed by 
the Commission either by approval of an agreement between the Licensee 
and the party or parties benefiting or after notice and opportunity for 
hearing. Applications shall contain information in sufficient detail to 
afford a full understanding of the proposed use, including satisfactory 
evidence that the applicant possesses necessary water rights pursuant to 
applicable State law, or a showing of cause why such evidence cannot 
concurrently be submitted, and a statement as to the relationship of the 
proposed use to any State or municipal plans or orders which may have 
been adopted with respect to the use of such waters.
    Article 14. In the construction or maintenance of the project works, 
the Licensee shall place and maintain suitable structures and devices to 
reduce to a reasonable degree the liability of contact between its 
transmission lines and telegraph, telephone and other signal wires or 
power transmission lines constructed prior to its transmission lines and 
not owned by the Licensee, and shall also place and maintain suitable 
structures and devices to reduce to a reasonable degree the liability of 
any structures or wires falling or obstructing traffic or endangering 
life. None of the provisions of this article are intended to relieve the 
Licensee from any responsibility or requirement which may be imposed by 
any other lawful authority for avoiding or eliminating inductive 
interference.
    Article 15. The Licensee shall, for the conservation and development 
of fish and wildlife resources, construct, maintain, and operate, or 
arrange for the construction, maintenance, and operation of such 
reasonable facilities, and comply with such reasonable modifications of 
the project structures and operation, as may be ordered by the 
Commission upon its own motion or upon the recommendation of the 
Secretary of the Interior or the fish and wildlife agency or agencies of 
any State in which the project or a part thereof is located, after 
notice and opportunity for hearing.
    Article 16. Whenever the United States shall desire, in connection 
with the project, to construct fish and wildlife facilities or to 
improve the existing fish and wildlife facilities at its own expense, 
the Licensee shall permit the United States or its designated agency to 
use, free of cost, such of the Licensee's lands and interests in lands, 
reservoirs, waterways and project works as may be reasonably required to 
complete such facilities or such improvements thereof. In addition, 
after notice and opportunity for hearing, the Licensee shall modify the 
project operation as may be reasonably prescribed by the Commission in 
order to permit the maintenance and operation of the fish and wildlife 
facilities constructed or improved by the United States under the 
provisions of this article. This article shall not be interpreted to 
place any obligation on the United

[[Page 217]]

States to construct or improve fish and wildlife facilities or to 
relieve the Licensee of any obligation under this license.
    Article 17. The Licensee shall construct, maintain, and operate, or 
shall arrange for the construction, maintenance, and operation of such 
reasonable recreational facilities, including modifications thereto, 
such as access roads, wharves, launching ramps, beaches, picnic and 
camping areas, sanitary facilities, and utilities, giving consideration 
to the needs of the physically handicapped, and shall comply with such 
reasonable modifications of the project, as may be prescribed hereafter 
by the Commission during the term of this license upon its own motion or 
upon the recommendation of the Secretary of the Interior or other 
interested Federal or State agencies, after notice and opportunity for 
hearing.
    Article 18. So far as is consistent with proper operation of the 
project, the Licensee shall allow the public free access, to a 
reasonable extent, to project waters and adjacent project lands owned by 
the Licensee for the purpose of full public utilization of such lands 
and waters for navigation and for outdoor recreational purposes, 
including fishing and hunting: Provided, That the Licensee may reserve 
from public access such portions of the project waters, adjacent lands, 
and project facilities as may be necessary for the protection of life, 
health, and property.
    Article 19. In the construction, maintenance, or operation of the 
project, the Licensee shall be responsible for, and shall take 
reasonable measures to prevent, soil erosion on lands adjacent to 
streams or other waters, stream sedimentation, and any form of water or 
air pollution. The Commission, upon request or upon its own motion, may 
order the Licensee to take such measures as the Commission finds to be 
necessary for these purposes, after notice and opportunity for hearing.
    Article 20. The Licensee shall consult with the appropriate State 
and Federal agencies and, within one year of the date of issuance of 
this license, shall submit for Commission approval a plan for clearing 
the reservoir area. Further, the Licensee shall clear and keep clear to 
an adequate width lands along open conduits and shall dispose of all 
temporary structures, unused timber, brush, refuse, or other material 
unnecessary for the purposes of the project which results from the 
clearing of lands or from the maintenance or alteration of the project 
works. In addition, all trees along the periphery of project reservoirs 
which may die during operations of the project shall be removed. Upon 
approval of the clearing plan all clearing of the lands and disposal of 
the unnecessary material shall be done with due diligence and to the 
satisfaction of the authorized representative of the Commission and in 
accordance with appropriate Federal, State, and local statutes and 
regulations.
    Article 21. Material may be dredged or excavated from, or placed as 
fill in, project lands and/or waters only in the prosecution of work 
specifically authorized under the license; in the maintenance of the 
project; or after obtaining Commission approval, as appropriate. Any 
such material shall be removed and/or deposited in such manner as to 
reasonably preserve the environmental values of the project and so as 
not to interfere with traffic on land or water. Dredging and filling in 
a navigable water of the United States shall also be done to the 
satisfaction of the District Engineer, Department of the Army, in charge 
of the locality.
    Article 22. Whenever the United States shall desire to construct, 
complete, or improve navigation facilities in connection with the 
project, the Licensee shall convey to the United States, free of cost, 
such of its lands and rights-of-way and such rights of passage through 
its dams or other structures, and shall permit such control of its 
pools, as may be required to complete and maintain such navigation 
facilities.
    Article 23. The operation of any navigation facilities which may be 
constructed as a part of, or in connection with, any dam or diversion 
structure constituting a part of the project works shall at all times be 
controlled by such reasonable rules and regulations in the interest of 
navigation, including control of the level of the pool caused by such 
dam or diversion structure, as may be made from time to time by the 
Secretary of the Army.
    Article 24. The Licensee shall furnish power free of cost to the 
United States for the operation and maintenance of navigation facilities 
in the vicinity of the project at the voltage and frequency required by 
such facilities and at a point adjacent thereto, whether said facilities 
are constructed by the Licensee or by the United States.
    Article 25. The Licensee shall construct, maintain, and operate at 
its own expense such lights and other signals for the protection of 
navigation as may be directed by the Secretary of the Department in 
which the Coast Guard is operating.
    Article 26. If the Licensee shall cause or suffer essential project 
property to be removed or destroyed or to become unfit for use, without 
adequate replacement, or shall abandon or discontinue good faith 
operation of the project or refuse or neglect to comply with the terms 
of the license and the lawful orders of the Commission mailed to the 
record address of the Licensee or its agent, the Commission will deem it 
to be the intent of the Licensee to surrender the license. The 
Commission, after notice and opportunity for hearing, may require the 
Licensee to remove any or all structures, equipment and power lines 
within the project boundary and to take any such other action necessary 
to

[[Page 218]]

restore the project waters, lands, and facilities remaining within the 
project boundary to a condition satisfactory to the United States agency 
having jurisdiction over its lands or the Commission's authorized 
representative, as appropriate, or to provide for the continued 
operation and maintenance of nonpower facilities and fulfill such other 
obligations under the license as the Commission may prescribe. In 
addition, the Commission in its discretion, after notice and opportunity 
for hearing, may also agree to the surrender of the license when the 
Commission, for the reasons recited herein, deems it to be the intent of 
the Licensee to surrender the license.
    Article 27. The right of the Licensee and of its successors and 
assigns to use or occupy waters over which the United States has 
jurisdiction, or lands of the United States under the license, for the 
purpose of maintaining the project works or otherwise, shall absolutely 
cease at the end of the license period, unless the Licensee has obtained 
a new license pursuant to the then existing laws and regulations, or an 
annual license under the terms and conditions of this license.
    Article 28. The terms and conditions expressly set forth in the 
license shall not be construed as impairing any terms and conditions of 
the Federal Power Act which are not expressly set forth herein.



 Sec. List of FPC Standard Articles Forms Used in Permits and Licenses 
                       for Hydroelectric Projects

    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:

------------------------------------------------------------------------
          FPC Forms \1\                            Title
------------------------------------------------------------------------
P-1.............................  Terms and conditions of preliminary
                                   permit.
L-1.............................  Terms and conditions of license for
                                   constructed major project affecting
                                   lands of the United States.
L-2.............................  Terms and conditions of license for
                                   unconstructed major project affecting
                                   lands of the United States.
L-5.............................  Terms and conditions of license for
                                   constructed major projects affecting
                                   navigable waters and lands of the
                                   United States.
L-6.............................  Terms and conditions of license for
                                   unconstructed major project affecting
                                   navigable waters and lands of the
                                   United States.
L-9.............................  Terms and conditions of license for
                                   constructed minor projects affecting
                                   navigable waters of the United
                                   States.
L-10............................  Terms and conditions of license for
                                   constructed major project affecting
                                   the interests of interstate or
                                   foreign commerce.
L-11............................  Terms and conditions of license for
                                   unconstructed major project affecting
                                   the interests of interstate or
                                   foreign commerce.
L-14............................  Terms and conditions of license for
                                   unconstructed minor project affecting
                                   navigable waters of the United
                                   States.
L-15............................  Terms and conditions of license for
                                   unconstructed minor project affecting
                                   the interests of interstate or
                                   foreign commerce.
L-16............................  Terms and conditions of license for
                                   constructed minor project affecting
                                   lands of the United States.
L-17............................  Terms and conditions of license for
                                   unconstructed minor project affecting
                                   lands of the United States.
L-18............................  Terms and conditions of license for
                                   constructed minor project affecting
                                   navigable waters and lands of the
                                   United States.
L-19............................  Terms and conditions of license for
                                   unconstructed minor project affecting
                                   navigable waters and lands of the
                                   United States.
------------------------------------------------------------------------
\1\ Revised Oct. 1975.



PART 222_ENGINEERING AND DESIGN--Table of Contents



Sec.
222.2 Acquisition of lands downstream from spillways for hydrologic 
          safety purposes.
222.3 Clearances for power and communication lines over reservoirs.
222.4 Reporting earthquake effects.
222.5 Water control management (ER 1110-2-240).
222.6 National Program for Inspection of Non-Federal Dams.

    Authority: 23 U.S.C. 116(d); delegation in 49 CFR 1.45(b); 33 U.S.C. 
467 et seq.; 33 U.S.C. 701, 701b, and 701c-1 and specific legislative 
authorization Acts and Public Laws listed in appendix E of Sec. 222.7.



Sec. 222.2  Acquisition of lands downstream from spillways for hydrologic
safety purposes.

    (a) Purpose. This regulation provides guidance on the acquisition of 
lands downstream from spillways for the purpose of protecting the public 
from hazards imposed by spillway discharges. Guidance contained herein 
is in addition to ER 405-2-150.
    (b) Applicability. This regulation is applicable to all OCE elements 
and all field operating agencies having civil works responsibilities.
    (c) Reference. ER 405-2-150.
    (d) Discussion. A policy of public safety awareness will be adhered 
to in all phases of design and operation of dam and lake projects to 
assure adequate security for the general public in areas downstream from 
spillways. A real estate interest will be required in those

[[Page 219]]

areas downstream of a spillway where spillway discharge could create or 
significantly increase a hazardous condition. The real estate interest 
will extend downstream to where the spillway discharge would not 
significantly increase hazards. A real estate interest is not required 
in areas where flood conditions would clearly be nonhazardous.
    (e) Hydrologic criteria. The construction and operation of a dam and 
spillway may create or aggravate a potential hazard in the spillway 
discharge area. Therefore, an appropriate solution should be developed 
in a systematic manner. All pertinent facts need to be considered to 
assure that the risk to non-Federal interests does not exceed conditions 
that would prevail without the project. General hydrologic engineering 
considerations are as follows:
    (1) Probability of spillway use. Pool elevation versus probability 
of filling relationships can change materially after initial 
construction. Spillway use may be more frequent than anticipated. The 
infrequent use of a spillway is not a basis for the lack of adequate 
downstream real estate interest.
    (2) Changes in project functions. Water resource needs within river 
basins change and pool levels may be adjusted to provide more 
conservation storage, particularly when high-level limited-service 
spillways are provided. Such changes normally increase spillway use and 
are to be considered.
    (3) Volume and velocity of spillway flow. The amount of flow and 
destructive force of the flow from a spillway during floods up to the 
spillway design flood can vary from insignificant to extremely hazardous 
magnitudes. The severity and area of hazard associated with spillway 
discharge will vary depending on specific project site conditions. 
Therefore, the hazard is to be analyzed on a project-by-project basis.
    (4) Development within floodway. If development within the floodway 
downstream from a spillway is not present at the time of project 
construction, the existence of the reservoir may encourage development. 
Adverse terrain conditions do not preclude development. Sparse present 
development is not a basis for lack of real estate acquisition.
    (5) Debris movement within floodway. The availability of erodible 
material in a spillway flow area intensifies the hazards of spillway 
flow. In fact, debris may be transported to downstream areas that 
otherwise would not be adversely affected. Extreme erosion may result 
from high velocities and turbulence. Both debris and erosion must be 
evaluated and considered.
    (6) Flood warning and response potential. Small projects generally 
have short time periods available to warn downstream inhabitants and may 
be unattended prior to spillway use. The ability to convince individuals 
to leave most of their worldly possessions to the ravages of spillway 
flow may be severely limited. In some cases flood warning systems may be 
necessary; however, this subject is beyond the scope of this regulation. 
Warning systems are not an adequate substitute for a real estate 
interest in lands downstream of spillways.
    (7) Location of spillway. Spillways should be located to minimize 
the hazards associated with their discharge and the total project cost 
(cost of spillway structure and downstream lands). Spillways, outlet 
works, stilling basins, and outlet channels should be designed to 
minimize hazards to downstream interest insofar as is engineeringly and 
economically reasonable.
    (f) Real estate. The real estate interest required downstream of 
spillways will be adequate to assure carrying out project purposes and 
to protect non-Federal interest from hazards created by spillway flows. 
The interest may be either fee or permanent easement. A permanent 
easement must exclude all overnight and/or permanent habitation, 
structures subject to damage by spillway flows and activities that would 
increase the potential hazards. No real estate interest is required for:
    (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.

[[Page 220]]

    (g) Alternative land uses. In some cases land downstream from 
spillways can be effectively used for purposes other than hydrologic 
safety. Therefore, the entire cost of these lands may not be an 
additional project cost. For example, the lands downstream of a spillway 
may be used for wildlife management essential to project purposes in 
lieu of other lands suitable for similar purposes at another location.
    (h) Procedural guidance. Procedures regarding the application of the 
principles outlined in the above paragraphs are as follows:
    (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) Reporting. Lands to be acquired downstream from spillways and 
intended purposes will be identified and the cost included in 
feasibility reports and real estate design memoranda. Additional 
specific information in support of land acquisition should be provided 
in Phase I or Phase II general design memoranda (GDM) and dam 
modernization reports. This information should include topographic maps, 
area flooded maps, velocities, erosion and debris areas ``with'' and 
``without'' the project. Real estate boundaries and discussions of items 
in paragraph (h)(4) are also essential in the GDM's and dam 
modernization reports.

[43 FR 35481, Aug. 10, 1978. Redesignated at 60 FR 19851, Apr. 21, 1995]



Sec. 222.3  Clearances for power and communication lines over reservoirs.

    (a) Purpose. This regulation prescribes the minimum vertical 
clearances to be provided when relocating existing or constructing new 
power and communication lines over waters of reservoir projects.
    (b) Applicability. This regulation applies to all field operating 
agencies having Civil Works responsibilities.
    (c) References. (1) ER 1180-1-1 (Section 73).
    (2) National Electrical Safety Code (ANSI C2), available from IEEE 
Service Center, 445 Hoes Lane, Piscataway, N.J. 08854.
    (d) Definitions--(1) Design high water level. The design high water 
level above which clearances are to be provided shall be either: (i) The 
elevation of the envelope profile of the 50 year flood, or flood series, 
routed through the reservoir with a full conservation pool after 50 
years of sedimentation, or (ii) the elevation of the top of the flood 
control pool, whichever is higher.

[[Page 221]]

    (2) Low point of line. The low point of the line shall be the 
elevation of the lowest point of the line taking into consideration all 
factors including temperature, loading and length of spans as outlined 
in the National Electrical Safety Code.
    (3) Minimum vertical clearance. The minimum vertical clearance shall 
be the distance from the design high water lever (paragraph (d)(1) of 
this section) to the low point of the line (paragraph (d)(2) of this 
section).
    (e) Required clearances. Minimum vertical clearances for power and 
communication lines over reservoirs shall not be less than required by 
section 23, rule 232 of the latest revision of the National Electrical 
Safety Code (ANSI C2).
    (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) Navigable waters. For parts of reservoirs that are designated as 
navigable waters of the United States, greater clearances will be 
provided if so required. The clearances required over navigable waters 
are covered by 33 CFR 322.5(i)(2) and are not affected by this 
regulation.

[43 FR 14013, Apr. 4, 1978. Redesignated at 60 FR 19851, Apr. 21, 1995]



Sec. 222.4  Reporting earthquake effects.

    (a) Purpose. This regulation states policy, defines objectives, 
assigns functions, and establishes procedures for assuring the 
structural integrity and operational adequacy of major Civil Works 
structures following the occurrence of significant earthquakes. It 
primarily concerns damage surveys following the occurrences of 
earthquakes.
    (b) Applicability. This regulation is applicable to all field 
operating agencies having Civil Works responsibilities.
    (c) References. (1) ER 1110-2-100 (Sec. 222.2).
    (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) Policy. Civil Works structures which could be caused to fail or 
partially fail by an earthquake and whose failure or partial failure 
would endanger the lives of the public and/or cause substantial property 
damage, will be evaluated following potentially damaging earthquakes to 
insure their continued structural stability, safety and operational 
adequacy. These structures include dams, navigation locks, powerhouses, 
and appurtenant structures, (intakes, outlet works, buildings, tunnels, 
paved spillways) which are operated by the Corps of Engineers and for 
which the Corps is fully responsible. Also included are major levees, 
floodwalls, and similar facilities designed and constructed by the Corps 
of Engineers and for whose structural safety and stability the Corps has 
a public obligation to be aware of although not responsible for their 
maintenance and operation. The evaluation of these structures will be 
based upon post-earthquake inspections which will be conducted to detect 
conditions of significant structural distress and to provide a basis for 
timely initiation of restorative and remedial measures.
    (e) Post-earthquake inspections and evaluation surveys--(1) 
Limitations of present knowledge. The design of structures for 
earthquake loading is limited by the infrequent opportunity to compare 
actual performance with the design. Damage which would affect the 
function of the project is unlikely if peak accelerations are below 
0.1g.; but it cannot be assumed that a structure will not be damaged 
from earthquake loadings below that for which it was designed. 
Furthermore, earthquakes have occurred in several parts of the country 
where significant seismic activity had not been predicted by some 
seismic zoning maps. This indicates the possibility that earthquake 
induced loads may not have been adequately considered in the design of 
older structures.

[[Page 222]]

    (2) Types of reportable damage. Many types of structural damage can 
be induced by ground motion from earthquakes or from large nuclear 
blasts (which also tend to induce ground vibrations in the more damaging 
lower frequency ranges). Any post-earthquake change in appearance or 
functional capability of a major Civil Works structure should be 
evaluated and reported. Examples are symptoms of induced stresses in 
buildings made evident by cracked plaster, windows or tile, or in 
binding of doors or windows; cracked or shifted bridge pier footings or 
other concrete structures; turbidity or changed static level of water 
wells; cracks in concrete dams or earth embankments; and misalignment of 
hydraulic control structures or gates. Induced dynamic loading on earth 
dams may result in loss of freeboard by settlement, or cause localized 
quick conditions within the embankment sections or earth foundations. 
Also, new seepage paths may be opened up within the foundation or 
through the embankment section. Ground motion induced landslides may 
occur in susceptible areas of the reservoir rim, causing embankment 
overtopping by waves and serious damage. All such unusual conditions 
should be evaluated and reported.
    (f) Inspection and evaluation programs. (1) If the project is 
located in an area where the earthquake causes significant damage 
(Modified Mercalli Intensity VII or greater) to structures in the 
vicinity, the Chief, Engineering Division, should be immediately 
notified and an engineering evaluation and inspection team should be 
sent to the project.
    (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

[[Page 223]]

transmitted through the Division Engineer for review and to HQDA (DAEN-
CWE) WASH DC 20314 for review and approval. For structures incurring no 
damage a simple statement to this effect will be all that is required in 
the report, unless seismic instrumentation at the project is activated. 
(See paragraph (h)(4) of this section.)
    (g) Training. The dam safety training program covered by paragraph 6 
of ER 1130-2-419 should include post-earthquake inspections and the 
types of damage operations personnel should look for.
    (h) Responsibilities. (1) The Engineering Divisions of the District 
offices will formulate the inspection program, conduct the post-
earthquake inspections, process and analyze the data of instrumental and 
other observations, evaluate the resulting condition of the structures, 
and prepare the inspection reports. The Engineering division is also 
responsible for planning special instrumentation felt necessary in 
selected structures under this program. Engineering Division is 
responsible for providing the training discussed in paragraph (g) of 
this section.
    (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) Funding. Funding for the evaluation and inspection program will 
be under the Appropriation 96X3123, Operations and Maintenance, General. 
Funds required for the inspections, including Travel and Per Diem costs 
incurred by personnel of the Division office or the Office, Chief of 
Engineers, will be from allocations made to the various projects for the 
fiscal year in which the inspection occurs.

[44 FR 43469, July 25, 1979. Redesignated at 60 FR 19851, Apr. 21, 1995]



Sec. 222.5  Water control management (ER 1110-2-240).

    (a) Purpose. This regulation prescribes policies and procedures to 
be followed by the U.S. Army Corps of Engineers in carrying out water 
control management activities, including establishment of water control 
plans for Corps and non-Corps projects, as required by Federal laws and 
directives.

[[Page 224]]

    (b) Applicability. This regulation is applicable to all field 
operating activities having civil works responsibilities.
    (c) References. Appendix A lists U.S. Army Corps of Engineers 
publications and sections of Federal statutes and regulations that are 
referenced herein.
    (d) Authorities--(1) U.S. Army Corps of Engineers projects. 
Authorities for allocation of storage and regulation of projects owned 
and operated by the Corps of Engineers are contained in legislative 
authorization acts and referenced project documents. These public laws 
and project documents usually contain provisions for development of 
water control plans, and appropriate revisions thereto, under the 
discretionary authority of the Chief of Engineers. Some modifications in 
project operation are permitted under congressional enactments 
subsequent to original project authorization. Questions that require 
interpretations of authorizations affecting regulation of specific 
reservoirs will be referred to CDR USACE (DAEN-CWE-HW), WASH DC 20314, 
with appropriate background information and analysis, for resolution.
    (2) Non-Corps projects. The Corps of Engineers is responsible for 
prescribing flood control and navigation regulations for certain 
reservoir projects constructed or operated by other Federal, non-Federal 
or private agencies. There are several classes of such projects: Those 
authorized by special acts of Congress; those for which licenses issued 
by the Federal Energy Regulatory Commission (formerly Federal Power 
Commission) provide that operation shall be in accordance with 
instructions of the Secretary of the Army; those covered by agreements 
between the operating agency and the Corps of Engineers; and those that 
fall under the terms of general legislative and administrative 
provisions. These authorities, of illustrative examples, are described 
briefly in Appendix B.
    (e) Terminology: Water control plans and reservoir regulation 
schedules. (1) Water control plans include coordinated regulation 
schedules for project/system regulation and such additional provisions 
as may be required to collect, analyze and disseminate basic data, 
prepare detailed operating instructions, assure project safety and carry 
out regulation of projects in an appropriate manner.
    (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) General policies. (1) Water control plans will be developed for 
reservoirs, locks and dams, reregulation and major control structures 
and interrelated systems to comform with objectives and specific 
provisions of authorizing legislation and applicable Corps of Engineers 
reports. They will include any applicable authorities established after 
project construction. The water control plans will be prepared giving 
appropriate consideration to all applicable Congressional Acts relating 
to operation of Federal facilities, i.e., Fish and Wildlife Coordination 
Act (Pub. L. 85-624), Federal Water Project Recreation Act-Uniform 
Policies (Pub. L. 89-72), National Environmental Policy Act of 1969 
(Pub. L. 91-190), and Clean Water Act of 1977 (Pub. L. 95-217). Thorough 
analysis and testing studies will be made as necessary to establish the 
optimum water control plans possible within prevailing constraints.
    (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

[[Page 225]]

manuals will be prepared to meet initial requirements when storage in 
the reservoir begins. They will be revised as necessary to conform with 
changing requirements resulting from developments in the project area 
and downstream, improvements in technology, new legislation and other 
relevant factors, provided such revisions comply with existing Federal 
regulations and established Corps of Engineers policy.
    (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

[[Page 226]]

will be prepared and submitted to the Office of the Chief of Engineers 
in accordance with requirements established in Engineer Circular on 
Annual Budget Requests for Civil Works Activities. The total annual 
costs of all activities and facilities that support the water control 
functions, (excluding physical operation of projects, but including 
flood control and navigation regulation of projects subject to 33 CFR 
208.11) are to be reported. Information on the Water Control Data 
Systems and associated Communications Category of the Plant Replacement 
and Improvement Program will be submitted with the annual budget. 
Reporting will be in accordance with the annual Engineer Circular on 
Civil Works Operations and Maintenance, General Program.
    (g) Responsibilities: US Army Corps of Engineers projects--(1) 
Preparation of water control plans and manuals. Normally, district 
commanders are primarily responsible for background studies and for 
developing plans and manuals required for reservoirs, locks and dams, 
reregulation and major control structures and interrelated systems in 
their respective district areas. Policies and general guidelines are 
prescribed by OCE engineer regulations while specific requirements to 
implement OCE guidance are established by the division commanders 
concerned. Master Water Control Manuals for river basins that include 
more than one district are usually prepared by or under direct 
supervision of division representatives. Division commanders are 
responsible for providing such management and technical assistance as 
may be required to assure that plans and manuals are prepared on a 
timely and adequate basis to meet water control requirements in the 
division area, and for pertinent coordination among districts, 
divisions, and other appropriate entities.
    (2) Public involvement and information--(i) Public meeting and 
public involvement. The Corps of Engineers will sponsor public 
involvement activities, as appropriate, to appraise the general public 
of the water control plan. In developing or modifying water control 
manuals, the following criteria is applicable.
    (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) Information availability. The water control manual will be made 
available for examination by the general public upon request at the 
appropriate office of the Corps of Engineers. Public notice shall be 
given in the event of occurring or anticipated significant changes in 
reservoir storage or flow releases. The method of conveying this 
information shall be commensurate with the urgency of the situation and 
the lead time available.
    (3) Authority for approval of plans and manuals. Division commanders 
are delegated authority for approval of water control plans and manuals, 
and associated activities.

[[Page 227]]

    (4) OCE role in water control activities. OCE will establish 
policies and guidelines applicable to all field offices and for such 
actions as are necessary to assure a reasonable degree of consistency in 
basic policies and practices in all Division areas. Assistance will be 
provided to field offices during emergencies and upon special request.
    (5) Methods improvement and staff training. Division and district 
commanders are responsible for conducting appropriate programs for 
improving technical methods applicable to water control activities in 
their respective areas. Suitable training programs should be maintained 
to assure a satisfactory performance capability in water control 
activities. Appropriate coordination of such programs with similar 
activities in other areas will be accomplished to avoid duplication of 
effort, and to foster desirable exchange of ideas and developments. 
Initiative in re-evaluating methods and guidelines previously 
established in official documents referred to in paragraph (e) of this 
section is encouraged where needs are evident. However, proposals for 
major deviations from basic concepts, policies and general practices 
reflected in official publications will be submitted to CDR USACE (DAEN-
CWE) WASH DC 20314 for concurrence or comment before being adopted for 
substantial application in actual project regulation at field level.
    (h) Directives and technical instruction manuals. (1) Directives 
issued through OCE Engineer Regulations will be used to foster 
consistency in policies and basic practices. They will be supplemented 
as needed by other forms of communication.
    (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) Water control manuals for US Army Corps of Engineers projects. 
(1) As used herein, the term ``water control manual'' refers to manuals 
that relate primarily to the functional regulation of an individual 
project or system of projects. Although such manuals normally include 
background information concerning physical features of projects, they do 
not prescribe rules or methods for physical maintenance or care of 
facilities, which are covered in other documents. (References 15 and 23, 
appendix A.)
    (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.

[[Page 228]]

Preplanned operations and coordination are essential to effective relief 
or assistance.
    (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) Policies and requirements for preparing regulations for non-
Corps projects. (1) Division and district commanders will develop water 
control plans as required by section 7 of the 1944 Flood Control Act, 
the Federal Power Act and section 9 of Pub. L. 436-83 for all projects 
located within their areas, in conformance with ER 1110-2-241, 33 CFR 
part 208. That regulation prescribes the policy and general procedures 
for regulating reservoir projects capable of regulation for flood 
control or navigation, except projects owned and operated by the Corps 
of Engineers; the International Boundary and Water Commission, United 
States and Mexico; those under the jurisdiction of the International 
Joint Commission, United States and Canada, and the Columbia River 
Treaty. ER 1110-2-241, 33 CFR part 208 permits 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 Engineers and the owners. Appendix B provides a summary of the 
Corps of Engineers responsibilities for prescribing regulations for non-
Corps reservoir projects.
    (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/

[[Page 229]]

district commander who is responsible to the Chief of Engineers as the 
representative to issue any special instructions required under the 
regulation. However, to the extent practicable, project regulations 
should be written to permit operation of the project by the owner 
without interpretations of the regulations by the designated 
representative of the Commander during operating periods.
    (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.

If corrective actions are not taken promptly, the operating agency 
should be notified of the apparent deviation in writing as a matter of 
record. Should an impasse arise, in that the project owner or the 
designated operating entity persists in noncompliance with regulations 
prescribed by the Corps of Engineers, the Office of Chief Counsel should 
be advised through normal channels and requested to take necessary 
measures to assure compliance.
    (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) Developing and processing regulations for non-Corps projects. 
Guidelines concerning technical studies and development of regulations 
are contained in ER 1110-2-241, 33 CFR part 208 and EM 1110-2-3600. 
Appendix C of this regulation summarizes steps normally followed in 
developing and processing regulations for non-Corps projects.
    (l) Water control during project construction stage. Water control 
plans discussed in preceding paragraphs are intended primarily for 
application after the dam, spillway and outlet structures; major 
relocations; land acquisitions, administrative arrangements and other 
project requirements have reached stages that permit relatively normal 
project regulation. With respect to non-Corps projects, regulations 
normally become applicable when water control agreements have been 
signed by the designated signatories, subject to special provisions in 
specific cases. In some instances, implementation of regulations has 
been delayed by legal provisions, contract limitations, or other 
considerations. These delays can result in loss of potential project 
benefits and possible hazards. Accordingly, it is essential that 
appropriate water control and contingency plans be established for use 
from the date any storage may accumulate behind a partially completed 
dam until the project is formally accepted for normal operations. 
Division commanders shall make certain that construction-stage 
regulation plans are established and maintained in a timely and adequate 
manner for projects under the supervision of the Corps of Engineers. In 
addition, the problems referred to should be discussed with authorities 
who are responsible for non-Corps projects, with the objective of 
assuring that such projects operate as safely and effectively as 
possible during the critical construction stage and any period that may 
elapse before regular operating arrangements have been established. 
These special regulation plans should include consideration for 
protection of construction operations; safety of downstream interests 
that might be jeopardized by failure of partially completed embankments; 
requirements for minimizing adverse effects on partially completed 
relocations or incomplete land acquisition; and the need for obtaining 
benefits from project storage

[[Page 230]]

that can be safely achieved during the construction and early operation 
period.
    (m) Advisories to OCE regarding water control activities--(1) 
General. Division commanders will keep the Chief of Engineers currently 
informed of any unusual problems or activities associated with water 
control that impact on his responsibilities.
    (2) Annual division water control management report (RCS DAEN-CWE-
16(R1)). Division commanders will submit an annual report on water 
control management activities within their division. The annual report 
will be submitted to (DAEN-CWE-HW) by 1 February each year and cover 
significant activities of the previous water year and a description of 
activities to be accomplished for the current year. Funding information 
for water control activities will be provided in the letter of 
transmittal for in-house use only. The primary objective of this summary 
is to keep the Chief of Engineers informed regarding overall water 
management activities Corps-wide, thus providing a basis to carry out 
OCE responsibilities set forth in paragraph (g)(4) of this section.
    (3) Status of water control manuals. A brief discussion shall be 
prepared annually by each division commander, as a separate section of 
the annual report on water control management activities discussed in 
paragraph (m)(2) of this section listing all projects currently in 
operation in his area, or expected to begin operation within one-year, 
with a designation of the status of water control manuals. The report 
should also list projects for which the Corps of Engineers is 
responsible for prescribing regulations, as defined in ER 1110-2-241, 33 
CFR part 208.
    (4) Monthly water control charts (RCS DAEN-CWE-6 (R1)). A monthly 
record of reservoirs/lakes operated by the Corps of Engineers and other 
agencies, in accordance with 33 CFR 208.11, will be promptly prepared 
and maintained by district/division commanders in a form readily 
available for transmittal to the Chief of Engineers, or others, upon 
request. Record data may be prepared in either graphical form as shown 
in EM 1110-2-3600, or tabular form as shown in the sample tabulation in 
Appendix D.
    (5) Annual division water quality reports (RCS DAEN-CWE-15). By 
Executive Order 12088, the President ordered the head of each Executive 
Agency to be responsible for ensuring that all necessary actions are 
taken for prevention, control, and abatement of environmental pollution 
with respect to Federal facilities and activities under control of the 
agency. General guidance is provided in references 24 and 25, Appendix 
A, for carrying out this agency's responsibility. Annual division water 
quality reports are required by reference 24, Appendix A. The report is 
submitted in two parts. The first part addresses the division Water 
quality management plan while the second part presents specific project 
information. A major objective of this report is to summarize 
information pertinent to water quality aspects of overall water 
management responsibilities. The annual division water quality report 
may be submitted along with the annual report on water control 
management activities discussed in paragraph 13b above.
    (6) Master plans for water control data systems (RCS DAEN-CWE-21). 
(i) A water control data system is all of the equipment within a 
division which is used to acquire, process, display and distribute 
information for real-time project regulation and associated interagency 
coordination. A subsystem is all equipment as defined previously within 
a district. A network is all equipment as defined previously which is 
used to regulate a single project or a group of projects which must be 
regulated interdependently.
    (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

[[Page 231]]

and engineering circulars on the annual budget request for civil works 
activities. Master plans will be maintained current and will:
    (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) Summary of runoff potentials in current season (RCS DAEN-CWO-2). 
(i) The Chief of Engineers and staff require information to respond to 
inquiries from members of Congress and others regarding runoff 
potentials. Therefore, the division commander will submit a snowmelt 
runoff and flood potential letter report covering the snow accumulation 
and runoff period, beginning generally in February and continuing 
monthly, until the potential no longer exist. Dispatch of supplemental 
reports will be determined by the urgencies of situations as they occur. 
The reports

[[Page 232]]

will be forwarded as soon as hydrologic data are available, but not 
later than the 10th of the month. For further information on reporting 
refer to ER 500-1-1, 33 CFR part 203.
    (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) Reports on project operations during flood emergencies. 
Information on project regulations to be included in reports submitted 
to the Chief of Engineers during flood emergencies in accordance with ER 
500-1-1 include rate of inflow and outflow in CFS, reservoir levels, 
predicted maximum level and anticipated date, and percent of flood 
control storage utilized to date. Maximum use should be made of 
computerized communication facilities in reporting project status to 
DAEN-CWO-E/CWE-HW in accordance with the requirements of ER 500-1-1, 33 
CFR part 203.
    (9) Post-flood summaries of project regulation. Project regulation 
effects including evaluation of the stage reductions at key stations and 
estimates of damages prevented by projects will be included in the post 
flood reports required by ER 500-1-1, 33 CFR part 203.
    (n) Water Control Management Boards. (1) The Columbia River Treaty 
Permanent Engineering Board was formed in accordance with the Columbia 
River Treaty with Canada. This board, composed of U.S. and Canadian 
members, oversees the implementation of the Treaty as carried out by the 
U.S. and Canadian Entities.
    (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) List of projects. Projects owned and operated by the Corps of 
Engineers subject to this regulation are listed with pertinent data in 
Appendix E. This list will be updated periodically to include Corps 
projects completed in the future. Federal legislation, Federal 
regulations and local agreements have given the Corps of Engineers wide 
responsibilities for operating projects which it does not own. Non-Corps 
projects subject to this regulation are included in Appendix A of ER 
1110-2-241.

                  Appendix A to Sec. 222.5--References

1. The Federal Power Act, Pub. L. 436-83, approved 10 June 1920, as 
amended (41 Stat. 1063; 16 U.S.C. 791(a))
2. Section 3 of the Flood Control Act approved 22 June 1936, as amended 
(49 Stat. 1571; 33 U.S.C. 701(c))
3. Section 9(b) of Reclamation Project Act of 1939, approved 4 August 
1939 (53 Stat. 1187; 43 U.S.C. 485)
4. Section 7 of the Flood Control Act approved 22 December 1944 (58 
Stat. 890; 33 U.S.C. 709)
5. Section 5 of Small Reclamation Projects Act of 6 August 1956, as 
amended (70 Stat. 1046; 43 U.S.C. 422(e))
6. Section 9 of Pub. L. 436-83d Congress (68 Stat. 303)
7. The Fish and Wildlife Coordination Act of 1958, Pub. L. 85-624
8. The Federal Water Project Recreation Act Uniform Policies, Pub. L. 
89-72
9. The National Environmental Policy Act of 1969, Pub. L. 91-190
10. The Clean Water Act of 1977, Pub. L. 95-217
11. Executive Order 12088, Federal Compliance with Pollution Control 
Standards, 13 October 1978
12. 33 CFR 208.10, Local flood protection works; maintenance and 
operation of structures and facilities (9 FR 9999; 9 FR 10203)
13. 33 CFR 208.11, Regulations for use of Storage Allocated for Flood 
Control or Navigation and/or Project Operation at Reservoirs

[[Page 233]]

subject to Prescription of Rules and Regulations by the Secretary of the 
Army in the Interest of Flood Control and Navigation (43 FR 47184)
14. AR 18-1
15. ER 11-2-101
16. ER 15-2-13
17. ER 500-1-1, 33 CFR part 203
18. ER 1110-2-241, 33 CFR part 208
19. ER 1110-2-1400
20. ER 1110-2-1402
21. ER 1110-2-1941
22. ER 1125-2-301
23. ER 1130-2-303
24. ER 1130-2-334
25. ER 1130-2-415
26. ER 1130-2-417
27. ER 1130-2-419
28. EM 1110-2-3600

        Appendix B to Sec. 222.5--Summary of Corps of Engineers 
  Responsibilities for Prescribing Regulations for Non-Corps Reservoir 
                                Projects

                                 Summary

    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 Federal Register in accordance with 33 CFR 208.11.
    Publication in the Federal Register establishes the fact and the 
date of a project's regulation plan promulgation.
    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: 
Provided, That this section shall not apply to the Tennessee Valley 
Authority, except that in case of danger from floods on the Lower Ohio 
and Mississippi Rivers the Tennessee Valley Authority is directed to 
regulate the release of water from the Tennessee River into the Ohio 
River in accordance with such instructions as may be issued by the War 
Department.''
    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

[[Page 234]]

licenses issued by the FERC, subject to stipulation that 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. Ordinarily no Federal funds are involved, thus 
Section 7 of the 1944 Flood Control Act does not apply. However, if 
issuance of regulations by the Secretary of the Army is required by the 
authority under which flood control or navigation provisions are 
included as functions of the specific project or otherwise specified in 
the FERC license, regulation plans will be prescribed in accordance with 
33 CFR 208.11 regulations.
    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 Federal Register. For example, if the 
reservoir controls a small drainage area, has an uncontrolled flood 
control outlet with automatic operation or contains less than 12,500 
acre-feet of flood control or navigation storage, 33 CFR 208.10 may be 
suitable. However, 33 CFR 208.11 regulations normally would be 
applicable in prescribing flood control regulations for the individual 
reservoir, if the project has a gated flood control outlet by which the 
local agency can regulate floods.
    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.

  Appendix C to Sec. 222.5--Procedures for Developing and Processing 
  Regulations for Non-Corps Projects in Conformance with 33 CFR 208.11

    1. Sequence of actions. a. Discussions leading to a clarification of 
conditions governing allocations of storage capacity to flood control or 
navigation purposes and project regulation are initiated by District/
Division Engineers through contacts with owners and/or operating 
agencies concerned at regional level.
    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.

[[Page 235]]

The Regional Director also will be responsible for obtaining the 
signature of the designated operating agency on these documents where 
such is required. Regarding internal coordination within the Bureau of 
Reclamation, the Regional Directors will obtain the review and approval 
of this office and at appropriate offices with our Engineering and 
Research Center, Denver, Colorado, prior to signing water control 
documents.''
    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 Federal Register.
    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. Signature blocks: Some 33 CFR 208.11 regulations contain diagrams 
of parameter curves that cannot be published in the Federal Register, 
but are made a part thereof by appropriate reference. Each diagram bears 
a title block with spaces for the signature of authenticating officials 
of the Corps of Engineers and the owner/operating agency of the project 
involved.
    3. Designation of Corps of Engineers Representatives. Division 
Commanders are designated representatives of the Chief of Engineers in 
matters relating to development and processing of 33 CFR 208.11 
regulations for eventual promulgation through publication of selected 
data specified in paragraph (d)(11) Sec. 208.11. Division Commanders 
are designated as the Corps of Engineers signee on all letters of 
understanding, water control agreements and other documents which may 
become part of prescribed regulations for projects located in their 
respective geographic areas, and which are subject to the provisions of 
33 CFR 208.11.

                                  Appendix D to Sec. 222.5--Sample Tabulation
                                  Bardwell Lake, Monthly Lake Report, May 1975
----------------------------------------------------------------------------------------------------------------
                                       Elevations 0800:   Storage    Evap     Pump    Release   Inflow    Rain,
                 Day                    2,400 feet-MSL    2400 A-F    DSF     DSF       DSF    adj. DSF    inch
----------------------------------------------------------------------------------------------------------------
1....................................     421.30 421.31      55979      28      2.0         0        84     0.00
2....................................     421.32 421.37      56196       5      2.0         0       117      .00
3....................................     421.43 421.44      56449      23      1.9         0       152      .14
4....................................     421.45 421.47      56558       1      1.8         0        58      .00
5....................................     421.49 421.34      56088       1      2.0       324        50      .00
6....................................     421.20 421.01      54902      14      1.9       632        50      .00
7....................................     420.88 420.89      54473       4      2.0       269        59      .09
8....................................     420.89 420.91      54544       5      2.3         0        44      .00
9....................................     420.90 420.89      54473      11      1.5         0        38      .00
10...................................     420.90 420.90      54509      28      3.0         0        27      .00
11...................................     420.91 421.35      56124      26      1.8         0       824      .00
12...................................     421.54 421.65      57213      31      2.1         0       582     1.61
13...................................     421.70 421.75      57578      29      2.2         0       216      .00
14...................................     421.78 421.76      57614      34      1.9       249       303      .03
15...................................     421.69 421.52      56739      22      1.9       643       225      .57
16...................................     421.39 421.28      55871      39      2.1       535       138      .00
17...................................     421.19 421.09      55188      10      2.2       393       119      .00
18...................................     421.03 421.05      55045      46      2.0       143        60      .00
19...................................     421.04 421.07      55116      17      2.3         0        55      .00
20...................................     421.06 421.30      55943      21      2.1         0       440      .21
21...................................     421.39 421.47      56558      20      2.1         0       332      .97
22...................................     421.50 421.39      56268      42      2.1       247       145      .00
23...................................     421.37 424.91      69726      31      2.0       328      7146      .22

[[Page 236]]

 
24...................................     425.61 426.15      74825      22      2.0         0      2595     2.38
25...................................     426.15 426.55      76523      18      2.3         0       876      .11
26...................................     426.72 426.80      77598      42      2.1         0       586      .00
27...................................     426.95 427.00      78465      23      2.0         0       462      .00
28...................................     427.14 427.15      79116      31      2.1         0       361      .19
29...................................     427.31 427.70      81528      61      1.9         0      1279      .20
30...................................     427.94 428.05      83082      11      2.0         0       796     1.02
31...................................     428.20 428.22      83837       7      2.1         0       389      .00
Monthly total:
  (DSF)..............................  ................  .........     700     64        3763     18626     7.74
  (A-F)..............................  ................      27966    1389    126        7464     36945  .......
----------------------------------------------------------------------------------------------------------------


[[Page 237]]


                                                      Appendix E to Sec. 222.5--List of Projects
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                          Elev limits feet      Area in acres
                                                                    Project     Storage        M.S.L.       --------------------
       Project name \1\          State/county       Stream \1\    purpose \2\  1,000 AF --------------------                          Auth legis \3\
                                                                                           Upper     Lower     Upper     Lower
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Lower Mississippi Valley Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alligator--Catfish FG........  MS Issaquena....  Little           F                 0.0       0.0       0.0         0         0  FCA Jun 36.
                                                  Sunflower.
Arkabutla Lk.................  MS Desoto.......  Coldwater......  F               525.0     238.3     209.3    33,400     5,100  FCA Jun 36.
Ascalmore--Tippo FG & CS.....  MS Tallahatchie.  Ascalmore......  F                 0.0     136.0     118.0         0         0  FCA Jun 36.
Bienvenue FG.................  LA St Bernard...  Bayou Bienvenue  F                 0.0       2.0       2.0         0         0  PL 298-89
Big Lk Ditch 81 CS..  AR Mississippi..  Ditch 81         C                 0.0       0.0     230.0         0         0  FCA Oct 65.
                                                  Extension..
Big Lk Div CS................  AR Mississippi..  Little R.......  C                 0.0       0.0     230.0         0         0  FCA Oct 65.
Big Lk North End CS..........  AR Mississippi..  Little R.......  C                 0.0       0.0     230.0         0         0  FCA Oct 65.
Big Lk South end CS..........  AR Mississippi..  Ditch 28.......  C                 0.0       0.0     230.0         0         0  FCA Oct 65.
Birds Point--New Madrid Div    MO New Madrid...  Mississippi....  F                 0.0     330.5     328.5   131,000    71,000  FCA May 28.
 Floodway.
Bodcau Lk....................  LA Bossier......  Bayou Bodcau...  F                35.3     199.5     157.0    21,000       110  PL 74-839.
Bonnet Carre Div Spillway....  LA St Charles...  Mississippi R..  F                 0.0      24.0      20.0         0         0  FCA May 28.
Bowman Lock..................  LA Vermilion....  GIWW...........  I                 0.0       1.2       1.2         0         0  PL 79-14.
Caddo Lk.....................  LA Caddo........  Cypress Bayou..  N               128.6     182.7     168.5    59,000    26,800  FCA Oct 65.
Cairo 10th & 20th St PS......  IL Pulaski......  Ohio...........  F                 0.0     310.5     299.0         0         0  PL 90-483.
Calcasieu SW Barrier & Lock..  LA Calcasieu....  Calcasieu R....  I                 0.0       1.2       1.2         0         0  RHA Oct 62.
                                                                                                                                 PL 79-525.
Calion L&D...................  AR Union........  Ouachita.......  N                 0.0      77.0      77.0    12,200    12,200  RHA 1950.
Calument FG East & West......  LA St Mary......  Wax Lake Outlet  FN                0.0       3.0       3.0         0         0  FCA Jun 36.
                                                  Bayou Teche.
Cannon Re-reg................  MO Ralls........  Salt R.........  PCA               5.8     528.0     521.0     1,020       460  HD 507.
Carlyle Lk...................  IL Clinton......  Kaskaskia R....  F               699.0     462.5     445.0    50,440    24,580  SD 44.
                                                                  NMCAR           233.0     445.0     429.5         0     7,100  .......................
Catahoula Lk CS..............  LA LaSalle......  Catahoula Div..  CR              118.0      34.0      27.0    25,000        94  RHA 1960.
Catfish Point CS.............  LA Cameron......  Mermentau R....  FN                0.0       1.2       1.2         0         0  FCA Aug 41, RHA Jul 64.
Charenton FG.................  LA St Mary......  Grand Lk.......  FN                0.0       0.0       0.0         0         0  RHA Jul 46, FCA May 28.
Cocodrie FG FG...............  LA Concorida....  Bayou Cocodrie.  F                 0.0      46.0      13.0         0         0  FCA Aug 41.
Collins Cr...................  MS Warren.......  Collins Cr.....  F                 0.0      84.0      67.0         0         0  FCA 1941.
Columbia L&D.................  LA Caldwell.....  Ouachita.......  N                 0.0      52.0      52.0     7,070     7,070  RHA 1950.
Connerly CS..................  AR Chicot.......  Connerly Bayou.  FCR               0.0     116.0     106.0         0         0  FCA Aug 68.
Courtableau Drainage CS......  LA St Landry....  Bayou            F                 0.0      18.0      16.0         0         0  FCA May 28, PL 391-70.
                                                  Courtableau.
Darbonne CS..................  LA St. Landry...  Bayou Darbonne.  FI                0.0      18.0      16.0         0         0  FCA May 28, PL 391-70.
DeGray LK....................  AR Desoto.......  Caddo..........  FNPMRA          881.9     423.0     345.0    23,800     6,400  RHA 1950, WSA 1958.
DeGray Rereg. St.............  AR Clark........  Caddo..........  NMRA              3.6     221.0     209.0       430        90  RHA 1950. WSA 1958.
Ditch Bayou Dam..............  AR Chicot.......  Ditch Bayou....  FCR               0.0     106.0      93.0         0         0  FCA Aug 68.
Drainage Dist 17 PS.  AR Mississippi..  Ditch 71.......  F                 3.0     236.0     228.0     4,100         0  FCA Aug 68, PL 90-483.
Drinkwater PS................  MO Mississippi..  Drinkwater       F                20.6     315.0     307.0     4,000       700  FCA May 50, PL 516.
                                                  Sewer.
Dupre FG.....................  LA St Bernard...  Bayou Dupre....  F                 0.0       2.0       2.0         0         0  PL 298-89.
East St Louis PS.............  IL St. Clair....  IDD............  F                 0.0       0.0       0.0         0         0  FC Act 36.
Empire FG Hurr Prot & Lock...  LA Plaque mines.  Mississippi R..  F                 0.0       5.0       5.0         0         0  PL 874-87.
Enid Lk......................  MS Yalobusha....  Yacona.........  F               660.0     268.0     230.0    28,000     6,100  FCA Jun 36.
Felsenthal L&D...............  AR Union........  Ouachita.......  N                32.5      70.0      65.0    46,500    17,500  RHA 1950.

[[Page 238]]

 
Finley Street PS.............  TN Dyer.........  Forked Deer....  F                 0.5     269.0     257.0        94        22  FCA 1948, PL 85-500.
Freshwater Lock..............  LA Vermilion....  Freshwater       I                 0.0       0.0       0.0         0         0  PL 86-645.
                                                  Bayou.
                                                                  NI
Graham Burke PS..............  AR Phillips.....  White..........  F             2,805.0     174.8     140.0   149,000     2,500  FCA May 28, PL 85-500.
Grenada Lk...................  MS Grenada......  Yalobusha Skuna  F             1,357.4     231.0     193.0    64,600     9,800  FCA Jun 36.
Huxtable PS..................  AR Lee..........  St Francis.....  F             2,863.0     207.2     165.0    18,500     1,400  FCA May 50.
Jonesville L&D...............  LA Catahoula....  Black..........  N                 0.0      34.0      34.0     7,120     7,120  RHA 1950.
Kaskaskia L&D................  IL Randolph.....  Kaskaskia R....  N                 1.1     368.0     363.0     1,300     1,200  SD 44.
L&D 1........................  LA Catahula.....  Red R..........  N                 0.0      40.0      40.0         0         0  PL 90-483.
L&D 2........................  LA Rapides......  Red R..........  N                 0.0      71.2      64.0         0         0  PL 90-483.
L&D 3........................  LA Rapides......  Red R..........  N                 0.0      95.0      91.5         0         0  PL 90-483.
L&D 4........................  LA Natchitoches.  Red R..........  N                 0.0     120.0     119.6         0         0  PL 90-483.
L&D 5........................  LA Red R........  Red R..........  N                 0.0     145.0     140.2         0         0  PL 90-483.
L&D 24.......................  MO Pike.........  Mississippi R..  N                29.7     449.0     445.0    13,000    12,000  R&H Act, Jul 3/30.
                                                                                                                                 R&H Act, Aug 30/35.
L&D 25.......................  MO Lincoln......  Mississippi R..  N                49.7     434.0     429.7    18,000    16,600  R&H Act, Jul 3/30.
                                                                                                                                 R&H Act, 8/30/35.
L&D 26.......................  IL Madison......  Mississippi R..  N               107.1     419.0     414.0    30,000    27,700  R&H Act, Jul 3/30.
                                                                                                                                 R&H Act, 8/30/1935.
Larose to Golden Meadow Hurr   LA LaFourche....  Bayou LaFourche  F                 0.0       3.0       3.0         0         0  FCA Oct 65, PL 89-298.
 Prot FG.
Little Sun flower CS.........  MS Issaquena....  Lit. Sunflower.  F                 0.0      85.0      60.0         0         0  FCA 1941.
Lk 9 Culvert & PS...  KY Fulton.......  Mississippi....  F                 6.5     286.0     282.0         0         0  FCA Oct 65.
Lk Chicot PS.................  AR Chicot.......  Macon Lk.......  FCR               0.0     118.2      90.0         0         0  FCA Aug 68.
Lk Greeson...................  AR Pike.........  Little Missouri  P                 0.0     563.0     436.9         0         0  FCA 1941.
                                                                  FP              407.9     563.0     504.0     9,800     2,500  .......................
Lk Ouachita..................  AR Garland......  Ouachita.......  P                 0.0     592.0     480.0         0         0  FCA Dec 44.
Long Branch DS...............  LA Catahoula....  Catahoula Div..  F                 0.0      32.5      32.5         0         0  FCA May 50.
Mark Twain Lk................  MO Ralls........  Salt R.........  F               894.0     638.0     606.0    38,400    18,600  HD 507.
                                                                  PMCAR           457.0     606.0     567.2    18,600     5,900  .......................
Marked Tree Siphon...........  AR Poinsett.....  St. Francis....  F                 0.0     229.0     198.3         0         0  FCA Jun 30.
Morganza Div CS..............  LA Point Coupee.  Morganza         F                 0.0      59.5      49.0         0         0  FCA May 28.
                                                  Floodway.
Muddy Bayou CS...............  MS Warren.......  Muddy Bayou....  FC               30.0      76.9      70.0     4,350     2,860  FCA Oct 65.
Old River Div CS Low Sill      LA W. Feliciana.  Old R..........  F                 0.0      70.0       5.0         0         0  PL 83-780.
 Overbank & Aux.
Old River Lock...............  LA W Feliciana..  Old R..........  N                 0.0      65.4      10.0         0         0  FCA Sep 54, PL 780-83.
Port Allen Lock..............  LA Port Allen...  GIWW...........  N                 0.0      46.1       2.6         0         0  RHA Jul 46.
Prairie Dupont East & West PS  IL St Clair.....  IDD............  F                 0.0       0.0       0.0         0         0  FC Act 62.
Rapides-Boeuf Div Canal CS...  LA Rapides......  Bayou Rapides..  F                 0.0      66.0      62.2         0         0  FCA Aug 41, GD 359-77.
Rend Lk......................  IL Franklin.....  Big Muddy R....  F               109.0     405.0     410.0    24,800    18,900  HD 541.
                                                                  MA              160.0     405.0     391.3    18,900     5,400  .......................
Sardis Lk....................  MS Panola.......  Little           F             1,569.9     281.4     236.0    58,500    10,700  FCA Jun 36.
                                                  Sunflower.
Schooner Bayou CS & Lock.....  LA Vermilion....  Schooner Bayou.  I                 0.0       1.2       1.2         0         0  FCA Aug 41.
Shelbyville Lk...............  IL Shelby.......  Kaskaskia R....  F               474.0     626.5     599.7    25,300    11,100  HD 232.

[[Page 239]]

 
                                                                  NMCAR           180.0     599.7     573.0    11,100     3,000  .......................
Sorrell Lock.................  LA Iberville....  GIWW...........  N                 0.0      29.7       3.5         0         0  FCA May 28.
St Francis Lk CS.............  AR Poinsett.....  Oak Donnick      C                 0.0       0.0     210.0         0     2,240  FCA Oct 65.
                                                  Floodway.
Steele Bayou CS..............  MS Issaquena....  Steele Bayou...  F                 0.0      68.5      60.0         0         0  FCA 1941.
Tchula Lk Lower FG...........  MS Humphreys....  Tchula Lk......  F                 0.0     110.0      84.0         0         0  FCA Jun 36.
Tchula Lk Upper FG...........  MS Humphreys....  Tchula Lk......  F                 0.0     108.0      92.0         0         0  FCA Jun 36.
Teche-Vermilion PS & CS......  LA St Mary......  Atchafalaya R..  MI                0.1      18.0      16.0         0         0  PL 89-789, FCA May 28.
Tensas-Cocodrie PS...........  LA Cocordia.....  Bayou Corcodrie  F                 0.0      37.0      23.0         0         0  FCA Oct 65.
Treasure Island PS...........  MO Dunklin......  Little R.......  F                23.4     252.0     235.0     7,800       180  FCA Jul 46.
Wallace Lk...................  LA Caddo........  Cypress Bayou..  F                96.1     158.0     142.0     9,300     2,300  RHA Mar 45, PL 75-761.
Wappapello Lk................  MO Wayne........  St Francis R...  F               613.2     394.7     354.7    23,200     5,200  HD 159.
Wasp Lk......................  MS Humphreys....  Wasp Lk-Bear Cr  F                 0.0     111.6      88.5         0         0  FCA Jun 36.
West Hickman PS..............  KY Fulton.......  Mississippi....  F                 0.0     302.0     296.0         9         4  FCA 1948.
Wood R PS....................  IL Madison......  IDD............  F                 0.0       0.0       0.0         0         0  FC Act 38.
Yazoo City PS................  MS Yazoo........  Yazoo..........  F                 0.0      96.0      69.0         0         0  FCA Jun 36.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 Missouri River Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Bear Creek Dam & Res.........  CO Jefferson....  Bear Cr........  F                28.8   5,635.5   5,558.0       718       109  PL 90-483.
                                                                  FCR               1.9   5,558.0   5,528.0       109        17  SD 87-90.
Big Bend Dam & Lk Sharpe.....  SD Lyman Buffalo  Missouri R.....  F                61.0   1,423.0   1,422.0    61,000    60,000  PL 78-534.
                                Hughes.
                                                                  FNPIMCAR        117.0   1,422.0   1,420.0    60,000    57,000  SD 247-78.
Blue Springs Dam & Lk........  MO Jackson......  Little Blue R..  F                15.8     820.0     802.0       982       722  PL 90-483.
                                                                  FRC              10.8     802.0     760.0       722         0  HD 169-90.
Blue Stem Lake & Dam 4.......  NE Lancaster....  Olive Br. Salt   F                 7.2   1,322.5   1,307.4       660       315  PL 85-500.
                                                  Creek.
                                                                  FCR               3.0   1,307.4   1,277.0       315         1  HD 396-84.
Bowman-Haley Dam & Res.......  ND Bowman.......  No Fk Grand      F                72.7   2,777.0   2,754.8     5,131     1,732  PL 87-874.
                                                  River.
                                                                  FMCR             15.5   2,754.8   2,740.0     1,732       565  HD 574-87.
Branched Oak Lk & Dam 18.....  NE Lancaster....  Oak Creek trib.  F                71.6   1,311.0   1,284.0     3,640     1,780  PL 85-500.
                                                  Salt Creek.
                                                                  FCR              26.0   1,284.0   1,250.0     1,780         0  HD 396-84.
Bull Hook Dam................  MT Hill.........  Bull Hook Cr     F                 6.5   2,593.0   2,540.0       283         0  PL 78-534.
                                                  Scott Coulee.
Cedar Canyon Dam.............  SD Pennington...  Deadman's Gulch  F                 0.1   3,545.0   3,526.0        11         2  PL 80-858.
Chatfield Dam & Res..........  CO Douglas......  S Platte.......  F               204.7   5,500.0   5,432.0     4,742     1,412  PL 81-516.
                                                                  FQ               26.7   5,432.0   5,385.0     1,412        12  HD 669-80.
Cherry Cr Dam & Res..........  CO Araphahoe....  Cherry Cr......  F                80.0   5,598.0   5,550.0     2,637       852  PL 77-228.
                                                                  FR               14.0   5,550.0   5,504.0       852         0  HD 426-76, PL 78-534.
Clinton Dam & Lk.............  KS Douglas......  Wakarusa R.....  F               267.8     903.4     875.5    12,891     7,006  PL 87-874.
                                                                  FMCAR           129.2     875.5     820.0     7,006         0  SD 122-87.
Cold Brook Dam & Res.........  SD Fall River...  Cold Brook.....  F                 6.7   3,651.4   3,585.0       198        36  PL 77-228.
                                                                  FR                0.5   3,585.0   3,548.0        36         0  HD 655-76.
Conestoga Lake & Dam 12......  NE Lancaster....  Holmes Cr Trib   F                 8.0   1,252.0   1,232.9       620       230  PL 85-500.
                                                  to Salt Cr.
                                                                  FCR               2.6   1,232.9   1,197.0       230         1  HD 396-84.
Cottonwood Springs Dam & Res.  SD Fall River...  Cottonwood       F                 7.7   3,936.0   3,875.0       214        44  PL 77-228.
                                                  Springs Cr.
                                                                  FR                0.2   3,875.0   3,868.0        44        30  HD 655-76.
Fort Peck Dam & Res..........  MT Valley, Mc     Missouri R.....  F               977.0   2,250.0   2,246.0   249,000   240,000  PL 73-409.
                                Cone Garfield.

[[Page 240]]

 
                                                                  FNPIMCAR     13,649.0   2,246.0   2,160.0   240,000    92,000  PL 75-529, HD 238-73.
                                                                                                                                 PL 78-534, SD 247-78.
Fort Randall Dam, Lk Francis   SD Gregory        Missouri R.....  F               985.0   1,375.0   1,365.0   102,000    95,000  PL 78-534.
 Case.                          Charles.
                                                                  FNPIMCAR      3,021.0   1,365.0   1,320.0    95,000    41,000  SD 247-78.
Garrison Dam, Lk Sakakawea...  ND Mercer McLean  Missouri R.....  F             1,494.0   1,854.0   1,850.0   382,000   365,000  PL 78-534.
                                                                  FNPIMCAR     17,440.0   1,850.0   1,775.0   365,000   129,000  SD 247-78.
Gavins Point Dam, Lewis &      SD Yankton......  Missouri R.....  F                61.0   1,210.0   1,208.0    32,000    29,000  PL 78-534.
 Clark Lk.
                               NE Knox.........                   FNPIMCAR         95.0   1,208.0   1,204.5    29,000    25,000  SD 247-78.
Glenn Cunningham Lk, Dam 11..  NE Douglas......  Little           F                14.0   1,142.0   1,121.0       922       392  PL 90-483.
                                                  Papillion Cr.
                                                                  FRCA              3.9   1,121.0   1,085.0       392         0  HD 349-90.
Harlan County Lk.............  NE Harlan.......  Republican R...  F               498.0   1,973.5   1,946.0    23,064    13,249  PL 77-228.
                                                                  FI              342.6   1,946.0   1,875.0    13,249         0  HD 892-76, PL-78-534.
Harry S Truman Dam & Res.....  MO Benton.......  Osage R........  F             4,005.9     739.6     706.0   209,300    55,600  PL 83-780.
                                                                  FPCR          1,203.4     706.0     635.0    55,600         0  HD 549-81, PL 87-874.
                                                                                                                                 HD 578-87.
Hillsdale Lk.................  KS Miami........  Big Bull Cr....  F                83.6     931.0     917.0     7,410     4,580  PL 83-780.
                                                                  FNMCAR           76.3     917.0     852.4     4,580         0  HD 642-81.
Holmes Park Lk & Dam 17......  NE Lancaster....  Antelope Cr      F                 5.7   1,266.0   1,242.4       410       100  PL 85-500.
                                                  Trib to Salt
                                                  Cr.
                                                                  FCR               0.8   1,242.4   1,218.0       100         3  HD 396-84.
Kanopolis Lk.................  KS Ellsworth....  Smoky Hill R...  F               370.0   1,508.0   1,463.0    13,999     3,560  PL 75-761.
                                                                  FI               55.8   1,463.0   1,425.0     3,560         0  PL 78-534, HD 842-76.
Kelly Road Dam...............  CO Araphoe......  Westerly Cr....  F                 0.3   5,362.0   5,342.0        38         0  PL 80-858, PL 84-99.
Long Branch Lk...............  MO Randolph.....  Little East Fk   F                30.4     801.0     791.1     3,670     2,429  PL 89-298.
                                                  Chariton R.
                                                                  FCAR             34.6     791.0     751.1     2,429         0  HD 238-89.
Longview Lk..................  MO Jackson......  Little Blue R..  F                24.8     909.0     891.0     1,960       930  PL 90-483.
                                                                  FCAR             22.1     891.0     810.0       930         0  HD 169-90.
Melvern Lk...................  KS Osage........  Marais des       F               208.4   1,057.0   1,036.0    13,948     6,928  PL 83-780.
                                                  Cygnes R.
                                                                  FNMCAR          154.4   1,036.0     960.0     6,928         0  PL 75-761, HD 549-81.
Milford Lk...................  KS Geary........  Republican R...  F               756.7   1,176.2   1,144.4    27,255    17,270  PL 83-780.
                                                                  FCA             388.8   1,144.4   1,080.0    15,709         0  HD 642-81, PL 75-761.
Oahe Dam & Lk................  ND 4 Counties...  Missouri R.....  F             1,097.0   1,620.0   1,617.0   373,000   359,000  PL 78-534.
                               SD 8 Counties...                   FNPIMCAR     16,789.0   1,617.0   1,540.0   359,000   117,000  SD 247-78.
Olive Cr Lk & Dam 2..........  NE Lancaster....  Olive Br of      F                 4.0   1,350.0   1,335.0       355       174  HD 396-84.
                                                  Salt Cr.
                                                                  FCR               1.5   1,335.0   1,314.0       174         4  PL 85-500.
Papio Dam Site 18 &   NE Douglas......  Boxelder Cr      F                 7.1   1,128.2   1,110.0       595       255  PL 90-483.
 Lk.                                              Papio Cr.
                                                                  FCAR              3.4   1,110.0   1,060.5       255         0  HD 349-90.
Papio Dam Site 20 &   NE Sarpy........  Trib South       F                 6.1   1,113.1   1,096.0       493       246  PL 90-483.
 Lk.                                              Branch Papio.
                                                                  FCAR              2.7   1,096.0   1,069.0       246        10  HD 349-90.
Pawnee Lk & Dam 14...........  NE Lancaster....  No. Middle Cr    F                21.0   1,263.5   1,244.3     1,470       728  PL 85-500.
                                                  of Salt Cr.
                                                                  FCR               8.5   1,244.3   1,206.0       728         1  HD 396-84.
Perry Lk.....................  KS Jefferson....  Delaware R.....  F               521.9     920.6     891.5    25,342    12,202  PL 83-780.
                                                                  FN              243.2     891.5     825.0       122         0  HD 642-81.
Pipestem Dam & Res...........  ND Stutsman.....  Pipestem Cr....  F               137.0   1,496.3   1,442.4     4,754       885  PL 89-298.

[[Page 241]]

 
                                                                  FRC               9.6   1,442.4   1,415.0       885        62  HD 266-89.
Pomme De Terre Lk............  MO Polk.........  Pomme De Terre   F               407.2     874.0     839.0    15,980     7,890  PL 75-761.
                                                  R.
                                                                  FNPCAR          241.6     839.0     750.0     7,890         0  HD 549-81, PL 83-780.
Pomona Lk....................  KS Osage........  110 Mile Cr....  F               176.8   1,003.0     974.0     8,520       400  PL 83-780.
                                                                  FNMAR            70.6     974.0     912.0     4,000         0  HD 549-81.
Rathbun Lk...................  IA Appanoose....  Chariton R.....  F               346.3     926.0     904.0    20,948    11,013  PL 83-780.
                                                                  FNM             205.4     904.0     844.0    11,013         0  HD 561-81.
Smithville Lk................  MO Clay.........  Little Platte R  F               101.8     876.2     864.2     9,995     7,192  PL 89-298.
                                                                  FMCAR           144.6     864.2     799.0     7,192         0  HD 262-89.
Spring Gulch Imbankment......  CO Douglas......  Spring Gulch...  F                 1.8  5,600.00   5,535.0        88         0  PL 81-516, HD 669-80.
Stagecoach Lk & Dam 9........  NE Lancaster....  Hickman Br of    F                 4.7   1,285.0   1,271.1       490       196  PL 85-500.
                                                  Salt Cr.
                                                       FRC               1.9   1,271.1   1,246.0       196         0  HD 396-84.
Standing Bear Lk & Dam 16....  NE Douglas......  Trib Big         F                 3.7   1,121.0   1,104.0       302       137  PL 90-483.
                                                  Papillion Cr.
                                                                  FRC               1.5   1,104.0   1,060.0       137         0  HD 349-90.
Stockton Lk..................  MO Cedar........  Sac R..........  F               779.6     892.0     867.0    38,288    24,777  PL 83-780.
                                                                  FARPN           887.1     867.0     760.0    24,777         0  HD 549-89.
Tuttle Creek Lk..............  KS Riley........  Big Blue R.....  F             1,937.4   1,136.0   1,075.0    54,179    14,875  PL 75-761.
                                                                  FN              177.1   1,075.0   1,061.0    14,875         0  HD 842-76.
Twin Lakes & Dam 13..........  NE Seward.......  Middle Cr Salt   F                 5.3   1,355.0   1,341.0       505       255  PL 85-500.
                                                  Cr.
                                                                  CFR               2.8   1,341.0   1,306.0       255         1  HD 396-84.
Wagon Train Lk & Dam 8.......  NE Lancaster....  Hickman Br of    F                 6.8   1,302.0   1,287.8       660       303  PL 85-500.
                                                  Salt Cr.
                                                                  FCR               2.5   1,287.8   1,260.0       303         4  HD 396-84.
Wehrspann Lk & Dam 20........  NE Sarpy........  Trib South       F                 6.1   1,113.1   1,096.0       493       246  PL 90-483.
                                                  Branch Papio.
                                                                  FCAR              2.7   1,096.0   1,069.0       246        10  HD 349-90.
Wilson Lk....................  KS Russell......  Saline R.......  F               530.7   1,554.0   1,516.0    19,980     9,040  PL 78-534.
                                                                  FRC             247.8   1,516.0   1,440.0     9,040         0  SD 191-78, SD 247-78.
Yankee Hill Lk & Dam 10......  NE Lancaster....  Cardwell Br of   F                 5.6   1,262.0   1,244.9       475       208  PL 85-500.
                                                  Salt Cr.
                                                                  FCR               2.0   1,244.9   1,218.0       208         0  HD 396-84.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 North Atlantic Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Almond Lake..................  NY Steuben......  Canacadea Cr...  F                14.6   1,300.0   1,255.0       489       124  PL 74-738.
Alvin R. Bush Dam............  PA Clinton......  Kettle Cr......  F                73.4     937.0     840.0     1,430       160  FCA Sep 54.
Arkport Dam..................  NY Steuben......  Canisteo R.....  F                 8.0   1,304.0   1,218.0       192         0  PL 74-738.
Aylesworth Cr Lk.............  PA Lackawanna...  Aylesworth Cr..  F                 1.7   1,150.0   1,108.0        87         7  PL 87-874.
Beltzville Dam & Lk..........  PA Carbon,        Pohopoco Cr....  F                27.0     651.0     628.0     1,411       947  PL 87-874.
                                Monroe.
                                                                  FMA              39.8     628.0     537.0       947       113  .......................
Bloomington Lk...............  MD Garret.......  North Branch     F                36.2   1,500.0   1,466.0     1,184       952  PL 87-874.
                                                  Potomac R.
                                                                  FMA              92.0   1,466.0   1,255.0       952        42  .......................
Blue Marsh Dam & Lk..........  PA Lebanon Berks  Tulpehocken CR.  F                27.1     307.0     290.0     2,159     1,147  PL 87-874.
                                                                  FMA              19.9     290.0     261.0     1,147       323  .......................
Cowanesque Lk................  PA Tioga........  Cowanesque R...  F                82.0   1,117.0   1,045.0     2,060       410  PL 85-500.
Curwensville Lk..............  PA Clearfield...  West Branch      F               114.7   1,228.0   1,162.0     3,020       790  FCA Sep 54.
                                                  Susquehanna R.
East Sidney Lk...............  NY Delaware.....  Ouleout Cr.....  F                30.2   1,203.0   1,150.0     1,100       210  PL 74-738.
Foster Joseph Sayers Dam.....  PA Centre.......  Bald Eagle Cr..  F                70.2     657.0     630.0     3,450     1,730  FCA Sept 54.
Francis E. Walter Dam & Res..  PA Carbon,        Lehigh R.......  F               107.8   1,450.0   1,300.0     1,830        80  PL 79-526.
                                Luzerne, Monroe.
Gathright Dam & Lk Moomaw....  VA Alleghany,     Jackson R......  F                79.9   1,610.0   1,582.0     3,160     2,530  PL 79-526.
                                Bath.
                                                                  AR               60.7   1,582.0   1,554.0     2,530     1,780  .......................

[[Page 242]]

 
General Edgar Jadwin Dam.....  PA Wayne........  Dyberry Cr.....  F                24.5   1,053.0     973.0       659         0  PL 80-858.
Prompton Dam & Res...........  PA Wayne........  W Br Lackawaxen  F                48.5   1,205.0   1,125.0       910       290  PL 80-858.
                                                  R.
Raystown Lk..................  PA Huntingdon...  Raystown Br....  F               248.0     812.0     786.0    10,800     8,300  PL 87-874.
                                                                  FR              514.0     786.0     622.8     8,300       150  .......................
Stillwater Lk................  PA Susquehanna..  Lackawanna R...  F                11.6   1,621.0   1,572.0       422        83  PL 77-228.
Tioga-Hammond Lakes Hammond..  PA Tioga........  Crooked Cr.....  F                54.2   1,131.0   1,086.0     1,770       680  PL 85-500.
Tioga-Hammond Lakes Tioga....  PA Tioga........  Tioga R........  F                52.5   1,131.0   1,081.0     1,630       470  PL 85-500.
Whitney Piont Lk.............  NY Broome.......  Otselic R......  F                66.5   1,010.0     973.0     3,340     1,200  PL 74-738.
York Indian Rock Dam.........  PA York.........  Codorus Cr.....  F                28.0     435.0     370.0     1,430         0  PL 74-738.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 North Central Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Badhill Dam & Res............  ND Barnes.......  Sheyenne R.....  FM               68.6   1,266.0   1,257.2     5,430     4,430  FCA Dec 44.
Brandon Road L&D.............  IL Will.........  Illinois R.....  N                 8.0     539.0     538.0       300       250  PL 71-126.
Cedars L&D...................  WI Outagamie....  Fox R..........  N                 1.8     703.6     698.7       255       140  RHA of 1882, 1885.
Coralville Dam & Res.........  IA Johnson......  Iowa R.........  F               439.0     712.0     680.0    24,800     3,580  PL 75-761.
                                                                  C                40.3     680.0     652.0     3,580         0  PL 75-761.
Depree L&D...................  WI Brown........  Fox R..........  N                 9.4     591.0     586.7       926         0  PL 71-126.
Dresden Island L&D...........  IL Grundy.......  Illinois R.....  N                 1.0     505.0     504.0     1,690     1,550  FCA 1958.
Eau Galle Dam & Res..........  WI Pierce.......  Eau Galle R....  FCR               1.6     940.0     938.5     1,500     1,350  PL 78-534.
Farmdale Dam.................  IL Tazwell......  Farm Cr........  F                11.3     616.0     551.0       385         0  PL 78-534.
Fondulac Dam.................  IL Tazwell......  Fondulac Cr....  F                 2.3     579.0     530.0        97         0  PL 78-534.
Gull Lk Dam & Res............  MN Cass.........  Gull R.........  N                70.4   1,194.0   1,192.7    13,100    12,700  RHA 1899.
Highway 75 Dam & Res.........  MN Bigstone,      Minnesota R....  FC               11.1     952.3     947.3     2,790       910  FCA Oct 65.
                                Lacqui, Parle.
Homme Dam & Res..............  ND Walsh........  Park R.........  FM                3.7   1,080.0   1,074.0       190       176  FCA of 22 Dec 44.
L&D 1........................  MN Hennepin,      Mississippi R..  N                13.0     725.1     722.8     5,800     5,500  RHA 1910.
                                Ramsey.
L&D 2........................  MN Dakota, Wash.  Mississippi R..  N                 8.0     687.2     686.5    11,810    11,000  RHA 1927.
L&D 3........................  MN Goodhue,       Mississippi R..  N                17.8     675.0     674.0    17,950    17,650  RHA 1930.
                                Pierce.
L&D 4........................  WI Wabasha,       Mississippi R..  N                18.0     667.0     666.5    38,820    36,600  RHA 1930.
                                Buffalo.
L&D 5........................  MN Winona,        Mississippi R..  N                 6.2     660.0     659.5    12,680    12,000  RHA 1930.
                                Buffalo.
L&D 5A.......................  MN Winona,        Mississippi R..  N                 7.2     651.0     650.0     7,500     7,000  RHA 1930.
                                Buffalo.
L&D 6........................  MN Winona.......  Mississippi R..  N                 8.4     645.5     644.5     8,870     8,000  RHA 1930.
L&D 7........................  MN Winona.......  Mississippi R..  N                 2.6     639.0     639.0    13,440    13,400  RHA 1930.
                               WI LaCrosse.....                   ...........  ........  ........  ........  ........  ........  .......................
L&D 8........................  MN Houston......  Mississippi R..  N                20.4     631.0     630.0    20,800    20,000  RHA 1930.
                               WI Vernon.......                   ...........  ........  ........  ........  ........  ........  .......................
L&D 9........................  WI Crawford.....  Mississippi R..  N                28.7     620.0     619.0    29,125    28,300  RHA 1930.
                               IA Allamakee....                   ...........  ........  ........  ........  ........  ........  .......................
L&D 10.......................  IA Clayton......  Mississippi R..  N                16.8     611.0     610.0    17,070    16,500  RHA 1930.
                               WI Grant........                   ...........  ........  ........  ........  ........  ........
L&D 11.......................  IA Dubuque......  Mississippi R..  N                19.1     603.1     602.0    21,100    20,000  PL 71-520.
L&D 12.......................  IA Jackson......  Mississippi R..  N                12.2     592.1     591.0    13,000    12,400  PL 71-520.
L&D 13.......................  IL Whiteside....  Mississippi R..  N                24.2     583.1     582.0    30,000    28,500  PL 71-520.

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L&D 14.......................  IA Scott........  Mississippi R..  N                 9.0     572.1     571.0    10,500     9,980  PL 71-520.
L&D 15.......................  IL Rock Island..  Mississippi R..  N                 5.5     561.1     559.0     3,725     3,540  PL 71-520.
L&D 16.......................  IL Rock Island..  Mississippi R..  N                12.1     545.1     544.0    13,000    12,400  PL 71-520.
L&D 17.......................  IL Mercer.......  Mississippi R..  N                 7.5     537.1     536.0     7,580     7,200  PL 71-520.
L&D 18.......................  IL Henderson....  Mississippi R..  N                11.0     529.1     528.0    13,300    12,600  PL 71-520.
L&D 19.......................  IA Lake.........  Mississippi R..  N                55.0     518.2     517.2    33,500    31,800  PL 71-520.
L&D 20.......................  MO Lewis........  Mississippi R..  N                 5.8     481.5     476.5     7,960     7,550  PL 71-520.
L&D 21.......................  IL Adams........  Mississippi R..  N                 8.6     470.1     469.6     9,390     8,910  PL 71-520.
L&D 22.......................  MO Polke........  Mississippi R..  N                 8.4     459.6     459.1     8,660     8,230  PL 71-520.
Lac qui Parle Dam & Res......  MN Chippewa       Minnesota R....  FC              119.3     941.1     931.2    13,500     6,400  FCA of 22 Jun 36.
                                Swift.
Lagrange L&D.................  IL Brown........  Illinois R.....  N                 0.0     429.0     429.0    10,500    10,500  PL 73-184.
Leech Lake Dam & Res.........  MN Cass.........  Leech R........  N               300.2   1,295.7   1,293.2   139,000   107,200  RHA of 1882 1895.
Little Kaukauna L&D..........  WI Brown........  Fox R..........  N                 3.6     601.0     592.8       447      42.0  RHA of 1882 1885.
Little Chute L&D.............  WI Outagamie....  Fox R..........  N                 0.4     694.2     688.9        74        67  RHA of 1882 1885.
Lockport Lock................  IL Will.........  Chicago San      FNP               2.7     579.0     577.5     1,850     1,800  RHA 1930.
                                                  Ship Canal.
Lower Appleton L&D...........  WI Outagamie....  Fox R..........  N                 0.2     710.9     706.3        43        40  RHA of 1882 1895.
Marseilles Lk & Dam..........  IL LaSalle......  Illinois R.....  N                 0.7     483.0     482.8     1,400     1,320  PL 71-126.
Marsh Lake Dam & Res.........  MN Swift,         Minnesota R....  FC               23.9     941.1     937.6     8,650     5,150  FCA Jun 36.
                                Lacqui, Parle.
Menasha Dam Lk Winnebago.....  WI Winnebago....  Fox R..........  FN              452.0     746.8     743.5   181,120   168,500  .......................
Mount Morris Dam.............  NY Livingston...  Genesee R......  F               337.4     760.0     585.0     3,300         0  PL 74-738.
O'Brien L&D..................  IL Cook.........  Calumet........  N                 0.3     581.9     578.2        50        50  RHA of 1946.
Peoria L&D...................  IL Peoria.......  Illinois R.....  N                 0.0     440.0     440.0    27,800    27,800  PL 73-184.
Pine Dam & Res...............  MN Crow Wing....  Pine R.........  N                40.4   1,230.3   1,227.3    13,900    13,000  RHA of 1899.
Pokegama Dam & Res...........  MN Itasca.......  Mississippi R..  N                52.4   1,274.4   1,270.3    13,700    12,000  RHA of 1899.
Rapid Croche L&D.............  WI Outagamie....  Fox R..........  N                 3.4     608.5     602.1       568         0  RHA 1885.
Red Lake Dam & Res...........  MN Clearwater...  Red Lake R.....  FA            1,810.0   1,174.0   1,173.5   288,800   287,300  FCA Dec 44.
Red Rock Dam & Res...........  IA Marion.......  Des Monies R...  F             1,670.0     780.0     728.0    65,400     8,000  PL 75-761.
                                                                  R                72.0     728.0     690.0     8,000         0  PL 75-761.
Reservation Control Res......  MN Traverse.....  ...............  FC               58.8     981.0     976.0    12,400    10,950  FCA 1936.
                               SD Roberts......
Sandy Lake Dam & Res.........  MN Aitkin.......  Sandy R........  N                37.5   1,218.3   1,214.3    10,600     8,200  RHA of 1899.
Saylorville Dam & Res........  IA Polk.........  Des Moines R...  F               586.0     890.0     836.0    16,700     5,950  FCA 1936.
                                                                  P                90.0     836.0     810.0     5,950         0  FCA.
St Anthony Falls Lwr L&D.....  MN Hennepin.....  Mississippi R..  N                 0.0     750.0     750.0        50        50  RHA of 1937 1945.
St Anthony Falls Upr L&D.....  MN Hennepin.....  Mississippi R..  N                17.4     801.0     799.0     8,800     8,600  RHA of 1937 1945.
Starved Rock L&D.............  IL LaSalle......  Illinois R.....  N                 1.0     459.0     458.0     1,155     1,020  PL 69-100.
Upper Appleton L&D...........  WI Outagamie....  Fox R..........  N                 7.4     738.7     735.4     1,171     1,040  RHA of 1882 1885.
Upper Kaukauna L&D...........  WI Outagamie....  Fox R..........  N                 1.1     656.8     652.8       134       115  RHA of 1882 1885.
White Rock Dam & Res.........  MN Traverse.....  Bois De Souix..  FC               78.6     981.0     972.0    10,500     4,000  FCA 1936.
                               SD Roberts......
Winnibigoshish Dam & Res.....  MN Cass Itasca..  Mississippi R..  N                98.7   1,300.9   1,296.9    98,700    62,000  RHA of 1899.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  New England Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Ball Mountain Lk.............  VT Windham......  West R.........  F                52.4   1,017.0     830.5       810        20  PL 78-534, 83-780.
Barre Falls Dam..............  MA Worcester....  Ware R.........  F                24.0     807.0     761.0     1,400         0  PL 78-228.
Birch Hill Dam...............  MA Worcester....  Millers R......  F                49.9     852.0     815.0     3,200         0  PL 75-761.
Black Rock Lk................  CT Litchfield...  Branch Brook...  F                 8.5     520.0     437.0       190        21  PL 86-45.
Blackwater Dam...............  NH Merrimack....  Blackwater R...  F                46.0     566.0     515.0     3,280         0  PL 75-111.
Buffumville Lk...............  MA Worcester....  Little R.......  F                11.3     524.0     492.5       530       200  PL 77-228.

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Colebrook River Lk...........  CT Litchfield...  West Branch....  F                50.2     761.0     708.0     1,185       750  PL 86-645.
                               MA Bekshire.....  Farmington R...
Conant Brook Dam.............  MA Hampden......  Conant Brook...  F                 3.7     757.0     694.0       158         0  PL 86-645.
East Brimfield Lk............  MA Hampden,       Quinebaug R....  F                29.9     653.0     632.0     2,300       360  PL 77-228.
                                Worcester.
Edward MacDowell Lk..........  NH HIllsboro....  Nubanusit Brook  F                12.8     946.0     911.0       840       165  PL 75-111.
Everett Lk...................  NH Hillsboro,     Piscataquog R..  F                91.5     418.0     340.0     2,900       130  PL 75-761.
                                Merrimack.
Franklin Falls Dam...........  NH Belknap,       Pemigewasset R.  F               150.6     389.0     307.0     2,800       440  PL 75-111.
                                Merrimack.
Hancock Brook Lk.............  CT Litchfield...  Hancock Brook..  F                 3.9     484.0     460.0       266        40  PL 86-645.
Hodges Village Dam...........  MA Worcester....  French R.......  F                13.3     501.0     465.5       740         0  PL 77-228.
Hop Brook Lk.................  CT New Haven....  Hop Brook......  F                 6.9     364.0     310.0       270        21  PL 86-645.
Hopkinton Lk.................  NH Merrimack....  Contoocook R...  F                70.1     416.0     380.0     3,700       220  PL 75-761.
Knightville Dam..............  MA Hampshire....  Westfield R....  F                49.0     610.0     480.0       960         0  PL 75-761.
Littleville Lk...............  MA Hampden,       Middle Br,       F                23.0     576.0     518.0       510       275  PL 85-500.
                                Hampshire.        Westfield R.
Mansfield Hollow Lk..........  CT Tolland......  Natchaug R.....  F                49.2     257.0     205.5     1,880       200  PL 77-228.
New Bedford-Fairhaven Hurr     MA Bristol......  ...............  F                 0.0       0.0       0.0         0         0  PL 85-500.
 Barrier.
North Hartland Lk............  VT Windsor......  Ottauquechee R.  F                68.8     546.5     425.0     1,100       215  PL 75-761.
North Springfield Lk.........  VT Windsor......  Black R........  F                50.0     545.5     467.0     1,200       100  PL 75-761.
Northfield Br Lk.............  CT Litchfield...  Northfield Br..  F                 2.4     576.0     500.0        67         7  PL 86-645.
Otter Br Lk..................  NH Cheshire.....  Otter Brook....  F                17.6     781.0     701.0       374        70  PL 83-780.
Stamford Hurr Barrier........  CT Fairfield....  ...............  F                 0.0       0.0       0.0         0         0  PL 86-645.
Surry Mountain Lk............  NH Cheshire.....  Ashuelot R.....  F                31.7     550.0     500.0       970       260  PL 75-761.
Thomaston Dam................  CT Litchfield...  Naugatuck R....  F                42.0     494.0     380.0       960         0  PL 78-534.
Townshend Lk.................  VT Windham......  West R.........  F                32.9     553.0     478.0       735        95  PL 78-534, PL 83-780.
Tully Lk.....................  MA Worcester....  East Br Tully R  F                20.5     668.0     636.0     1,130        78  PL 75-761.
Union Village Dam............  VT Orange.......  Ompompanoosuc R  F                38.0     564.0     420.0       740         0  PL 74-738.
West Hill Dam................  MA Worcester....  West R.........  F                12.4     264.0     234.0     1,025         0  PL 78-534.
West Thomspon................  CT Windham......  Quinebaug R....  F                25.6     342.5     305.0     1,250       200  PL 86-645.
Westville Lake...............  MA Worcester....  Quinebaug R....  F                11.0     572.0     525.0       913        23  PL 77-228.
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                                                                 North Pacific Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Albeni Falls Dam, Lk Pend,     ID Bonner.......  Pend Oreille R.  FNP           1,155.0   2,062.5   2,049.7    95,000    86,000  PL 81-516.
 Oreille.
Applegate Lk.................  OR Jackson......  Applegate R....  FIR              75.2   1,987.0   1,854.0       988       221  FCA 1962, PL 87-874, PL
                                                                                                                                  87-874.
Big Cliff Dam................  OR Marion, Linn.  N Santiam R....  P                 3.5   1,206.0   1,182.0       130        98  HD 544, PL 75-761, PL
                                                                                                                                  87-874.
Blue River Lk................  OR Lane.........  Blue R.........  F                 6.5   1,357.0   1,350.0       975       940  HD 531.
                                                                  FNI              78.8   1,350.0   1,180.0       940       133  PL 81-516.
Bonneville L&D Lk............  WA Skamania.....  Columbia R.....  NP              138.0      77.0      70.0    20,800    19,850  RHA 1935.
Chena River Lakes............  AK North Star     Chena R........  F                34.0     506.7     490.0     5,400       400  PL 90-483.
                                Burough.
Chief Joseph Dam Rufus Woods   WA Douglas,       Columbia R.....  P               192.3     956.0     930.0     8,400     6,800  HD 693, PL 79-525.
 Lk.                            Okanogan.
Cottage Grove Lk.............  OR Lane.........  Coast Fk,        F                29.8     791.0     750.0     1,155       295  HD 544, PL 75-761.
                                                  Willamete R.

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Cougar Lk....................  OR Lane.........  South Fk.......  F                11.3   1,699.0   1,690.0     1,280     1,235  HD 531.
                                                                  FNPI            143.9   1,690.0   1,532.0     1,235       635  PL 81-516.
                                                                  P                 9.9   1,532.0   1,516.0       635       602  PL 83-870.
Detroit Lk...................  OR Marion.......  North Santiam..  F                19.1   1,569.0   1,563.0     3,490     3,455  HD 544, PL 75-761.
                                                                  FNPI            281.6   1,563.5   1,450.0     3,455     1,725  .......................
                                                                  P                40.3   1,450.0   1,425.0     1,725     1,415  .......................
Dexter Dam...................  OR Lane.........  Middle Fk,       FNPI              4.8     695.0     690.0       990       940  HD 544, PL 75-761.
                                                  Willamette R.
Dorena Lk....................  OR Lane.........  Cow R..........  F                 5.5     835.0     832.0     1,885     1,815  HD 544.
                                                                  FNI              65.0     832.0     770.5     1,815       520  PL 75-761.
Dworshak Dam and Res.........  ID Clearwater...  North Fk,        FNP           2,016.0   1,600.0   1,445.0    17,090     9,050  HD 403, PL 87-874.
                                                  Clearwater R.
Fall Cr Dam and Lk...........  OR Lane.........  Fall Cr........  F                 7.5     834.0     830.0     1,865     1,760  HD 531.
                                                                  FNI             107.5     830.0     728.0     1,760       460  PL 81-516
Fern Ridge Lk................  OR Lane.........  Long Tom R.....  F                15.7     375.1     373.5    10,305     9,340  HD 544.
                                                                  FNI              93.9     373.5     353.0     9,340     1,515  PL 75-761
Foster Lake..................  OR Linn.........  South Santiam R  F                 4.9     641.0     637.0     1,260     1,195  HD 544
                                                                  FNPI             24.9     637.0     613.0     1,195       895  PL 86-645
Green Peter Lk...............  OR Linn.........  Middle Fk,       F                18.3   1,015.0   1,010.0     3,705     3,605  HD 531.
                                                  Santiam R.
                                                                  FNPI            249.9   1,010.0     992.0     3,605     2,072  PL 81-516, PL 83-780.
Hills Creek Lk...............  OR Lane.........  Middle Fk,       F                 5.6   1,543.0   1,541.0     2,850     2,710  HD 531.
                                                  Willamette R.
                                                                  FNPI            194.6   1,541.0   1,448.0     2,710     1,575  PL 81-516.
Howard Hanson Dam............  WA King.........  Green R........  F                80.0   1,206.0   1,141.0     1,750       763  HD 531.
                                                                  FA               25.6   1,141.0   1,040.0       763        13  PL 81-516.
Ice Harbor Dam Lk Sacajawea..  WA Walla, Walla,  Snake R........  NP               24.9     440.0     437.0     8,370     8,210  HD 704, PL 79-14.
                                Franklin.
John Day Dam Lk Umatilla.....  OR Sherman......  Columbia R.....  F               158.0     268.0     265.0    55,000    52,000  HD 531.
                                                                  FNP             150.0     265.0     262.0    52,000    49,000  PL 81-516.
                                                                  F               192.0     262.0     257.0    49,000    42,000  .......................
Libby Dam Lk Koocanusa.......  MT Lincoln......  Kootenai R.....  FP            4,979.5   2,459.0   2,287.0    46,365    14,391  HD 531, PL 81-516.
Little Goose L&D Lk Bryan....  WA Columbia,      Snake R........  PN               49.0     638.0     633.0    10,030     9,620  HD 704, PL 79-14.
                                Whitman.
Lookout Point Lk.............  OR Lane.........  Middle Fk,       P                12.2     825.0     819.0     2,090     1,860  HD 544.
                                                  Willamette R.
                                                                  FNPI            324.2     926.0     825.0     4,255     2,090  PL 75-761.
Lost Creek Lk................  OR Jackson......  Rogue R........  FPIR            315.0   1,872.0   1,751.0     3,430     1,800  HD 566, PL 87-874.
Lower Granite L&D............  WA Garfield,      Snake R........  NPI              43.6     738.0     733.0     8,900     8,540  HD 704, PL 79-14.
                                Whitman.
Lucky Peak Dam and Lk........  ID Ada..........  Boise R........  F                13.9   3,060.0   3,055.0     2,817     2,745  PL 79-526.
                                                                  FI              264.4   3,055.0   2,905.0     2,817       802  .......................
Lwr Monumental L&D Lk HG West  WA Walla, Walla,  Snake R........  NP               20.0     540.0     537.0     6,700     6,550  HD 704, PL 79-14.
                                Franklin.
McNary L&D, Dam Lk Wallula...  WA Benton.......  Columbia R.....  NP              185.0     340.0     335.0    38,800    36,000  HD 704, PL 79-14.
                               OR Umatilla.....  ...............  ...........  ........  ........  ........  ........  ........  .......................
Mill Creek Dam Lk............  WA Walla, Walla.  Mill Cr........  F                 7.5   1,265.0   1,205.0       225        53  HD 578, PL 75-761.
Mud Mountain Dam.............  WA King, Pierce.  White R........  F               106.3   1,215.0     895.0       963         0  PL 74-738.
The Dalles L&D Lk Celilo.....  WA Klickitat....  Columbia R.....  NP               52.5     160.0     155.0    11,200    10,350  HD 531, PL 81-516.
                               OR Wasco........  ...............  ...........  ........  ........  ........  ........  ........  .......................
Willow Creek Lk..............  OR Morrow.......  Willow Cr......  F                11.6   2,113.5   2,047.0       269        96  PL 89-298.
Wynoochee Dam and Lk.........  WA Grays, Harbor  Wynoochee R....  FMCA             65.4     800.0     700.0     1,170       193  HD 601, PL 93-251.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                   Ohio River Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Allegheny L&D 2..............  PA Allegheny....  Allegheny R....  N                 0.0     721.0     710.0         0         0  RHA 1935.
Allegheny L&D 3..............  PA Allegheny....  Allegheny R....  N                 0.0     734.5     721.0         0         0  RHA 1935.

[[Page 246]]

 
Allegheny L&D 4..............  PA Allegheny      Allegheny R....  N                 0.0     745.0     734.5         0         0  RHA 1912.
                                Westmoreland.
Allegheny L&D 5..............  PA Armstrong....  Allegheny R....  N                 0.0     756.8     745.0         0         0  RHA 1912
Allegheny L&D 6..............  PA Armstrong....  Allegheny R....  N                 0.0     769.0     756.8         0         0  RHA 1912.
Allegheny L&D 7..............  PA Armstrong....  Allegheny R....  N                 0.0     782.1     769.0         0         0  RHA 1912.
Allegheny L&D 8..............  PA Armstrong....  Allegheny R....  N                 0.0     800.0     782.1         0         0  RHA 1912, 1935.
Allegheny L&D 9..............  PA Armstrong....  Allegheny R....  N                 0.0     822.0     800.0         0         0  RHA 1935.
Allegheny Res Kinzua Dam.....  PA Warren.......  Allegheny R....  F               607.0   1,365.0   1,328.0    21,180    12,080  PL 74-738.
                                                                  FPCAR           549.0   1,328.0   1,240.0    12,080     1,900  .......................
Alum Cr Lk...................  OH Delaware.....  Alum Cr........  F                53.1     901.0     888.0     4,852     3,387  PL 87-874.
                                                                  FMCR             79.2     888.0     885.0     3,387     3,105  .......................
Atwood Lk....................  OH Tuscarawas...  Indian Fk Cr...  F                26.1     941.0     928.0     2,460     1,540  PW 1933.
                                                                  FCR               7.6     928.0     922.5     1,540     1,250  .......................
Barkley Dam Lk Barkley.......  Ky Lyon, Livgst.  Cumberland R...  F             1,213.0     375.0     359.0    93,430    57,920  PL 79-525.
                                                                  FP              259.0     359.0     354.0    57,920    45,210  .......................
                                                                  N               610.0     354.0     233.0    45,210         0  .......................
Barren River Lk..............  KY Allen, Barren  Barren R.......  F               558.8     590.0     552.0    20,150    10,000  PL 75-261.
                                                                  FMR             190.3     552.0     525.0    10,000     4,340  .......................
Beach City Lk................  OH Tuscarawas...  Sugar Cr.......  F                69.9     976.5     948.0     6,150       420  PW 1933.
                                                                  FCR               0.0       0.0       0.0         0       420  .......................
Beech Fk Lk..................  WV Wayne........  Beech Fk Cr....  F                28.3     614.5     592.0     1,847       725  PL 87-874.
                                                                  FCR               5.0     592.0     583.5       725       460  .......................
Belleville L&D...............  WV Wood.........  Ohio R.........  N                 0.0     582.0     560.0         0         0  RHA 1909.
                               OH Meigs........  ...............  ...........  ........  ........  ........  ........  ........  .......................
Berlin Lk....................  OH Mahoning,      Mahoning R.....  F                38.3   1,032.0   1,024.7     5,500     3,590  PL 75-761.
                                Portage.
                                                                  FMCAR            56.6   1,024.7   1,016.5     3,590     2,200  .......................
Bluestone Lk.................  WV Summers......  New R..........  F               592.6   1,520.0   1,410.0     9,180     2,040  PL 74-738.
                                                                  FCR               7.5   1,410.0   1,406.0     2,040     1,800  PL 75-761.
Bolivar Dam..................  OH Stark,         Sandy Cr.......  F               149.6     962.0     895.0     6,500         0  PW 1933.
                                Tuscarawas.
Brookville Lk................  IN Franklin.....  E Fork of        FMR             128.4     748.0     713.0     5,260     2,430  PL 75-761.
                                                  Whitewater R.
Buckhorn Lk..................  KY Leslie.......  Middle Fk of     F               135.8     840.0     782.0     3,610     1,230  PL 75-761.
                                                  Kentucky R.
                                                                  FR               21.8     782.0     757.0     1,230       550  .......................
Burnsville Lk................  WV Braxton......  L Kanawha R....  F                51.5     825.0     789.0     1,902       965  PL 75-761.
                                                                  FCAR             10.2     789.0     776.0       965       553  .......................
CJ Brown Dam & Res...........  OH Clark........  Buck Cr........  F                26.8   1,023.0   1,012.0     2,720     2,120  PL 87-874.
CM Harden Lk.................  IN Parke........  Raccoon Cr.....  F                83.5     690.0     661.0     3,910     2,060  PL 75-761
                                                                  FAR              33.1     661.0     640.0     2,060     1,100  .......................
Caesar Cr Lk.................  OH Warren.......  Caesar Cr......  F               140.2     883.0     849.0     6,110     2,830  PL 75-761.
                                                                  FMAR             88.7     849.0     800.0     2,830       700  .......................
Cagles Mill Lk...............  IN Putman.......  Mill Cr........  F               201.0     704.0     636.0     4,840     1,400  PL 75-761.
Cannelton L&D................  KY Hancock......  Ohio R.........  N                 0.0     383.0     358.0         0         0  RHA 1909
                               IN Perry........  ...............  ...........  ........  ........  ........  ........  ........  .......................
Carr Fk Lk...................  KY Knott........  Carr Cr........  F                25.1   1,055.0    1027.0     1,120       710  PL 87-874.
                                                                  FAR              10.8   1,027.0    1009.0       710       530  .......................

[[Page 247]]

 
Cave Run Lk..................  KY Rowan........  Licking R......  F               391.5     765.0     730.0    14,870     8,270  PL 74-738
                                                                  FAR              75.3     730.0     720.0     8,270     6,790  .......................
Center Hill Lk...............  TN Dekalb.......  Caney FK.......  F               762.0     685.0     648.0    23,060    18,220  PL 75-761.
                                                                  P               492.0     648.0     618.0    18,220    14,590  .......................
Charles Mill Lk..............  OH Ashland......  Black Fk.......  F                80.6   1,020.0     997.0     6,050     1,350  PW 1933.
                                                                  FCR               4.5     997.0     993.0     1,350       827  .......................
Cheatham L&D.................  TN Cheatham.....  Cumberland R...  P                19.8     385.0     382.0     7,450     5,630  RHA 1946, PL 396.
                                                                  N                84.2     382.0     345.0     5,630         0  PL 396.
Clendening Lk................  OH Harrison.....  Brush Fk.......  F                27.5     910.5     898.0     2,620     1,800  PW 1933.
                                                                  FCR               8.0     898.0     893.0     1,800     1,430  .......................
Conemaugh River Lk...........  PA Indiana,       Conemaugh R....  F               270.0     975.0     880.0     6,820       300  PL 74-738, PL 75-761.
                                Westmoreland.
Cordell Hull Dam & Res.......  TN Smith........  Cumberland R...  PR               17.8     504.5     499.0    12,200     9,820  RHA 1946.
                                                                  NR                0.0     499.0     424.0     9,820         0  .......................
Crooked Cr Lk................  PA Armstrong....  Crooked Cr.....  F                89.4     920.0     840.0     1,940       350  PL 74-738, PL 75-761.
Dale Hollow Lk...............  TN Clay.........  Obey R.........  F               353.0     663.0     651.0    30,990    27,700  PL 75-761.
                                                                  P               496.0     651.0     631.0    27,700    21,880  .......................
Dashields L&D................  PA Allegheny....  Ohio R.........  N                 0.0     692.0     682.0         0         0  RHA 1909.
Deer Cr Lk...................  OH Pickaway.....  Deer Cr........  F                81.5     844.0     810.0     4,046     1,277  PL 75-761.
                                                                  FCR              14.6     810.0     796.0     1,277       727  .......................
Delaware Lk..................  OH Delaware.....  Olentangy R....  F               118.0     947.0     915.0     8,550     1,270  PL 75-761
                                                                  FCAR              5.6     915.0     910.0     1,270       950  .......................
Dewey Lk.....................  KY Floyd........  Johns Cr.......  F                76.1     686.0     650.0     3,340     1,100  PL 75-761
                                                                  FCR               4.9     650.0     645.0     1,100       880  .......................
Dillon Lk....................  OH Muskingum....  Licking R......  F               256.5     790.0     737.0    10,280     1,560  PL 75-761.
                                                                  FCR               4.4     737.0     734.0     1,560     1,330  .......................
Dover Dam....................  OH Tuscarawas...  Tuscarawas R...  F               203.0     916.0     858.0    10,100         0  PW 1933.
E Br Clarion River Lake......  PA Elk..........  E Br Clarion R.  F                19.0   1,685.0   1,670.0     1,370     1,160  PL 78-526.
                                                                  FCAR             19.8   1,670.0   1,651.0     1,160       920  .......................
E Fk Res Wm H Harsha Lk......  OH Clermont.....  E Fk Little      F               202.2     795.0     733.0     4,600     2,160  PL 75-761.
                                                  Miami R.
                                                                  FMCAR            73.6     733.0     683.0     2,160       820  .......................
East Lynn Lk.................  WV Wayne........  E Fk Twelvepole  F                65.3     701.0     662.0     2,351     1,005  PL 75-761.
                                                                  FCR               5.5     662.0     656.0     1,005       823  .......................
Emsworth L&D.................  PA Allegheny....  Ohio R.........  N                 0.0     710.0     692.0         0         0  RHA 1909.
Fishtrap Lk..................  KY Pike.........  Levisa Fk......  F               126.7     825.0     757.0     2,681     1,131  PL 75-761.
                                                                  FCAR             27.2     757.0     725.0     1,131       569  .......................
Gallipolis L&D...............  WV Mason........  Ohio R.........  N                 0.0     538.0     515.0         0         0  RHA 1935.
                               OH Gallia.......  ...............  ...........  ........  ........  ........  ........  ........  .......................
Grayson Lk...................  KY Carter.......  L Sandy R......  F                89.6     681.0     645.0     3,633     1,509  PL 86-645.
                                                                  FCAR             10.7     645.0     637.0     1,509     1,159  .......................
Green R L&D 1................  KY Henderson....  Green R........  N                 0.0     349.1     337.3         0         0  RHA 1888.
Green R L&D 2................  KY McLean.......  Green R........  N                 0.0     363.4     349.1         0         0  RHA 1888.
Green River Lk...............  KY Taylor.......  Green R........  F               479.1     713.0     675.0    19,100     8,210  PL 75-761.
                                                                  FAR              81.5     675.0     664.0     8,210     6,650  .......................
Greenup L&D 3................  KY Greenup......  Ohio R.........  N                 0.0     515.0     485.0         0         0  RHA 1909.
                               OH Scioto.......  ...............  ...........  ........  ........  ........  ........  ........
Hannibal L&D.................  WV Wetzel.......  Ohio R.........  N                 0.0     623.0     602.0         0         0  RHA 1909.
                               OH Monroe.......  ...............  ...........  ........  ........  ........  ........  ........  .......................
Hildebrand L&D...............  WV Monongalia...  Monongahela....  N                 0.0     835.0     814.0         0         0  RHA 1950.
Huntington Lk................  IN Hunt.........  Wabash R.......  F               140.6     798.0     749.0     7,900       900  PL 85-500.

[[Page 248]]

 
                                                                  FR                8.4     749.0     737.0       900       500
J Percy Priest Dam & Res.....  TN Davidson.....  Stones R.......  F               252.0     504.5     490.5    22,720    14,400  PL 75-761.
                                                                  FP               15.0     490.5     489.5    14,400    14,000  .......................
                                                                  FPR               0.0     489.5     483.0    14,000    11,630  .......................
                                                                  PR                0.0     483.0     480.0    11,630    10,570  .......................
JW Flannagan Dam & Res.......  VA Dickenson....  Pound R........  F                78.6   1,446.0   1,396.0     2,098     1,143  PL 75-761.
                                                                  FMCR             16.5   1,396.0   1,380.0     1,143       310  .......................
Kentucky R L&D 1.............  KY Carroll......  Kentucky R.....  N                 0.0     430.0     421.8         0         0  RHA 1879.
Kentucky R L&D 2.............  KY Henry Owen...  Kentucky R.....  N                 0.0     444.0     430.0         0         0  RHA 1879.
Kentucky R L&D 3.............  KY Henry Owen...  Kentucky R.....  N                 0.0     457.1     444.0         0         0  RHA 1879.
Kentucky R L&D 4.............  KY Franklin.....  Kentucky R.....  N                 0.0     470.4     457.1         0         0  RHA 1879.
Laurel River Lk..............  KY Laurel,        Laurel R.......  P               185.0   1,018.5     982.0     6,060     4,200  PL 86-645.
                                Whitley.
                                                                  R               250.6     982.0     760.0     4,200         0  .......................
Leesvillie Lake..............  OH Carroll......  McGuire Cr.....  F                17.9     977.5     963.0     1,470     1,000  PW 1933.
                                                                  FCR               5.5     963.0     957.0     1,000       829  .......................
London L&D...................  WV Kanawha......  Kanawha R......  N                 0.0     614.0     590.0         0         0  RHA 1930.
Loyalhanna Lk................  PA Westmoreland.  Loyalhanna Cr..  F                93.3     975.0     910.0     3,280       210  PL 74-738.
                                                                  FC                0.0       0.0       0.0         0         0  PL 75-761.
M J Kirwan Dam & Res.........  OH Portage......  W. Br Mahoning   F                22.0     993.0     985.5     3,240     2,650  PL-74-738
                                                  R.
                                                                  FCAR             52.9     985.5     951.0     2,650       570  PL 75-761.
Mahoning Cr Lk...............  PA Armstrong....  Mahoning Cr....  F                64.7   1,162.0   1,098.0     2,370       280  PL 74-738.
                                                                  FRC               5.1   1,098.0   1,075.0       280       170  PL 75-761.
Markland L&D.................  IN Switzerland..  Ohio R.........  N                 0.0     455.0     420.0         0         0  RHA 1909
                               KY Gallatin.....                   ...........  ........  ........  ........  ........  ........  .......................
Marmet L&D...................  WV Kanawha R....  Kanawha........  N                 0.0     590.0     566.0         0         0  RHA 1930.
Martins Fk Lk................  KY Harlan.......  Martins Fk of    F                14.3   1,341.0   1,310.0       578       340  PL 89-298.
                                                  Clover R.
                                                                  FAR               3.1   1,310.0   1,300.0       340       274  .......................
                                                                  R                 3.7   1,300.0   1,265.0       274         0  .......................
Maxwell L&D..................  PA Fayette        Monongahela R..  N                 0.0     763.0     743.5         0         0  RHA 1909.
                                Washington.
McAlpine L&D.................  KY Jefferson....  Ohio R.........  N                 0.0     420.0     383.0         0         0  RHA 1909.
                               IN Clark........                   ...........  ........  ........  ........  ........  ........  .......................
Meldahl L&D..................  KY Bracken......  Ohio R.........  N                 0.0     485.0     455.0         0         0  RHA 1909.
                               OH Clermont.....                   ...........  ........  ........  ........  ........  ........  .......................
Mississinewa Lk..............  IN Miami........  MIssissinewa R.  F               293.2     779.0     737.0    12,830     3,180  PL 85-500.
                                                                  FR               51.9     737.0     712.0     3,180     1,280  .
Mohawk Dam...................  OH Coshocton....  Walhonding R...  F               285.0     890.0     799.2     7,950         0  PW 1933.
Mohicanville Dam.............  OH Ashland......  Lk Fork........  F               102.0     963.0     932.0     8,800         0  PW 1933.
Monongahela R L&D 2..........  PA Allegheny....  Monongahela R..  N                 0.0     718.7     710.0         0         0  RHA 1902.
Monongahela R L&D 3..........  PA Allegheny....  Monongahela R..  N                 0.0     726.9     718.7         0         0  RHA 1905.
Monongahela R L&R 4..........  PA Washington     Monongahela R..  N                 0.0     743.5     726.9         0         0  RHA 1909.
                                Westmoreland.
Monongahela R L&D 7..........  PA Greene,        Monongahela R..  N                 0.0     778.0     763.0         0         0  RHA 1922.
                                Fayette.
Monongahela R L&D 8..........  PA Greene,        Monongahela R..  N                 0.0     797.0     778.0         0         0  RHA 1922, 1950, 1973.
                                Fayette.
Monroe Lk....................  IN Monroe.......  Salt Cr........  F               258.8     556.0     538.0    18,450    10,750  FCA 1958.

[[Page 249]]

 
                                                                  FMA             159.9     538.0     515.0    10,750     3,280  .
Montgomery Island L&D........  PA Beaver.......  Ohio R.........  N                 0.0     682.0     664.5         0         0  RHA 1909.
Morgantown L&D...............  WV Monongalia     N..............  0.0             814.0     797.0         0         0       RHA
                                Monongahela R.                                                                            1909.
Mosquito Cr Lk...............  OH Trumbull.....  Mosquito Cr....  F                21.7     904.0     901.4     8,900     7,850  PL 75-761.
                                                                  FMCAR            80.4     901.4     899.9     7,850     7,220  .......................
N Br Kokosing River Lk.......  OH Knox.........  North Br of      F                13.9   1,146.0   1,121.0     1,140       154  PL 87-874.
                                                  Kokosing R.
N Fk Pound Lk................  VA Wise.........  N Fk Pound R...  F                 8.0   1,644.0   1,611.0       349       154  PL 86-645.
                                                                  FMCR              1.3   1,611.0   1,601.0       154       106  .
New Cumberland L&D...........  WV Hancock......  Ohio R.........  N                 0.0     664.5     644.0         0         0  RHA 1909.
                               OH Jefferson....                   ...........  ........  ........  ........  ........  ........  .......................
Newburgh L&D.................  KY Henderson....  Ohio R.........  N                 0.0     358.0     342.0         0         0  RHA 1909.
                               IN Warrick......                   ...........  ........  ........  ........  ........  ........  .......................
Nolin Lk.....................  KY Edmonson.....  Nolin R........  F               439.2     560.0     515.0    14,530     5,790  PL 75-761.
                                                                  FR              106.4     515.0     490.0     5,790     2,890  .......................
Ohio R L&D 52................  KY McCracken....  Ohio R.........  N                 0.0     302.0     290.0         0         0  RHA 1909, 1910, 1918.
                               IL Massac.......                   ...........  ........  ........  ........  ........  ........  .......................
Ohio R L&D 53................  KY Ballard......  Ohio R.........  N                 0.0     290.0     276.6         0         0  RHA 1909, 1910, 1918.
                               IL Pulaski......                   ...........  ........  ........  ........  ........  ........  .......................
Old Hickory L&D..............  TN Davidson       Cumberland R...  P                63.0     445.0     442.0    22,500    19,550  RHA 1946.
                                Sumner.
                                                                  N               357.0     442.0     375.0    19,550         0  .......................
Opekiska L&D.................  WV Monongahela..  Monongahela R..  N                 0.0     857.0     835.0         0         0  RHA 1950.
Paint Cr Lk..................  OH Ross,          Paint Cr.......  F               124.7     845.0     798.0     4,761     1,190  PL 75-761.
                                Highland.
                                                                  FMCAR            11.4     798.0     787.5     1,190       770  .......................
Paintsville Lk...............  KY Johnson......  Paint Cr.......  F                32.8     731.0     709.0     1,867     1,139  PL 89-298.
                                                                  FCAR             36.3     709.0     650.0     1,139       261  .......................
Patoka Lk....................  IN DuBois.......  Patoka R.......  F               121.1     548.0     536.0    11,300     8,880  PL 89-298.
                                                                  FMCAR           167.3     536.0     506.0     8,880     2,010  .......................
Piedmont Lk..................  OH Harrison.....  Stillwater Cr..  F                32.2     924.6     913.0     3,170     2,310  PW 1933.
                                                                  FCR               8.6     913.0     909.0     2,310     1,987  .......................
Pike Island L&D..............  WV Ohio.........  Ohio R.........  N                 0.0     644.0     623.0         0         0  RHA 1909.
                               OH Belmont......                   ...........  ........  ........  ........  ........  ........  .......................
Pleasant Hill Lk.............  OH Ashland......  Clear Fk.......  F                74.2   1,065.0   1,020.0     2,600       850  PW 1933.
                                                                  FCR               5.5   1,020.0   1,012.5       850       627  .......................
R D Bailey Lk................  WV Mingo,         Guyandot R.....  F               169.5   1,155.0   1,035.0     2,850       630  PL 87-874.
                                Wyoming.
                                                                  FCAR             12.2   1,035.0   1,012.0       630       440  .......................
Racine L&D...................  WV Mason........  Ohio R.........  N                 0.0     560.0     538.0         0         0  RHA 1909.
                               OH Meigs........                   ...........  ........  ........  ........  ........  ........  .......................
Rough River Lk...............  Grayson,          Rough R........  F               214.4     524.0     495.0    10,260     5,100  PL 75-761.
                                Breckinridge.
                               Ridge...........                   FMR              90.2     495.0     470.0     5,100     2,180  .......................
Salamonie Lk.................  IN Wabash.......  Salamonie R....  F               202.9     793.0     755.0     9,340     2,860  PL 85-500.
                                                                  FR               47.6     755.0     730.0     2,860       976  .......................
Senecaville Lk...............  OH Guernsey.....  Seneca Fk......  F                45.1     842.5     832.2     5,170     3,550  PW 1933.
                                                                  FCR              12.8     832.2     828.2     3,550     2,912  .......................
Shenango River Lk............  PA Mercer.......  Shenango R.....  F               151.0     919.0     896.0    11,090     3,560  PL 75-761.
                                                                  FCAR             29.9     896.0     885.0     3,560     1,910  .......................
Smithland L&D................  KY Livingston...  Ohio R.........  N                 0.0     324.0     302.0         0         0  RHA 1909.
                               IL Pope.........                   ...........  ........  ........  ........  ........  ........  .......................
Summersville Lk..............  WV Nicholas.....  Gauley R.......  F               221.9   1,710.0  1,1652.0     4,913     2,790  PL 75-761.
                                                                  FRCA            161.8   1,652.0   1,535.0     2,790       514  .......................

[[Page 250]]

 
Sutton Lk....................  WV Braxton......  Elk R..........  FCAR             60.0     925.0     850.0     1,520       270  PL 75-761.
Tappan Lk....................  OH Harrison.....  L Stillwater Cr  F                26.5     909.0     899.3     3,100     2,350  PW 1933.
                                                                  FCR              11.4     899.3     894.0     2,350     1,960  .......................
Tionesta Lk..................  PA Forest.......  Tionesta Cr....  F               125.6   1,170.0   1,085.0     2,770       480  PL 74-738. PL 75-761.
Tom Jenkins Dam, Burr Oak, Lk  OH Athens.......  E Br Sandy Cr..  F                17.6     740.0     721.0     1,192       664  FCA 1944.
                                                                  FRM               5.8     721.0     710.0       664       394  PL 78-534.
Tygart Lake..................  WV Taylor.......  Tygart R.......  F               178.1   1,167.0   1,094.0     3,430     1,740  PWA 1934.
                                                                  FMACR            99.9   1,094.0   1,010.0     1,740       620  .......................
Union City Res...............  PA Erie.........  French Cr......  F                47.6   1,278.0   1,210.0     2,290         0  PL 87-874.
Uniontown L&D................  KY Union........  Ohio R.........  N                 0.0     342.0     324.0         0         0  RHA 1909.
                               IN Posey........                   ...........  ........  ........  ........  ........  ........  .......................
W FK of Mill Cr Winton Woods   OH Hamilton.....  W Fk Mill Cr...  F                 9.8     702.0     675.0       557       183  PL 79-526.
 Lk.
Willow Island L&D............  WV Pleasants....  Ohio R.........  N                 0.0     602.0     582.0         0         0  RHA 1909.
                               OH Washington...                   ...........  ........  ........  ........  ........  ........  .......................
Wills Cr Lk..................  OH Coshockton                      F               190.0     779.0     742.0    11,450       900  PW 1933.
                                Wills Cr,
                                Muskingum.
                                                                  CR                0.0       0.0       0.0         0         0  .......................
Winfield L&D.................  WV Putnam.......  Kanawha R......  N                 0.0     566.0     538.0         0         0  RHA 1935.
Wolf Cr Dam, Lk Cumberland...  KY Russell......  Cumberland R...  P             2,142.0     723.0     673.0    50,250    35,820  .......................
                                                                  F             2,094.0     760.0     723.0    63,530    50,250  PL 75-761.
Woodcock Cr Lk...............  PA Crawford.....  Woodcock Cr....  F                15.0   1,209.0   1,181.0       775       325  FCA 1962.
                                                                  FCAR              5.0   1,181.0   1,162.5       325       100  .......................
Youghiogheny R Lk............  PA Fayette......  Youghiogheny R.  F                99.5   1,470.0   1,439.0     3,570     2,840  FCA 1938.
                                                                  FCAR            149.3   1,439.0   1,419.0     2,840     2,300  .......................
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 South Atlantic Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
 Aberdeen L&D and Res........  MS Monroe.......  Tombigbee R....  N                 3.9     190.5     189.5     4,359     3,883  PL 79-525.
Aliceville Lock Dam & Res....  AL Pickens......  Tombigbee R....  N                 7.6     136.5     135.5     8,655     7,945  PL 79-525.
Allatoona Dam & Res..........  GA Bartow.......  Etowah R.......  F               302.6     860.0     840.0    19,201    11,862  PL 77-228.
                                                                  PMAR            284.6     840.0     800.0    11,862     3,251  .......................
B Everett Jordan Dam & Lk....  NC Chatham......  Haw R..........  F               538.4     240.0     216.0    31,811    13,942  PL 88-253.
                                                                  FMCAR           140.4     216.0     202.0    13,942     6,658  .......................
Bay Springs Lock Dam & Res...  MS Tishomingo...  Tombigbee R....  N                37.0     414.0     408.0     6,700     5,740  PL 79-525.
Buford Dam Lk, Sidney Lanier.  GA Forsyth,       Chattahoochee R  F               598.8   1,085.0   1,071.0    47,182    38,542  PL 79-14.
                                Gwinnett.                         PNMR          1,087.6   1,071.0   1,035.0    38,542    22,442
Carters Dam & Res............  GA Murray.......  Coosawattee R..  F                89.2   1,099.0   1,074.0     3,880     3,275  PL 79-14.
                                                                  PRA              41.4   1,074.0   1,022.0     3,275     2,196  .......................
Claiborne Lock Dam & Res.....  AL Monroe.......  Alabama R......  N                16.6      35.0      32.0     5,930     5,210  PL 79-14.
Clarks Hill Dam & Lk.........  GA Columbia.....  Savannah R.....  F               390.0     335.0     330.0    78,500    71,100  PL 78-534.
                               SC McCormick....  ...............  FP            1,045.0     330.0     312.0    71,100    45,000  .......................
Coffeeville Lock Dam & Res...  AL Clark,         Tombigbee R....  N                19.9      32.5      30.0     8,500     7,500  PL 60-317.
                                Choctaw.
Columbus Lock Dam & Res......  MS Lowndes......  Tombigbee R....  N                 8.5     163.5     162.5     9,400     8,500  PL 79-525.

[[Page 251]]

 
Demopolis Lock Dam & Res.....  AL Sumter,        Tombigbee R....  N                 0.0      73.0      73.0    10,000    10,000  PL 60-317.
                                Marengo.
Falls Dam & Lk...............  NC Wake.........  Neuse R........  F               220.9     264.0     250.1    20,810    11,310  PL 89-298.
                                                                  FMCAR            89.7     250.1     236.5    11,310     2,600  .......................
G W Andrews L&D and Res......  AL Houston......  Chattahoochee R  N                 8.2     102.0      96.0     1,540     1,190  PL 79-14.
                               GA Early........  ...............  ...........  ........  ........  ........  ........  ........  .......................
Gainesville L&D and Res......  AL Sumter,        Tombigbee R....  N                 5.8     109.5     108.5     6,920     5,900  PL 79-525.
                                Greene.
Hartwell Dam & Lk............  GA Hart.........  Savannah R.....  F               293.0     665.0     660.0    61,400    55,950  PL 81-516.
                               SC Anderson.....  ...............  FP            1,416.0     660.0     625.0    55,950    27,650  .......................
Holt Lock Dam & Res..........  AL Tuscaloosa...  Black-Warrior R  NP                3.3     187.0     186.0     3,296     3,252  PL 60-317.
Inglis Dam Lk Rousseau.......  FL Levy, Marion,  Cross FL Barge   N                13.0      27.5      24.0     4,030     2,040  PL 77-675.
                                Citrus.           Canal.
Jim Woodruf L&D..............  FL Gadsden,       Apalachicola R.  NP               20.0      77.5      76.5    38,850    36,000  PL 79-14.
                                Jackson.
John H Kerr Dam & Res........  VA Mecklenburg..  Roanoke R......  F             1,281.4     320.0     300.0    83,200    48,900  PL 78-534.
                                                                  FP            1,027.0     300.0     268.0    48,900    19,700  .......................
John Hollis Bankhead L&D and   AL Tuscaloosa...  Black-Warrior R  NP               27.1     255.0     252.0     9,245     8,730  PL 60-168.
 Res.
Lk Okeechobee................  FL Okeechobee,    Central and      FNIMC         2,859.0      17.5      10.5   454,900   326,000  PL 71-520, PL 75-392,
                                Glades, Hendry,   Southern FL.                                                                    PL 79-14, PL 80-858,
                                Palm Beach,                                                                                       PL 83-780, PL 90.
                                Martin.
Lock A.......................  MS Monroe.......  Tombigbee R....  N                 0.9     220.5     219.5       980       850  PL 79-525.
Lock B.......................  MS Monroe.......  Tombigbee R....  N                 2.7     245.5     244.5     2,841     2,615  PL 79-525.
Lock C.......................  MS Itawamba.....  Tombigbee R....  N                 1.6     270.5     269.5     1,699     1,586  PL 79-525.
Lock D.......................  MS Itawamba.....  Tombigbee R....  N                 2.0     300.5     299.5     2,021     1,959  PL 79-525.
Lock E.......................  MS Itawamba,      Tombigbee R....  N                 0.9     330.5     329.5       889       821  PL 79-525.
                                Prentiss.
Millers Ferry L&D............  AL Wilcox.......  Alabama R......  NP               16.7      80.0      79.0    17,201    16,160  PL 79-14.
Okatibbee Dam & Res..........  MS Lauderdale...  Okatibbee Cr...  F                46.5     352.0     343.0     6,580     3,800  PL 87-874.
                                                 Chickasawbay R.  RMA              34.3     343.0     328.0     3,800     1,275  .......................
Philpott Dam & Lk............  VA Henry........  Smith R........  F                34.2     985.0     974.0     3,370     2,880  PL 78-534.
                                                                  FP              111.2     974.0     920.0     2,880     1,350  .......................
R B Russell Dam and Lk.......  GA Elbert.......  Savannah R.....  F               140.0     480.0     475.0    29,340    26,653  PL 89-789.
                               SC Abbeville....  ...............  FP              126.8     475.0     470.0    26,653    24,117  .......................
Robert F Henry Lock Dam & Res  AL Autauga,       Alabama R......  NP               44.6     125.0     124.0    13,300    10,470  PL 79-14.
                                Lowndes.
Rodman Dam & Lk Ocklawaha....  FL Putman &       Cross FL Barge   N                48.0      23.2      20.0    17,350    12,950  PL 77-675.
                                Marion.           Canal.
S-10 & Water Cons Area 1.....  FL Palm Beach...  Central and      F               181.9      18.3      17.0   141,250   141,250  PL 80-858.
                                                  Southern FL.
                                                                  FIMC            273.2      17.0      14.0   141,250     26,00  .......................
S-11 & Water Cons Area 2A....  FL Palm Beach     Central and      F               236.3      16.6      14.5   110,500   110,500  PL 80-858.
                                Broward.          Southern FL.
                                                                  FIMC            165.0      14.5      13.0   110,500   107,500  PL 83-780.
S-12 & Water Cons Area 3A....  FL Broward &      Central and      F             1,661.0      14.5      10.5   487,200   385,000  PL 80-858.
                                Dade.             Southern FL.
                                                                  FIMC            465.0      10.5       9.5   385,000   316,000  PL 83-780.
Selden Lock and Res..........  AL Hale, Greene.  Black-Warrior R  N                 9.1      95.5      94.0     8,200     6,900  PL 60-317.
W Kerr Scott Dam & Res.......  NC Wilkes.......  Yadkin R.......  F               112.0   1,075.0   1,030.0     4,000     1,475  PL 79-526.
                                                                  FM               33.0   1,030.0   1,000.0     1,475       675  .......................
Walter F George L&D..........  GA Clay.........  Chattahoochee R  NP              244.0     190.0     184.0    45,181    36,375  PL 81-516.
                               AL Henry........  ...............  ...........  ........  ........  ........  ........  ........  .......................
West Point Dam & Res.........  GA Troup........  Chattahoochee R  NPMAR           306.1     635.0     620.0    25,864    15,512  PL 87-874.
William Bacon Oliver L&D and   AL Tuscaloosa...  Black Warrior R  N                   0     122.9     122.9       790       790  PL 60-317.
 Res.
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
                                                                  South Pacific Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
 
 Alamo Dam & Lk..............  AZ Mohave, Yuma.  Bill Williams R  F             1,046.2   1,235.0   1,174.0    13,307     7,045  PL 78-534.
Bear Dam.....................  CA Mariposa.....  Bear Cr........  F                 7.7     413.5     344.0       265         0  PL 78-534.
Black Butte Lk...............  CA Tehama.......  Stony Cr.......  FI              137.1     473.5     414.6     4,453       577  PL 78-534.

[[Page 252]]

 
Brea Dam & Res...............  CA Orange.......  Brea Cr........  F                 4.0     279.0     208.0       163         0  FCA 1936.
Buchanan Dam H.V. Eastman Lk.  CA Madera.......  Chowchilla R...  F                45.0     587.0     559.0     1,785     1,482  PL 78-874.
                                                                  FI              140.0     587.0     466.0     1,785       484  .......................
Burns Dam....................  CA Merced.......  Burns Cr.......  F                 6.8     300.0     266.0       662         0  PL 78-534.
Carbon Canyon Dam & Res......  CA Orange.......  Carbon Cr......  F                 6.6     475.0     403.0       225         0  PL 74-738.
Coyote Valley Dam Lk           CA Mendocino....  East Fork,       F                50.1     764.8     737.5     1,922     1,740  PL 75-761.
 Mendocino.                                       Russian R.
                                                                  IM               72.3     737.5     637.0     1,740        20  .......................
Dry Cr (Warm Springs) Lk &     CA Sonoma.......  Dry Cr.........  F               136.0     495.0     451.1     3,600     2,600  PL 87-874.
 Channel.
                                                                  MR              225.0     451.1     291.0     2,600       500  .......................
Farmington Dam...............  CA San Joaquin,   Littlejohn Cr..  F                52.0     156.5     120.0     4,107         0  PL 78-534.
                                Stanislaus.
Fullerton Dam & Res..........  CA Orange.......  Fullerton Cr...  F                 0.8     290.0     261.0        62         0  FCA 1936.
Hansen Dam Res...............  CA Los Angeles..  Tujunga Wash...  F                25.4   1,060.0     990.0       781         0  FCA 1936.
Hidden Dam Hensley Lk........  CA Madera.......  Fresno R.......  F                65.0     540.0     485.8     1,567       811  PL 87-874.
                                                                  FI               85.0     540.0     448.0     1,567       280  .......................
Isabella Lk..................  CA Kern.........  Kern R.........  FI              568.1   2,605.5   2,470.0    11,454        26  PL 785-34.
Lopez Dam Res................  CA Los Angeles..  Pocoima Wash...  F                 0.4   1,272.9   1,253.7        40         0  FCA 1936.
Mariposa Dam.................  CA Mariposa.....  Mariposa Cr....  F                15.0     439.5     370.0       512         0  PL 78-534.
Martis Cr Lk.................  CA Nevada.......  Martis Cr......  F                19.6   5,838.0   5,780.0       762        61  PL 87-874.
Mathews Canyon Dam & Res.....  NV Lincoln......  Mathews Canyon.  F                 6.3   5,461.0   5,420.0       300         0  PL 81-516.
Mojave River Dam & Res.......  CA San            Mojave R.......  F                89.7   3,134.0   2,988.0     1,978         0  PL 86-645.
                                Bernardino.
New Hogan Lk.................  CA Calaveras....  Calaveras R....  F               165.0     713.0     666.2     4,333     2,818  PL 78-534.
                                                                  FI              302.2     713.0     586.0     4,333       702  .......................
Owens Dam....................  CA Mariposa.....  Owens Cr.......  F                 3.6     407.5     347.0       174         0  PL 78-534.
Painted Roc Dam & Res........  AZ Maricopa.....  Gila R.........  F             2,491.5     661.0     524.0    53,200         0  PL 81-516.
Pine Canyon Dam & Res........  NV Lincoln......  Pine Canyon....  F                 7.8   5,675.0   5,604.0       254         0  PL 81-516.
Pine Flat Lk Kings R.........  CA Fresno.......  Kings R........  F             1,000.0     951.5     565.5     5,956         0  PL 78-534.
Prado Dam & Res..............  CA Riverside....  Santa Ana R....  F               196.2     543.0     460.0     6,630         0  FCA 1936.
San Antonio Dam & Res........  CA Los Angeles..  San Antonio Cr.  F                 7.7   2,238.0   2,125.0       145         0  FCA 1936.
Santa Fe Dam & Res...........  CA Los Angeles..  San Gabriel R..  F                32.1     496.0     421.0     1,084         0  FCA 1936, 1941.
Sepolveda Dam & Res..........  CA Los Angeles..  Los Angeles R..  F                17.4     710.0     668.0     1,335         0  FCA 1936.
Success Lk...................  CA Tulare.......  Tule R.........  FI               75.0     652.5     588.9     2,477       409  PL 78-534.
Terminus Dam Lk Kaweah.......  CA Tulare.......  Kaweah R.......  FI              136.1     694.0     570.0     1,913       276  PL 78-534.
Whitlow Ranch Dam & Res......  AZ Pinal........  Queen Cr.......  F                35.6   2,166.0   2,056.0       828         0  PL 79-526.
Whittler Marrows Dam & Res...  CA Los Angeles..  San Gabriel Rio  F                34.9     228.5     184.0     2,411         0  FCA 1936.
                                                  Hondo R.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                  Southwestern Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Abiquiu Dam..................  NM Rio Arriba...  Rio Chama......  F               572.2   6,283.5   6,220.0     7,469     4,120  PL 80-858.
                                                                  FM              191.3   6,220.0   6,060.0     4,120         0  .......................
Addicks Res..................  TX Harris.......  Buffalo Bayou..  F               200.8     112.0      71.1    16,423         0  HD250-83-2.
Aquilla Lk...................  TX Hill.........  Aquilla Cr.....  F               161.4     564.5     537.5     8,980     3,280  PL 90-483.
                                                                  MR               93.6     537.5     478.6     3,280        26  .......................

[[Page 253]]

 
Arcadia Lk...................  OK Oklahoma.....  Deep Fork R....  F                64.4   1,029.5   1,006.0     3,820     1,820  PL 91-611.
                                                                  FMCR             27.4   1,006.0     970.0     1,820        20  .......................
B A Steinhagen Lk............  TX Taylor,        Neches R.......  F                24.5      83.0      81.0    13,700    10,950  SD98-76-1.
                                Jasper.
Bardwell Lk..................  TX Ellis........  Waxahachie Cr..  F                79.6     439.0     421.0     6,040     3,570  PL 86-399.
                                                                  M                42.8     421.0     372.6     3,570         0  .......................
Barker Res...................  TX Harris Ft      Buffalo Bayou..  F               209.0     106.0      73.2    16,734         0  HD250-83-2, RHA 1938.
                                Bend.
Beaver Lk....................  AR Carrol,        White R........  F               299.6   1,130.0   1,120.0    31,700    28,220  PL 83-780.
                                Benton,
                                Washington.
                                                                  FPM             925.1   1,120.0   1,077.0    28,220    15,540  PL 85-500.
Belton Lk....................  TX Bell.........  Leon R.........  F               640.0     631.0     594.0    23,600    12,400  PL 79-526.
                                                                  MI              372.7     594.0     470.0    12,400        42  HD88-81-1.
Benbrook Lk..................  TX Tarrant,       Clear Fk         F               170.4     724.0     694.0     7,630     3,770  HD103-771.
                                Parker.           Trinity R.
                                                                  NM               72.5     694.0     656.0     3,770       730  .......................
Big Hill LK..................  KN Labette......  Big HIll Cr....  F                13.1     867.5     858.0     1,520     1,240  PL 87-874.
                                                                  FMR              27.2     858.0     814.0     1,240        70  HD572-87-2.
Birch Lk.....................  OK Osage........  Birch Cr.......  F                39.0     774.0     750.5     2,340     1,140  PL 87-874.
                                                                  FMCAR            15.8     750.5     730.0     1,140       384  HD563-87-2.
Blue Mountain Lk.............  AR Yell, Logan..  Petit Jean R...  F               233.3     419.0     384.0    11,000     2,910  PA 75-761.
Broken Bow Lk................  OK McCurtain....  Mountain Fk R..  F               450.2     627.5     599.5    18,000    14,200  PL 85-500.
                                                                  FRPMAC          469.8     599.5     559.5    14,200     9,200  .......................
Bull Shoals Lk...............  AR Baxter,        White R........  F             2,360.0     695.0     654.0    71,240    45,440  PL 77-228.
                                Marion, Boone.
                               MO Ozark, Taney.                   PF            1,003.0     654.0     628.5    45,440    33,800  .......................
Canton Lk....................  OK Blain........  N Canadian R...  F               265.8   1,638.0   1,615.4    15,710     7,910  PL 75-761.
                                                                  FMI              97.2   1,615.4   1,596.5     7,910     2,710  HD56-/75-3.
Canyon Lk....................  TX Comal........  Guadalupe R....  F               346.4     934.0     909.0    12,890     8,240  PL 79-14.
                                                                  M               366.4     909.0      75.0     8,240         0  .......................
Clearwater Lk................  MO Reynolds,      Black R........  F               391.8     567.0     494.0    10,400     1,630  PL 75-761.
                                Wayne.
Cochiti Lk...................  NM Sandoval,      Rio Grande.....  F               545.0   5,460.5   5,356.6     9,361     1,200  PL 86-645.
                                Sante Fe, Los
                                Alamos.
                                                                  FRC              43.0   5,356.6   5,330.0     1,200         0  .......................
Conchas Lk...................  NM San Miguel...  Candian R......  F               198.8   4,218.0   4,201.0    13,664     9,692  HD 308-74.
                                                                  FI              259.6   4,201.0   4,155.0     9,692     3,000  .......................
Copan Lk.....................  OK Washington...  L Caney R......  F               184.3     732.0     710.0    13,380     4,850  PL 87-874.
                               KS Chautauqua...  ...............  FMCA             42.8     710.0     687.5     4,850       110  HD563-87-2.
Council Grove Lk.............  KS Morris.......  Neosho R.......  F                63.8   1,289.0   1,274.0     5,400     3,230  PL 81-516.
                                                                  FMAR             48.5   1,274.0   1,240.0     3,230        42  .......................
DeQueen Lk...................  AR Sevier.......  Rolling Fork R.  F               101.3     473.5     437.0     4,050     1,680  PL 85-500.
                                                                  FMCRQ            25.5     437.0     415.0     1,680       710  .......................
Dierks Lk....................  AR Sevier,        Saline R.......  F                67.1     557.5     526.0     2,970     1,360  PL 85-500.
                                Howard.
                                                                  FMCR             15.1     526.0     512.0     1,360       810  .......................
Eldorado Lk..................  KS Butler.......  Walnut R.......  F                79.2   1,347.5   1,339.0    10,740     8,000  PL 89-298.
                                                                  FMAR            154.0   1,339.0   1,296.0     8,000       420  HD232-89-1.
Elk City Lk..................  KS Montgomery...  Elk R..........  F               239.5     825.0     796.0    13,150     4,450  HD440-76-1.
                                                                  FMA              44.8     796.0     764.0     4,450        64  .......................
Eufaula Lk...................  OK McIntosh,      Candian R......  F             1,510.9     597.0     585.0   147,960   105,480  PL 79-525.
                                Pittsburg,
                                Haskell.
                                                                  FNPM          1,463.0     585.0     565.0   105,480    46,120  .......................
Fall River Lk................  KS Greenwood....  Fall R.........  F               234.5     987.5     948.5    10,400     2,350  HD440-76-1.
                                                                  FA               15.0     948.5     940.0     2,350     1,170  .......................

[[Page 254]]

 
Fort Gibson Lk...............  OK Wagoner......  Neosho (Grand)   F               919.2     582.0     554.0    51,000    19,900  FEC 1941.
                                                  R.
                                                                  FP               53.9     554.0     551.0    19,100    16,950  RHA 1946.
Fort Supply Lk...............  OK Woodward.....  Wolf Cr........  F                86.8   2,028.0   2,004.0     5,690     1,820  PL 74-738.
                                                                  FM               13.9   2,004.0   1,988.0     1,820         0  .......................
Galisteo Dam.................  NM Santa Fe.....  Galisteo Cr....  F                79.4   5,608.0   5,496.0     2,060         0  PL 86-645.
Georgetown Lk................  TX Williamson...  N.F. San         F                87.6     834.0     791.0     3,220     1,310  PL 87-874.
                                                  Gabriel R.
                                                                  MC               29.2     791.0     699.0     1,310         0  HD 591-82-2.
Gillham Lk...................  AR Howard, Polk.  Cossatot R.....  F               188.7     569.0     502.0     4,680     1,370  PL 85-500.
                                                                  FMCQ             29.3     502.0     464.5     1,370       310  .......................
Granger Lk...................  TX Williamson...  San Gabriel R..  F               162.2     528.0     504.0    11,040     4,400  PL 87-874.
                                                                  M                37.9     504.0     440.0     4,400         0  .......................
Grapevine Lk.................  TX Denton,        Denton Cr......  F               243.1     560.0     535.0    12,710     7,280  HD103-77-1.
                                Tarrant.
                                                                  M               154.3     535.0     451.0     7,380        41  .......................
Great Salt Plains Lk.........  OK Alfalfa......  Salt Fk........  F               240.0   1,138.5   1,125.0    27,730     8,693  PL 74-738.
                                                 Arkansas R.....  FC               31.4   1,125.0   1,115.0     8,690         0  .......................
Greers Ferry Lk..............  AR Cleburne, Van  Little Red R...  F               934.0     487.0     461.0    40,480    31,460  PL 75-761.
                                Buren.
                                                                  FP              716.5     461.0     435.0    31,460    23,740  PL 83-780.
Heyburn Lk...................  OK Creek........  Polecat Cr.....  F                48.4     784.0     761.5     3,700       917  PL 79-526.
                                                                  FM                3.8     761.5      55.5       917       394  .......................
Hords Cr Lk..................  TX Coleman......  Hords Cr.......  F                16.7   1,920.0   1,900.0     1,260       510  PL 77-228.
                                                                  M                 5.8   1,900.0   1,848.0       510         0  .......................
Hugo Lk......................  OK Choctaw......  Kiamichi R.....  F               809.1     437.5     404.5    34,490    13,250  PL 79-526.
                                                                  FMCAR           127.2     404.5     390.0    13,250     4,500  .......................
Hulah Lk.....................  OK Osage........  Caney R........  F               257.9     765.0     733.0    13,000     3,570  PL 74-738.
                               KS Chautaugua...  ...............  FMA              31.1     733.0     710.0     3,570         0  PL 84-843.
Jemez Canyon Dam.............  NM Sandoval.....  Jemez R........  F                73.0   5,232.0   5,196.1     2,877     1,370  PL 80-858
                                                                                                                                 PL 81-516.
Joe Pool Lk..................  TX Dalla, Ellis,  Mountain Cr....  F             1,238.0     536.0     522.0    10,940     7,470  PL 89-298.
                                Tarrant.
                                                                  M               176.9     522.0     456.0     7,470        10  .......................
John Martin Res..............  CO Bent.........  Arkansas R.....  F               270.3   3,870.0   3,851.0    17,630    11,655  PL 74-738.
                                                                  FRC             350.9   3,851.0       0.0    11,655         0  .......................
John Redmond Dam & Res.......  KS Coffee.......  Neosho R.......  F               559.0   1,068.0   1,039.0    31,700     9,300  PL 81-516.
                                                                  FMAR             70.8   1,039.0   1,020.0     9,300       108  .......................
Kaw Lk.......................  OK Kay, Osage...  Arkansas R.....  F               919.4   1,044.5   1,010.0    38,020    17,040  PL 87-874.
                               KS Cowley.......  ...............  FMARC           343.5   1,010.0     978.0    17,040     5,590  .......................
Keystone Lk..................  OK Tulsa........  Arkansas R.....  F             1,180.0     754.0     723.0    54,300    23,600  PL 81-516.
                                                                  FNPMC           296.7     723.0     706.0    23,600    13,300  .......................
L&D 01, Norrell..............  AR Arkansas.....  Arkansas Post    N                 0.0     142.0     142.0       140       140  HD 758-79, RHA 1946.
                                                  Canal.
L&D 02, Wilbur D. Mills Dam..  AR Desha,         Arkansas R.....  N                18.7     162.3     160.5    10,700     9,400  HD 758-79, RHA 1946.
                                Arkansas.
L&D 03.......................  AR Jefferson,     Arkansas R.....  N                 8.3     182.3     180.0     3,750     3,180  HD 758-79, RHA 1946.
                                Lincoln.
L&D 04.......................  AR Jefferson....  Arkansas R.....  N                12.9     196.3     194.0     5,820     5,200  HD 758-79, RHA 1946.
L&D 05.......................  AR Jefferson....  Arkansas R.....  N                14.4     213.3     211.0     6,900     5,550  HD 758-79, RHA 1946.
L&D 06, David D. Terry.......  AR Pulaski......  Arkansas R.....  N                 9.6     231.3     229.0     4,830     4,130  HD 758-79.
L&D 07, Murray...............  AR Pulaski......  Arkansas R.....  N                24.7     249.7     247.0    10,350     8,100  RHA 1946.

[[Page 255]]

 
L&D 08, Toad Suck Ferry......  AR Faulkner,      Arkansas R.....  N                 8.7     265.3     263.0     4,130     3,600  RHA 1946.
                                Perry.
L&D 09, Arthur V. Ormond L&D,  AR Conway.......  Arkansas R.....  N                15.8     287.0     284.0     5,660     4,910  HD 758-79.
 W. Rockefeller Lk.
L&D 10, Lk Dardanelle........  AR Pope Yell....  Arkansas R.....  NP               72.3     338.2     336.0    34,700    31,140  HD 758-79, RHA 1946.
L&D 11, Ozark-Jetta Taylor...  AR Franklin.....  Arkansas.......  NPR              25.3     372.5     370.0    11,100     8,800  RHA 1946, HD 758-79.
L&D 13, James W. Trimble.....  AR Sebastian,     Arkansas R.....  N                18.1     392.0     389.0     6,820     5,200  RHA 1946.
                                Crawford.
L&D 14, W. D. Mayo...........  OK Sequoyah,      Arkansas R.....  N                 0.0     413.0       0.0     1,600         0  PL 79-525.
                                Leflore.
L&D 15, Robert S. Kerr Res...  OK Leflore,       Arkansas R.....  NP               84.7     460.0     458.0    43,800    40,760  PL 79-525.
                                Sequoyah.
L&D 16, Webbers Falls Res....  OK Muskogee.....  Arkansas R.....  NP               32.4     490.0     487.0    10,900     9,300  PL 79-525.
L&D 17, Chouteau.............  OK Wagoner......  Verdigris R....  N                 0.0     511.0     511.0     2,270     2,270  PL 79-525, HD 758-79-2.
L&D 18, Newt Graham..........  OK Wagoner......  Verdigris R....  N                 0.0     532.0     532.0     1,490     1,490  PL 97-525.
Lake O' The Pines............  TX Marion.......  Cypress Cr.....  F               579.5     249.5     228.5    38,200    18,700  PL 79-526.
                                                                  M               250.0     228.5     201.0    18,700     1,100  .......................
Lavon Lk.....................  TX Collin.......  East Fork,       F               275.6     503.5     492.0    29,450    21,400  HD 533-78-2.
                                                  Trinity R.      M               380.0     492.0     433.0    21,400      2,87
Lewisville Lk Garza-Little     TX Denton.......  Elm Fork         F               525.2     532.0     515.0    39,080    23,280  HD 403-77-1.
 Elm Dam.                                         Trinity R.
                                                                  M               436.0     515.0     433.0    23,280        12  .......................
Marion Lk....................  KS Marion.......  Cottonwood R...  F                60.2   1,358.5   1,350.5     9,050     6,200  PL 81-516.
                                                                  FMAR             83.3   1,350.5   1,320.0     6,200       170  .......................
Millwood Lk..................  AR Little R       Little R.......  F             1,650.0     287.0     259.2    95,200    29,200  PL 79-526.
                                Hempstead.
                                                                  FMC             153.3     259.2     252.0    29,200    13,100  HD 785-79.
Navarro Mills Lk.............  TX Navarro Hill.  Richland Cr....  F               143.2     443.0     424.5    11,700     5,070  HD 498-83-2.
                                                                  M                53.2     424.5     375.3     5,070         0  .......................
Nimrod Lk....................  AR Perry, Yell..  Fourche La Fave  F               307.0     373.0     342.0    18,300     3,550  FCA 1938.
                                                  R.
Norfork Lk...................  AR Baxter,        North Fork R...  F               731.8     580.0     552.0    30,700    21,990  PL 75-761.
                                Fulton.
                               MO Ozark........  ...............  FP              707.0     552.0     510.0    21.990    12,320  FCA 1941
North Fork Lk................  TX Williamson...  N.F. San         F                87.6     834.0     791.0     3,220     1,310  PL 87-874.
                                                  Gabriel R.
                                                                  MC               29.2     791.0     699.0     1,310         0  HD 591-82-2.
O. C. Fisher Lk..............  TX Tom Green....  N. Concho R....  F               277.2   1,938.5   1,908.0    12,700     5,440  PL 77-228.
                                                                  M                80.4   1,908.0   1,836.0     5,440         3  .......................
Oologah Lk...................  OK Rogers.......  Verdigris R....  F               965.6     661.0     638.0    56,800    29,460  PL 75-761.
                                                                  FMN             544.1     638.0     592.0    29,460     1,120
Optima Lk....................  OK Texas........  N. Candian R...  F               100.5   2,779.0   2,763.5     7,640     5,340  PL 74-738.
                                                                  FMRC            117.7   2,763.5   2,726.0     5,340     1,335  .......................
Pat Mayse Lk.................  TX Lamar........  Sanders Cr.....  F                64.6     460.5     451.0     7,680     5,993  PL 87-874.
                                                                  FMCR            119.9     451.0     415.0     5,993       996  HD 88-71.
Pine Cr......................  OK McCurtain....  Little R.......  F               388.1     480.0     443.5    17,230     4,980  PL 85-500.
                                                                  FMAC             77.6     443.5     414.0     4,980       700  HD 170-85-1.
Proctor Lk...................  TX Comanche.....  Leon R.........  F               310.1   1,197.0   1,162.0    14,010     4,610  PL 83-780, HD 535-81-2.
Sam Rayburn Res..............  TX Jasper, San    Angelina R.....  F             1,099.4     173.0     164.4   142,700   114,500  HD 981-76-1.
                                Augustine,
                                Angelina.
                                                                  PMC           1,446.2     164.4     149.0   114,500    74,040  .......................
Santa Rosa...................  NM Guadalupe....  Pecos R........  F               340.0   4,746.2   4,776.5    10,740     3,823  PL 83-780.
                                                                  FI              160.0   4,776.5   4,746.2     7,115     3,823  .......................
Sardis.......................  OK Pushmatah....  Jackfork Cr....  F               122.6     607.0     599.0    16,960    13,610  HD 602-79-2.
                                                                  FMR             274.2     599.0     542.0    13,610        40  .......................
Somerville Lk................  TX Washington,    Yegua Cr.......  F               337.7     258.0     238.0    24,400    11,460  PL 83-780.
                                Lee, Burleson.

[[Page 256]]

 
                                                                  M               143.9     238.0     200.0    11,460         0  .......................
Stiatook.....................  OK Osage........  Hominy Cr......  F               178.0     729.0     714.0    13,690    10,190  HD 563-87.
                                                                  FMARC           311.6     714.0     657.0    10,190     1,430  .......................
Stillhouse H. Lk.............  TX Bell.........  Lampasas R.....  F               390.6     666.0     622.0    11,830     6,430  PL 83-780.
                                                                  M               204.9     622.0     498.0     6,430         0  .......................
Table Rock Lk................  MO Taney, Stone,  White R........  F               760.0     931.0     915.0    52,250    43,070  PL 77-228.
                                Barry.
                               AR Carroll,                        FP           1,181.50     915.0     881.0    43,070    27,300  FCA 1938.
                                Boone.
Tenkiller Ferry Lk...........  OK Cherokee,      Illinois R.....  F               576.7     667.0     632.0    20,800    12,900  RHA 1946.
                                Sequoyah.
                                                                  FP              371.0     632.0     594.5    12,900     7,370  .......................
Texoma Lk, Denison Dam.......  TX Marshall.....  Red R..........  F             2,669.0     640.0     617.0   144,000    88,000  PL 75-761.
                               OK Bryan, Cook,   ...............  FPM           1,612.0     617.0     590.0    88,000    41,000  .......................
                                Grayson.
Toronto Lk...................  KS Woodson......  Verdigris R....  F               179.8     931.0     901.5    11,740     2,660  HD 440-76-1.
                                                                  FMA              10.7     901.5     896.7     2,660     1,720  .......................
Trinidad Lk..................  CO Las Animas...  Purgatorie R...  F                58.0   6,260.0   6,230.0     2,107     1,453  PL 85-500.
                                                                  FI               20.0   6,230.0       0.0     1,453         0
Two Rivers Dam...............  NM Chaves.......  Rio Hondo R....  F               150.0   4,032.0   3,945.0     4,806         0  PL 83-780.
Waco Lk......................  TX Mclennan.....  Bosque R.......  F                 3.3     500.0     455.0    19,440     7,270  PL 83-780.
                                                                  M               100.8     455.0     370.0     7,240         0  HD 535-81-2.
Waurika Lk...................  OK Jefferson....  Beaver Cr......  F               140.4     962.5     951.4    15,000    10,100  PL 88-253.
                                                                  FMCAR           199.7     951.4     910.0    10,100       830  .......................
Whitney Lk...................  TX Hill, Bosquel  Brazos R.......  F             1,372.0     571.0     533.0    49,820    23,560  PL 77-228.
                                                                  PM              381.9     533.0     425.0    23,560       475  HD 390-76-1.
Wister Lk....................  OK Leflore......  Pouteau R......  F               387.0     502.5     474.6    23,070     5,000  PL 75-761.
Wright Patman Lk.............  TX Bowie, Cass..  Sulphur R......  F             2,363.7     259.5     220.0   119,700    20,300  PL 79-526.
                                                                  FM              142.7     220.0     180.0    20,300         0  .......................
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Res--Reservoir; Lk--Lake; Div--Diversion: R--River; Cr--Creek; Fk--Fork; L&D--Lock & Dam; GIWW--Gulf Intercoastal Waterway; FG--Floodgate; CS--
  Control Structure: DS--Drainage Structure; PS--Pump Station.
\2\ F--Flood Control; N--Navigation; P--Hydropower; I--Irrigation; M--Municipal and/or Industrial Water/Supply; C--Fish and Wildlife Conservation; R--
  Recreation; A--Low Flow Augmentation or Pollution Abatement; Q--Quality or Silt Control.
\3\ PL--Public Law; HD--House Document; RHA--River & Harbor Act; PW--Public Works: FCA--Flood Control Act; WSA--Water Supply Act.


[47 FR 44544, Oct. 8, 1982, as amended at 52 FR 15804, Apr. 30, 1987; 52 
FR 23816, June 25, 1987; 57 FR 35757, Aug. 11, 1992. Redesignated at 60 
FR 19851, Apr. 21, 1995]

[[Page 257]]



Sec. 222.6  National Program for Inspection of Non-Federal Dams.

    (a) Purpose. This regulation states objectives, assigns 
responsibilities and prescribes procedures for implementation of a 
National Program for Inspection of Non-Federal Dams.
    (b) Applicability. This regulation is applicable to all Divisions 
and Districts having Civil Works functions.
    (c) References. (1) The National Dam Inspection Act, Pub. L. 92-367, 
8 August 1972.
    (2) Freedom of Information Act, Pub. L. 87-487, 4 July 1967.
    (3) ER 500-1-1.
    (d) Authority. The National Dam Inspection Act, Public Law 92-367, 8 
August 1972 authorizes the Secretary of the Army, acting through the 
Chief of Engineers, to carry out a national program of inspection of 
non-Federal dams for the purpose of protecting human life and property.
    (e) Scope. The program provides for:
    (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) Objectives. The objectives of the program are:
    (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) Program execution--(1) Responsibilities. (i) The owner has the 
basic legal responsibility for potential hazards created by their 
dam(s). Phase II studies, as described in Chapter 4, Appendix D, and 
remedial actions are the owner's responsibility.
    (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.

[[Page 258]]

    (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.

Division and District offices are responsible for executing the program 
at the State level. Assignment of Division reponsibilities for States is 
shown in Appendix A.
    (2) State participation. Where State capability exists, every effort 
should be made to encourage the State to execute the inspection program 
either with State personnel or with Architect-Engineer (A-E) contracts 
under State supervision. If the State does not have the capability to 
carry out the inspection program, the program will be managed by the 
Corps of Engineers utilizing Corps employees or contracts with A-E firm.
    (h) Update of National Inventory of Dams. (RCS-DAEN-CWE-17/OMB No. 
49-RO421)
    (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 Hazard Potential of the Recommended Guideline for Safety 
Inspection of Dams (Appendix D to this section).

                                    Table 2--Hazard Potential Classification
----------------------------------------------------------------------------------------------------------------
                Category                          Urban development                      Economic loss
----------------------------------------------------------------------------------------------------------------
Low....................................  No permanent structure for human     Minimal (Undeveloped to occasional
                                          habitation.                          structures or agriculture).
Significant............................  No urban development and no more     Appreciable (Notable agriculture,
                                          than a small number of habitable     industry or structures).
                                          structures.
High...................................  Urban development with more than a   Excessive (Extensive community,
                                          small number of habitable            industry or agriculture).
                                          structures.
----------------------------------------------------------------------------------------------------------------

    (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.

[[Page 259]]

    (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) Inspection Program. (RCS-DAEN-CWE-17 and OMB No. 49-RO421)
    (1) Scheduling of inspections. The Governor of each State or his 
designee will continue to be involved in the selection and scheduling of 
the dams to be inspected. Priority will be given to inspection of those 
dams considered to offer the greatest potential threat to public safety.
    (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) Procedures. The Division Engineer is responsible for the quality 
of inspections and reports prepared by the District Engineer. Close 
liaison between the District Engineer and the State agency or A-E firm 
responsible for the inspections will be required in order to obtain a 
dependable result. To avoid undesirable delays in the evaluation of 
safety of individual dams, contracts with A-E's or agreements with 
States which are managing the program will provide that reports be 
completed and furnished to the District Engineer within a specified time 
after completion of the on-site inspection of the dam.
    (i) Inspection guidelines. The inspection should be conducted in 
accordance with the Recommended Guidelines for Safety Inspection of Dams 
(Appendix D to this section). Expanded Guidance for Hydrologic and 
Hydraulic Assessment of Dams is provided in Appendix C. The criteria in 
the recommended guidelines are screening criteria to be used only

[[Page 260]]

for initial determinations of the adequacy of the dam. Conditions found 
during the investigation which do not meet the guideline recommendations 
should be assessed as to their importance from the standpoint of the 
degree of risk involved.
    (ii) Coordinators. Experience has shown that coordination and 
communications among technical disciplines, Public Affairs Office, 
emergency officials, training officers, operations personnel, State 
representatives and A-E firms has been best in those districts where one 
person was delegated the responsiblity for coordinating the actions of 
all involved elements. Each district should evaluate its overall 
coordination procedures to insure that all involved elements have the 
best possible access to necessary data.
    (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) Additional engineering studies. Dam inspections should be 
limited to Phase I investigations as outlined in Chapter 3 of Appendix 
D. However, if recommended by the investigating engineer and approved by 
the District Engineer, some additional inexpensive investigations may be 
performed when a reasonable judgment on the safety of the dam cannot be 
made without additional investigation. Any further Phase II 
investigation needed to prove or disprove the findings of the District 
Engineer or to devise remedial measures to correct deficiencies are the 
responsibility of the owner and will not be undertaken by the Corps of 
Engineers.
    (v) Assessment of the investigation. (A) The findings of the visual 
inspection and review of existing engineering data for a dam shall be 
assessed to determine its general condition. Dams assessed to be in 
generally good condition should be so described in the inspection 
report. Deficiencies found in a dam should be described and assessed as 
to the degree of risk they present. The degree of risk should consider 
only loss of life and/or property damage resulting from flooding due to 
dam failure. Loss of project benefits i.e., municipal water supply, 
etc., should not be considered. If deficiencies are assessed to be of 
such a nature that, if not corrected, they could result in the failure 
of the dam with subsequent loss of life and/or substantial property 
damage, the dam should be assessed as ``Unsafe.'' If the probable 
failure of an ``Unsafe'' dam is judged to be imminent and immediate 
action is required to reduce or eliminate the hazard, the ``unsafe'' 
condition of the dam should be considered an ``emergency.'' If the 
probable failure is judged not to be imminent, the ``unsafe'' condition 
should be considered a ``non-emergency.''
    (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 unsafe. If all of the following conditions 
prevail, the Governor of the State shall be informed that such project 
is unsafe:
    (1) There is high hazard to loss of life from large flows downstream 
of the dam.
    (2) Dam failure resulting from overtopping would significantly 
increase the hazard to loss of life downstream from the dam over that 
which would exist just before overtopping failure.

[[Page 261]]

    (3) The spillway is not capable of passing one-half of the probable 
maximum flood without overtopping the dam and causing failure.

Classification of dams with seriously inadequate spillways as ``unsafe, 
non-emergency'' is generally a proper designation of the urgency of the 
unsafe condition. However, there may be cases where the spillway 
capacity is unusually small and the consequences of dam overtopping and 
failure would be catastrophic. In such cases, the unsafe dam should be 
classified as an emergency situation.
    (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) Reports--(i) Preparation. A written report on the condition of 
each dam should be prepared as soon as possible after the completion of 
the field inspection and assessment. A suggested report format is 
attached as Appendix E. It is important that the inspection report be 
completed in a timely manner. For inspections being done by Corps 
employees, it is suggested that once an inspection team has been 
assigned to a dam inspection it be allowed to complete the inspection 
and report without interruption by other work.
    (ii) Review and approval. The coordinating engineer should determine 
which disciplines should review the report and establish a procedure to 
accomplish the review in a timely manner. A review panel, made up of the 
appropriate Division and Branch Chiefs has worked well in some 
districts. Use of a review panel should be seriously considered by all 
districts. All inspection reports shall be approved by the District 
Engineer who will maintain a complete file of final approved reports. 
Any State or Federal agency having jurisdiction over the dam or the land 
on which the dam is built should be given the opportunity to review and 
comment on the report prior to submission to the Governor or dam owner. 
The District Engineer will transmit final approved reports to the 
Governor of the State and the dam owner (or the Governor only, when 
requested in writing by State officials). If the report is initially 
furnished to the Governor only, a period of up to ten days may be 
allowed before the report is furnished to the dam owner. If the Governor 
or the owner indicates additional technical information is available 
that might affect the assessment of the dam's condition, the District 
Engineer will furnish the proposed final report to the Governor and the 
owner and establish a definite time period for comments to be furnished 
to the District Engineer prior to report approval.
    (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) Follow-up action. A Federal investment of the magnitude 
anticipated for this inspection program makes it desirable that a 
reporting system be established to keep the District Engineer abreast of 
the implementation of the recommendations in the inspection reports. The 
letters of transmittal to the Governor and owner will request that

[[Page 262]]

the District Engineer be informed of the actions taken on the 
recommendations in the inspection reports. However, the National Dam 
Inspection Act only authorizes the initial inspection of certain dams; 
therefore, once a report is completed no reinspection will be 
undertaken.
    (4) Unsafe dams. The investigating engineer will be required to 
immediately notify the District Engineer when a dam is assessed as being 
unsafe. He will also indicate if probable failure of the unsafe dam is 
judged to be imminent and immediate action is required to reduce or 
eliminate the threat. The District Engineer will evaluate the findings 
of the investigating team and will immediately notify the Governor and 
the owner if the findings are Unsafe Non-Emergency or Unsafe-Emergency. 
The appropriate State agency and the Corps of Engineers officials having 
emergency operation responsibility for the area in which the dam is 
located will also be notified. The information provided in the unsafe 
dam notice shall be as indicated in Appendix F. Any emergency procedures 
or remedial actions deemed necessary by the District Engineer will be 
recommended to the Governor who has the responsibility for any 
corrective actions. As provided in ER 500-1-1, Corps assistance under 
Pub. L. 84-99 ``Advance Measures,'' may be made available to complement 
the owner's and Governor's action under certain conditions and subject 
to the approval of the Director of Civil Works. The District Engineer's 
Emergency Operation Officer will coordinate the advance measures request 
in accordance with existing procedures. Coordination will be maintained 
between the District responsible for emergency action under Pub. L. 84-
90 and the District responsible for the inspection.
    (5) Emergency action plans. An emergency action plan should be 
available for every dam in the high and significant hazard category. 
Such plans should outline actions to be taken by the operator to 
minimize downstream effects of an emergency and should include an 
effective warning system. If an emergency action plan has not been 
developed, the inspection report should recommend that the owner develop 
such an action plan. However, the Corps has no authority to require an 
emergency action plan.
    (k) Progress reports. Progress reports should be submitted monthly 
by the Division Engineer to WRSC. The reports shall include progress 
through the last Saturday of the month and should be mailed by the 
following Monday. The reports shall contain the information and be 
typewritten in the format shown in Appendix G. Copies of Unsafe Dam Data 
Sheets will be submitted with the progress report. Copies of the 
completed inspection report for Dams in the Unsafe-Emergency category 
will be submitted also. (RCS-DAEN-CWE-19)
    (l) Contracts--(1) Corps of Engineers supervision. Contracts for 
performing inventory and inspection activities under supervision of the 
Corps of Engineers shall be Fixed-Price Architect Engineer Contracts for 
Services. A sample scope of work setting forth requirements is provided 
in Appendix H. Experience has shown that costs for individual dam 
inspection have been lower when multiple inspections are included in one 
contract. Therefore, each A-E contract should include multiple dam 
inspections where practicable. Corps participation in A-E inspections 
should be held to a minimum. Corps representatives should participate in 
only enough A-E inspections to assure the equality of the inspections.
    (2) State supervision. Contracts with States for performing 
inventory and inspection activities under State supervision may be 
either a Cost-Reimbursement type A-E Contract for Services or a Fixed-
Price type contract. The selection of Architect-Engineers by the State 
should require approval of the Corps of Engineers Contracting Officer. 
The negotiated price for A-E services under cost-reimbursement type 
contracts with States will also require approval by the Contracting 
Officer. Contracts with States should require timely submission of the 
inspection reports to the District Engineer for review and approval. The 
contract provisions should also prevent public release of or public 
comment on the inspection report until the District Engineer has 
reviewed and approved the report. Corps

[[Page 263]]

of Engineers participation in State inspections should be limited to 
occasional selected inspections to assure the quality of the State 
program.
    (m) Training. As indicated in paragraph (f) of this section, one 
objective of the inspection program for non-Federal Dams is to prepare 
the States to provide effective dam safety programs. In many States this 
will require training of personnel of State agencies in the technical 
aspects of dam inspections. The Office, Chief of Engineers is studying 
the need for and content of a comprehensive Corps-sponsored training 
program in dam inspection technology. Pending the possible adoption of 
such a comprehensive plan, division and district Engineers are 
encouraged to take advantage of suitable opportunities to provide needed 
training in dam safety activities to qualified employees of State 
agencies and, when appropriate, to employees of architect-engineer firms 
engaged in the program. The following general considerations should be 
observed in providing such training:
    (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.

             Appendix A to Sec. 222.6--Division Assignments

    To facilitate better coordination with the States, the Division 
Engineers are responsible for the dam inspection program by States as 
follows:

New England Division: Maine, Rhode Island, Connecticut, Vermont, New 
Hampshire, Massachusetts
North Atlantic Division: New York, New Jersey, Pennsylvania, Delaware, 
Maryland, Virginia, District of Columbia
Ohio River Division: West Virginia, Ohio, Kentucky, Tennessee, Indiana
South Atlantic Division: North Carolina, South Carolina, Georgia, 
Florida, Alabama, Puerto Rico, Virgin Islands
Lower Mississippi Valley Division: Mississippi, Louisiana, Missouri
North Central Division: Michigan, Wisconsin, Illinois, Minnesota, Iowa
Southwestern Division: Arkansas, Oklahoma, Texas, New Mexico
Missouri River Division: Kansas, Nebraska, South Dakota, North Dakota, 
Wyoming, Colorado
North Pacific Division: Oregon, Idaho, Montana, Washington, Alaska
South Pacific Division: Utah, California, Arizona, Nevada
Pacific Ocean Division: Hawaii, Trust Territories, American Samoa

              Appendix B to Sec. 222.6--Inventory of Dams

                 (RCS-DAEN-CWE-17 and OMB No. 49-RO421)

    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.

[[Page 264]]

    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:

GET,DAMS/UN=CECELB

CALL,DAMS

    b. For current information and changes to the National Inventory 
Data Base, type:

OLD,HOTDAM/UN=CEC1AT

LIST

    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.

------------------------------------------------------------------------
                                             Major            Minor
------------------------------------------------------------------------
a. International Boundary and Water     IBWC
 Commission.
b. U.S. Department of Agriculture:
  (1) Soil Conservation Service.......  USDA             SCS
  (2) Forest Service..................  USDA             FS
c. U.S. Department of Energy Federal    DOE              FERC
 Energy Regulatory Commission.
d. Tennessee Valley Authority.........  TVA
e. U.S. Department of Interior:
  (1) Bureau of Sport Fisheries and     DOI              BSFW
   Wildlife.
  (2) Geological Survey...............  DOI              GS
  (3) Bureau of Land Management.......  DOI              BLM
  (4) Bureau of Reclamation...........  DOI              USBR
  (5) Bureau of Indian Affairs........  DOI              BIA
f. U.S. Department of Labor: (1) Mine   DOL              MSHA
 Safety and Health Administration.
g. Corps of Engineers:
  (1) Lower Mississippi Valley
   Division:
    (a) Memphis District..............  DAEN             LMM
    (b) New Orleans District..........  DAEN             LMN
    (c) St. Louis District............  DAEN             LMS
    (d) Vicksburg District............  DAEN             LMK
  (2) Missouri River Division:
    (a) Kansas City District..........  DAEN             MRK
    (b) Omaha District................  DAEN             MRO
  (3) New England Division............  DAEN             NED
  (4) North Atlantic Division:........
    (a) Baltimore District............  DAEN             NAB
    (b) New York District.............  DAEN             NAN
    (c) Norfolk District..............  DAEN             NAO
    (d) Philadelphia District.........  DAEN             NAP
  (5) North Central Division:
    (a) Buffalo District..............  DAEN             NCB
    (b) Chicago District..............  DAEN             NCC
    (c) Detroit District..............  DAEN             NCE
    (d) Rock Island District..........  DAEN             NCR
    (e) St. Paul District.............  DAEN             NCS
  (6) North Pacific Division:
    (a) Alaska District...............  DAEN             NPA
    (b) Portland District.............  DAEN             NPP
    (c) Seattle District..............  DAEN             NPS
    (d) Walla Walla District..........  DAEN             NPW
  (7) Ohio River Division:
    (a) Huntington District...........  DAEN             ORH
    (b) Louisville District...........  DAEN             ORL
    (c) Nashville District............  DAEN             ORN
    (d) Pittsburgh District...........  DAEN             ORP
  (8) Pacific Ocean Division..........  DAEN             POD
  (9) South Atlantic Division:
    (a) Charleston District...........  DAEN             SAC
    (b) Jacksonville District.........  DAEN             SAJ
    (c) Mobile District...............  DAEN             SAM
    (d) Savannah District.............  DAEN             SAS
    (e) Wilmington District...........  DAEN             SAW
  (10) South Pacific Division:
    (a) Los Angeles District..........  DAEN             SPL
    (b) Sacramento District...........  DAEN             SPK
    (c) San Franciso District.........  DAEN             SPN
  (11) Southwestern Division:
    (a) Albuquerque District..........  DAEN             SWA
    (b) Fort Worth District...........  DAEN             SWF
    (c) Galveston District............  DAEN             SWG
    (d) Little Rock District..........  DAEN             SWL
    (e) Tulsa District................  DAEN             SWT
------------------------------------------------------------------------

    7. Procedures for Revising and Updating the Inventory of Dams Master 
File.
    a. To Change Correct or Add an Item. Submit a change card that 
contains the identification assigned to the dams (Columns 1 thru 7), the 
proper card code (Column 80) and only the item or items changed, 
corrected or added. Data on the master file is added or replaced on an 
item for item basis.
    b. To Delete an Item. Submit a change card that contains the 
identification assigned to the dam, (Columns 1 thru 7), the proper card 
code (Column 80), and an asterisk (*) in the left most column of the 
item or items to be deleted. More than one item can be changed, 
corrected, added on or deleted from the same card.
    c. To Delete the Entire Data for a Dam from the Master File. Submit 
a zero (0) card punched as follows:

Columns 1 thru 7--Item 1 identification assigned to the dam
Columns 8 thru 10--Item 2, Division Code
Columns 11 thru 16--The word DELETE
Columns 17 thru 79--Blank Spaces
Column 80--A zero

    8. Keypunch Instructions and Punched Card Formats.

[[Page 265]]

    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.
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 Appendix C to Sec. 222.6--Hydrologic and Hydraulic Assessment of Dams

    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

[[Page 277]]

been selected which indicate when spillway capacity is so seriously 
inadequate that a project must be classified as unsafe. All of the 
following conditions must prevail before designating a dam unsafe:
    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).

[[Page 278]]



 Table 1--Storms With Rainfall =150% of PMP, U.S. East of the 105th Meridian (for 10 mi\2\, 6 Hours;
                                200 mi\2\, 24 Hours and/or 1,000 mi\2\, 48 Hours)
----------------------------------------------------------------------------------------------------------------
                                       Corps assignment             Storm center
          Storm date            Index       No. (if     ------------------------------------ Latitude  Longitude
                                 No.      available)           Town              State
----------------------------------------------------------------------------------------------------------------
July 26, 1819................       1  ................  Catskill........  NY..............  42[deg]1  73[deg]53
                                                                                               2[min]      [min]
Aug. 5, 1843.................       2  ................  Concordville....  PA..............  39[deg]5  75[deg]32
                                                                                               3[min]      [min]
Sept. 10-13, 1878............       3  OR 9-19.........  Jefferson.......  OH..............  41[deg]4  80[deg]46
                                                                                               5[min]      [min]
Sept. 20-24, 1882............       4  NA 1-3..........  Paterson........  NJ..............  40[deg]5  74[deg]10
                                                                                               5[min]      [min]
June 13-17, 1886.............       5  LMV 4-27........  Alexandria......  LA..............  31[deg]1  92[deg]33
                                                                                               9[min]      [min]
June 27-July 11, 1899........       6  GM 3-4..........  Turnersville....  TX..............  30[deg]5  96[deg]32
                                                                                               2[min]      [min]
Aug. 24-28, 1903.............       7  MR 1-10.........  Woodburn........  IA..............  40[deg]5  93[deg]35
                                                                                               7[min]      [min]
Oct. 7-11, 1903..............       8  GL 4-9..........  Paterson........  NJ..............  40[deg]5  74[deg]10
                                                                                               5[min]      [min]
July 18-23, 1909.............       9  UMV 1-11B.......  Ironwood........  MI..............  46[deg]2  90[deg]11
                                                                                               7[min]      [min]
July 18-23, 1909.............      10  UMV 1-11A.......  Beaulieu........  MN..............  47[deg]2  95[deg]48
                                                                                               1[min]      [min]
July 22-23, 1911.............      11  ................  Swede Home......  NB..............  40[deg]2  96[deg]54
                                                                                               2[min]      [min]
July 19-24, 1912.............      12  GL 2-29.........  Merrill.........  WI..............  45[deg]1  89[deg]41
                                                                                               1[min]      [min]
July 13-17, 1916.............      13  SA 2-9..........  Altapass........  NC..............  35[deg]3  82[deg]01
                                                                                               3[min]      [min]
Sept. 8-10, 1921.............      14  GM 4-12.........  Taylor..........  TX..............  30[deg]3  97[deg]18
                                                                                               5[min]      [min]
Oct. 4-11, 1924..............      15  SA 4-20.........  New Smyrna......  FL..............  29[deg]0  80[deg]55
                                                                                               7[min]      [min]
Sept. 17-19, 1926............      16  MR 4-24.........  Boyden..........  IA..............  43[deg]1  96[deg]00
                                                                                               2[min]      [min]
Mar. 11-16, 1929.............      17  UMV 2-20........  Elba............  AL..............  31[deg]2  86[deg]04
                                                                                               5[min]      [min]
June 30-July 2, 1932.........      18  GM 5-1..........  State Fish        TX..............  30[deg]0  99[deg]07
                                                          Hatchery.                            1[min]      [min]
Sept. 16-17, 1932............      19  ................  Ripogenus Dam...  ME..............  45[deg]5  69[deg]09
                                                                                               3[min]      [min]
July 22-27, 193..............      20  LMV 2-26........  Logansport......  LA..............  31[deg]5  94[deg]00
                                                                                               8[min]      [min]
Apr. 3-4 1934................      21  SW 2-11.........  Cheyenne........  OK..............  35[deg]3  99[deg]40
                                                                                               7[min]      [min]
May 30-31, 1935..............      22  MR 3-28A........  Cherry Creek....  CO..............  39[deg]1  104[deg]3
                                                                                               3[min]     2[min]
May 31, 1935.................      23  GM 5-20.........  Woodward........  TX..............  29[deg]2  99[deg]28
                                                                                               0[min]      [min]
July 6-10, 1935..............      24  NA 1-27.........  Hector..........  NY..............  42[deg]3  76[deg]53
                                                                                               0[min]      [min]
Sept. 2-6, 1935..............      25  SA 1-26.........  Easton..........  MD..............  38[deg]4  76[deg]01
                                                                                               6[min]      [min]
Sept. 14-18, 1936............      26  GM 5-7..........  Broome..........  TX..............  31[deg]4  100[deg]5
                                                                                               7[min]     0[min]
June 19-20, 1939.............      27  ................  Snyder..........  TX..............  32[deg]4  100[deg]5
                                                                                               4[min]     5[min]
July 4-5, 1939...............      28  ................  Simpson.........  KY..............  38[deg]1  83[deg]22
                                                                                               3[min]      [min]
Aug. 19, 1939................      29  NA 2-3..........  Manahawkin......  NJ..............  39[deg]4  74[deg]16
                                                                                               2[min]      [min]
June 3-4, 1940...............      30  MR 4-5..........  Grant Township..  NB..............  42[deg]0  96[deg]53
                                                                                               1[min]      [min]
Aug. 6-9, 1940...............      31  LMV 4-24........  Miller Isl......  LA..............  29[deg]4  92[deg]10
                                                                                               5[min]      [min]
Aug. 10-17, 1940.............      32  SA 5-19A........  Keysville.......  VA..............  37[deg]0  78[deg]30
                                                                                               3[min]      [min]
Sept. 1, 1940................      33  NA 2-4..........  Ewan............  NJ..............  39[deg]4  75[deg]12
                                                                                               2[min]      [min]
Sept. 2-6, 1940..............      34  SW 2-18.........  Hallet..........  OK..............  36[deg]1  96[deg]36
                                                                                               5[min]      [min]
Aug. 28-31, 1941.............      35  UMV 1-22........  Haywood.........  WI..............  46[deg]0  91[deg]28
                                                                                               0[min]      [min]
Oct. 17-22, 1941.............      36  SA 5-6..........  Trenton.........  FL..............  29[deg]4  82[deg]57
                                                                                               8[min]      [min]
July 17-18, 1942.............      37  OR 9-23.........  Smethport.......  PA..............  41[deg]5  78[deg]25
                                                                                               0[min]      [min]
Oct. 11-17, 1942.............      38  SA 1-28A........  Big Meadows.....  VA..............  38[deg]3  78[deg]26
                                                                                               1[min]      [min]
May 6-12, 1943...............      39  SW 2-20.........  Warner..........  OK..............  35[deg]2  95[deg]18
                                                                                               9[min]      [min]
May 12-20, 1943..............      40  SW 2-21.........  Nr. Mounds......  OK..............  35[deg]5  96[deg]04
                                                                                               2[min]      [min]
July 27-29, 1943.............      41  GM 5-21.........  Devers..........  TX..............  30[deg]0  94[deg]35
                                                                                               2[min]      [min]
Aug. 4-5, 1943...............      42  OR 3-30.........  Nr. Glenville...  WV..............  38[deg]5  80[deg]50
                                                                                               6[min]      [min]
June 10-13, 1944.............      43  MR 6-15.........  Nr. Stanton.....  NB..............  41[deg]5  97[deg]03
                                                                                               2[min]      [min]
Aug. 12-15, 1946.............      44  MR 7-2A.........  Cole Camp.......  MO..............  38[deg]4  93[deg]13
                                                                                               0[min]      [min]
Aug. 12-16, 1946.............      45  MR 7-2B.........  Nr. Collinsville  IL..............  38[deg]4  89[deg]59
                                                                                               0[min]      [min]
Sept. 26-27, 1946............      46  GM 5-24.........  Nr. San Antonio.  TX..............  29[deg]2  98[deg]29
                                                                                               0[min]      [min]
June 23-24, 1948.............      47  ................  Nr. Del Rio.....  TX..............  29[deg]2  100[deg]3
                                                                                               2[min]     7[min]
Sept. 3-7, 1950..............      48  SA 5-8..........  Yankeetown......  FL..............  29[deg]0  82[deg]42
                                                                                               3[min]      [min]
June 23-28, 1954.............      49  SW 3-22.........  Vic Pierce......  TX..............  30[deg]2  101[deg]2
                                                                                               2[min]     3[min]
Aug. 17-20, 1955.............      50  NA 2-22A........  Westfield.......  MA..............  42[deg]0  72[deg]45
                                                                                               7[min]      [min]
May 15-16, 1957..............      51  ................  Hennessey.......  OK..............  36[deg]0  97[deg]56
                                                                                               2[min]      [min]
June 14-15, 1957.............      52  ................  Nr. E. St. Louis  IL..............  38[deg]3  90[deg]24
                                                                                               7[min]      [min]
June 23-24, 1963.............      53  ................  David City......  NB..............  41[deg]1  97[deg]05
                                                                                               4[min]      [min]
June 13-20, 1965.............      54  ................  Holly...........  CO..............  37[deg]4  102[deg]2
                                                                                               3[min]     3[min]
June 24, 1966................      55  ................  Glenullin.......  ND..............  47[deg]2  101[deg]1
                                                                                               1[min]     9[min]
Aug. 12-13, 1966.............      56  ................  Nr. Greely......  NB..............  41[deg]3  98[deg]32
                                                                                               3[min]      [min]
Sept. 19-24, 1967............      57  SW 3-24.........  Falfurrias......  TX..............  27[deg]1  98[deg]12
                                                                                               6[min]      [min]
July 16-17, 1968.............      58  ................  Waterloo........  IA..............  42[deg]3  92[deg]19
                                                                                               0[min]      [min]
July 4-5, 1969...............      59  ................  Nr. Wooster.....  OH..............  40[deg]5  82[deg]00
                                                                                               0[min]      [min]
Aug. 19-20, 1969.............      60  NA 2-3..........  Nr. Tyro........  VA..............  37[deg]4  79[deg]00
                                                                                               9[min]      [min]
June 9, 1972.................      61  ................  Rapid City......  SD..............  44[deg]1  103[deg]3
                                                                                               2[min]     1[min]
June 19-23, 1972.............      62  ................  Zerbe...........  PA..............  40[deg]3  76[deg]31
                                                                                               7[min]      [min]
July 21-22, 1972.............      63  ................  Nr. Cushing.....  MN..............  46[deg]1  94[deg]30
                                                                                               0[min]      [min]
Sept. 10-12, 1972............      64  ................  Harlan..........  IA..............  41[deg]4  95[deg]15
                                                                                               3[min]      [min]
Oct. 10-11, 1973.............      65  ................  Enid............  OK..............  36[deg]2  97[deg]52
                                                                                               5[min]      [min]
----------------------------------------------------------------------------------------------------------------


[[Page 279]]


 Table 2--Storms With Rainfall =50% of PMP, U.S. West of Continental Divide (for 10 mi \2\ 6 Hours or
                              1,000 mi\2\ for One Duration Between 6 and 72 Hours)
----------------------------------------------------------------------------------------------------------------
                                                        Storm center                                    Duration
                                   Index -----------------------------------------                         for
           Storm date               No.                                            Latitude  Longitude    1,000
                                                  Town                State                               mi\2\
----------------------------------------------------------------------------------------------------------------
Aug. 11, 1890...................       1  Palmetto...........  NV................  37[deg]2  117[deg]4  ........
                                                                                     7[min]     2[min]
Aug. 12, 1891...................       2  Campo..............  CA................  32[deg]3  116[deg]2  ........
                                                                                     6[min]     8[min]
Aug. 28, 1898...................       3  Ft. Mohave.........  AZ................  35[deg]0  114[deg]3  ........
                                                                                     3[min]     6[min]
Oct. 4-6, 1911..................       4  Gladstone..........  CO................  37[deg]5  107[deg]3  ........
                                                                                     3[min]     9[min]
Dec. 29, 1913-Jan. 3, 1914......       5  ...................  CA................  39[deg]5  121[deg]2  ........
                                                                                     5[min]     5[min]
Feb. 17-22, 1914................       6  Colby Ranch........  CA................  34[deg]1  118[deg]0  ........
                                                                                     8[min]     7[min]
Feb. 20-25, 1917................       7  ...................  CA................  37[deg]3  119[deg]3  ........
                                                                                     5[min]     6[min]
Sept. 13, 1918..................       8  Red Bluff..........  CA................  40[deg]1  122[deg]1  ........
                                                                                     0[min]     4[min]
Feb. 26-Mar 4, 1938.............       9  ...................  CA................  34[deg]1  117[deg]1  ........
                                                                                     4[min]     1[min]
Mar. 30-Apr. 2, 1931............      10  ...................  ID................  46[deg]3  114[deg]5        24
                                                                                     0[min]     0[min]
Feb. 26, 1932...................      11  Big Four...........  WA................  48[deg]0  121[deg]3  ........
                                                                                     5[min]     0[min]
Nov. 21, 1933...................      12  Tatoosh Is.........  WA................  48[deg]2  124[deg]4  ........
                                                                                     3[min]     4[min]
Jan. 20-25, 1935................      13  ...................  WA................  47[deg]3  123[deg]3         6
                                                                                     0[min]     0[min]
Jan. 20-25, 1935................      14  ...................  WA................  47[deg]0  122[deg]0        72
                                                                                     0[min]     0[min]
Feb. 4-8, 1937..................      15  Cyamaca Dam........  CA................  33[deg]0  116[deg]3  ........
                                                                                     0[min]     5[min]
Dec. 9-12, 1937.................      16  ...................  CA................  38[deg]5  122[deg]4  ........
                                                                                     1[min]     3[min]
Feb. 27-Mar. 4, 1938............      17  ...................  AZ................  34[deg]5  111[deg]4        12
                                                                                     7[min]     4[min]
Jan. 19-24, 1943................      18  ...................  CA................  37[deg]3  119[deg]2        18
                                                                                     5[min]     5[min]
Jan. 19-24, 1943................      19  Hoegee's Camp......  CA................  34[deg]1  118[deg]0  ........
                                                                                     3[min]     2[min]
Jan. 30-Feb. 3, 1945............      20  ...................  CA................  37[deg]3  119[deg]3  ........
                                                                                     5[min]     0[min]
Dec. 27, 1945...................      21  Mt. Tamalpias......  CA................  37[deg]5  122[deg]3  ........
                                                                                     4[min]     4[min]
Nov. 13-21, 1950................      22  ...................  CA................  36[deg]3  118[deg]3        24
                                                                                     0[min]     0[min]
Aug. 25-30, 1951................      23  ...................  AZ................  34[deg]0  112[deg]2        72
                                                                                     7[min]     1[min]
July 19, 1955...................      24  Chiatovich Flat....  CA................  37[deg]4  118[deg]1  ........
                                                                                     4[min]     5[min]
Aug. 16, 1958...................      25  Morgan.............  UT................  41[deg]0  111[deg]3  ........
                                                                                     3[min]     8[min]
Sept. 18, 1959..................      26  Newton.............  CA................  40[deg]2  122[deg]1  ........
                                                                                     2[min]     2[min]
June 7-8, 1964..................      27  Nyack Ck...........  MT................  48[deg]3  113[deg]3        12
                                                                                     0[min]     8[min]
Sept. 3-7, 1970.................      28  ...................  UT................  37[deg]3  109[deg]0         6
                                                                                     8[min]     4[min]
Sept. 3-7, 1970.................      29  ...................  AZ................  33[deg]4  110[deg]5         6
                                                                                     9[min]     6[min]
June 7, 1972....................      30  Bakersfield........  CA................  35[deg]2  119[deg]0  ........
                                                                                     5[min]     3[min]
Dec. 9-12, 1937.................      31  ...................  CA................  39[deg]4  121[deg]3        48
                                                                                     5[min]     0[min]
----------------------------------------------------------------------------------------------------------------


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Appendix D to Sec. 222.6--Recommended Guidelines for Safety Inspection 
                                 of Dams

        Department of the Army--Office of the Chief of Engineers

                                 Preface

    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.

          Recommended Guidelines for Safety Inspection of Dams

                            Table of Contents

                                 Preface

                         Chapter 1--Introduction

Para.
1.1 Purpose.
1.2 Applicability.
1.3 Authority.

                     Chapter 2--General Requirements

2.1 Classification of dams.
2.1.1 Size.
2.1.2 Hazard potential.
2.2 Selection of dams to be investigated.
2.3 Technical investigations.
2.4 Qualifications of investigators.
2.5 Reports.

                    Chapter 3--Phase I Investigation

3.1 Purpose.
3.2 Scope.
3.3 Engineering data.
3.4 Field inspections.
3.5 Evaluation of hydraulic and hydrologic features.
3.5.1 Design data.
3.5.2 Experience data.
3.6 Evaluation of structural stability.
3.6.1 Design and construction data.
3.6.2 Operating records.
3.6.3 Post contruction changes.
3.6.4 Seismic stability.

                    Chapter 4--Phase II Investigation

4.1 Purpose.
4.2 Scope.
4.3 Hydraulic and hydrologic analysis.
4.3.1 Maximum water surface based on SDF peak inflow.
4.3.1.1 Peak for 100-year flood.
4.3.1.2 Peak for PMF or fraction thereof.
4.3.2 Maximum water surface based on SDF hydrograph.
4.3.3 Acceptable procedures.
4.3.4 Freeboard allowances.
4.4 Stability investigations.
4.4.1 Foundation and material investigations.
4.4.2 Stability assessment.
4.4.2.1 Seismic stability.
4.4.2.2 Clay shale foundation.
4.4.3 Embankment dams.
4.4.3.1 Liquefaction.
4.4.3.2 Shear failure.
4.4.3.3 Loading conditions.
4.4.3.4 Safety factors.
4.4.3.5 Seepage failure.
4.4.3.6 Seepage analyses.

[[Page 286]]

4.4.4 Concrete dams and appurtenant structures.
4.4.4.1 Requirements for stability.
4.4.4.2 Loads.
4.4.4.3 Stresses.
4.4.4.4 Overturning.
4.4.4.5 Sliding.
4.4.4.5.1 Sliding resistance.
4.4.4.5.2 Downstream resistance.
4.4.4.5.3 Safety factor.

                           Chapter 5--Reports

5.1 General.
5.2 Preparation of report.
5.2.1 Phase I reports.
5.2.2 Phase II reports.

                                 Tables

Table
1 Size classification.
2 Hazard potential classification.
3 Hydrologic evaluation guidelines.
4 Factors of safety (embankment dams).

                                 Figures

Fig.
1 Seismic zone map of contiguous States.
2 Seismic zone map of California, Nevada and Arizona.
3 Seismic zone map of Alaska.
4 Seismic zone map of Hawaii.
5 Design envelope for Case I (Table 4).
6 Design envelope for Cases II and III (Table 4).

                               Appendixes

Appendix I to App. D--Engineering data
Appendix II to App. D--Inspection items
Appendix III to App. D--Pub. L. 92-367

                         Chapter 1--Introduction

    1.1. Purpose. This document provides recommended guidelines for the 
inspection and evaluation of dams to determine if they constitute 
hazards to human life or property.
    1.2. Applicability. The procedures and guidelines outlined in this 
document apply to the inspection and evaluation of all dams as defined 
in the National Dam Inspection Act, Public Law 92-367. Included in this 
program are 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. 
Not included are 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.
    1.3. Authority. The Dam Inspection Act, Public Law 92-367 (Appendix 
III), authorized the Secretary of the Army, through the Corps of 
Engineers, to initiate a program of safety inspection of dams throughout 
the United States. The Chief of Engineers issues these guidelines 
pursuant to that authority.

                     Chapter 2--General Requirements

    2.1. Classification of dams. Dams should be classified in accordance 
with size and hazard potential in order to formulate a priority basis 
for selecting dams to be included in the inspection program and also to 
provide compatibility between guideline requirements and involved risks. 
When possible the initial classifications should be based upon 
information listed in the National Inventory of Dams with respect to 
size, impoundment capacity and hazard potential. It may be necessary to 
reclassify dams when additional information becomes available.
    2.1.1. Size. The classification for size based on the height of the 
dam and storage capacity should be in accordance with Table 1. The 
height of the dam is established with respect to the maximum storage 
potential measured from the natural bed of the stream or watercourse at 
the downstream toe of the barrier, or if it is not across a stream or 
watercourse, the height from the lowest elevation of the outside limit 
of the barrier, to the maximum water storage elevation. For the purpose 
of determining project size, the maximum storage elevation may be 
considered equal to the top of dam elevation. Size classification may be 
determined by either storage or height, whichever gives the larger size 
category.

                      Table 1--Size Classification
------------------------------------------------------------------------
                                                Impoundment
            Category             ---------------------------------------
                                    Storage (ac-ft)       Height (ft)
------------------------------------------------------------------------
Small...........................  <1,000 and =50.             eq>=25.
Intermediate....................  =1,000   =40 and
                                   and <50,000.        <100.
Large...........................  =50,000  =100.
------------------------------------------------------------------------

    2.1.2. Hazard Potential. The classification for potential hazards 
should be in accordance with Table 2. The hazards pertain to potential 
loss of human life or property damage in the area downstream of the dam 
in event of failure or misoperation of the dam or appurtenant 
facilities. Dams conforming to criteria for the low hazard potential 
category generally will be located in rural or agricultural areas where 
failure may damage farm buildings, limited agricultural land, or 
township and country roads. Significant hazard potential category 
structures will be those located in predominantly rural or agricultural 
areas where failure may damage isolated homes, secondary highways or 
minor railroads or cause interruption of use or service of relatively 
important public utilities. Dams in the high hazard potential category 
will be those located where failure may cause serious damage to homes, 
extensive agricultural, industrial and commercial facilities, important 
public utilities, main highways, or railroads.

[[Page 287]]



                                    Table 2--Hazard Potential Classification
----------------------------------------------------------------------------------------------------------------
                                               Loss of life (extent of             Economic loss (extent of
                Category                             development)                        development)
----------------------------------------------------------------------------------------------------------------
Low....................................  None expected (No permanent          Minimal (Undeveloped to occasional
                                          structures for human habitation).    structures or agriculture).
Significant............................  Few (No urban developments and no    Appreciable (Notable agriculture,
                                          more than a small number of          industry or structures).
                                          inhabitable structures).
High...................................  More than few......................  Excessive (Extensive community,
                                                                               industry or agriculture).
----------------------------------------------------------------------------------------------------------------

    2.2. Selection of dams to be investigated. The selection of dams to 
be investigated should be based upon an assessment of existing 
developments in flood hazard areas. Those dams possessing a hazard 
potential classified high or significant as indicated in Table 2 should 
be given first and second priorities, respectively, in the inspection 
program. Inspection priorities within each category may be developed 
from a consideration of factors such as size classification and age of 
the dam, the population size in the downstream flood area, and potential 
developments anticipated in flood hazard areas.
    2.3. Technical Investigations. A detailed, systematic, technical 
inspection and evaluation should be made of each dam selected for 
investigation in which the hydraulic and hydrologic capabilities, 
structural stability and operational adequacy of project features are 
analyzed and evaluated to determine if the dam constitutes a danger to 
human life or property. The investigation should vary in scope and 
completeness depending upon the availability and suitability of 
engineering data, the validity of design assumptions and analyses and 
the condition of the dam. The minimum investigation will be designated 
Phase I, and an in-depth investigation designated Phase II should be 
made where deemed necessary. Phase I investigations should consist of a 
visual inspection of the dam, abutments and critical appurtenant 
structures, and a review of readily available engineering data. It is 
not intended to perform costly explorations or analyses during Phase I. 
Phase II investigations should consist of all additional engineering 
investigations and analyses found necessary by results of the Phase I 
investigation.
    2.4. Qualifications of investigators. The technical investigations 
should be conducted under the direction of licensed professional 
engineers experienced in the investigation, design, construction and 
operation of dams, applying the disciplines of hydrologic, hydraulic, 
soils and structural engineering and engineering geology. All field 
inspections should be conducted by qualified engineers, engineering 
geologists and other specialists, including experts on mechanical and 
electrical operation of gates and controls, knowledgeable in the 
investigation, design, construction and operation of dams.

                    Chapter 3--Phase I Investigation

    3.1. Purpose. The primary purpose of the Phase I investigation 
program is to identify expeditiously those dams which may pose hazards 
to human life or property.
    3.2. Scope. The Phase I investigation will develop an assessment of 
the general condition with respect to safety of the project based upon 
available data and a visual inspection, determine any need for emergency 
measures and conclude if additional studies, investigation and analyses 
are necessary and warranted. A review will be made of pertinent existing 
and available engineering data relative to the design, construction and 
operation of the dam and appurtenant structures, including electrical 
and mechanical operating equipment and measurements from inspection and 
performance instruments and devices; and a detailed systematic visual 
inspection will be performed of those features relating to the stability 
and operational adequacy of the project. Based upon findings of the 
review of engineering data and the visual inspection, an evaluation will 
be made of the general condition of the dam, including where possible 
the assessment of the hydraulic and hydrologic capabilities and the 
structural stability.
    3.3. Engineering data. To the extent feasible the engineering data 
listed in Appendix I relating to the design, construction and operation 
of the dam and appurtenant structures, should be collected from existing 
records and reviewed to aid in evaluating the adequacy of hydraulic and 
hydrologic capabilities and stability of the dam. Where the necessary 
engineering data are unavailable, inadequate or invalid, a listing 
should be made of those specific additional data deemed necessary by the 
engineer in charge of the investigation and included in the Phase I 
report.
    3.4. Field inspections. The field inspection of the dam, appurtenant 
stuctures, reservoir area, and downstream channel in the vicinity of the 
dam should be conducted in a systematic manner to minimize the 
possibility of any significant feature being overlooked. A detailed 
checklist should be developed and followed for each dam inspected to 
document

[[Page 288]]

the examination of each significant structural and hydraulic feature 
including electrical and mechanical equipment for operation of the 
control facilities that affect the safety of the dam.
    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. Evaluation of hydraulic and hydrologic Features.
    3.5.1. Design data. Original hydraulic and hydrologic design 
assumptions obtained from the project records should be assessed to 
determine their acceptability in evaluating the safety of the dam. All 
constraints on water control such as blocked entrances, restrictions on 
operation of spillway and outlet gates, inadequate energy dissipators or 
restrictive channel conditions, significant reduction in reservoir 
capacity by sediment deposits and other factors should be considered in 
evaluating the validity of discharge ratings, storage capacity, 
hydrographs, routings and regulation plans. The discharge capacity and/
or storage capacity should be capable of safely handling the recommended 
spillway design flood for the size and hazard potential classification 
of the dam as indicated in Table 3. The hydraulic and hydrologic 
determinations for design as obtained from project records will be 
acceptable if conventional techniques similar to the procedures outlined 
in paragraph 4.3. were used in obtaining the data. When the project 
design flood actually used exceeds the recommended spillway design 
flood, from Table 3, the project design flood will be acceptable in 
evaluating the safety of the dam.

                Table 3--Hydrologic Evaluation Guidelines
                  [Recommended spillway design floods]
------------------------------------------------------------------------
                                                        Spillway design
             Hazard                      Size           flood (SDF) \1\
------------------------------------------------------------------------
Low.............................  Small.............  50 to 100-yr
                                                       frequency.
                                  Intermediate......  100-yr to \1/2\
                                                       PMF.
                                  Large.............  \1/2\ PMF to PMF.
Significant.....................  Small.............  100-yr to \1/2\
                                                       PMF.
                                  Intermediate......  \1/2\ PMF to PMF.
                                  Large.............  PMF.
High............................  Small.............  \1/2\ PMF to PMF.
                                  Intermediate......  PMF.
                                  Large.............  PMF.
------------------------------------------------------------------------
\1\ The recommended design floods in this column represent the magnitude
  of the spillway design flood (SDF), which is intended to represent the
  largest flood that need be considered in the evaluation of a given
  project, regardless of whether a spillway is provided; i.e., a given
  project should be capable of safely passing the appropriate SDF. Where
  a range of SDF is indicated, the magnitude that most closely relates
  to the involved risk should be selected.

1000-yr=100-Year Exceedence Interval. The flood magnitude expected to be 
exceeded, on the average, of once in 100 years. It may also be expressed 
as an exceedence frequency with a one-percent chance of being exceeded 
in any given year.
PMF=Probable Maximum Flood. The flood that may be expected from the most 
severe combination of critical meteorologic and hydrologic conditions 
that are reasonably possible in the region. The PMF is derived from 
probable maximum precipitation (PMP), which information is generally 
available from the National Weather Service, NOAA. Most Federal agencies 
apply reduction factors to the PMP when appropriate. Reductions may be 
applied because rainfall isohyetals are unlikely to conform to the exact 
shape of the drainage basin and/or the storm is not likely to center 
exactly over the drainage basin. In some cases local topography will 
cause changes from the generalized PMP values, therefore it may be 
advisable to contact Federal construction agencies to obtain the 
prevailing practice in specific areas.
    3.5.2. Experience data. In some cases where design data are lacking, 
an evaluation of overtopping potential may be based on watershed 
characteristics and rainfall and reservoir records. An estimate of the 
probable maximum flood may also be developed from a conservative, 
generalized comparison of the drainage area size and the magnitude of 
recently adopted probable maximum floods for damsites in comparable 
hydrologic regions. Where the review of such experience data indicates 
that the recommended spillway design flood would not cause overtopping 
additional hydraulic and hydrologic determinations will be unnecessary.
    3.6. Evaluation of structural stability. The Phase I evaluations of 
structural adequacy of project features are expected to be based 
principally on existing conditions as revealed by the visual inspection, 
together with available design and construction information and records 
of performance. The objectives are to determine the existence of 
conditions which are hazardous, or which with time might develop into 
safety hazards,

[[Page 289]]

and to formulate recommendations pertaining to the need for any 
additional studies, investigations, or analyses. The results of this 
phase of the inspection must rely very substantially upon the experience 
and judgment of the inspecting engineer.
    3.6.1. Design and construction data. The principal design 
assumptions and analyses obtained from the project records should be 
assessed. Original design and construction records should be used 
judiciously, recognizing the restricted applicability of such data as 
material strengths and permeabilities, geological factors and 
construction descriptions. Original stability studies and analyses 
should be acceptable if conventional techniques and procedures similar 
to those outlined in paragraph 4.4 were employed, provided that review 
of operational and performance data confirm that the original design 
assumptions were adequately conservative. The need for such analyses 
where either none exist or the originals are incomplete or 
unsatisfactory will be determined by the inspecting engineer based upon 
other factors such as condition of structures, prior maximum loadings 
and the hazard degree of the project. Design assumptions and analyses 
should include all applicable loads including earthquake and indicate 
the structure's capability to resist overturning, sliding and 
overstressing with adequate factors of safety. In general seepage and 
stability analyses comparable to the requirements of paragraph 4.4 
should be on record for all dams in the high hazard category and large 
dams in the significant hazard category. This requirement for other dams 
will be subject to the opinion of the inspecting engineer.
    3.6.2. Operating records. The performance of structures under prior 
maximum loading conditions should in some instances provide partial 
basis for stability evaluation. Satisfactory experience under loading 
conditions not expected to be exceeded in the future should generally be 
indicative of satisfactory stability, provided adverse changes in 
physical conditions have not occurred. Instrumentation observations of 
forces, pressures, loads, stresses, strains, displacements, deflections 
or other related conditions should also be utilized in the safety 
evaluation. Where such data indicate abnormal behavior, unsafe movement 
or deflections, or loadings which adversely affect the stability or 
functioning of the structure, prompt reporting of such circumstances is 
required without the delay for preparation of the official inspection 
report.
    3.6.3. Post construction changes. Data should be collected on 
changes which have occurred since project construction that might 
influence the safety of the dam such as road cuts, quarries, mining and 
groundwater changes.
    3.6.4. Seismic stability. An assessment should be made of the 
potential vulnerability of the dam to seismic events and a 
recommendation developed with regard to the need for additional seismic 
investigation. In general, projects located in Seismic Zones 0, 1 and 2 
may be assumed to present no hazard from earthquake provided static 
stability conditions are satisfactory and conventional safety margins 
exist. Dams in Zones 3 and 4 should, as a minimum, have on record 
suitable analyses made by conventional equivalent static load methods. 
The seismic zones together with appropriate coefficients for use in such 
analyses are shown in Figures 1 through 4. Boundary lines are 
approximate and in the event of doubt about the proper zone, the higher 
zone should be used. All high hazard category dams in Zone 4 and high 
hazard dams of the hydraulic fill type in Zone 3 should have a stability 
assessment based upon knowledge of regional and local geology, 
engineering seismology, in situ properties of materials and appropriate 
dynamic analytical and testing procedures. The assessment should include 
the possibility of physical displacement of the structures due to 
movements along active faults. Departure from this general guidance 
should be made whenever in the judgment of the investigating engineer 
different seismic stability requirements are warranted because of local 
geological conditions or other reasons.

                    Chapter 4--Phase II Investigation

    4.1. Purpose. The Phase II investigation will be supplementary to 
Phase I and should be conducted when the results of the Phase I 
investigation indicate the need for additional in-depth studies, 
investigations or analyses.
    4.2. Scope. The Phase II investigation should include all additional 
studies, investigations and analyses necessary to evaluate the safety of 
the dam. Included, as required, will be additional visual inspections, 
measurements, foundation exploration and testing, materials testing, 
hydraulic and hydrologic analysis and structural stability analyses.
    4.3. Hydraulic and hydrologic analysis. Hydraulic and hydrologic 
capabilities should be determined using the following criteria and 
procedures. Depending on the project characteristics, either the 
spillway design flood peak inflow or the spillway design flood 
hydrograph should be the basis for determining the maximum water surface 
elevation and maximum outflow. If the operation or failure of upstream 
water control projects would have significant impact on peak flow or 
hydrograph analyses, the impact should be assessed.
    4.3.1. Maximum water surface based on SDF peak inflow. When the 
total project discharge capability at maximum pool exceeds the peak 
inflow of the recommended SDF, and

[[Page 290]]

operational constraints would not prevent such a release at controlled 
projects, a reservoir routing is not required. The maximum discharge 
should be assumed equal to the peak inflow of the spillway design flood. 
Flood volume is not controlling in this situation and surcharge storage 
is either absent or is significant only to the extent that it provides 
the head necessary to develop the release capability required.
    4.3.1.1. Peak for 100-year flood. When the 100-year flood is 
applicable under the provisions of Table 3 and data are available, the 
spillway design flood peak inflow may be determined by use of ``A 
Uniform Technique for Determining Flood Frequencies,'' Water Resources 
Council (WRC), Hydrology Committee, Bulletin 15, December 1967. Flow 
frequency information from regional analysis is generally preferred over 
single station results when available and appropriate. Rainfall-runoff 
techniques may be necessary when there are inadequate runoff data 
available to make a reasonable estimate of flow frequency.
    4.3.1.2. Peak for PMF or fraction thereof. When either the Probable 
Maximum Flood peak or a fraction thereof is applicable under the 
provisions of Table 3, the unit hydrograph--infiltration loss technique 
is generally the most expeditious method of computing the spillway 
design flood peak for most projects. This technique is discussed in the 
following paragraph.
    4.3.2. Maximum water surface based on SDF hydrograph. Both peak and 
volume are required in this analysis. Where surcharge storage is 
significant, or where there is insufficient discharge capability at 
maximum pool to pass the peak inflow of the SDF, considering all 
possible operational constraints, a flood hydrograph is required. When 
there are upstream hazard areas that would be imperiled by fast rising 
reservoirs levels, SDF hydrographs should be routed to ascertain 
available time for warning and escape. Determination of probable maximum 
precipitation or 100-year precipitation, which ever is applicable, and 
unit hydrographs or runoff models will be required, followed by the 
determination of the PMF or 100-year flood. Conservative loss rates 
(significantly reduced by antecedent rainfall conditions where 
appropriate) should be estimated for computing the rainfall excess to be 
utilized with unit hydrographs. Rainfall values are usually arranged 
with gradually ascending and descending rates with the maximum rate late 
in the storm. When applicable, conservatively high snowmelt runoff rates 
and appropriate releases from upstream projects should be assumed. The 
PMP may be obtained from National Weather Service (NWS) publications 
such as Hydrometeorological Report (HMR) 33. Special NWS publications 
for particular areas should be used when available. Rainfall for the 
100-year frequency flood can be obtained from the NWS publication 
``Rainfall Frequency Atlas of the United States,'' Technical Paper No. 
40; Atlas 2, ``Precipitation Frequency Atlas of Western United States;'' 
or other NWS publications. The maximum water surface elevation and 
spillway design flood outflow are then determined by routing the inflow 
hydrograph through the reservoir surcharge storage, assuming a starting 
water surface at the bottom of surcharge storage, or lower when 
appropriate. For projects where the bottom of surcharge space is not 
distinct, or the flood control storage space (exclusive of surcharge) is 
appreciable, it may be appropriate to select starting water surface 
elevations below the top of the flood control storage for routings. 
Conservatively high starting levels should be estimated on the basis of 
hydrometeorological conditions reasonably characteristic for the region 
and flood release capability of the project. Necessary adjustment of 
reservoir storage capacity due to existing or future sediment or other 
encroachment may be approximated when accurate determination of 
deposition is not practicable.
    4.3.3. Acceptable procedures. Techniques for performing hydraulic 
and hydrologic analyses are generally available from publications 
prepared by Federal agencies involved in water resources development or 
textbooks written by the academic community. Some of these procedures 
are rather sophisticated and require expensive computational equipment 
and large data banks. While results of such procedures are generally 
more reliable than simplified methods, their use is generally not 
warranted in studies connected with this program unless they can be 
performed quickly and inexpensively. There may be situations where the 
more complex techniques have to be employed to obtain reliable results; 
however, these cases will be exceptions rather than the rule. Whenever 
the acceptability of procedures is in question, the advice of competent 
experts should be sought. Such expertise is generally available in the 
Corps of Engineers, Bureau of Reclamation and Soil Conservation Service. 
Many other agencies, educational facilities and private consultants can 
also provide expert advice. Regardless of where such expertise is based, 
the qualification of those individuals offering to provide it should be 
carefully examined and evaluated.
    4.3.4. Freeboard allowances. Guidelines on specific minimum 
freeboard allowances are not considered appropriate because of the many 
factors involved in such determinations. The investigator will have to 
assess the critical parameters for each project and develop its minimum 
requirement. Many projects are reasonably safe without freeboard 
allowance because they are designed for overtopping, or other factors 
minimize possible overtopping. Conversely,

[[Page 291]]

freeboard allowances of several feet may be necessary to provide a safe 
condition. Parameters that should be considered include the duration of 
high water levels in the reservoir during the design flood; the 
effective wind fetch and reservoir depth available to support wave 
generation; the probability of high wind speed occurring from a critical 
direction; the potential wave runup on the dam based on roughness and 
slope; and the ability of the dam to resist erosion from overtopping 
waves.
    4.4 Stability investigations. The Phase II stability investigations 
should be compatible with the guidelines of this paragraph.
    4.4.1 Foundation and material investigations. The scope of the 
foundation and materials investigation should be limited to obtaining 
the information required to analyze the structural stability and to 
investigate any suspected condition which would adversely affect the 
safety of the dam. Such investigations may include borings to obtain 
concrete, embankment, soil foundation, and bedrock samples; testing 
specimens from these samples to determine the strength and elastic 
parameters of the materials, including the soft seams, joints, fault 
gouge and expansive clays or other critical materials in the foundation; 
determining the character of the bedrock including joints, bedding 
planes, fractures, faults, voids and caverns, and other geological 
irregularities; and installing instruments for determining movements, 
strains, suspected excessive internal seepage pressures, seepage 
gradients and uplift forces. Special investigations may be necessary 
where suspect rock types such as limestone, gypsum, salt, basalt, 
claystone, shales or others are involved in foundations or abutments in 
order to determine the extent of cavities, piping or other deficiencies 
in the rock foundation. A concrete core drilling program should be 
undertaken only when the existence of significant structural cracks is 
suspected or the general qualitative condition of the concrete is in 
doubt. The tests of materials will be necessary only where such data are 
lacking or are outdated.
    4.4.2. Stability assessment. Stability assessments should utilize in 
situ properties of the structure and its foundation and pertinent 
geologic information. Geologic information that should be considered 
includes groundwater and seepage conditions; lithology, stratigraphy, 
and geologic details disclosed by borings, ``as-built'' records, and 
geologic interpretation; maximum past overburden at site as deduced from 
geologic evidence; bedding, folding and faulting; joints and joint 
systems; weathering; slickensides, and field evidence relating to 
slides, faults, movements and earthquake activity. Foundations may 
present problems where they contain adversely oriented joints, 
slickensides or fissured material, faults, seams of soft materials, or 
weak layers. Such defects and excess pore water pressures may contribute 
to instability. Special tests may be necessary to determine physical 
properties of particular materials. The results of stability analyses 
afford a means of evaluating the structure's existing resistance to 
failure and also the effects of any proposed modifications. Results of 
stability analyses should be reviewed for compatibility with performance 
experience when possible.
    4.4.2.1. Seismic stability. The inertial forces for use in the 
conventional equivalent static force method of analysis should be 
obtained by multiplying the weight by the seismic coefficient and should 
be applied as a horizontal force at the center of gravity of the section 
or element. The seismic coefficients suggested for use with such 
analyses are listed in Figures 1 through 4. Seismic stability 
investigations for all high hazard category dams located in Seismic Zone 
4 and high hazard dams of the hydraulic fill type in Zone 3 should 
include suitable dynamic procedures and analyses. Dynamic analyses for 
other dams and higher seismic coefficients are appropriate if in the 
judgment of the investigating engineer they are warranted because of 
proximity to active faults or other reasons. Seismic stability 
investigations should utilize ``state-of-the-art'' procedures involving 
seismological and geological studies to establish earthquake parameters 
for use in dynamic stability analyses and, where appropriate, the 
dynamic testing of materials. Stability analyses may be based upon 
either time-history or response spectra techniques. The results of 
dynamic analyses should be assessed on the basis of whether or not the 
dam would have sufficient residual integrity to retain the reservoir 
during and after the greatest or most adverse earthquake which might 
occur near the project location.
    4.4.2.2. Clay shale foundation. Clay shale is a highly 
overconsolidated sedimentary rock comprised predominantly of clay 
minerals, with little or no cementation. Foundations of clay shales 
require special measures in stability investigations. Clay shales, 
particularly those containing montmorillonite, may be highly susceptible 
to expansion and consequent loss of strength upon unloading. The shear 
strength and the resistance to deformation of clay shales may be quite 
low and high pore water pressures may develop under increase in load. 
The presence of slickensides in clay shales is usually an indication of 
low shear strength. Prediction of field behavior of clay shales should 
not be based solely on results of conventional laboratory tests since 
they may be misleading. The use of peak shear strengths for clay shales 
in stability analyses may be unconservative because of nonuniform stress 
distribution and possible progressive failures. Thus the available shear 
resistance may be less than if the peak shear strength

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were mobilized simultaneously along the entire failure surface. In such 
cases, either greater safety factors or residual shear strength should 
be used.
    4.4.3. Embankment dams.
    4.4.3.1. Liquefaction. The phenomenon of liquefaction of loose, 
saturated sands and silts may occur when such materials are subjected to 
shear deformation or earthquake shocks. The possibility of liquefaction 
must presently be evaluated on the basis of empirical knowledge 
supplemented by special laboratory tests and engineering judgment. The 
possiblitity of liquefaction in sands diminishes as the relative density 
increases above approximately 70 percent. Hydraulic fill dams in Seismic 
Zones 3 and 4 should receive particular attention since such dams are 
susceptible to liquefaction under earthquake shocks.
    4.4.3.2. Shear failure. Shear failure is one in which a portion of 
an embankment or of an embankment and foundation moves by sliding or 
rotating relative to the remainder of the mass. It is conventionally 
represented as occurring along a surface and is so assumed in stability 
analyses, although shearing may occur in a zone of substantial 
thickness. The circular arc or the sliding wedge method of analyzing 
stability, as pertinent, should be used. The circular arc method is 
generally applicable to essentially homogeneous embankments and to soil 
foundations consisting of thick deposits of fine-grained soil containing 
no layers significantly weaker than other strata in the foundation. The 
wedge method is generally applicable to rockfill dams and to earth dams 
on foundations containing weak layers. Other methods of analysis such as 
those employing complex shear surfaces may be appropriate depending on 
the soil and rock in the dam and foundation. Such methods should be in 
reputable usage in the engineering profession.
    4.4.3.3. Loading conditions. The loading conditions for which the 
embankment structures should be investigated are (I) Sudden drawdown 
from spillway crest elevation or top of gates, (II) Partial pool, (III) 
Steady state seepage from spillway crest elevation or top of gate 
elevation, and (IV) Earthquake. Cases I and II apply to upstream slopes 
only; slopes; and Case IV applies to both upstream and downstream Case 
III applies to downstream slopes. A summary of suggested strengths and 
safety factors are shown in Table 4.

                                         Table 4--Factors of Safety \1\
----------------------------------------------------------------------------------------------------------------
                                           Factor
       Case and loading condition            of         Shear \2\ strength                   Remarks
                                           safety
----------------------------------------------------------------------------------------------------------------
I Sudden drawdown from spillway crest or  \3\ 1.2  Minimum composite of R and   Within the drawdown zone
 top of gates to minimum drawdown                   S shear strengths. See       submerged unit weights of
 elevation.                                         Figure 5.                    materials are used for
                                                                                 computing forces resisting
                                                                                 sliding and saturated unit
                                                                                 weights are used for computing
                                                                                 forces contributing to sliding.
II Partial pool with assumed horizontal       1.5  R+S/2 for RS........   of R and
                                                                                 S shear strengths. See Figure
                                                                                 6.
III Steady seepage from spillway crest        1.5  Same as Case II............
 or top of gates with Kh/Kv=9 assumed
 \4\.
IV Earthquake (Cases II and III with          1.0  (\5\ ).....................  See Figures 1 through 4 for
 seismic loading).                                                               Seismic Coefficients.
----------------------------------------------------------------------------------------------------------------
\1\ Not applicable to embankments on clay shale foundation. Experience has indicated special problems in
  determination of design shear strengths for clay shale foundations and acceptable safety factors should be
  compatible with the confidence level in shear strength assumptions.
\2\ Other strength assumptions may be used if in common usage in the engineering profession.
\3\ The safety factor should not be less than 1.5 when drawdown rate and pore water pressure developed from flow
  nets are used in stability analyses.
\4\ Kh/Kv is the ratio of horizontal to vertical permeability. A minimum of 9 is suggested for use in compacted
  embankments and alluvial sediments.
\5\ Use shear strength for case analyzed without earthquake. It is not necessary to analyze sudden drawdown for
  earthquake loading. Shear strength tests are classified according to the controlled drainage conditions
  maintained during the test. R tests are those in which specimen drainage is allowed during consolidation (or
  swelling) under initial stress conditions, but specimen drainage is not allowed during application of shearing
  stresses. S tests allow full drainage during initial stress application and shearing is at a slow rate so that
  complete specimen drainage is permitted during the complete test.

    4.4.3.4. Safety factors. Safety factors for embankment dam stability 
studies should be based on the ratio of available shear strength to 
developed shear strength, SD :
[GRAPHIC] [TIFF OMITTED] TC15NO91.000

Where:

C=Cohesion
[phis]=Angle of internal friction
[sigma]=Normal stress

    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

[[Page 293]]

available to him. The consequences of a failure with respect to human 
life and property damage are important considerations in establishing 
factors of safety for specific investigations.
    4.4.3.5. Seepage failure. A critical uncontrolled underseepage or 
through seepage condition that develops during a rising pool can quickly 
reduce a structure which was stable under previous conditions, to a 
total structural failure. The visually confirmed seepage conditions to 
be avoided are (1) the exit of the phreatic surface on the downstream 
slope of the dam and (2) development of hydrostatic heads sufficient to 
create in the area downstream of the dam sand boils that erode materials 
by the phenomenon known as ``piping'' and (3) localized concentrations 
of seepage along conduits or through pervious zones. The dams most 
susceptible to seepage problems are those built of or on pervious 
materials of uniform fine particle size, with no provisions for an 
internal drainage zone and/or no underseepage controls.
    4.4.3.6. Seepage analyses. Review and modifications to original 
seepage design analyses should consider conditions observed in the field 
inspection and piezometer instrumentation. A seepage analysis should 
consider the permeability ratios resulting from natural deposition and 
from compaction placement of materials with appropriate variation 
between horizontal and vertical permeability. An underseepage analysis 
of the embankment should provide a critical gradient factor of safety 
for the maximum head condition of not less than 1.5 in the area 
downstream of the embankment.
[GRAPHIC] [TIFF OMITTED] TC15NO91.001

Where:

ic=Critical gradient
i=Design gradient
H=Uplift head at downstream toe of dam measured above tailwater
Hc=The critical uplift
Db=The thickness of the top impervious blanket at the 
downstream toe of the dam
[gamma]m=The estimated saturated unit weight of the material 
in the top impervious blanket
[gamma]w=The unit weight of water

    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. Concrete dams and appurtenant structures.
    4.4.4.1. Requirements for stability. Concrete dams and structures 
appurtenant to embankment dams should be capable of resisting 
overturning, sliding and overstressing with adequate factors of safety 
for normal and maximum loading conditions.
    4.4.4.2. Loads. Loadings to be considered in stability analyses 
include the water load on the upstream face of the dam; the weight of 
the structure; internal hydrostatic pressures (uplift) within the body 
of the dam, at the base of the dam and within the foundation; earth and 
silt loads; ice pressure, seismic and thermal loads, and other loads as 
applicable. Where tailwater or backwater exists on the downstream side 
of the structure it should be considered, and assumed uplift pressures 
should be compatible with drainage provisions and uplift measurements if 
available. Where applicable, ice pressure should be applied to the 
contact surface of the structure of normal pool elevation. A unit 
pressure of not more than 5,000 pounds per square foot should be used. 
Normally, ice thickness should not be assumed greater than two feet. 
Earthquake forces should consist of the inertial forces due to the 
horizontal acceleration of the dam itself and hydrodynamic forces 
resulting from the reaction of the reservoir water against the 
structure. Dynamic water pressures for use in a conventional methods of 
analysis may be computed by means of the ``Westergaard Formula'' using 
the parabolic approximation (H.M. Westergaard, ``Water Pressures on Dams 
During Earthquakes,'' Trans., ASCE, Vol 98, 1933, pages 418-433), or 
similar method.
    4.4.4.3. Stresses. The analysis of concrete stresses should be based 
on in situ properties of the concrete and foundation. Computed maximum 
compressive stresses for normal operating conditions in the order of \1/
3\ or less of in situ strengths should be satisfactory. Tensile stresses 
in unreinforced concrete should be acceptable only in locations where 
cracks will not adversely affect the overall performance and stability 
of the structure. Foundation stresses should be such as to provide 
adequate safety against failure of the foundation material under all 
loading conditions.
    4.4.4.4. Overturning. A gravity structure should be capable of 
resisting all overturning forces. It can be considered safe against 
overturning if the resultant of all combinations of horizontal and 
vertical forces, excluding earthquake forces, acting above any 
horizontal plane through the structure or at its base is located within 
the middle third of the section. When earthquake is included the 
resultant should fall within the limits of the plane or base, and 
foundation pressures must be acceptable. When these requirements for 
location of the resultant are not satisfied the investigating engineer 
should assess the importance to stability of the deviations.
    4.4.4.5. Sliding. Sliding of concrete gravity structures and of 
abutment and foundation rock masses for all types of concrete dams

[[Page 294]]

should be evaluated by the shear-friction resistance concept. The 
available sliding resistance is compared with the driving force which 
tends to induce sliding to arrive at a sliding stability safety factor. 
The investigation should be made along all potential sliding paths. The 
critical path is that plane or combination of planes which offers the 
least resistance.
    4.4.4.5.1. Sliding resistance. Sliding resistance is a function of 
the unit shearing strength at no normal load (cohesion) and the angle of 
friction on a potential failure surface. It is determined by computing 
the maximum horizontal driving force which could be resisted along the 
sliding path under investigation. The following general formula is 
obtained from the principles of statics and may be derived by resolving 
forces parallel and perpendicular to the sliding plane:
[GRAPHIC] [TIFF OMITTED] TC15NO91.002

Where:

RR=Sliding Resistance (maximum horizontal driving force which 
can be resisted by the critical path)
[phis]=Angle of internal friction of foundation material or, where 
applicable, angle of sliding friction
V=Summation of vertical forces (including uplift)
c=Unit shearing strength at zero normal loading along potential failure 
plane
A=Area of potential failure plane developing unit shear strength ``c''
[alpha]=Angle between inclined plane and horizontal (positive for uphill 
sliding)

    For sliding downhill the angle [alpha] is negative and Equation (1) 
becomes:
[GRAPHIC] [TIFF OMITTED] TC15NO91.003

    When the plane of investigation is horizontal, and the angle [alpha] 
is zero and Equation (1) reduced to the following:
[GRAPHIC] [TIFF OMITTED] TC15NO91.004

    4.4.4.5.2. Downstream esistance. When the base of a concrete 
structure is embedded in rock or the potential failure plane lies below 
the base, the passive resistance of the downstream layer of rock may 
sometimes be utilized for sliding resistance. Rock that may be subjected 
to high velocity water scouring should not be used. The magnitude of the 
downstream resistance is the lesser of (a) the shearing resistance along 
the continuation of the potential sliding plane until it daylights or 
(b) the resistance available from the downstream rock wedge along an 
inclined plane. The theoretical resistance offered by the passive wedge 
can be computed by a formula equivalent to formula (3):
[GRAPHIC] [TIFF OMITTED] TC15NO91.005

Where:

Pp=Passive resistance of rock wedge
W=Weight (buoyant weight if applicable) of downstream rock wedge above 
inclined plane of resistance, plus any superimposed loads
[phis]=Angle of internal friction or, if applicable, angle of sliding 
friction
[alpha]=Angle between inclined failure plane and horizontal
c=Unit shearing strength at zero normal load along failure plane
A=Area of inclined plane of resistance

    When considering cross-bed shear through a relatively shallow, 
competent rock strut, without adverse jointing or faulting, W and 
[alpha] may be taken at zero and 45[deg], respectively, and an estimate 
of passive wedge resistance

[[Page 295]]

per unit width obtained by the following equation:
[GRAPHIC] [TIFF OMITTED] TC15NO91.006

Where:

D=Thickness of the rock strut

    4.4.4.5.3. Safety factor. The shear-friction safety factor is 
obtained by dividing the resistance RR by H, the summation of 
horizontal service loads to be applied to the structure:
[GRAPHIC] [TIFF OMITTED] TC15NO91.007

    When the downstream passive wedge contributes to the sliding 
resistance, the shear friction safety factor formula becomes:
[GRAPHIC] [TIFF OMITTED] TC15NO91.008

    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.

                           Chapter 5--Reports

    5.1. General. This chapter outlines the procedures for reporting the 
results of the technical investigations. Hazardous conditions should be 
reported immediately upon detection to the owner of the dam, the 
Governor of the State in which the dam is located and the appropriate 
regulatory agency without delay for preparation of the formal report.
    5.2. Preparation of report. A formal report should be prepared for 
each dam investigated for submission to the regulatory agency and the 
owner of the dam. Each report should contain the information indicated 
in the following paragraphs. The signature and registration 
identification of the professional engineer who directed the 
investigation and who was responsible for evaluation of the dam should 
be included in the report.
    5.2.1. Phase I reports. Phase I reports should contain the following 
information:
    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. Phase II reports. Phase II reports should describe the 
detailed investigations and should supplement Phase I reports. They 
should contain the following information:
    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

[[Page 296]]

to further evaluation) correct deficiencies and hazardous conditions 
found during the investigation.
[GRAPHIC] [TIFF OMITTED] TC31OC91.017


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[GRAPHIC] [TIFF OMITTED] TC31OC91.018


[[Page 298]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.019


[[Page 299]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.020


[[Page 300]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.021

          Appendix I to App. D to Sec. 222.6--Engineering Data

    This appendix lists engineering data which should be collected from 
project records and, to the extent available, included in the

[[Page 301]]

Phase I investigation report. The list is intended to serve as a 
checklist and not to establish rigid data requirements. Such a 
compilation should also facilitate future inspections and 
investigations. Only data readily available will be included in Phase I 
reports, but data lacking and deemed necessary for an adequate safety 
evaluation should be identified.
    1. General Project Data.
    a. Regional Vicinity Map showing the location of the dam, the 
upstream drainage area and the downstream area subject to potential 
damage due to failure of the dam and misoperation or failure of the 
operating equipment.
    b. As-Built Drawings indicating plans, elevations and sections of 
the dam and appurtenant structures including the details of the 
discharge facilities such as outlet works, limited service and emergency 
spillways, flashboards, fuse plugs and operating equipment.
    2. Hydrologic and Hydraulic Data including the following:
    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. Foundation Data and Geological Features including logs of 
borings, geological maps, profiles and cross sections, and reports of 
foundation treatment.
    4. Properties of Embankments and Foundation Materials including 
results of laboratory tests, field permeability tests, construction 
control tests, and assumed design properties for materials.
    5. Concrete Properties including the source and type of aggregate, 
cement used, mix design data and the results of testing during 
construction.
    6. Electrical and Mechanical Equipment type and rating of normal and 
emergency power supplies, hoists, cranes, valves and valve operator, 
control and alarm systems and other electrical and mechanical equipment 
and systems that could affect the safe operation of the dam.
    7. Construction History including diversion scheme, construction 
sequence, pertinent construction problems, alterations, modifications 
and maintenance repairs.
    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. Operation Record.
    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.

[[Page 302]]

    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. Earthquake History including a summary of the seismic data of 
significant recorded earthquakes in the vicinity of the dam and 
information on major damage in the vicinity of the dam from both 
recorded and unrecorded earthquakes. Regional geologic maps and other 
documents showing fault locations should be collected.
    11. Inspection History including the results of the last safety 
inspection, the organization that performed the inspection, the date 
inspection performed and the authority for conducting the inspection.
    12. Principal Design Assumptions and Analyses.
    a. Hydrologic and Hydraulic Determinations.
    (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. Stability and Stress Analysis of the dam, spillway and 
appurtenant structures and features including the assumed properties of 
materials and all pertinent applied loads.
    c. Seepage and Settlement Analyses. The determination of 
distribution, direction and magnitude of seepage forces and the design 
and construction measures for their control. Settlement estimates and 
steps adopted to compensate for total settlement and to minimize 
differential settlements.

         Appendix II to App. D to Sec. 222.6--Inspection Items

    This appendix provides guidance for performing field inspections and 
may serve as the basis for developing a detailed checklist for each dam.
    1. Concrete Structures in General.
    a. Concrete Surfaces. The condition of the concrete surfaces should 
be examined to evaluate the deterioration and continuing serviceability 
of the concrete. Descriptions of concrete conditions should conform with 
the appendix to ``Guide for Making a Condition Survey of Concrete in 
Service,'' American Concrete Institute (ACI) Journal, Proceedings Vol. 
65, No. 11, November 1968, page 905-918.
    b. Structural Cracking. Concrete structures should be examined for 
structural cracking resulting from overstress due to applied loads, 
shrinkage and temperature effects or differential movements.
    c. Movement--Horizontal and Vertical Alignment. Concrete structures 
should be examined for evidence of any abnormal settlements, heaving, 
deflections, or lateral movements.
    d. Junctions. The conditions at the junctions of the structure with 
abutments or embankments should be determined.
    e. Drains--Foundation, Joint, Face. All drains should be examined to 
determine that they are capable of performing their design function.
    f. Water Passages. All water passages and other concrete surfaces 
subject to running water should be examined for erosion, cavitation, 
obstructions, leakage or significant structural cracks.
    g. Seepage or Leakage. The faces, abutments and toes of the concrete 
structures should be examined for evidence of seepage or abnormal 
leakage, and records of flow of downstream springs reviewed for 
variation with reservoir pool level. The sources of seepage should be 
determined if possible.
    h. Monolith Joints--Construction Joints. All monolith and 
construction joints should be examined to determine the condition of the 
joint and filler material, any movement of joints, or any indication of 
distress or leakage.
    i. Foundation. Foundation should be examined for damage or possible 
undermining of the downstream toe.
    j. Abutments. The abutments should be examined for sign of 
instability or excessive weathering.
    2. Embankment Structures.
    a. Settlement. The embankments and downstream toe areas should be 
examined for any evidence of localized or overall settlement, 
depressions or sink holes.
    b. Slope Stability. Embankment slopes should be examined for 
irregularities in

[[Page 303]]

alignment and variances from smooth uniform slopes, unusual changes from 
original crest alignment and elevation, evidence of movement at or 
beyond the toe, and surface cracks which indicate movement.
    c. Seepage. The downstream face of abutments, embankment slopes and 
toes, embankment--structure contacts, and the downstream valley areas 
should be examined for evidence of existing or past seepage. The sources 
of seepage should be investigated to determine cause and potential 
severity to dam safety under all operating conditions. The presence of 
animal burrows and tree growth on slopes which might cause detrimental 
seepage should be examined.
    d. Drainage Systems. All drainage systems should be examined to 
determine whether the systems can freely pass discharge and that the 
discharge water is not carrying embankment or foundation material. 
Systems used to monitor drainage should be examined to assure they are 
operational and functioning properly.
    e. Slope Protection. The slope protection should be examined for 
erosion-formed gullies and wave-formed notches and benches that have 
reduced the embankment cross-section or exposed less wave resistant 
materials. The adequacy of slope protection against waves, currents, and 
surface runoff that may occur at the site should be evaluated. The 
condition of vegetative cover should be evaluated where pertinent.
    3. Spillway Structures. Examination should be made of the structures 
and features including bulkheads, flashboards, and fuse plugs of all 
service and auxiliary spillways which serve as principal or emergency 
spillways for any condition which may impose operational constraints on 
the functioning of the spillway.
    a. Control Gates and Operating Machinery. The structural members, 
connections, hoists, cables and operating machinery and the adequacy of 
normal and emergency power supplies should be examined and tested to 
determine the structural integrity and verify the operational adequacy 
of the equipment. Where cranes are intended to be used for handling 
gates and bulkheads, the availability, capacity and condition of the 
cranes and lifting beams should be investigated. Operation of control 
systems and protective and alarm devices such as limit switches, sump 
high water alarms and drainage pumps should be investigated.
    b. Unlined Saddle Spillways. Unlined saddle spillways should be 
examined for evidence of erosion and any conditions which may impose 
constraints on the functioning of the spillway. The ability of the 
spillway to resist erosion due to operation and the potential hazard to 
the safety of the dam from such operation should be determined.
    c. Approach and Outlet Channels. The approach and outlet channels 
should be examined for any conditions which may impose constraints on 
the functioning of the spillway and present a potential hazard to the 
safety of the dam.
    d. Stilling Basin (Energy Dissipators). Stilling basins including 
baffles, flip buckets or other energy dissipators should be examined for 
any conditions which may pose constraints on the ability of the stilling 
basin to prevent downstream scour or erosion which may create or present 
a potential hazard to the safety of the dam. The existing condition of 
the channel downstream of the stilling basin should be determined.
    4. Outlet Works. The outlet works examination should include all 
structures and features designed to release reservoir water below the 
spillway crest through or around the dam.
    a. Intake Structure. The structure and all features should be 
examined for any conditions which may impose operational constraints on 
the outlet works. Entrances to intake structure should be examined for 
conditions such as silt or debris accumulation which may reduce the 
discharge capabilities of the outlet works.
    b. Operating and Emergency Control Gates. The structural members, 
connections, guides, hoists, cables and operating machinery including 
the adequacy of normal and emergency power supplies should be examined 
and tested to determine the structural integrity and verify the 
operational adequacy of the operating and emergency gates, valves, 
bulkheads, and other equipment.
    c. Conduits, Sluices, Water Passages, Etc. The interior surfaces of 
conduits should be examined for erosion, corrosion, cavitation, cracks, 
joint separation and leakage at cracks or joints.
    d. Stilling Basin (Energy Dissipator). The stilling basin or other 
energy dissipator should be examined for conditions which may impose any 
constraints on the ability of the stilling basin to prevent downstream 
scour or erosion which may create or present a potential hazard to the 
safety of the dam. The existing condition of the channel downstream of 
the stilling basin should be determined by soundings.
    e. Approach and Outlet Channels. The approach and outlet channels 
should be examined for any conditions which may impose constraints on 
the functioning of the discharge facilities of the outlet works, or 
present a hazard to the safety of the dam.
    f. Drawdown Facilities. Facilities provided for drawdown of the 
reservoir to avert impending failure of the dam or to facilitate repairs 
in the event of stability or foundation problems should be examined for 
any conditions which may impose constraints on their functioning as 
planned.
    5. Safety and Performance Instrumentation. Instruments which have 
been installed to measure behavior of the structures should be

[[Page 304]]

examined for proper functioning. The available records and readings of 
installed instruments should be reviewed to detect any unusual 
performance of the instruments or evidence of unusual performance or 
distress of the structure. The adequacy of the installed instrumentation 
to measure the performance and safety of the dam should be determined.
    a. Headwater and Tailwater Gages. The existing records of the 
headwater and tailwater gages should be examined to determine the 
relationship between other instrumentation measurements such as stream 
flow, uplift pressures, alignment, and drainage system discharge with 
the upper and lower water surface elevations.
    b. Horizontal and Vertical Alignment Instrumentation (Concrete 
Structures). The existing records of alignment and elevation surveys and 
measurements from inclinometers, inverted plumb bobs, gage points across 
cracks and joints, or other devices should be examined to determine any 
change from the original position of the structures.
    c. Horizontal and Vertical Movement, Consolidation, and Pore-Water 
Pressure Instrumentation (Embankment Structures). The existing records 
of measurements from settlement plates or gages, surface reference 
marks, slope indicators and other devices should be examined to 
determine the movement history of the embankment. Existing piezometer 
measurements should be examined to determine if the pore-water pressures 
in the embankment and foundation would under given conditions impair the 
safety of the dam.
    d. Uplift Instrumentation. The existing records of uplift 
measurements should be examined to determine if the uplift pressures for 
the maximum pool would impair the safety of the dam.
    e. Drainage System Instrumentation. The existing records of 
measurements of the drainage system flow should be examined to establish 
the normal relationship between pool elevations and discharge quantities 
and any changes that have occurred in this relationship during the 
history of the project.
    f. Seismic Instrumentation. The existing records of seismic 
instrumentation should be examined to determine the seismic activity in 
the area and the response of the structures of past earthquakes.
    6. Reservoir. The following features of the reservoir should be 
examined to determine to what extent the water impounded by the dam 
would constitute a danger to the safety of the dam or a hazard to human 
life or property.
    a. Shore line. The land forms around the reservoir should be 
examined for indications of major active or inactive landslide areas and 
to determine susceptibility of bedrock stratigraphy to massive 
landslides of sufficient magnitude to significantly reduce reservoir 
capacity or create waves that might overtop the dam.
    b. Sedimentation. The reservoir and drainage area should be examined 
for excessive sedimentation or recent developments in the drainage basin 
which could cause a sudden increase in sediment load thereby reducing 
the reservoir capacity with attendant increase in maximum outflow and 
maximum pool elevation.
    c. Potential Upstream Hazard Areas. The reservoir area should be 
examined for features subject to potential backwater flooding resulting 
in loss of human life or property at reservoir levels up to the maximum 
water storage capacity including any surcharge storage.
    d. Watershed Runoff Potential. The drainage basin should be examined 
for any extensive alterations to the surface of the drainage basin such 
as changed agriculture practices, timber clearing, railroad or highway 
construction or real estate developments that might extensively affect 
the runoff characteristics. Upstream projects that could have impact on 
the safety of the dam should be identified.
    7. Downstream Channel. The channel immediately downstream of the dam 
should be examined for conditions which might impose any constraints on 
the operation of the dam or present any hazards to the safety of the 
dam. Development of the potential flooded area downstream of the dam 
should be assessed for compatibility with the hazard classification.
    8. Operation and Maintenance Features.
    a. Reservoir Regulation Plan. The actual practices in regulating the 
reservoir and discharges under normal and emergency conditions should be 
examined to determine if they comply with the designed reservoir 
regulation plan and to assure that they do not constitute a danger to 
the safety of the dam or to human life or property.
    b. Maintenance. The maintenance of the operating facilities and 
features that pertain to the safety of the dam should be examined to 
determine the adequacy and quality of the maintenance procedures 
followed in maintaining the dam and facilities in safe operating 
condition.

          Appendix III to App. D to Sec. 222.6--Pub. L. 92-367

[[Page 305]]

[GRAPHIC] [TIFF OMITTED] TC31OC91.022


[[Page 306]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.023

              Appendix E to Sec. 222.6--Suggested Outline

Inspection Report--National Dam Inspection Program (RCS-DAEN-CWE-17 and 
                            OMB No. 49-R0421)

Title Sheet

    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

                            Table of Contents

                           General Assessment

    Give brief assessment of general condition of dam with respect to 
safety, including a listing of deficiencies, and recommendations 
indicating degree of urgency.

                             1. Introduction

    a. Authority
    b. Purpose and Scope of Inspection

                         2. Project Information

    a. Site Information
    b. Description of Structures--Dam, Outlet, Spillway and other 
principal features.
    c. Purpose of Dam
    d. Design, Construction and Operating History

                           3. Field Inspection

    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.

[[Page 307]]

                              4. Evaluation

    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.

                             5. Conclusions

    Provide conclusions on condition of dam and list all deficiencies. 
If dam is considered unsafe, so state and give reason.

                           6. Recommendations

    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.

                               Appendixes

    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.

                        Appendix F to Sec. 222.6

 Instructions for Unsafe Dam Data Sheet (RCS-DAEN-CWE-17 and OMB No. 49-
                                 R0421)

    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. Name--Name of dam.
    b. Id. No.--Dam inventory identity number.
    c. Location--List state county, river or stream and nearest D/S city 
or town where the dam is located.
    d. Height--Maximum hydraulic height of dam.
    e. Maximum Impoundment Capacity--List the capacity of the reservior 
at maximum attainable water surface elevation including any surcharge 
loading.
    f. Type--Type of dam, i.e., earth, rockfill, gravity, combination 
earth-gravity, etc.
    g. Owner--Owner of dam.
    h. Date Governor Notified of Unsafe Condition--The date and method 
of notification, such as, by telegram, letter, report, etc.
    i. Condition of Dam Resulting in Unsafe Assessment--Brief 
description of the deficiencies discovered which resulted in the unsafe 
assessment.
    j. Description of Danger Involved--Downstream (D/S) hazard potential 
category and a brief description of the danger involved.
    k. Recommendations Given to Governor--Brief description of the 
actions recommended to Governor at time of notification of unsafe 
condition to eliminate or reduce the danger.
    l. Urgency Category--State whether the unsafe condition of the dam 
is an emergency or non-emergency situation. An emergency situation 
should be considered to exist if the failure of the dam is judged to be 
imminent

[[Page 308]]

and requires immediate action to eliminate or reduce the danger.
    m. Emergency Actions Taken--In case of an emergency situation, list 
the actions taken. For non-emergency situation, put NA for ``not 
applicable.''
    n. Remedial Action Taken--For non-emergency situations list remedial 
actions taken.
    o. Remarks--For other pertinent information.

 Format for Unsafe Dam Data Sheet (RCS-DAEN-CWE-17 and OMB No. 49-R0421

  National Program of Inspection of Non-Federal Dams--Unsafe Dam Data 
                                  Sheet

    a. Name:
    b. Type:
    c. Height:
    d. Id. No.
    e. Location:
     State: County:
     Nearest D/S City, Town or Village:
     River or Stream:
    f. Owner:
    g. Date Governor Notified of Unsafe Condition:
    h. Condition of Dam Resulting in Unsafe Assessment:
    i. Description of Danger Involved:
    j. Recommendations Given to Governor:
    k. Urgency Category:
    l. Emergency Actions Taken:
    m. Remarks:

                        Appendix G to Sec. 222.6

 National Program for Inspection of Non-Federal Dams--Monthly Progress 
                        Report (RCS-DAEN-CWE-19)

I. Instructions for Monthly Progress Report. The indicated information 
shall be provided in the format shown on page G-2.

    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. \1\
---------------------------------------------------------------------------

    \1\ Each of the initiated inspections reported should be planned for 
completion within a reasonable period of time (30 days.)
---------------------------------------------------------------------------

    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. \2\
---------------------------------------------------------------------------

    \2\ An unsafe dam is defined as a dam with deficiencies of such a 
nature that if not corrected could result in the failure of the dam with 
subsequent loss of lives or substantial property damage.
---------------------------------------------------------------------------

    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. \1\
---------------------------------------------------------------------------

    \1\ See footnote on previous page.
---------------------------------------------------------------------------

    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.

II. Formation for Monthly Progress Report.

 National Program for Inspection of Non-Federal Dams--Monthly Progress 
                                 Report

    1. Division Reporting:
    2. Date:
    3. Information Required for Each State Regarding Total Number of 
Inspections Performed (Cumulative):

------------------------------------------------------------------------
                                                       Unsafe
                              Inspection  Inspection    Dams    Approved
            State              Initiated   Completed  Reported   Reports
                                 (3.1)       (3.2)      (3.3)     (3.4)
------------------------------------------------------------------------
 
 
 
                             ===========================================
Total.......................
------------------------------------------------------------------------

    4. Information Required for Each State Regarding Inspections 
Performed Under A/E Contracts (Cumulative):

----------------------------------------------------------------------------------------------------------------
                                                                      Dams
                                                                    Under A/      A/E          A/E         A/E
                               State                                    E     Inspections  Inspections   Reports
                                                                    Contract   Initiated    Completed   Approved
                                                                      (4.1)      (4.2)        (4.3)       (4.4)
----------------------------------------------------------------------------------------------------------------
 
 
 
                                                                   =============================================
Totals............................................................
----------------------------------------------------------------------------------------------------------------

                        Appendix H to Sec. 222.6

  Suggested Scope of Work Contract for Architect-Engineer Services for 
         Safety Inspection of Dams Within the State of --------

    1. General Description of Scope of Work. The services to be rendered 
by the Architect-Engineer (AE) under the proposed contract

[[Page 309]]

shall include all engineering functions, hereinafter described, as 
needed to inspect the dams listed in Appendix A of this contract for the 
purpose of evaluating their risk of failure. A report which (a) 
describes the assessed condition of the dam, (b) provides conclusions as 
to which particular conditions could cause failure, (c) makes 
recommendations on remedial measures believed necessary, and (d) makes 
recommendations on whether and what type of future investigation should 
be conducted shall be provided for each inspected dam. The work shall 
proceed in accordance with Phase I of the Recommended Guidelines for 
Safety Inspection of Dams established by the Office of the Chief of 
Engineers (OCE) and the supplemented requirements listed in paragraph 3 
below. The OCE guidelines are listed in Appendix B of this contract.
    2. Information and Services To Be Furnished by the Government. The 
Contracting Officer will furnish the following information and services 
to the AE:
    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. Services To Be Rendered by the Architect-Engineer. The principal 
services, subject to the optional provisions of the contract, to be 
rendered by the AE are itemized below:
    a. Technical Investigations.
    (1) Engineering Data Collection. To the extent feasible, the 
engineering data listed in Appendix I of the OCE guidelines relating to 
the design, construction and operation of the dam and appurtenant 
structures, should be collected from existing records and reviewed to 
aid in evaluating the general condition of each dam, including an 
assessment of the hydraulic and hydrologic features and structural 
stability of the dam. Where the necessary engineering data are 
unavailable, inadequate or invalid, a listing shall be made of those 
specific additional data deemed necessary by the engineer in charge of 
the investigation and included in the inspection report. The engineering 
data checklist provided by the Contracting Officer shall be used as a 
guide to compile this data.
    (2) Field Inspections. The field inspection of each dam shall 
include examination of the items listed in Appendix II of the OCE 
guidelines, electrical and mechanical equipment for operation of the 
control facilities, reservoir area, downstream channel in the vicinity 
of the dam and any other significant feature to determine how these 
features affect the risk of failure of the dam. The inspection shall be 
conducted in a systematic manner to minimize the possibility of any 
significant feature being overlooked. The visual inspection checklist 
provided by the Contracting Officer shall be used as a guide to document 
the examination of each significant feature.
    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 
(i.e., spillway, outlet works, etc.) shall be evaluated. An assessment 
of the degree of siltation that is evident and its effect on the dam's 
reservoir shall be performed. Photographs and drawings should be used to 
record conditions in order to minimize written descriptions.
    (3) Engineering Analyses.
    (a) Evaluation of Hydraulic and Hydrologic (H&H) Features. 
Evaluation of the hydraulic and hydrological features of each dam shall 
be based on criteria set forth in the OCE guidelines. If it is 
determined that the available H&H data are insufficient, the Contracting 
Officer must be so informed and may exercise an option of requiring the 
AE to perform an overtopping analysis at additional agreed-upon 
compensation. The methodology to be used by the AE for this analysis 
will be based on the OCE guidelines and subject to the approval of the 
Contracting Officer.
    (b) Evaluation of Structural Stability. The evaluation of structural 
stability of each dam is to be based principally on existing conditions 
as revealed by the visual inspection, available design and construction 
information, and records of performance. The objectives are to determine 
the existence of conditions, identifiable by visual inspection or from 
records, which may pose a high risk of failure and to formulate 
recommendations pertaining to the need for any remedial improvements, 
additional studies, investigations, or analysis. The results of this 
phase of the inspection must rely substantially upon the experience and 
judgment of the inspecting engineer. Should it be determined that 
sufficient data are not available for a reasonable evaluation of the 
structural stability of a dam and appurtenances, the Contracting Officer 
should be informed which information is required prior to attempting to 
evaluate the risk of failure of the dam.
    (c) Evaluation of Operational Features. Where critical mechanical/
electrical operating equipment is used in controlling the

[[Page 310]]

reservoir of a dam, an evaluation of the operational characteristics of 
this equipment from the standpoint of risk of failure must be performed.
    (d) Evaluation of Reservoir Regulation Plan and Warning System. The 
operational characteristics of each dam's existing reservoir regulation 
plan and warning system in event of a threatened failure shall be 
investigated.
    b. Emergency Situations. The Contracting Officer must be immediately 
notified of any observed condition which is deemed to require immediate 
remedial action. After being notified, the Contracting Officer will 
contact the appropriate State personnel and will meet the AE at the site 
to determine the appropriate course of action. This will not relieve the 
AE of his responsibility to prepare a comprehensive inspection report at 
the earliest practicable date.
    c. Qualifications of Investigators. The technical investigations 
shall be conducted by licensed professional engineers with a minimum of 
five years experience after licensing in the investigation, design and 
contruction of earthfill, rockfill and concrete dams and/or in making 
risk of failure evaluations of completed dams. These engineers must be 
knowledgeable in the disciplines of hydrology, hydraulics, geotechnical, 
electrical, mechanical and structural engineering, as necessary. All 
field inspections should be conducted by engineers, engineering 
geologists and other specialists who are knowledgeable in the 
investigation, design, construction and operation of dams, including 
experts on mechanical and electrical operation of gates and controls, 
where needed.
    d. Preparation of Report. A formal report shall be prepared for each 
dam inspected for submission to the Contracting Officer. Each report 
should contain the information specified in OCE guidelines and any other 
pertinent information. The recommended format provided by the 
Contracting Officer shall be used to document each report. The signature 
and registration identification of the professional engineer who 
directed the investigation and who was responsible for evaluation of the 
dam should be included in the report.
    4. Supervision and Approval of Work. All work performed under this 
contract shall be subject to the review and approval of the Contracting 
Officer or his designee. Meetings will be held on a regular basis in the 
District office, during which the progress of inspections will be 
discussed and questions relating to inspection reports previously 
received by the Contracting Officer will be addressed. Reports will be 
revised as necessary when required by the Contracting Officer.
    5. Coordination. During the progress of work, the AE shall maintain 
liaison with the *-------- and other local authorities through the 
Contracting Officer as required to assure the orderly progression of the 
inspection. Copies of all correspondence with such authorities shall be 
provided to the Contracting Officer.
---------------------------------------------------------------------------

    * Note: Write in the designated State Authority.
---------------------------------------------------------------------------

    6. Submission of Report.
    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 8x10\1/2\ paper. All notes, inspection 
forms, sketches or similar matter shall be legible, distinct and 
suitable for reproduction.
    7. Period of Services.
    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.

                        Appendix I to Sec. 222.6

 Procedure for Using NASA Land Satellite Multispectral Scanner Data for 
        Verification and Updating the National Inventory of Dams

    1. Purpose. This appendix states the objective, defines the scope, 
prescribes procedures, and assigns responsibilities for using NASA Land 
Satellite (LANDSAT) Multispectral Scanner data along with NASA's Surface 
Water Detection And Mapping (DAM) Computer program to assist in 
verification and updating the National Inventory of Dams.
    2. Applicability. This appendix is applicable to all divisions and 
districts having Civil Works responsibilities except POD.
    3. Reference. NASA, DETECTION AND MAPPING PACKAGE, Users Manuals, 
Volumes 1, 2a, 2b, and 3 dated June 1976, published by the Johnson Space 
Center, Houston, Texas.
    4. Objectives. Provide a uniform method, nation-wide, to help insure 
that all dams subject to Public Law 92-367, 8 August 1972 are properly 
identified and located in the National Inventory of Dams.
    5. Scope. The computer printer overlay maps produced by the 
procedure described in reference 3b will be used by district and/or 
state or contractor personnel as a tool to assist in verification and 
updating of the National Inventory of Dams.

[[Page 311]]

    6. Exceptions. a. If a Division/District attempts the use of the 
procedure for a given region within their area of responsibility and 
finds the overlay maps cannot be used to assist in verification and 
updating the National Inventory of Dams, they may request an exception 
for a selected region. A selected region may include areas where 
conditions can reasonably be assumed to be the same as the region where 
the procedure was tried.
    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. Procedures. Acquisition of LANDSAT data, registration of 
satellite coordinates to earth latitude and longitude and computer 
processing to produce overlay maps will be accomplished by two Regional 
Centers. Nashville District and Seattle District have been designated as 
the Regional Centers, with each responsible for processing maps by state 
based on Divisional assignments in Appendix A. Regional Centers will 
support divisions as follows:

------------------------------------------------------------------------
              Regional Center                         Division
------------------------------------------------------------------------
Nashville District                          New England
                                            North Atlantic
                                            South Atlantic
                                            Ohio River
                                            Lower Mississippi Valley
                                            North Central
 
Seattle District                            Southwestern
                                            Missouri River
                                            North Pacific
                                            South Pacific
------------------------------------------------------------------------

    8. Responsibilities. a. The Water Resources Support Center at Fort 
Belvoir has overall responsibility for coordination and monitoring of 
this activity between NASA, Division Offices, and Regional Centers, and 
for providing Regional Center funding.
    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\1/2\ minute 
quadrangle sheets (scale 1:24,000) where available.
    (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. Points of Contact. The points of contact in the Regional Centers 
for this program are as follows:

                   Name, Office Symbol, and Telephone

Jim Cook--DAEN-ORNED, (615) 251-7366; FTS 852-7366.
Jack Erlandson--DAEN-NPSEN, (206) 764-3535; FTS 399-3535.

[44 FR 55336, Sept. 26, 1979, as amended at 45 FR 18925, Mar. 24, 1980. 
Redesignated at 60 FR 19851, Apr. 21, 1995]



PART 223_BOARDS, COMMISSIONS, AND COMMITTEES--Table of Contents





Sec. 223.1  Mississippi River Water Control Management Board.

    (a) Purpose. This regulation establishes and prescribes the 
objectives, composition, responsibilities and authority of the 
Mississippi River Water Control Management Board.
    (b) Applicability. This regulation is applicable to the Board 
members and to all field operating agencies concerned with water control 
management within the Mississippi River Basin.
    (c) Objectives. The objectives of the Board are:
    (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.

[[Page 312]]

    (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) Composition. The Mississippi River Water Control Management 
Board is a continuing board consisting of the Director of Civil Works 
and Division Engineers serving in LMVD, MRD, ORD, NCD and SWD. The 
Director of Civil Works serves as permanent chairperson.
    (e) Responsibilities. The Board functions under the general 
direction of the Chief of Engineers and is responsible for:
    (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) Procedures. The procedures used by the board to carry out its 
responsibilities are as follows:
    (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) Board authority. The Mississippi River Water Control Management 
Board is delegated authority to establish continuing or ad hoc inter-
divisional operating or study committees comprised of U.S. Army Corps of 
Engineers personnel to facilitate the work of the Board.
    (h) Funding. Routine activities of the Mississippi River Water 
Control Management Board and its committees, such as travel and meeting 
expenses, will be funded by the separate members' offices using General 
Expense funds otherwise available. Major expenses connected with special 
studies or activities will be funded through the normal budgetary 
process. Budget requests will be supported by appropriate justification 
material.

(Act of Congress approved 1 March 1917, (33 U.S.C. 701) and sec. 2 of 
the Act of Congress approved 28 June 1938 as amended (33 U.S.C. 701c-1))

[43 FR 52236, Nov. 9, 1978]



PART 230_PROCEDURES FOR IMPLEMENTING NEPA--Table of Contents



Sec.
230.1 Purpose.
230.2 Applicability.
230.3 References.
230.4 Definitions.
230.5 Responsible officials.
230.6 Actions normally requiring an EIS.
230.7 Actions normally requiring an Environmental Assessment (EA) but 
          not necessarily an EIS.
230.8 Emergency actions.
230.9 Categorical exclusions.
230.10 Environmental Assessments (EA).
230.11 Finding of No Significant Impact (FONSI).
230.12 Notice of intent and scoping.
230.13 Environmental Impact Statement (EIS).
230.14 Record of decision and implementation.
230.15 Mitigation and monitoring.
230.16 Lead and cooperating agencies.
230.17 Filing requirements.
230.18 Availability.
230.19 Comments.
230.20 Integration with State and local procedures.
230.21 Adoption.
230.22 Limitations on actions during the NEPA process.
230.23 Predecision referrals.
230.24 Agency decision points.

[[Page 313]]

230.25 Environmental review and consultation requirements.
230.26 General considerations in preparing Corps EISs.

Appendix A to Part 230--Processing Corps NEPA Documents
Appendix B to Part 230 [Reserved]
Appendix C to Part 230--Notice of Intent To Prepare a Draft EIS

    Authority: National Environmental Policy Act (NEPA) (42 U.S.C. 4321 
et seq.); E.O. 11514, Protection and Enhancement of Environmental 
Quality, March 5, 1970, as amended by E.O. 11991, May 24, 1977; and CEQ 
Regulations Implementing the Procedural Provisions of NEPA (40 CFR 
1507.3).

    Source: 53 FR 3127, Feb. 3, 1988, unless otherwise noted.



Sec. 230.1  Purpose.

    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 Federal Register for all types 
of Corps actions. 33 CFR part 325, Appendix B provides procedural 
guidance for preparing and processing NEPA documents for regulatory 
actions.



Sec. 230.2  Applicability.

    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.



Sec. 230.3  References.

    (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 et 
seq.
    (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 et seq.
    (g) National Environmental Policy Act of 1969, as amended, 42 U.S.C. 
4321 et seq.
    (h) National Historic Preservation Act of 1966, as amended, 16 
U.S.C. 470 et seq.
    (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.



Sec. 230.4  Definitions.

    Refer to 40 CFR part 1508; other definitions may be found in the 
references given above.



Sec. 230.5  Responsible officials.

    The district commander is the Corps NEPA official responsible for 
compliance with NEPA for actions within district boundaries. The 
district commander also provides agency views on other agencies' 
environmental impact statements (EIS). The Office of Environmental 
Policy HQUSACE (CECW-

[[Page 314]]

RE) WASH DC 20314-1000 (phone number 202-272-0166) is the point of 
contact for information on Corps NEPA documents, NEPA oversight 
activities, review of other agencies' EISs and NEPA documents about 
legislation, regulations, national program proposals or other major 
policy issues. The Assistant Chief Counsel for Environmental Law and 
Regulatory Programs, HQUSACE (CECC-E) WASH DC 20314-1000, is the point 
of contact for legal questions involving environmental matters. Requests 
for information on regulatory permit actions should be directed to 
HQUSACE (CECW-OR) WASH DC 20314-1000.



Sec. 230.6  Actions normally requiring an EIS.

    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.



Sec. 230.7  Actions normally requiring an Environmental Assessment (EA)
but not necessarily an EIS.

    Actions normally requiring an EA, but not an EIS, are listed below:
    (a) Regulatory Actions. Most permits will normally require only an 
EA.
    (b) Authorized Projects and Projects Under Construction. Changes 
which may be approved under the discretionary authority of the Secretary 
of the Army.
    (c) Continuing Authorities Program. Projects recommended for 
approval of the Chief of Engineers under the following authorities:
    (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) Construction and Operations and Maintenance. Changes in 
environmental impacts which were not considered in the project EIS or 
EA. Examples are changes in pool level operations, use of new disposal 
areas, location of bank protection works, etc.
    (e) Real Estate Management and Disposal Actions. (1) Disposal of a 
Civil Works project or portions of project properties not reported as 
excess to the General Services Administration.
    (2) Disposal of real property for public port and industrial 
purposes.
    (3) Grants of leases or easements for other than minor oil and gas 
transmission lines, electric power transmission lines, road and highway 
rights-of-way, and sewage or water treatment facilities and land fills.



Sec. 230.8  Emergency actions.

    In responding to emergency situations to prevent or reduce imminent 
risk of life, health, property, or severe economic losses, district 
commanders may proceed without the specific documentation and procedural 
requirements of other sections of this regulation. District commanders 
shall consider the probable environmental consequences in determining 
appropriate emergency actions and when requesting approval to proceed on 
emergency actions, will describe proposed NEPA documentation or reasons 
for exclusion from documentation. NEPA documentation should be 
accomplished prior to initiation of emergency work if time constraints 
render this practicable. Such 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

[[Page 315]]

scope with potentially significant environmental impacts shall be 
referred through the division commanders to HQUSACE (CECW-RE) for 
consultation with CEQ about NEPA arrangements.



Sec. 230.9  Categorical exclusions.

    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.

[[Page 316]]

    (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.



Sec. 230.10  Environmental Assessments (EA).

    (a) Purpose. An EA is a brief document which provides sufficient 
information to the district commander on potential environmental effects 
of the proposed action and, if appropriate, its alternatives, for 
determining whether to prepare an EIS or a FONSI (40 CFR 1508.9). The 
district commander is responsible for making this determination and for 
keeping the public informed of the availability of the EA and FONSI.
    (b) Format. While no special format is required, the EA should 
include a brief discussion of the need for the proposed action, or 
appropriate alternatives if there are unresolved conflicts concerning 
alternative uses of available resources, of the environmental impacts of 
the proposed action and alternatives and a list of the agencies, 
interested groups and the public consulted. The document is to be 
concise for meaningful review and decision.
    (c) Integration with Corps Reports. In the case of planning and/or 
engineering reports not requiring an EIS, the EA may be combined with or 
integrated into the report. The same guidance on combining or 
integrating an EIS within the report shall apply equally to an EA. Where 
the EA is combined with a Corps report or prepared as a separate 
document in the case of construction, operating projects and real estate 
actions requiring an EA, the EA normally should not exceed 15 pages.



Sec. 230.11  Finding of No Significant Impact (FONSI).

    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)).



Sec. 230.12  Notice of intent and scoping.

    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 Federal Register is 
discussed in Appendix C. Also, a public notice will be widely 
distributed inviting public participation in the scoping process. As 
described in 40 CFR 1501.7 and reference 3(m), this process is the key 
to preparing a concise EIS and clarifying the significant issues to be 
analyzed in depth. Public concerns on issues, studies needed, 
alternatives to be examined, procedures and other related matters will 
be addressed during scoping.



Sec. 230.13  Environmental Impact Statement (EIS).

    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

[[Page 317]]

40 CFR 1502.07. An effort should be exerted to cover the substantive 
topics simply and concisely to the extent practicable, and consistent 
with producing a legally and technically adequate EIS. Normally, the CEQ 
page limits should be met.
    (a) Draft and final EISs. Guidance on EISs prepared for planning and 
certain planning/engineering studies is contained in ER 1105-2-10 thru 
60. 33 CFR part 325, appendix B contains guidance for regulatory 
actions. For final EISs which are not combined with or integrated into 
the report, the final EIS may take the form of an ``abbreviated'' 
document described in 40 CFR 1503.4(c). An abbreviated final EIS should 
consist of a new title page, summary, errata or correction sheet(s) and 
comments and responses. In filing the abbreviated final EIS with EPA 
(Washington Office), five copies of the draft EIS shall be included in 
the transmittal. District commanders shall be responsible for 
determining the type of final EIS to prepare.
    (b) Supplements. A supplement to the draft or final EIS should be 
prepared whenever required as discussed in 40 CFR 1502.09(c). A 
supplement to a draft EIS should be prepared and filed in the same 
manner as a draft EIS and should be titled ``Supplement I'', 
``Supplement II'', etc. The final EIS should address the changes noted 
in the supplement and substantive comments received as a result of 
circulation of the document. A supplement to a final EIS should be 
prepared and filed first as a draft supplement and then as a final 
supplement. Supplements will be filed and circulated in the same manner 
as a draft and final EIS (including the abbreviated procedure discussed 
in 13a. above). Supplements to a draft or final EIS filed before 30 July 
1979 may follow the format of the previously filed EIS. Supplements to a 
draft EIS filed after this date will follow the format outlined in 40 
CFR 1502.10. References to the draft or final EIS being supplemented 
should be used to eliminate repetitive discussions in order to focus on 
the important issues and impacts. The transmittal letter to EPA as well 
as the cover sheet should clearly identify the title and purpose of the 
document as well as the title and filing date of the previous EIS being 
supplemented and how copies can be obtained. The decision may be made on 
the proposed action by the appropriate Corps official no sooner than 30 
days after the final supplement has been on file. A record of decision 
will be signed when the decision is made.
    (c) Tiering. Tiering is discussed in 40 CFR 1502.20 and 1508.28 and 
should be used in appropriate cases. The initial broad or programmatic 
EIS must present sufficient information regarding overall impacts of the 
proposed action so that the decision-makers can make a reasoned judgment 
on the merits of the action at the present stage of planning or 
development and exclude from consideration issues already decided or not 
ready for decision. The initial broad EIS should also identify data gaps 
and discuss future plans to supplement the data and prepare and 
circulate site specific EISs or EAs as appropriate.
    (d) Other Reports. District commanders may also publish periodic 
fact sheets and/or other supplemental information documents on long-term 
or complex EISs to keep the public informed on the status of the 
proposed action. These documents will not be filed officially with EPA.



Sec. 230.14  Record of decision and implementation.

    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.



Sec. 230.15  Mitigation and monitoring.

    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

[[Page 318]]

projects. The term monitoring will be interpreted as that oversight 
activity necessary to ensure that the decision, including required 
mitigation measures, is implemented.



Sec. 230.16  Lead and cooperating agencies.

    Lead agency, joint lead agency, and cooperating agency designation 
and responsibilities are covered in 40 CFR 1501.5 and 1501.6. 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) Lead Agency. The Corps will normally be lead agency for Corps 
civil works projects and will normally avoid joint lead agency 
arrangements. Lead agency status for regulatory actions will be 
determined on the basis of 40 CFR 1501.5(c).
    (b) Corps as a Cooperating Agency. For cooperating agency 
designation the Corps area of expertise or jurisdiction by law is 
generally flood control, navigation, hydropower and Corps regulatory 
responsibilities. See Appendix II of CEQ regulations (49 FR 49750, 
December 21, 1984).



Sec. 230.17  Filing requirements.

    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) Timing requirements. Specific timing requirements regarding the 
filing of EISs with EPA are discussed in 40 CFR 1506.10. District 
commanders will forward any expedited filing requests with appropriate 
supporting information through channels to CECW-RE. Once a decision is 
reached to prepare an EIS or supplement, district commanders will 
establish a time schedule for each step of the process based upon 
considerations listed in 40 CFR 1501.8 and upon other management 
considerations. The time required from the decision to prepare an EIS to 
filing the final EIS normally should not exceed one year (46 FR 18037, 
March 23, 1981). For feasibility, continuing authority, or reevaluation 
studies, where the project's study time is expected to exceed 12 months, 
the timing of the EIS should be commensurate with the study time. In 
appropriate circumstances where the costs of completing studies or 
acquiring information for an EIS (i.e., cost in terms of money, time, or 
other resources) would be exorbitant, the district commander should 
consider using the mechanism described in 40 CFR 1502.22, as amended. In 
all cases, however, it is the district commander's responsibility to 
assure that the time-limit established for the preparation of an EIS or 
supplement is consistent with the purposes of NEPA.
    (b) Timing requirements on supplements. Minimum review periods will 
be observed for draft and final supplements covering actions not having 
a bearing on the overall project for which a final EIS has been filed. 
Such supplements should not curtail other ongoing or scheduled actions 
on the overall project which have already complied with the procedural 
requirements of NEPA.



Sec. 230.18  Availability.

    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,

[[Page 319]]

if the statement is unusually long. These documents will normally be 
made available without charge except that, in unusual circumstances, 
reproduction costs may be recovered in accordance with 40 CFR 1506.6(f) 
from recipients other than those required by CEQ to receive the complete 
EIS.



Sec. 230.19  Comments.

    District commanders shall request comments as set forth in 40 CFR 
1503 and 1506.6. A lack of response may be presumed to indicate that the 
party has no comment to make.
    (a) Time extensions. District commanders will consider and act on 
requests for time extensions to review and comment on an EIS based on 
timeliness of distribution of the document, prior agency involvement in 
the proposed action, and the action's scope and complexity.
    (b) Public meetings and hearings. See 40 CFR 1506.6(c). Refer to 
paragraph 12, 33 CFR part 325, appendix B for regulatory actions.
    (c) Comments received on the draft EIS. See 40 CFR 1503.4. District 
commanders will pay particular attention to the display in the final EIS 
of comments received on the draft EIS. In the case of abbreviated final 
EISs, follow 40 CFR 1503.4(c). For all other final EISs, comments and 
agency responses thereto will be placed in an appendix in a format most 
efficient for users of the final EIS to understand the nature of public 
input and the district commander's consideration thereof. District 
commanders will avoid lengthy or repetitive verbatim reporting of 
comments and will keep responses clear and concise.
    (d) Comments received on the final EIS. Responses to comments 
received on the final EIS are required only when substantive issues are 
raised which have not been addressed in the EIS. In the case of 
feasibility reports where the final report and EIS, Board of Engineers 
for Rivers and Harbors (CEBRH) or Mississippi River Commission (CEMRC) 
report, and the proposed Chief's report are circulated for review, 
incoming comment letters will normally be answered, if appropriate, by 
CECW-P. After the review period is over, CECW-P will provide copies of 
all incoming comments received in HQUSACE to the district commander for 
use in preparing the draft record of decision. For all other Corps 
actions except regulatory actions (See 33 CFR part 325, appendix B), two 
copies of all incoming comment letters (even if the letters do not 
require an agency response) together with the district commander's 
responses (if appropriate) and the draft record of decision will be 
submitted through channels to the appropriate decision authority. In the 
case of a letter recommending a referral under 40 FR part 1504, 
reporting officers will notify CECW-RE and request further guidance. The 
record of decision will not be signed nor any action taken on the 
proposal until the referral case is resolved.
    (e) Commenting on other agencies' EISs. See 40 CFR 1503.2 and 
1503.3. District commanders will provide comments directly to the 
requesting agency. CECW-RE will provide comments about legislation, 
national program proposals, regulations or other major policy issues to 
the requesting agency. See appendix III of CEQ regulations. When the 
Corps is a cooperating agency, the Corps will provide comments on 
another Federal agency's draft EIS even if the response is no comment. 
Comments should be specific and restricted to areas of Corps 
jurisdiction by law and special expertise as defined in 40 CFR 1508.15 
and 1508.26, generally including flood control, navigation, hydropower, 
and regulatory responsibilities. See appendix II of CEQ regulations.



Sec. 230.20  Integration with State and local procedures.

    See 40 CFR 1506.2.



Sec. 230.21  Adoption.

    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

[[Page 320]]

where the document is not recirculated as provided in 40 CFR 1506.3 (b) 
or (c), the adopted EIS with the supplement, if any, will be processed 
in accordance with this regulation. A district commander may also adopt 
another agency's EA/FONSI.



Sec. 230.22  Limitations on actions during the NEPA process.

    See 40 CFR 1506.1.



Sec. 230.23  Predecision referrals.

    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.



Sec. 230.24  Agency decision points.

    The timing and processing of NEPA documents in relation to major 
decision points are addressed in paragraphs 11 and 14 and appendix A for 
studies and projects and 33 CFR part 320 through 330 for regulatory 
actions.



Sec. 230.25  Environmental review and consultation requirements.

    See 40 CFR 1502.25.
    (a) For Federal projects, NEPA documents shall be prepared 
concurrently with and utilize data from analyses required by other 
environmental laws and executive orders. A listing of environmental laws 
and orders is contained in table 3.4.3 of Economic and Environmental 
Principles and Guidelines for Water and Related Land Resources 
Implementation Studies. Reviews and consultation requirements, analyses, 
and status of coordination associated with applicable laws, executive 
orders and memoranda will be summarized in the draft document. The 
results of the coordination completed or underway pursuant to these 
authorities will be summarized in the final document. Where the results 
of 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) Executive Order 12114, Environmental Effects Abroad of Major 
Federal Actions, 4 January 1979. For general policy guidance, see 
Federal Register of April 12, 1979, 32 CFR part 197. Procedural 
requirements for Civil Works studies and projects are discussed below.
    (1) The district commander through the division commander will 
notify CECW-PE, PN, PS or PW as appropriate, of an impending action 
which may impact on another country and for which environmental studies 
may be necessary to determine the extent and significance of the impact. 
The district commander will inform CECW-P whether entry into the country 
is necessary to study the base condition.
    (2) CECW-P will notify the State Department, Office of Environment 
and Health (OES/ENH) of the district commander's concern, and whether a 
need exists at this point to notify officially the foreign nation of our 
intent to study potential impacts. Depending on 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.

[[Page 321]]



Sec. 230.26  General considerations in preparing Corps EISs.

    (a) Interdisciplinary preparation. See (40 CFR 1502.6).
    (b) Incorporation by reference. To the maximum extent practicable, 
the EIS should incorporate material by reference in accordance with 40 
CFR 1502.21. Footnotes should be used only where their use greatly aids 
the reader's understanding of the point discussed. Citation in the EIS 
of material incorporated by reference should be made by indicating an 
author's last name and date of the reference in parentheses at the 
appropriate location in the EIS. The list of references will be placed 
at the end of the EIS. Only information sources actually cited in the 
text should appear in the reference list. The reference list should 
include the author's name, the date and title of the publication, 
personal communications and type of communication (e.g., letter, 
telephone, interview, etc.).



      Sec. Appendix A to Part 230--Processing Corps NEPA Documents

    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.

                            Table of Contents

Title
1. Feasibility Studies
2. Continuing Authorities Program Studies
3. Projects in Preconstruction Engineering, and Design, Construction, 
          and Completed Projects in an Operations and Maintenance 
          Category
4. Other Corps Projects

                         1. Feasibility Studies

    a. Preparation and Draft Review. During the reconnaissance phase, 
the district commander should undertake environmental studies along with 
engineering, economic and other technical studies to determine the 
probable environmental effects of alternatives and the appropriate NEPA 
document to accompany the feasibility report. This environmental 
evaluation should be continued in the feasibility phase, and if the need 
for an EIS develops the district commander will issue a notice of intent 
as early in the feasibility phase as possible. Following the guidance in 
ER 1105-2-10 through 60, the district commander will prepare a draft 
feasibility report combining or integrating the draft EIS or EA and 
draft FONSI (as appropriate), or a separate NEPA document and circulate 
it to agencies, organizations and members of the public known to have an 
interest in the study. Five copies of the draft EIS and report will be 
mailed to Director, Office of Federal Activities (A-104), Environmental 
Protection Agency, 401 M Street SW., Washington, DC 20460 for filing 
after distribution has been accomplished. After receipt and evaluation 
of comments received, the district commander will prepare the final 
report and EIS or EA and FONSI and submit it to the division commander 
for review.
    b. Division Review. After review, the division commander will issue 
a public notice of report issuance and transmit the report to the CEBRH. 
On Mississippi River and Tributaries projects, the district commander 
will issue a public notice and submit the report to the CEMRC. For the 
purpose of this regulation, only the acronym CEBRH will be used since 
the review functions of CEMRC and CEBRH are similar. The notice will 
provide a 30-day period for comments to be submitted to CEBRH on the 
report and EIS. Although the EIS in the report is identified as 
``final'' at this stage of processing, it should be made clear to all 
those requesting a copy that it is an ``Interim Document under Agency 
Review--Subject to Revision'' and will become the agency's final EIS 
when it is filed after CEBRH review.
    c. CEBRH Review. CEBRH will review the EIS at the same time it 
reviews the final feasibility report. The report and EIS should be 
compatible. If the CEBRH review requires minor revisions (with 
insignificant impacts) to the plan as recommended by the division and 
district commanders, these changes and impacts shall be noted in the 
CEBRH report. If the CEBRH action results in major revisions to the 
recommended plan and revisions are variants of the plan or are within 
the range of alternatives considered and discussed in the draft EIS, an 
addendum to the final EIS will be prepared by CEBRH (with assistance 
from the district commander, as required). This addendum ``package'' 
will be identified as an ``Addendum to the Final EIS--Environmental 
Consequences of the Modifications Recommended by the Board of Engineers 
for Rivers and Harbors--project name.'' The format shall include an 
abstract on the cover page; recommended changes to the division/district 
commander's proposed plan; rationale for the recommended changes; 
environmental consequences of the recommended changes; and the name, 
expertise/discipline, experience, and role of the principal preparer(s) 
of the addendum. Letters received during CEBRH review which provide new 
pertinent information having a bearing on the modifications recommended 
by CEBRH will be attached to the addendum. If CEBRH proposes to 
recommend a major

[[Page 322]]

revision or a new alternative to the plan recommended by the division 
and district commanders with significant impacts which were not 
discussed in the draft EIS, a supplement to the draft EIS will be 
required. After consultation with CEBRH and the division commander, the 
district commander will prepare and circulate the supplement to the 
draft EIS in accordance with paragraph 13(b). The supplement together 
with incoming letters of comment and Corps responses to substantive 
issues shall be incorporated into the existing final report and EIS with 
a minimum of page changes or revisions to reflect the modified or new 
proposed plan. CEBRH will review its proposed action in light of the 
comments received prior to taking final action on the report and EIS.
    d. Departmental Review. The report and final EIS, together with the 
proposed report of the Chief of Engineers and the CEBRH report, will be 
filed with EPA at about the same time as it is circulated for the 90-day 
departmental review by Federal agencies at the Washington level and the 
concerned state(s). District commanders will circulate the proposed 
Chief's report, CEBRH report, and the report and final EIS to parties on 
the project mailing list not contacted by HQUSACE (groups and 
individuals known to have an interest in the study or who provided 
comments on the draft EIS) allowing the normal 30-day period of review. 
HQUSACE will provide a standard letter for the district to use to 
transmit these documents which explains the current status of the report 
and EIS and directs all comments to be sent to HQUSACE (CECW-P). Copies 
of the report appendices circulated with the draft need not be 
circulated with the report and final EIS. All letters of comment 
received on the report and final EIS together with HQUSACE responses and 
the draft record of decision (to be provided by the district commander) 
will be included with other papers furnished at the time the final 
Chief's report is transmitted to ASA(CW) for further review and 
processing.
    e. Executive Reviews. After completion of review, the Chief of 
Engineers will sign his final report and transmit the report and 
accompanying documents to ASA(CW). After review ASA(CW) will transmit 
the report to OMB requesting its views in relation to the programs of 
the President. After OMB provides its views, ASA(CW) will sign the 
record of decision (ROD) and transmit the report to Congress. In 
situations where Congress has acted to authorize construction of a 
project prior to receiving ASA(CW) recommendations, the Director of 
Civil Works is the designated official to sign the ROD. In this case the 
ROD should only address the project as authorized by the Congress and 
not attempt to provide any additional justification of the Congressional 
action.

                2. Continuing Authorities Program Studies

    a. Preparation and Draft Review. During the reconnaissance phase, 
the district commander should undertake environmental studies along with 
engineering, economic and other technical studies to determine the 
probable environmental effects of alternatives and the appropriate NEPA 
document to accompany the detailed project report (DPR). If the results 
of the reconnaissance phase warrant preparation of an EIS, the district 
commander will issue a notice of intent early in the ensuing feasibility 
study. Following the guidance in ER 1105-2-10 through 60 the district 
commander will prepare the draft DPR incorporating the EA and draft 
FONSI or draft EIS (as appropriate), and circulate it to agencies, 
organizations and members of the public known to have an interest in the 
study. If an EIS is prepared, five copies of the draft EIS and report 
will be mailed to Director, Office of Federal Activities (A-104), 
Environmental Protection Agency, 401 M Street SW, Washington, DC 20460 
for filing after distribution has been accomplished.
    b. Agency Review. After receipt and evaluation of comments the 
district commander will prepare the final DPR and EA/FONSI or final EIS 
and submit eight (8) copies to the division commander for review and 
approval. After review, the division commander will file five (5) copies 
of the final DPR and EIS with the Washington office of EPA. The division 
commander will not file the final EIS until notified by the district 
commander that distribution has been accomplished.
    c. Final Review. Letters of comment on the final DPR including the 
final EIS will be answered by the district commander on an individual 
basis if appropriate. Two (2) copies of all incoming letters and the 
district commander's reply together with five copies of the final DPR 
and EIS and a draft of the record of decision will be submitted through 
division to the appropriate element within CECW-P. After review of the 
DPR and NEPA documents, the Director of Civil Works or Chief, Planning 
Division will approve the project and sign the record of decision if an 
EIS was prepared for the DPR.

3. Projects in Preconstruction Engineering and Design, Construction, and 
      Completed Projects in an Operations and Maintenance Category

    a. General. District commanders will review the existing NEPA 
document(s) to determine if there are new circumstances or significant 
impacts which warrant the preparation of a draft and final supplement to 
the EIS. If the proposed changes and new impacts are not significant an 
EA and FONSI may be used.
    b. Preparation and Draft Review. As soon as practicable after the 
district commander makes a determination to prepare an EIS or

[[Page 323]]

supplement for the proposed project, a notice of intent will be issued. 
The district commander will, in accordance with 40 CFR 1506.6, prepare 
and circulate the draft EIS or supplement for review and comment to 
agencies, groups and individuals known who may be interested or 
affected. Five (5) copies will be sent to Director, Office of Federal 
activities (A-104), Environmental Protection Agency, 401 M Street SW., 
Washington, DC 20460 for filing after distribution has been 
accomplished.
    c. Agency Review. The district commander will prepare the final EIS 
or supplement after receipt and evaluation of comments. Eight (8) copies 
will be transmitted to the division commander for review. After review 
the division commander will file five (5) copies with the Washington 
office of EPA. A copy of the final EIS or supplement and transmittal 
letter to EPA will be provided to the appropriate counterpart office 
within HQUSACE. The division commander will file the final EIS when the 
district commander has made distribution.
    d. Final Review. Letters of comment on the final EIS or supplement 
will be answered by the district commander on an individual basis as 
appropriate. Two (2) copies of the incoming letters and the district 
commander's reply together with two copies of the final EIS or 
supplement and a draft of the record of decision will be submitted to 
the appropriate Corps official having approval authority. After review 
of the NEPA documents and letters, the appropriate approving official 
will sign the record of decision.
    4. Other Corps Projects. Draft and final EISs for other Civil Works 
projects or activities having significant environmental impacts which 
may be authorized by Congress without an EIS having been previously 
filed and for certain real estate management and disposal actions which 
may require an EIS should be processed in a manner similar to that 
discussed in paragraph 3 of this appendix except that CERE-MC will be 
the coordinating office within HQUSACE for real estate actions.



                 Sec. Appendix B to Part 230 [Reserved]



  Sec. Appendix C to Part 230--Notice of Intent To Prepare a Draft EIS

    1. Purpose. This appendix provides guidance on the preparation and 
processing of a notice of intent to prepare a draft EIS for publication 
in the Federal Register. A notice of intent to prepare a draft EIS or a 
draft supplement is discussed in 40 CFR 1508.22.
    2. Procedure. District commanders shall publish a notice of intent 
in the Federal Register as soon as practicable after a decision is made 
to prepare a draft EIS or draft supplement. See 40 CFR 1507.3(e) for 
timing of notice of intent for Corps feasibility studies. Guidance on 
the format and content of the notice in the form of a sample notice of 
intent is contained in paragraph 4 of this appendix. District commanders 
shall also follow this guidance when publishing a notice of intent to 
withdraw a notice of intent when a decision has been made to terminate 
the EIS process.
    3. Publishing Documents in the Federal Register. The following 
information is furnished for preparation and publication of notices of 
intent in the Federal Register:
    a. A brief transmittal letter 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 Federal Register.
    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 Federal Register 
printing costs (reference 3(n)). Completed requisitions (SF-1) must be 
forwarded to reach HQUSACE (CEIM-SP) WASH DC 20314-1000 by 1 June of 
each year. Consult the local chief, Information Management for 
Assistance.
    4. Sample Notice of Intent. The following is a sample notice of 
intent to be used by district commanders:

Department of Defense
    Corps of Engineer, Department of the Army, 3710-XX (Use Local 
Billing Code Number)

    Intent To Prepare A Draft Environment Impact Statement (DEIS) For a 
Proposed (Name and location of project, permit or activity).
    Agency: U.S. Army Corps of Engineers, 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.

[[Page 324]]

    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, Federal Register citation to a 
previously published document, or CFR citation when appropriate and 
include a discussion of the following topics:
    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.

(Provide date)

________________________________________________________________________

(Signature)

________________________________________________________________________

See par. 3.b. for instructions on signature

                                  Note

     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\1/2\ by 11 inch bond paper or photocopy 
paper.



PART 236_WATER RESOURCE POLICIES AND AUTHORITIES: CORPS OF ENGINEERS
PARTICIPATION IN IMPROVEMENTS FOR ENVIRONMENTAL QUALITY--

Table of Contents



Sec.
236.1 Purpose.
236.2 Applicability.
236.3 References.
236.4 Background.
236.5 Policy and procedure.
236.6 Other agencies EQ measures.

    Authority: Pub. L. 738, 74th Cong.; Pub. L. 89-72; Pub. L. 91-190.

    Source: 45 FR 28714, Apr. 30, 1980, unless otherwise noted.



Sec. 236.1  Purpose.

    This regulation provides guidance for including Environmental 
Quality (EQ) measures in Corps of Engineers water resource development 
plans.



Sec. 236.2  Applicability.

    This regulation is applicable to all OCE elements and field 
operating activities having Civil Works responsibilities.



Sec. 236.3  References.

    (a) PL 89-72
    (b) ER 1105-2-10
    (c) ER 1105-2-200



Sec. 236.4  Background.

    (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

[[Page 325]]

of the above phases of project development. Specific considerations may 
include, but are not limited to, actions to preserve or enhance critical 
habitat for fish and wildlife; maintain or enhance water quality; 
improve streamflow; preservation and restoration of certain cultural 
resources, and the preservation or creation of wetlands.
    (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.



Sec. 236.5  Policy and procedure.

    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) Policy--(1) Achievement of specified, study authority planning 
objectives. Recommended plans must include measures for accomplishment 
of the primary purposes authorized by Congress.
    (2) Relationship of EQ measures to a Corps water resource 
development. Measures proposed for EQ must enhance, preserve or restore 
the environment of the study area. EQ opportunities created as a result 
of meeting study authority purposes should be pursued and, as 
appropriate, included in plans for Corps implementation. In addition, 
the recommended plan may also include separable EQ measures to meet 
established planning objectives. Such separable EQ measures for Corps 
implementation must be related to, or take advantage of, opportunities 
created by a water resource development to be recommended for 
implementation by the Corps of Engineers.
    (3) Justification. Recommended plans must be justified on the basis 
that combined beneficial NED and EQ effects outweigh combined adverse 
NED and EQ effects.
    (4) Cost sharing. Some features of plans required to foster EQ 
objectives in the Corps of Engineers program have well-defined laws or 
policies which establish cost sharing requirements. For instance, Pub. 
L. 89-72, as amended, defines cost sharing requirements for fish and 
wildlife enhancement. However, there are other features which may not be 
defined by law or policy. In those instances, cost sharing will be based 
on an analogy with established cost sharing policies or other similar 
Federal programs as described in the Catalog of Federal Domestic 
Assistance. Cost sharing for EQ measures for which the Corps has no 
standard policy will be approved by HQDA (DAEN-CWP-E, C or W), WASH DC 
20314, prior to proposing cost sharing to local interests.
    (b) Procedures for approval--(1) Without advance OCE approval. The 
reporting officer may recommend separable EQ measures that satisfy any 
one of the following criteria:
    (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) With advance approval. Other separable EQ measures may be 
recommended with advance approval of the Director of Civil Works through

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the intensive management program (ER 1105-2-10). The appropriateness for 
including such measures will be based upon a consideration of factors 
which may include, but are not limited to:
    (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.



Sec. 236.6  Other agencies EQ measures.

    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.



PART 238_WATER RESOURCES POLICIES AND AUTHORITIES: FLOOD DAMAGE
REDUCTION MEASURES IN URBAN AREAS--Table of Contents



Sec.
238.1 Purpose.
238.2 Applicability.
238.3 References.
238.4 Definitions.
238.5 Comprehensive planning.
238.6 General policy.
238.7 Decision criteria for participation.
238.8 Other participation.
238.9 Local cooperation.
238.10 Coordination with other Federal agencies.

    Authority: Pub. L. 738, 74th Congress, 33 U.S.C. 701a.

    Source: 45 FR 71801, Oct. 30, 1980, unless otherwise noted.



Sec. 238.1  Purpose.

    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.



Sec. 238.2  Applicability.

    This regulation is applicable to all OCE elements and all field 
operating acitivities having Civil Works responsibilities.



Sec. 238.3  References.

    (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.



Sec. 238.4  Definitions.

    For purposes of this regulation the following definitions apply:
    (a) Urban areas are cities, towns, or other incorporated or 
unincorporated political subdivisions of States that:
    (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) Flood damage reduction works in urban areas are the adjustments 
in land use and the facilities (structural and non-structural) designed 
to reduce flood damages in urban areas from overflow or backwater due to 
major storms and snowmelt. They include structural and other engineering 
modifications to natural streams or to previously modified natural 
waterways. Flood damage reduction works are designed to modify flood 
behavior typified by temporary conditions of inundation of normally dry 
land from the

[[Page 327]]

overflow of rivers and streams or from abnormally high coastal waters 
due to sever storms.
    (c) Storm sewer systems are the facilities in urban areas designed 
to collect and convey runoff from rainfall or snowmelt in the urban area 
to natural water courses or to previously modified natural waterways. 
They include storm drains, inlets, manholes, pipes, culverts, conduits, 
sewers and sewer appurtenances, on-site storage and detention basins, 
curbs and gutters, and other small drainageways that remove or help to 
manage runoff in urban areas. Storm sewer systems are designed to solve 
storm drainage problems, which are typified by excessive accumulation of 
runoff in depressions; overland sheet flow resulting from rapid snowmelt 
or rainfall; and excessive accumulation of water at the facilities 
listed in this paragraph because of their limited capacity.



Sec. 238.5  Comprehensive planning.

    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.



Sec. 238.6  General policy.

    (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 Sec. 238.3(a)) and the general 
guidelines therefor by the U.S. Water Resources Council (reference Sec. 
238.3(b)).



Sec. 238.7  Decision criteria for participation.

    (a) Urban flood control. (1) Urban water damage problems associated 
with a natural stream or modified natural waterway may be addressed 
under the flood control authorities downstream from the point where the 
flood discharge of such a stream or waterway within an urban area is 
greater than 800 cubic feet per second for the 10-percent flood (one 
chance in ten of being equalled or exceeded in any given year) under 
conditions expected to prevail during the period of analysis. Those 
drainage areas which lie entirely within the urban area (as established 
on the basis of future projections, in accordance with Sec. 238.5 of 
this part), and which are less than 1.5 square miles in

[[Page 328]]

area, shall be assumed to lack adequate discharge to meet the above 
hydrologic criteria. Those urban streams and waterways which receive 
runoff from land outside the urban area shall not be evaluated using 
this 1.5 square mile drainage area criterion.
    (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 Sec. 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 Sec. 238.7(a)(2).

Requests for exceptions to the hydrologic criterion contained in Sec. 
238.7(a)(1) from NED and POD should be submitted to HQDA (DAEN-CWP) WASH 
DC 20314.
    (4) Flood damage reduction works must conform to the definition in 
Sec. 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) Storm sewer system. Water damage problems in urban areas not 
consistent with the above criteria for flood control will be considered 
to be a part of local storm drainage to be addressed as part of the 
consideration of an adequate storm sewer system. The purpose of this 
system is to collect and convey to a natural stream or modified natural 
waterway the runoff from rainfall or snowmelt in the urbanized area.
    (c) Man-made conveyance structures. (1) Man-made conveyance 
structures will be assumed to be a part of storm sewer systems except 
when: (i) A natural stream has been or is to be conveyed in the man-made 
structure; or (ii) The man-made structure is a cost-effective 
alternative to improvement of a natural stream for flood damage 
reduction purposes or is an environmentally preferable and economically 
justified alternative. Water damage associated with inadequate carrying 
capacity of man-made structures should be designated as a flood problem 
or a local drainage problem in a manner consistent with the structure's 
classification as flood damage reduction works or a part of a storm 
sewer system.
    (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) Joint projects. Certain conditions may exist whereby the Corps 
of Engineers and the Department of Housing and Urban Development (HUD), 
or another Federal agency, could jointly undertake a project that would 
be impractical if one agency were to undertake it alone. The Corps may, 
for example, under provisions of Section 219 of the Flood Control Act of 
1965, design or construct a project that is part of a larger HUD plan 
for an urban area (see ER 1140-2-302). Such efforts should be undertaken 
only when requirements cannot be handled better by one agency

[[Page 329]]

acting alone. If a joint effort is preferable, then the Corps may 
participate as required.
    (e) Disagreements. If a disagreement arises between the Corps and 
another Federal agency that cannot be resolved at the field level, the 
matter will be forwarded to HQDA (DAEN-CWR) WASH DC 20314 for guidance.



Sec. 238.8  Other participation.

    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).



Sec. 238.9  Local cooperation.

    (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).



Sec. 238.10  Coordination with other Federal agencies.

    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).



PART 239_WATER RESOURCES POLICIES AND AUTHORITIES: FEDERAL 
PARTICIPATION IN COVERED FLOOD CONTROL CHANNELS--Table of Contents



Sec.
239.1 Purpose.
239.2 Applicability.
239.3 References.
239.4 Policy.
239.5 Engineering considerations.
239.6 Level of protection.
239.7 Separation of flood control works from urban drainage.
239.8 Cost sharing.
239.9 Effective date.

    Authority: Pub. L. 738, 74th Congress 33 U.S.C. 701a.

    Source: 43 FR 47470, Oct. 13, 1978; 44 FR 36175, June 21, 1979, 
unless otherwise noted.



Sec. 239.1  Purpose.

    This regulation establishes policy for determining the extent of 
Federal participation in covered flood control channels.



Sec. 239.2  Applicability.

    This regulation applies to all OCE elements and all field operating 
agencies having civil works responsibilities.



Sec. 239.3  References.

    (a) Executive Order 11988, Floodplain Management, 24 May 1977.
    (b) ER 1105-2-200.
    (c) ER 1165-2-21.



Sec. 239.4  Policy.

    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

[[Page 330]]

best serves the public interest is based upon the ability of the plan to 
meet planning objectives, the contributions which the plan makes to the 
National Economic Development (NED), Environmental Quality (EQ), 
Regional Development (RD) and Social Well Being (SWB) accounts, and the 
public response to alternative plans. Thus, covered flood control 
channels may be proposed if they are desired by the public and (a) 
increase net EQ and/or NED benefits; or, (b) reduce adverse effects on 
RD or SWB without incurring an unjustified loss in net NED or EQ 
benefits.



Sec. 239.5  Engineering considerations.

    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.



Sec. 239.6  Level of protection.

    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.



Sec. 239.7  Separation of flood control works from urban drainage.

    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.



Sec. 239.8  Cost sharing.

    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, i.e., picnic facilities, etc., 
are eligible for Federal participation in accordance with cost-sharing 
policies for recreation facilities at local protection projects. Cost-
sharing policies for project features which are included to make 
positive contributions to the EQ account are being developed. Until such 
policies are developed, proposals to cover channels on this basis will 
be coordinated with HQDA (DAEN-CWP), Washington, D.C. 20314.

[[Page 331]]



Sec. 239.9  Effective date.

    These regulations are applicable to all projects not approved by OCE 
prior to the date of this regulation.



PART 240_GENERAL CREDIT FOR FLOOD CONTROL--Table of Contents



Sec.
240.1 Purpose.
240.2 Applicability.
240.3 Reference.
240.4 Legislative provisions.
240.5 Discussion.
240.6 General policy.
240.7 Credit criteria for projects authorized on or before 17 November 
          1986.
240.8 Credit criteria for projects authorized after 17 November 1986.
240.9 Procedures.

Appendix A to Part 240 [Reserved]
Appendix B to Part 240--Formulas for Determining Amount of Allowable 
          Credit

    Authority: Section 104, Water Resources Development Act of 1986 
(Pub. L. 99-662); 33 U.S.C. 2214.

    Source: 52 FR 44113, Nov. 18, 1987, unless otherwise noted.



Sec. 240.1  Purpose.

    This establishes guidelines and procedures for Department of the 
Army application of the provisions of section 104 of Pub. L. 99-662.



Sec. 240.2  Applicability.

    Policies and procedures contained herein apply to all HQUSACE 
elements and field operating agencies of the Corps of Engineers having 
Civil Works responsibilities.



Sec. 240.3  Reference.

    Section 104 of Pub. L. 99-662.



Sec. 240.4  Legislative provisions.

    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.



Sec. 240.5  Discussion.

    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.

[[Page 332]]

This authority provides a basis for non-Federal interests to undertake 
local work to alleviate flood damages in the period preceding 
authorization of a Federal project with assurance that they will not 
adversely affect the project's economic feasibility. It provides local 
sponsors more flexibility in meeting their flood problems.



Sec. 240.6  General policy.

    (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 Sec. 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 Sec. 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

[[Page 333]]

as originally authorized, a reasonable estimate of what Federal 
expenditures would have been if that work had been Federally 
constructed. Costs of subsequent maintenance of the creditable non-
Federal flood control work will not be credited. In the event that the 
local construction work is financed by a Federal non-reimbursable grant 
or other Federal funds, the amount creditable against future local 
cooperation requirements shall be reduced by a commensurate amount, 
unless the law governing the grant permits grant funds to be used to 
meet the non-Federal share of Corps of Engineers cost sharing 
requirements. However, there will be no corresponding reduction in the 
costs or benefits considered in the project's economic evaluation.
    (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 Sec. 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.



Sec. 240.7  Credit criteria for projects authorized on or before 17 November 1986.

    (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

[[Page 334]]

shall be included in total project first costs. In any event, costs for 
compatible work shall be included in total project first costs to at 
least the extent that credit is actually given, including LERRD.
    (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.



Sec. 240.8  Credit criteria for projects authorized after 17 November 1986.

    (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 Sec. 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 Sec. 
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 (sponsor's name) to consideration for credit 
in accordance with the guidelines established under section 104, Pub. L. 
99-662.''
    (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.



Sec. 240.9  Procedures.

    (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

[[Page 335]]

(Civil Works) and provide information on:
    (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 Sec. 
240.9(c) of this regulation, status of the creditable work, estimated or 
actual cost of the work and the estimated amount of credit.



                 Sec. Appendix A to Part 240 [Reserved]



    Sec. Appendix B to Part 240--Formulas for Determining Amount of 
                            Allowable Credit

    1. General. The amount of credit that non-Federal interests may 
receive under the provisions of section 104 of the Water Resources 
Development Act of 1986 depends first on the value of the compatible 
work they have accomplished and then on the value of the local 
cooperation against which they may receive credit. If the compatible 
work is for construction which was outside the scope of the project as 
authorized, the costs for the compatible work for which credit is 
desired are additive to the original estimate of total project cost. 
This increases the estimated cost of basic local cooperation 
requirements, thus enlarging the target against which credit may be 
given.
    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

[[Page 336]]

project costs and on cost sharing. For each of these examples it is 
assumed that the estimated total project cost (TPC) of the project as 
authorized is $100.0 million. All of the elements of cost are given in 
millions of dollars.
    4. Integral Work. For compatible work that is integral with the 
project as authorized (240.7(a)(1)) or compatible work that constitutes 
an advantageous substitution for work integral with the authorized 
project (i.e., substitute work, 240.7(a)(3)):

a. LERRD <=20% TPC
    Credit = Value of compatible work up to 20% TPC
b. LERRD =20% TPC
    Credit = Value of compatible work up to LERRD

    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.

------------------------------------------------------------------------
                                                                Credit
                                                     Basic    Example 1:
              Case: LERRD <= 20% TPC                project   Compatible
                                                              work, 30.0
------------------------------------------------------------------------
Non-Federal:
  5% Cash........................................       5.0          5.0
  LERRD..........................................      14.0          0.0
  Extra cash (toward constr.)....................       6.0          0.0
  Construction (actual)..........................  ........         30.0
                                                  ----------------------
      Subtotal...................................      25.0         35.0
                                                  ======================
Federal:
  Construction...................................      75.0         51.0
  LERRD..........................................  ........         14.0
                                                  ----------------------
      Subtotal...................................      75.0         65.0
                                                  ======================
      TPC........................................     100.0        100.0
Reduction in Federal costs.......................  ........     \1\ 10.0
------------------------------------------------------------------------
\1\ The amount by which the integral or substitute work actually
  accomplished by non-Federal interests exceeds the requirements of
  local cooperation against which credit may be given.

    5. External Work. For compatible work outside the scope of the 
project as authorized (i.e., external work, 240.7(a)(2)):
a. LERRD <=25% TPC

    Credit = Value of compatible work up to 25% TPC
b. LERRD =25% TPC
    Credit = Value of compatible work up to LERRD

    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).

------------------------------------------------------------------------
                                                               Credit
                                                    Basic    Example 2,
              Case: LERRD <=25% TPC                project   Compatible
                                                             work, 30.0
------------------------------------------------------------------------
Non-Federal:
  5% Cash.......................................       5.0          6.25
  LERRD.........................................      14.0          0.0
  Extra cash (toward constr.)...................       6.0          0.0
  Construction (actual).........................  ........         25.0
                                                 -----------------------
      Subtotal..................................      25.0         31.25
                                                 =======================
Federal:
  Construction..................................      75.0         79.75
  LERRD.........................................  ........         14.0
                                                 -----------------------
      Subtotal..................................      75.0         93.75
TPC.............................................     100.0  ............
Adjusted TPC....................................  ........        125.0
Excess of Compatible Work.......................  ........      \1\ 5.0

[[Page 337]]

 
Increase in Federal Costs.......................  ........     \2\ 18.75
------------------------------------------------------------------------
\1\ This portion of the compatible external work is not incorporated in
  the project costs because it would be a disadvantage to the project
  sponsor to do so (if included, the sponsor would become obligated for
  an additional 5% up-front cash contribution but without any savings in
  other local cooperation because there would be nothing left to give
  credit against).
\2\ This is also the measure of the net savings to non-Federal interests
  by virtue of crediting.

    6. Combined integral and external works. For cases where non-Federal 
interests have accomplished compatible work, some of which is integral 
with the project as authorized and some of which is outside the original 
scope (external), determination of the allowable credit is a two step 
process. Work that is integral to the project is credited first. This, 
C1, is accomplished in accordance with paragraph 4 above. If, after this 
step, there remain local cooperation requirements against which credit 
may be given, credit for compatible external work, C2, is determinable 
on the following basis.

a. LERRD <=20% (TPC+C2)
    C2=Value of compatible work up to 25% TPC-1.25C1
b. LERRD =20% (TPC+C2)
    C2=Value of compatible work up to remaining LERRD

    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.

----------------------------------------------------------------------------------------------------------------
                                                                          Credit Example 3: Compatible work, \1\
                                                               Basic                       25.0
                Case: LERRD <=20% (TPC+C2)                    project   ----------------------------------------
                                                                            Step 1       Step 2         Final
----------------------------------------------------------------------------------------------------------------
Non-Federal:
    5% Cash...............................................          5.0          5.0          0.94          5.94
    LERRD.................................................         14.0         14.0          0.0           0.0
    Extra cash (toward constr.)...........................          6.0          1.0          0.0           0.0
    Construction (actual).................................  ...........          5.0         18.75         23.75
                                                           -----------------------------------------------------
      Subtotal............................................         25.0         25.0  ............         29.69
                                                           =====================================================
Federal:
  Construction............................................         75.0         75.0          0.06         75.06
  LERRD...................................................  ...........  ...........         14.0          14.0
                                                           -----------------------------------------------------
      Subtotal............................................         75.0         75.0  ............         89.06
TPC.......................................................        100.0        100.0  ............  ............
Adjusted TPC..............................................  ...........  ...........  ............        118.75
Excess of Compatible Worth................................  ...........  ...........          1.25          1.25
Increase in Federal Costs.................................  ...........  ...........  ............         14.06
----------------------------------------------------------------------------------------------------------------
\1\ Compatible work consisting of 5.0 integral work credited in first step of calculations plus 20.0 external
  work credited, to the extent possible, in second step.



PART 241_FLOOD CONTROL COST-SHARING REQUIREMENTS UNDER THE ABILITY
TO PAY PROVISION--Table of Contents



Sec.
241.1 Purpose.
241.2 Applicability.
241.3 References.
241.4 General policy.
241.5 Procedures for estimating the alternative cost-share.
241.6 Deferred payments for certain qualifying projects.
241.7 Application of test.

    Authority: Sec. 103(m), Pub. L. 99-662, 100 Stat. 4082 (33 U.S.C. 
2201 et seq.), as amended by Sec. 201, Pub. L. 102-580, 106 Stat. 4797 
(33 U.S.C. 2201 et seq.)

    Source: 54 FR 40581, Oct. 2, 1989, unless otherwise noted.

[[Page 338]]



Sec. 241.1  Purpose.

    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.

[60 FR 5133, Jan. 26, 1995]



Sec. 241.2  Applicability.

    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.

[60 FR 5133, Jan. 26, 1995]



Sec. 241.3  References.

    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 et seq.
    (b) Water Resources Development Act 1992, Public Law 102-580, 106 
Stat. 4797, 33 U.S.C. 2201 et seq.
    (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.

[60 FR 5133, Jan. 26, 1995]



Sec. 241.4  General policy.

    (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 Sec. 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

[[Page 339]]

share, the allowable amount of credits will be limited by the lower 
share.
    (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.



Sec. 241.5  Procedures for estimating the alternative cost-share.

    (a) Step one, the benefits test. Determine the maximum possible 
reduction in the level of non-Federal cost-sharing for any project.
    (1) Calculate the ratio of flood control benefits (developed using 
the Water Resources Council's Principles and Guidelines--ref. Sec. 
241.3(b)) to flood control costs for the project based on the discount 
rate which the Corps is currently using to evaluate projects. Costs 
include operations and maintenance as well as first costs. Divide the 
result by four. For example, if the project's (or separable element's) 
benefit-cost ratio is 1.2:1, the factor for this project equals 0.3. If 
a project has been authorized for construction without a benefit-cost 
ratio calculated in accordance with the Principles and Guidelines, 
determination of the ratio is a prerequisite for consideration under the 
ability to pay provision.
    (2) If the factor determined in Sec. 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 Sec. 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, Sec. 243.5. In no case however, will the non-Federal cost-
share be less than five percent.
    (b) Step two, the income test. Projects may qualify for the full 
amount of the reduction in cost-sharing calculated in Step one, or for 
some fraction of the reduction in cost-sharing, depending on a measure 
of the current economic resources of the project area and of the state 
or states in which the project is located.
    (1) To assure consistency, the calculations in Sec. 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

[[Page 340]]

which the project beneficiaries are located, 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 
Survey of Current Business. (If the project beneficiaries are located in 
Alaska or Hawaii, divide the per capita personal income figure by one 
plus the percentage used in the Federal Government's cost of living pay 
differential for Federal workers who purchase local retail and who use 
private housing, employed in Anchorage, AK or Oahu, HI as contained in 
References Sec. 241.3(c) and (d).) Determine the state's per capita 
personal income as an index number in comparision to the national 
average (U.S.=100), and calculate the three year average of the state's 
index number.
    (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 Survey of Current Business. 
(If the project beneficiaries are located in Alaska or Hawaii, divide 
the county's per capita personal income figure by one plus the 
percentage used in the Federal Government's cost of living pay 
differential for Federal workers who purchase local retail and who use 
private housing, employed in Anchorage, AK or Oahu, HI.) Calculate the 
index for the county's per capita personal income to the national 
average (U.S.=100), and calculate the three year average of the county's 
index number.
    (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:

EF = a - b1 x (state factor) - b2 x (area factor).


If EF is one or more, the project is eligible for the full reduction in 
cost-share to the benefits based floor. If EF is zero or less, the 
project is not eligible for a reduction. If EF is between zero and one, 
the non-Federal cost-share will be reduced proportionately to an amount 
which is greater than the BBF but less than the standard non-Federal 
cost-share in accordance with the procedures described in paragraph 
Sec. 241.5(c) of this part. The values of a, b1 and 
b2 will be determined by HQUSACE. The parameter values will 
be based on the latest available data and set so that 20 percent of 
counties have an EF of 1.0 or more, while 66.7 percent have an EF of 0 
or less. These values will be adjusted periodically as new information 
becomes available. Changes will be published in Engineering Circulars. 
The values will be set so that b2=2xb1, giving 
local income twice the weight of state income.
    (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 
b1 and b2 and subtract each from a in the equation 
in Sec. 241.5(b)(5)). The replacement factor will be tribe or village 
income as a percentage of the national average for the equivalent 
definition of income (for example a Tribe's median family income as a 
percentage of the median family income for all U.S. families). The data 
should be the latest available information. It is acceptable, but not 
required that the data be obtained from the Bureau of the Census, 
American Indians, Eskimos and Aleuts on Identified Reservations and

[[Page 341]]

in Historic Areas of Oklahoma (Excluding Urbanized Areas), part 1, Table 
10, or General Social and Economic Characteristics--United States 
Summary (1980), Table 252. Since both sources contain information for 
Native Americans living on reservations, rather than all Tribe or 
Village members, the sources should be used only when appropriate, or 
when no better information is available.
    (c) Application of the Ability to Pay Formula to the Basic Cost-
sharing Provisions of Section 103. If a flood control project has a BBF 
which is less than the standard cost-share and an EF which is greater 
than zero, the non-Federal cost-share will be reduced. The alternative 
non-Federal share will be calculated and reported to the nearest one 
tenth of one percent. The actual reduction is determined by applying the 
ability to pay formula to the basic flood control cost-sharing 
provisions of section 103 of Pub. L. 99-662, 33 U.S.C. 2213, as follows:
    (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:

non-Federal cost-share = 50 - EF x (50 - BBF)

    (ii) If LERRD exceeds 20 percent but is less than 45 percent:

non-Federal cost-share = (LERRD + 5) - ER x [(LERRD + 5) - BBF]

    (iii) If LERRD is less than 20 percent:

non-Federal cost-share = 25 - EF x (25 - BBF)

    (3) For non-structural projects covered by section 103(b), when 0 < 
EF < 1:

non-Federal cost-share = 25 - EF x (25 - BBF)

    (4) In no case however, can the non-Federal share be less than five 
percent, even if the calculation made in Sec. 241.5(c) (1), (2), or (3) 
results in a smaller number.
    (5) Note: LERRD equals the costs of lands, easements, rights-of-way, 
relocations, and dredged material disposal areas expressed as a 
percentage of total project costs. The BBF and numerical terms in the 
equations above are also expressed as percentages.
    (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 (i.e., normal non-Federal share of total 
construction costs divided by the population in the sponsor's geographic 
jurisdiction) exceeds $300, the non-Federal share under the ability to 
pay provision will be either LERRD's (i.e., no cash requirement) or 35 
percent, whichever is greater. If LERRD's exceed 50 percent, the non-
Federal share remains at 50 percent. Projects which qualify under the 
benefits and income tests will receive the reduction under the high cost 
criteria only if the high cost criteria results in a greater reduction 
in the non-Federal cost share.

[54 FR 40581, Oct. 2, 1989, as amended at 60 FR 5134, Jan. 26, 1995]



Sec. 241.6  Deferred payments for certain qualifying projects.

    (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 Sec. 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 Sec. 241.6(a).

[[Page 342]]

    (c) When 0 < EF < 1, the sponsor may defer a fraction of the maximum 
allowable amount described in Sec. 241.6(a), where the fraction equals 
the Eligibility Factor expressed to three decimal places. Continuing the 
example described in Sec. 241.6(a), if EF = .712, total allowed 
deferral equals .712 x 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.

[54 FR 40581, Oct. 2, 1989, as amended at 60 FR 5134, Jan. 26, 1995]



Sec. 241.7  Application of test.

    (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 Sec. 
241.5(a): the Eligibility Factor (EF) determined in Sec. 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 Sec. 241.5(c)(1) through 
(c)(4); and a display of the non-Federal cost share under the high cost 
criteria described in Sec. 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) For structural projects. (1) If the standard LERRD plus cash 
requirement exceeds the ability to pay cost-share, the Federal 
Government will make any necessary adjustments in expenditures in the 
following order: First, paying any cash requirement in excess of five 
percent of total project costs (if any) that would, under standard cost-
sharing, have been the responsibility of the non-Federal sponsor; 
second, making payments for LERRD; and third, providing for 
reimbursement at the end of construction. Federal payments for LERRD 
will be made only after the non-Federal payment for LERRD reaches a 
percentage of total project costs equal to the ability to pay non-
Federal cost-share less the five percent cash requirement. If such 
arrangements are necessary, the PCA should be prepared to reflect 
agreement on the best manner available for acquisition of those LERRD 
over the limiting percentage, or for reimbursing the sponsor upon 
completion of construction.
    (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 Sec. 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

[[Page 343]]

amount of Federal expenditures (including sunk pre-construction 
engineering and design costs as a first year Federal construction 
expenditure) as a percentage of total Federal expenditures. Total 
Federal expenditures include cash payments for construction and if 
necessary (due to ability to pay considerations), for LERRD, and for 
reimbursement to the non-Federal sponsor. Total Federal expenditures for 
the purpose of this calculation, do not include expenditures which allow 
the non-Federal sponsor to defer payment of the non-Federal share under 
the provisions of this rule.
    (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.

[54 FR 40581, Oct. 2, 1989, as amended at 60 FR 5134, Jan. 26, 1995]



PART 242_FLOOD PLAIN MANAGEMENT SERVICES PROGRAM ESTABLISHMENT OF 
FEES FOR COST RECOVERY--Table of Contents



Sec.
242.1 Purpose.
242.2 Applicability.
242.3 References.
242.4 Definitions.
242.5 General.
242.6 Fee schedule.

    Authority: Section 321 of Pub. L. 101-640, 74 Stat. 500 (33 U.S.C. 
709a).

    Source: 56 FR 54712, Oct. 22, 1991, unless otherwise noted.



Sec. 242.1  Purpose.

    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.



Sec. 242.2  Applicability.

    This part applies to all HQUSACE elements, Major Subordinate 
Commands, and District Commands of the Corps of Engineers having Civil 
Works responsibilities.



Sec. 242.3  References.

    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.



Sec. 242.4  Definitions.

    As used in this part:
    Private persons means all entities in the private sector, including 
but not limited to individuals, private institutions, sole 
proprietorships, partnerships, and corporations.
    Total cost means total labor charges which include adjustments for 
benefits, administrative overhead, and technical indirect costs. These 
terms are described in the reference in Sec. 242.3 (c).



Sec. 242.5  General.

    (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.



Sec. 242.6  Fee schedule.

    (a) General. The Fee Schedule described in this section will be used 
to recover the cost for Flood Plain Management Services requiring more 
than ten minutes and up to one work day to provide. The Fee Schedule has 
been designed to minimize administrative costs and to allow the 
flexibility needed to recover the approximate total

[[Page 344]]

costs for services provided to Federal agencies and private persons.
    (b) Level of effort. For establishing charges, services covered by 
the Fee Schedule have been divided into five levels as follows:
    (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) Charge determination. The Fee Schedule will be used Corps-wide. 
As requests are received, the responding office will select the 
appropriate level on the Fee Schedule to determine the charge for 
providing the service.
    (d) Provision of services. The services will be provided on a first-
come, first-served basis after payment has been received.
    (e) Fees. The Fee Schedule, including a brief description of the 
services in each of the five levels and the related charges, is shown in 
Table 1 to this section. The fee for each level is based on a Corps-wide 
average of estimated current costs for providing that level of service.
    (f) Review and revision of fees. The fees shown in the Fee Schedule 
will be reviewed each fiscal year using the most current cost data 
available. If necessary, the Fee Schedule will be revised after public 
notice and comment.

 Table 1 to Sec. 242.6--Fee Schedule; Standard Corps-Wide Charges for
      FPMS Tasks Requiring More Than Ten Minutes and Up to One Day
------------------------------------------------------------------------
            Level                     Description of work           Fee
------------------------------------------------------------------------
1...........................  Basic information from readily         $25
                               available data that does not
                               require technical evaluation or
                               documentation and is transmitted
                               by form letter.
2...........................  Information from readily available      55
                               data that requires minimal
                               technical evaluation which is
                               transmitted by form letter.
3...........................  Information that requires some file    105
                               search, brief technical
                               evaluation, and documentation of
                               re-sults by a form letter or by a
                               brief composed letter.
4...........................  Information and assistance that re-    165
                               quires moderate file search, brief
                               technical evaluation, and
                               documentation of results in a
                               composed letter.
5...........................  Information and assistance that re-    325
                               quires significant file search or
                               retrieval of archived data,
                               moderate technical evaluation, and
                               documentation of results in a
                               brief letter report.
------------------------------------------------------------------------



PART 245_REMOVAL OF WRECKS AND OTHER OBSTRUCTIONS--Table of Contents



Sec.
245.1 Purpose.
245.3 Applicability.
245.5 Definitions.
245.10 General policy.
245.15 Delegation.
245.20 Determination of hazard to navigation.
245.25 Determination of remedial action.
245.30 Identification of responsible parties.
245.35 Judgments to require removal.
245.40 Removal by responsible party.
245.45 Abandonment.
245.50 Removal by Corps of Engineers.
245.55 Permit requirements.
245.60 Reimbursement for removal costs.

    Authority: 5 U.S.C. 301; 33 U.S.C. 1, 409, 411-415; 10 U.S.C. 3012.

    Source: 53 FR 27513, July 21, 1988, unless otherwise noted.



Sec. 245.1  Purpose.

    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.

[[Page 345]]



Sec. 245.3  Applicability.

    (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.



Sec. 245.5  Definitions.

    Abandonment means the surrendering of all rights to a vessel (or 
other obstruction) and its cargo by the owner, or owners if vessel and 
cargo are separately owned.
    Hazard to navigation is an obstruction, usually sunken, that 
presents sufficient danger to navigation so as to require expeditious, 
affirmative action such as marking, removal, or redefinition of a 
designated waterway to provide for navigational safety.
    Obstruction is anything that restricts, endangers or interferes with 
navigation.
    Responsible party means the owner of a vessel and/or cargo, or an 
operator or lessee where the operator or lessee has substantial control 
of the vessel's operation.
    Vessel as used in this part includes any ship, boat, barge, raft, or 
other water craft.



Sec. 245.10  General policy.

    (a) Coordination with Coast Guard. The Corps of Engineers 
coordinates its wreck removal program with the Coast Guard through 
interagency agreement, to insure a coordinated approach to the 
protection of federal interests in navigation and safety. Disagreements 
at the field level are resolved by referral to higher authority within 
each agency, ultimately (within the Corps of Engineers) to the Director 
of Civil Works, who retains the final authority to make independent 
determinations where Corps responsibilities and activities are affected.
    (b) Owner responsibility. Primary responsibility for removal of 
wrecks or other obstructions lies with the owner, lessee, or operator. 
Where an obstruction presents a hazard to navigation which warrants 
removal, the District Engineer will attempt to identify the owner or 
other responsible party and vigorously pursue removal by that party 
before undertaking Corps removal.
    (c) Emergency authority. Obstructions which impede or stop 
navigation; or pose an immediate and significant threat to life, 
property, or a structure that facilitates navigation; may be removed by 
the Corps of Engineers under the emergency authority of section 20 of 
the Rivers and Harbors Act of 1899, as amended.
    (d) Non-emergency situations. In other than emergency situations, 
all reported obstructions will be evaluated jointly by the District 
Engineer and the Coast Guard district for impact on safe navigation and 
for determination of a course of action, which may include the need for 
removal. Obstructions which are not a hazard to general navigation will 
not be removed by the Corps of Engineers.
    (e) Corps removal. Where removal is warranted and the responsible 
party cannot be identified or does not pursue removal diligently, the 
District Engineer may pursue removal by the Corps of Engineers under 
section 19 of the Rivers and Harbors Act of 1899, as amended, following 
procedures outlined in this CFR part.



Sec. 245.15  Delegation.

    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.



Sec. 245.20  Determination of hazard to navigation.

    (a) Upon receiving a report of a wreck or other obstruction, 
District

[[Page 346]]

Engineers will consult with the Coast Guard district to jointly 
determine whether the obstruction poses a hazard to navigation.
    (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.



Sec. 245.25  Determination of remedial action.

    (a) Consultation with Coast Guard. After a determination has been 
made that an obstruction presents a hazard to navigation, District 
Engineers will consult with the Coast Guard district to determine 
appropriate remedial action for the specific situation.
    (b) Options. The following options, or some combination of these 
options, may be considered:
    (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.



Sec. 245.30  Identification of responsible parties.

    (a) Investigation. When marking or removal are determined to be 
appropriate remedial action and no emergency situation exists, the 
District Engineer will investigate to determine the owner or, if the 
owner cannot be determined, the lessee or operator. If cargo is 
involved, ownership will be separately determined.
    (b) Notification. If the owner or other responsible party can be 
determined, the District Engineer and/or the Coast Guard will send a 
notice, via certified mail, advising them of their legal obligation to 
mark (referencing Coast Guard requirements) and to remove the 
obstruction, and of the legal consequences for failure to do so, with a 
request for prompt reply of intent.
    (c) Public notice. If the owner or responsible party cannot be 
determined from investigation, the District Engineer will publish a 
legal advertisement in a newspaper nearest the location of the 
obstruction and in a newspaper of at least 25,000 circulation, addressed 
``To Whom It May Concern,'' requiring removal by the owner, lessee or 
operator. The advertisement will be published at least once a week for 
30 days.



Sec. 245.35  Judgments to require removal.

    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.



Sec. 245.40  Removal by responsible party.

    (a) Corps monitoring. If the owner, lessee or operator agrees to 
remove a hazard to navigation, the District Engineer should ascertain 
that:
    (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) Deficiencies. If the removal actions are not proceeding 
satisfactorily, the District Engineer will notify the responsible party 
of the deficiencies and

[[Page 347]]

provide a reasonable time for correction. If not corrected promptly, the 
District Engineer may declare the wreck ``abandoned'' and proceed with 
actions toward Corps removal.



Sec. 245.45  Abandonment.

    (a) Establishing abandonment. Abandonment is the surrendering of all 
rights to a vessel (or similar obstruction) and its cargo by the owner, 
or owners if vessel and cargo are separately owned. In all cases other 
than emergency, abandonment will be established as a precondition to 
Corps removal, to avoid a ``taking'' of private property for public 
purposes. Abandonment is established by either:
    (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) Owner declaration. The Corps of Engineers will not ``accept'' a 
notice of abandonment. Any notice of abandonment received by the Corps 
of Engineers will be acknowledged only, and will stand by itself as a 
declaration. Abandonment by the operator or lessee alone does not 
constitute abandonment.
    (c) Non-diligence. The determination of whether removal is commenced 
immediately and prosecuted diligently will be made by the District 
Engineer based on the degree of hazard to navigation, the difficulty and 
complexity of the removal operation, and the appropriateness of the 
removal effort. When no removal actions are being undertaken and the 
District Engineer is unable to identify the owner through investigation 
or 30 days of public notice, abandonment is presumed.
    (d) Cargo. If vessel and cargo are separately owned, or ownership of 
cargo is uncertain, abandonment of vessel and cargo will be established 
separately.
    (e) Later claims. After abandonment is established, the owner may no 
longer undertake removal or make any claim upon the vessel (or other 
obstruction) or its cargo, unless expressly permitted by the District 
Engineer.
    (f) Continuing owner liability. The abandonment of a wreck or other 
obstruction does not remove the owner's liability for the cost of 
removal and disposal if removal is undertaken by the Corps of Engineers, 
except in cases of nonnegligent sinking which occurred prior to November 
17, 1986.



Sec. 245.50  Removal by Corps of Engineers.

    (a) Non-emergency situations. In non-emergency situations, the 
District Engineer may undertake removal action (within the limits of 
delegation) after all of the following conditions have been met:
    (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) Emergency actions. In emergency situations, the District 
Engineer may bypass (within the limits of delegation) any or all of the 
four conditions in the preceding paragraph if, in his judgment, 
circumstances require more immediate action, and if either one of the 
following conditions are met:
    (1) The obstruction impedes or stops navigation, or
    (2) The obstruction poses an immediate threat to life, property, or 
a structure that facilitates navigation.



Sec. 245.55  Permit requirements.

    (a) Permits for removal. Marking and removal operations by the 
owner, operator or lessee are normally permitted under nationwide 
permits for such activities as outlined in part 330 of this chapter. The 
activities must meet certain conditions as stated in those regulations, 
and additional permits may still be required from state or local 
agencies.
    (b) Special conditions. The Corps of Engineers may add individual or 
regional conditions to the nationwide permit, or require an individual 
permit on a case-by-case basis.

[[Page 348]]



Sec. 245.60  Reimbursement for removal costs.

    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.



PART 263_CONTINUING AUTHORITIES PROGRAMS--Table of Contents



                            Subpart A_General

Sec.
263.10 Purpose.
263.11 Applicability and effective date.
263.12 References.
263.13 Program scope.
263.14 Program eligibility requirements.
263.15 Program policies.
263.16 Program management responsibilities.
263.17 Planning, design and construction procedures.
263.18 Program completion-time objectives.
263.19 Detailed project reports.
263.20 Program funding.

                       Subpart B_Navigation Policy

263.21 Small navigation project authority.
263.22 Authority for snagging and clearing for navigation (Section 3).

                     Subpart C_Flood Control Policy

263.23 Small flood control project authority (Section 205).
263.24 Authority for snagging and clearing for flood control (Section 
          208).
263.25 Authority for emergency streambank and shoreline protection of 
          public works and nonprofit public services (Section 14).

                    Subpart D_Shore Protection Policy

263.26 Small beach erosion control project authority (Section 103).
263.27 Authority for mitigation of shore damage attributable to 
          navigation works (Section 111).

Appendix A to Part 263--History of Program and Project Limitations 
          Continuing Authorities Program
Appendix B to Part 263--Application of Multiobjective Planning Framework 
          to Continuing Authorities Program

    Authority: See Sec. 263.13.

    Source: 40 FR 51134, Nov. 3, 1975, unless otherwise noted.



                            Subpart A_General



Sec. 263.10  Purpose.

    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.



Sec. 263.11  Applicability and effective date.

    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 Federal Register on 
November 3, 1975 and codified as 33 CFR part 263. The provisions of this 
regulation are fully applicable to studies commenced and projects 
initiated after the effective date. For studies underway on the 
effective date, reporting and approving officers shall fully consider 
the requirements of this regulation and shall take those actions as 
necessary to insure that projects are approved on the basis of criteria 
established by this regulation.



Sec. 263.12  References.

    (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.

[[Page 349]]



Sec. 263.13  Program scope.

    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) Small Flood Control Project Authority. Section 205, Flood 
Control Act of 1948, as amended (33 U.S.C 701s).
    (b) Authority for snagging and clearing for flood control. Section 
208, Flood Control Act of 1954, as amended (33 U.S.C. 701g).
    (c) Authority for emergency streambank and shoreline protection of 
Public Works and nonprofit public services. Section 14, Flood Control 
Act of 1946, as amended (33 U.S.C 701r).
    (d) Small navigation project authority. Section 107, River and 
Harbor Act of 1960, as amended (33 U.S.C 577).
    (e) Authority for snagging and clearing for navigation. Section 3, 
River and Harbor Act of 1945 (33 U.S.C 603a).
    (f) Small beach erosion control project authority. Section 103, 
River and Harbor Act of 1962, as amended (33 U.S.C. 426g).
    (g) Authority for mitigation of shore damages attributable to 
navigation projects. Section 111, River and Harbor Act of 1968 (33 
U.S.C. 426i).



Sec. 263.14  Program eligibility requirements.

    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 Sec. 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) Projects specifically authorized by Congress. The Program will 
not be used to implement any portion of a project specifically 
authorized by Congress, including postauthorization changes to such 
projects. However, once a project has been completed to the full extent 
permitted by its Congressional authorization, this Program could be 
utilized to provide for a new, complete-in-itself improvement which will 
not impair or substantially change the purposes of the specifically 
authorized project.
    (b) Existing non-Federal responsibility. This Program may not be 
utilized for a project that would in effect nullify or change an 
existing condition of non-Federal responsibility required for a project 
specifically authorized by Congress, whether constructed or not. Such 
changes would require Congressional action.
    (c) Operation and maintenance of non-Federal projects. This Program 
may not be used for adoption of a non-Federal project for future 
maintenance at Federal expense.



Sec. 263.15  Program policies.

    (a) Designation of authority. One of the referenced legislative 
authorities must be designated as the primary purpose of the project for 
allocation of Program funds and for determining legislative funding 
limitations. However, other authorized project purposes are not 
precluded to meet related needs as determined appropriate by the Chief 
of Engineers. The cost limitation of Corps participation for the 
designated authority will prevail regardless of the number of project 
purposes served. Normally, only one authority will be used for each 
study accomplished and each project recommended. Certain authorizations 
specify individual project allotment ceilings ``from the appropriations 
for any one fiscal year.'' It is the intent of Congress that such 
specified amount be the maximum limit for Corps of Engineers 
expenditures at each location or individual project undertaken, without 
regard to time.
    (b) Applicability of costs to Federal and non-Federal shares. Unless 
otherwise specified in a legislative authority (Sec. 263.13), cost 
sharing policies applicable to Congressionally authorized projects are 
applicable to projects recommended under this Program. Any legislative 
limitation on Corps participation in project costs, however, takes 
precedence over the apportionment of costs resulting from established 
cost sharing policies.
    (1) Project first costs. Project first costs include all Corps of 
Engineers

[[Page 350]]

costs for investigations, design, and construction (including costs of 
supervision and administration) incurred subsequent to the Division 
Engineer's transmittal of a Detailed Project Report or Recon Report to 
OCE for approval. These costs are normally those related to preparation 
of plans and specifications and project construction.
    (2) Federal cost limitation. All Corps of Engineers costs of 
investigations, planning, design and construction, to include those 
incurred prior to transmittal of the DPR or Recon Report to OCE for 
approval are to be included within the cost limitation established by 
Congress for a particular Program authority. Expenditures of other 
Federal agencies under their own authorities are not to be included 
within this cost limitation.
    (3) Costs for economic analysis. Costs to be considered as a part of 
the economic analysis (i.e., determination of a benefit-cost ratio), are 
the same as those considered in feasibility reports transmitted to 
Congress for authorization. In this regard, all costs incurred prior to 
the Division Engineer's transmittal of the Detailed Project or Recon 
Report to OCE for approval are considered ``preauthorization study 
costs'' and are excluded from the economic analysis.
    (4) Use of Federal funds to satisfy local cooperation requirements. 
Where the law requires that lands, easements and rights-of-way be 
furnished by local interests ``without cost to the United States'', 
direct contributions of other Federal agencies may not be accepted by 
local interests to satisfy such local cooperation requirements once 
local interests have furnished a letter of intent (see Sec. 
263.17(e)(5)) to the reporting officer.
    (5) Non-Federal costs. Local interests must agree to assume 
responsibility for designated items of local cooperation and for all 
project costs in excess of the specified Corps cost limitation, or as 
otherwise apportioned, to insure that expenditure of Corps funds will 
result in a project that is integrally complete and fully effective. If 
the project cost exceeds the Corps cost limit, the difference is 
provided by local cash contributions. Local participation requirements 
will not be reduced, offset, or otherwise credited for local 
expenditures prior to the approval of a project by the Chief of 
Engineers. The scope of the project may be increased, including the 
addition of project purposes, if local interests are willing to pay the 
additional costs.
    (c) The planning process. Planning will be conducted generally in 
accordance with the 1105-2-200 series of planning regulations, adapted 
to this Program, as discussed in paragraphs (c)(1) through (c)(3) of 
this section and in Appendix B.
    (1) Stage 1--Reconnaissance. The reporting officer is delegated the 
authority to conduct a Reconnaissance (Recon) upon the request of a non-
Federal governmental entity or official, to determine if a detailed 
feasibility study is warranted. Charges not to exceed $5,000 may be made 
against the District revolving fund. The results of the Recon will be 
reported to the Division Engineer in a brief letter report; the Division 
Engineer will require of a reporting officer only information considered 
essential for approval of proceeding with the feasibility study, as 
provided in paragraph (e)(2) of this section.
    (2) Stage 2--Feasibility study (Plan formulation). The Division 
Engineer is delegated the authority to authorize the reporting officer 
to conduct a feasibility study, subject to availability of funds from 
OCE.
    (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

[[Page 351]]

policy matters, the case should be referred to DAEN-CWP or DAEN-CWO 
prior to authorization of a feasibility study.
    (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 (Sec. 263.17(e)(5)).
    (3) Stage 3--Development of Recommended Plan. This stage corresponds 
to Phase II AE&D for projects specifically authorized by Congress. 
Authority to continue the planning process from plan formulation to 
development of a recommended plan is delegated to the reporting officer, 
unless otherwise provided by implementing instructions issued by the 
Division Engineer, in accordance with Division responsibilities for 
intensive management of the program (Sec. 263.16(b)).
    (d) Review of planning reports. The primary responsibility for 
review of all aspects of Recon reports and DPR's rests with the Division 
Engineer. Division Engineers (with the exception of New England and 
Pacific Ocean) are delegated the authority to approve the plan 
formulation aspects of the study and the engineering design of 
recommended plans, in order that the reporting officer may proceed with 
work on plans and specifications pending formal approval of the project 
by the Chief of Engineers. Review of DPRs and Recon reports by OCE will 
be limited to conformance of recommended plans to existing policy.
    (e) Public involvement. General policy and guidance on public 
involvement is contained in ER 1105-2-800. Requirements for public 
meetings are discussed further in Sec. 263.17(e)(1). There is 
essentially no difference in the Corps' objectives for involving and 
informing the public for studies and projects in this Program than for 
projects planned and constructed under specific Congressional authority. 
Since plans formulated under this Program are usually smaller in scope 
than those specifically authorized by Congress, planners should be able 
to more readily identify the affected and interested public early in the 
planning process and initiate a public involvement program that can be 
continued through plan implementation.
    (f) State and agency coordination. Reporting officers should 
generally follow the same procedures for agency coordination as in the 
case of a Congressionally authorized study. Coordination with A-95 
clearinghouses is discussed in ER 1105-2-811.
    (1) Section 205, 107, 103, 111 and 208 Authorities. The views of 
Governors of affected States, or their designated representatives, and 
regional offices of appropriate Federal agencies must accompany the DPR 
when submitted to OCE for approval. Division Engineers shall insure that 
coordination letters are current and have been adequately considered in 
the plan formulation and review process. Letters obtained by reporting 
officers from the coordination of draft or final reports are to be 
considered current only if the dates on such letters are no more than 
360 days prior to the date of submittal of the DPR to OCE, and if no 
significant changes have been made to the DPR which should be reviewed 
by the originators of such letters. Reporting officers will normally 
accomplish any required recoordination of reports to meet the above 
criteria. Division Engineers may elect, however, to obtain the views of 
States or Federal agencies, as deemed appropriate. The Chief of 
Engineers will not normally coordinate DPRs with Governors or Federal 
Department heads.
    (2) Section 14 and 3 Authorities. The provisions of paragraph (f)(1) 
of this section shall apply to the extent determined feasible by the 
Division Engineer. To be responsive to emergency conditions and to avoid 
undue delays, Division Engineers may permit coordination with States and 
regional offices of Federal agencies to be effected concurrently with 
the review of the DPR or Recon report by OCE.
    (g) Project approval. With the exception of projects requiring the 
personal attention of the Chief of Engineers, the Director of Civil 
Works is authorized to approve or disapprove projects under

[[Page 352]]

this Program, for the Chief of Engineers. Projects will be approved on 
the basis of a Detailed Project Report (DPR), except in the case of 
emergencies under Section 14 or 3 Authorities, for which a Recon report 
(developed for the recommended work) may be utilized, (see Sec. 
263.17(b)(3)). Prior to approving a project for construction, 
requirements for filing an EIS with CEQ must be satisfied, if an EIS has 
been prepared (ER 1105-2-507), a letter of intent for local cooperation 
must be obtained from non-Federal interests in accordance with Sec. 
263.17(e)(5), and views received from affected States and regional 
offices of Federal agencies must be considered.
    (h) Project construction. Division Engineers may authorize District 
Engineers to commence work on plans and specifications pending project 
approval; however, contracts for construction shall not be entered into, 
nor shall funds be allocated for construction, until the Chief of 
Engineers has approved the project. Procedures for constructing approved 
projects, including the preparation of plans and specifications are 
generally the same as employed for Congressionally authorized projects.
    (i) Hold and save provision. As provided by sec. 9, Pub. L. 93-251 
(88 Stat. 16), ``The requirement * * * that non-Federal interests hold 
and save the United States free from damages due to construction, 
operation, and maintenance of the project, does not include damages due 
to the fault or negligence of the United States or its contractors.'' 
This provision will be reflected in all ``hold and save'' requirements 
of local cooperation.
    (j) Withdrawal of project approval. The Chief of Engineers may 
withdraw approval of a project under the Continuing Authorities Program 
at any time prior to the signing of a written agreement under section 
221, Pub. L. 91-611 (Sec. 263.17(k)).
    (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.



Sec. 263.16  Program management responsibilities.

    (a) Office, Chief of Engineers. Two OCE elements will have primary 
responsibility for program management: DAEN-CWP (Sections 205, 208, 14, 
107 and 103 Authorities) and DAEN-CWO (Section 3 and 111 Authorities). 
These elements are responsible for the staffing of all actions required 
of OCE by this regulation, maintaining a list of Division and District 
Program coordinators (as required by paragraphs (b) and (c) of this 
section), and evaluating the performance of the Program.
    (b) Division Engineers. Divisions are responsible for intensive 
management of the Program in accordance with ER

[[Page 353]]

1105-2-10, and are delegated certain approval authorities by the Chief 
of Engineers, as given in Sec. Sec. 263.15 and 263.17 of this part. 
Division Engineers are responsible for insuring, through intensive 
management, that studies are initiated and terminated at the appropriate 
time, and funded at the appropriate level, for efficient use of Program 
funds. Division Engineers are to specifically designate an individual, 
or individuals, within the Division office, to manage and coordinate 
activities under the Continuing Authorities Program.
    (c) District Engineers/Operating Division Engineers. Reporting 
officers are to specifically designate individuals to coordinate and 
manage activities under the Continuing Authorities Program. Reporting 
officers are responsible for insuring that the Reconnaissance 
investigations are conducted only to the extent required to achieve the 
objective established by this regulation.



Sec. 263.17  Planning, design and construction procedures.

    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 Sec. 263.16(a).
    (a) Initiation of Reconnaissance. As outlined in Sec. 263.15(c) 
Recon stage is designed to provide the Division Engineer with sufficient 
justification for authorizing a feasibility study. Reporting officers 
are to notify the Division Engineer and either DAEN-CWP-A or DAEN-CWO by 
letter when commencing a Recon. Such letter or teletype should give the 
date the Recon began and an identifying name. Charges may be made 
against the District revolving fund in amounts not to exceed $5,000. 
Exceptions to this limitation will require prior approval from DAEN-CWP 
or DAEN-CWO, depending on the study authority. Requests for such 
exceptions shall be justified by the reporting officer. The suggested 
scope of a Recon is more fully discussed in Appendix B. (See also ER 
1105-2-811 for A-95 clearinghouse coordination requirements.)
    (b) Approval for initiation of feasibility study. The Division 
Engineer is the approving authority for initiation of a feasibility 
study, and as such, will provide reporting offices with appropriate 
guidance on submission of a Recon letter report in accordance with the 
general policy stated in Sec. 263.15(c).
    (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) Request for funding of feasibility study. Reporting officers 
will request funding of an approved feasibility study, through Division 
Engineers, to DAEN-CWP-E, C or W or from DAEN-CWO in accordance with 
Sec. 263.16(a). Requests will include the total estimated funding 
requirement by fiscal year for the feasibility study (including 
expenditures previously incurred in the Reconstage), consistent with the 
capability of the District to conduct the study. Requests for 
reimbursement for Recon expenditures when a feasibility study has not 
been approved will be made in a similar manner.
    (d) Issuance of work allowance. Work allowances will be issued by 
DAEN-CWP or DAEN-CWO, as appropriate, based on available funds. Work on 
a

[[Page 354]]

feasibility study will not proceed until such work allowance has been 
issued. (See also part 384 of this chapter for A-95 clearinghouse 
coordination requirements.)
    (e) Completion of feasibility study. Studies will be conducted in 
accordance with the policies given in Sec. 263.15 and the planning 
process discussed in Appendix B. Division Engineers may request guidance 
from OCE, or schedule a Plan Formulation Review Conference with OCE, as 
they deem appropriate.
    (1) Public meetings. Public meetings are not to be considered the 
only technique for informing the public of the results of feasibility 
studies or for soliciting input from the public. However, as a matter of 
policy, at least one public meeting is to be held during the feasibility 
study, as discussed in Sec. 209.405 of this chapter. In certain 
instances, the reporting officer may feel that the Corps' objectives on 
public involvement have been achieved without holding a public meeting. 
Omission of the minimum requirement of one public meeting is to be an 
exception to policy and will require prior approval from the Division 
Engineer.
    (2) Application of Federal planning criteria. In general, all 
Federal planning criteria applicable to studies specifically authorized 
by Congress are also applicable to studies conducted under this Program. 
Particular attention shall be given to the consideration of 
nonstructural solutions, consideration of a ``no development'' plan, and 
the assessment of impacts of alternative plans. Plans are to be 
formulated to provide the same independent and complete-within-itself 
project as recommended under regular authorization procedures.
    (3) Environmental Impact Statement (EIS) requirements. Requirements 
for preparation, coordination and submittal of the EIS are contained in 
ER 1105-2-507. Studies conducted under Section 14 and 3 Authorities may 
not require an EIS, as provided in Sec. 209.410(h) of this chapter.
    (4) Cultural resources survey. A cultural resources survey shall be 
accomplished for the consideration of historic and cultural resources as 
part of the preparation of the DPR.
    (5) Assurances of local cooperation. In addition to involvement of 
local interests throughout the planning process, a letter of intent 
shall be requested for specific items of local cooperation near the 
completion of Stage 2 planning (Sec. 263.15(c)(2)). The letter of 
intent must be received from the non-Federal entities which will be 
ultimately signing a Section 221 agreement (paragraph (k) of this 
section), and will be transmitted with the DPR, or Recon report in the 
case of emergencies under Section 14 or 3 Authorities, together with an 
analysis of the reporting officer to demonstrate that such non-Federal 
entities are legally constituted, and have sufficient financial 
capabilities to satisfy all requirements of local cooperation.
    (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:

In carrying out the specified non-Federal responsibilities for the 
(identification of work or project), (appropriate entity) agrees to 
comply with the provisions of the ``Uniform Relocation Assistance and 
Real Property Acquisitions Policies Act of 1970'', Pub. L. 91-646, 
approved 2 January 1971; and Section 221, Pub. L. 91-611, approved 31 
December 1970, as amended.
    (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.

[[Page 355]]

    (f) Submittal of Termination Letters or DPR to OCE. (1) If a 
feasibility study is terminated prior to the completion of a DPR, the 
Division Engineer will notify by letter DAEN-CWP-E, C or W or DAEN-CWO-
M, depending on the study authority; such notification is to include 
reasons for termination, an accounting of expenditure of study funds, 
and the amount of funds to be returned to OCE. Release of unobligated 
funds will be effected as soon as possible. Revocation of funds by OCE 
officially terminates the study. The reporting officer shall notify 
Congressional delegations and local interests when the study has been 
officially terminated.
    (2) If the feasibility study results in a DPR, ten (10) copies of 
the report, and related documentation required by Sec. 263.15(e), will 
be transmitted with recommendations of the Division, Engineer to DAEN-
CWP or DAEN-CWO, depending on the study authority (reference Sec. 
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) Work on plans and specifications. Division Engineers are 
delegated the authority to allow District Engineers to commence work on 
plans and specifications pending approval of a project by the Chief of 
Engineers, provided a satisfactory letter of intent (Sec. 263.17(e)(5)) 
has been received from local interests. Such work may be stopped, 
however, if review of the DPR by OCE reveals a policy problem affecting 
the project or the report recommendations. Work on plans and 
specifications should utilize all remaining funds from allocations for 
the feasibility study. Additional funds may be requested by separate 
letter, or included with the Division Engineer's favorable indorsement 
of a DPR.
    (h) OCE review and approval of DPR or Recon Report. As indicated in 
paragraph 7a, designated OCE elements are responsible for review, 
staffing and coordination of the DPR, or Recon report when transmitted 
to OCE for approval. Maximum reliance will be placed on the review 
conducted by the Division Engineer. Comments will be solicited from 
DAEN-CWP, DAEN-CWR, and DAEN-GCC, only as required for approval of the 
recommended project. In all cases, a copy of the DPR will be forwarded 
to DAEN-CWE-B for information, and to DAEN-REA-P for review of local 
cooperation requirements, upon receipt from the Division Engineer. 
Review of DPR's by the BERH staff may be requested at the discretion of 
DAEN-CWP. In such instances, the Resident Member, BERH, will be 
requested to submit comments on the DPR to DAEN-CWP. Project approval 
normally will be accomplished by the Director of Civil Works, for the 
Chief of Engineers, in accordance with Sec. 263.15(g).
    (i) Notification of interested parties of action by the Chief of 
Engineers. Reporting officers are responsible for notification of all 
interested parties, including Congressional Delegations, States and 
local interests, of action taken by the Chief of Engineers on DPR's. 
Division Engineers may prescribe procedures for such notification as 
deemed necessary.
    (j) Request for construction funds. Following receipt of DPR 
approval from OCE, reporting officers may submit a request for 
construction funds to DAEN-CWP or DAEN-CWO, depending on the Program 
authority, including

[[Page 356]]

an updated schedule of funding requirements by fiscal year based on an 
estimated date by which plans and specifications for the first 
construction contract will be completed. (See also Sec. 263.20(a) 
concerning inclusion of these requests in budget submissions.)
    (k) Approval of Local Cooperation Agreement. Prior to issuance of a 
work allowance by OCE for construction funds, a signed written agreement 
for local cooperation must be obtained and approved by the Secretary of 
the Army, or his designated representative, in accordance with ER 405-2-
680. The signed agreement shall be transmitted to DAEN-REA-P together 
with a copy of the DPR or Recon report which approved the project or 
work.
    (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) Completion of Project Construction (RCS DAEN-CWB-16). Policies 
and procedures for projects constructed under specific Congressional 
authority, with the exception of budgetary submissions and funding 
matters, are applicable to projects constructed under this Program. At 
the completion of project construction, reporting officers shall:
    (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.

[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]



Sec. 263.18  Program completion-time objectives.

    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 Sec. 263.16 of this regulation.

             Program Authorities, Completion Times in Months
------------------------------------------------------------------------
                                       205, 107,               Emergency
                                       103, and   208 and 14   14 and 3
                                          111                     \1\
------------------------------------------------------------------------
(a) Completion of recon and                    2           1           2
 submission of funding request or
 negative report to OCE.............
(b) Completion of feasibility study           16           9      (\2\ )
 by reporting officer and
 preparation of DPR.................
(c) Review of DPR or recon report by           2           1          .5
 division engineer, (including
 provisions of Sec. 263.15(f))....
(d) Review of DPR or recon report by           2           1          .5
 OCE................................
(e) Completion of project                     18          12           3
 construction (including plans and
 specifications), after project
 approval...........................
                                     -----------------------------------
(f) Total completion-time objective.          40          24           6
------------------------------------------------------------------------
\1\ The decision to utilize a recon report or DPR for recommending a
  project under sec. 14 authority is delegated to the division engineer
  (Sec. 263.17(b)(3)).
\2\ Not applicable.


[[Page 357]]



Sec. 263.19  Detailed project reports.

    (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, Sec. 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.



Sec. 263.20  Program funding.

    (a) Program budget. Initial consideration of estimated project 
construction requirements (including funds for plans and 
specifications), should be given in the first Program budget submission 
following completion of Stage 2 planning (Sec. 263.15(c)(2)). OCE 
elements designated in Sec. 263.16(a) are responsible for issuing 
Program budget guidance to field operating agencies, formulating 
appropriate program budgets from field submissions, and submitting such 
budgets to DAEN-CWB.

To expedite budget preparation, field operating agencies should insure 
that budgetary data on the Continuing Authorities Program are sent 
directly to DAEN-CWP-A or DAEN-CWO, depending on the authority.
    (b) Use of Program funds. Funds appropriated by Congress under the 
legislative authorities of this Program will be utilized by the Corps of 
Engineers in conducting studies approved by Division Engineers, and in 
constructing projects approved by the Chief of Engineers. This does not 
preclude the use of private architect-engineer firms or other consultant 
services in Program implementation. No grants of Program funds will be 
made to local interests for conducting studies or constructing projects, 
nor shall contributions be made for features or benefits of projects 
constructed by another agency or by local interests. Reimbursement to 
local interests for work undertaken by them on an approved project 
normally will not be authorized; however, if the situation warrants 
consideration of such a provision, the procedures contained in ER 1165-
2-18 may be followed to request OCE approval in advance of such action 
by local interests.
    (c) Requests for funds. Procedures for requesting Program funds are 
contained in Sec. 263.17. Generally, requests will be made in four 
instances: After approval by Division Engineer to proceed with a 
feasibility study, after submission of a DPR to OCE and approval of the 
Division Engineer to proceed with plans and specifications, after OCE 
approval of a DPR for proceeding with project construction, and in other 
cases as required to revise the preceding requests. In the case of 
requesting funds for plans and specifications and project construction, 
deviations from amounts estimated in previous budget submissions, or 
contained in current approved Program budgets, will be briefly 
explained.

[[Page 358]]

    (d) Retention, revocation and transfer of funds. Unobligated funds 
will be reported to DAEN-CWP-A or DAEN-CWO, depending on the study 
authority under which the funds were allotted, as soon as final costs 
for studies or construction are determined. When work on a study, plans 
and specifications, or project construction must be suspended for an 
unknown period of time, or suspended for an extended period, the above 
OCE elements are to be notified immediately by letter with the Division 
Engineer's recommendation regarding retention or revocation of 
unobligated funds held in that particular account. The authority for 
transfers and reporting requirements are contained in ER 11-2-201.

[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]



                       Subpart B_Navigation Policy



Sec. 263.21  Small navigation project authority.

    (a) Legislative authority. Section 107 of the River and Harbor Act 
of 1960, as amended by Section 310 of the River and Harbor Act of 1965, 
section 112 of the River and Harbor Act of 1970, and section 133(a) of 
the Water Resources Development Act, approved 22 October 1976, states:

    (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) Operation and maintenance responsibility. Projects for 
navigation constructed under the authority of Section 107 will be 
considered the same as authorized projects and are operated and 
maintained by the Corps of Engineers at Federal cost under the same 
procedures and policies as applied to projects specifically authorized 
by Congress. (Reference section 6, Pub. L. 93-251).
    (c) Aids to navigation. Planning and design of channel and other 
navigation improvements should give full consideration to the 
feasibility and costs of establishment by the Coast Guard of suitable 
aids to navigation. The costs for navigation aids to be provided by the 
Corps of Engineers, Coast Guard, State, and local interests, and similar 
project-associated costs, will be included in the economic analysis. 
Project associated expenditures by the Corps of Engineers for aids to 
navigation are included within the cost limitation under the Section 107 
authority, but expenditures by the U.S. Coast Guard are not. The report 
appendix should reproduce the letter from the Coast Guard stating the 
estimated

[[Page 359]]

number, type and cost of navigation aids and their maintenance cost.
    (d) Local cooperation. Local cooperation requirements for projects 
under the Sec. 107 authority are those normally recommended for similar 
work authorized by Congress.

[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]



Sec. 263.22  Authority for snagging and clearing for navigation (Section 3).

    (a) Legislative authority. Section 3 of the River and Harbor Act 
approved 2 March 1945, states:

    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) Policy--(1) Eligible work. It is the policy of the Chief of 
Engineers to utilize this authority primarily for emergency work to 
benefit navigation. Work pursuant to this authority is undertaken as an 
emergency measure to clear or remove unreasonable obstructions to 
navigation in navigable portions of rivers, harbors and other waterways 
of the United States, or tributaries thereof, in order to provide 
existing traffic with immediate and significant benefit. When recurring 
maintenance work will be required to secure enduring benefits from the 
initial work, local interests should be informed that they will have to 
bear the costs of such recurring maintenance until such time as 
maintenance at that location may become part of a project specifically 
authorized by Congress and subsequently funded.
    (2) Ineligible work. In addition to the ineligible work listed in 
para 5 of the basic regulation, the following work is also ineligible 
under this authority:
    (i) Normal shoaling process. When the condition for which the 
remedial work is requested resulted from the normal shoaling process 
associated with that particular reach of waterway and not from a sudden 
occurrence.
    (ii) Work within the limits of authorized projects. This restriction 
applies where authorized new work remains to be accomplished unless an 
emergency results from aggravated conditions arising subsequent to the 
authorization of the project. In that event, corrective measures will be 
limited to restoration of conditions existing at the time of such 
authorization.
    (iii) General widening or deepening. No general widening or 
deepening will be accomplished to meet the desires of navigation 
interests to use larger vessels.
    (c) Local cooperation. Local cooperation requirements for projects 
under the Section 3 authority are those normally recommended for similar 
work authorized by Congress.



                     Subpart C_Flood Control Policy



Sec. 263.23  Small flood control project authority (Section 205).

    (a) Legislative authority. Section 205 of the Flood Control Act 
approved 30 June 1948, as amended by section 205 of the Flood Control 
Act approved 23 October 1962, section 61 of the Water Resources 
Development Act approved 7 March 1974, and section 133(b) of the Water 
Resources Development Act approved 22 October 1976, states:

    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

[[Page 360]]

improvement to insure its successful operation, except as may result 
from the normal procedure applying to projects authorized after 
submission of preliminary examination and survey reports.

    (b) Non-Federal responsibilities for dam and reservoir project. All 
new projects under this authority, including dams and reservoirs, are 
considered local protection projects. Non-Federal responsibilities for 
such dams and reservoirs will thus include the usual lands, easements, 
right-of-way, and other requirements of local protection projects. 
Similarly, non-Federal interests must operate the flood control features 
of any dam or reservoir in accordance with regulations prescribed under 
the authority contained in section 7 of the Flood Control Act of 
December 1944.
    (c) Major disaster area. Determination of a ``major disaster area'' 
can be made only by the President, pursuant to the Disaster Relief Acts 
cited above.
    (d) Local cooperation. As stated in para 1a of this part, the 
provisions of section 3, Flood Control Act of 1936, as amended (33 
U.S.C. 701c), are applicable. Other requirements shall be recommended by 
reporting officers to insure the long-term viability of the plan and the 
attainment of benefits from the plan. Consideration of land enhancement 
shall be in accordance with EM 1120-2-109.
    (e) Limitation on erosion protection. This authority shall not be 
used for protecting against bank erosion. However, bank stabilization 
may be included as an integral part of a plan for preventing flood 
damage.

[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]



Sec. 263.24  Authority for snagging and clearing for flood control (Section 208).

    (a) Legislative authority. Section 208 of the Flood Control Act 
approved 3 September 1954 and as further amended by Section 26 of the 
Water Resources Development Act approved March 7, 1974 states:

    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: Provided, That not more than $250,000 shall be expended for 
this purpose for any single tributary from the appropriations for any 
one fiscal year.

    (b) Policy. Work under this authority is limited to clearing and 
snagging or channel excavation and improvement with limited embankment 
construction by use of materials from the channel excavation. If 
investigation indicates that placement of revetment is needed to provide 
a complete and fully effective project, the local interests should 
provide for the item of construction either by work or by cash 
contribution.
    (c) Local cooperation. The provisions of Sec. 263.23(d) are 
applicable.



Sec. 263.25  Authority for emergency streambank and shoreline protection 
of public works and nonprofit public services (Section 14).

    (a) Legislative authority. Section 14 of the Flood Control Act 
approved July 24, 1946, as amended by section 27 of the Water Resources 
Development Act approved March 7, 1974, states:

    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: 
Provided, That not more than $250,000 shall be allotted for this purpose 
at any single locality from the appropriations for any one fiscal year.

    (b) Policy. Work under the Section 14 authority shall serve to 
prevent flood or erosion damages to endangered highways, highway bridge 
approaches, public works, and nonprofit public facilities by the 
construction or repair of emergency streambank and shoreline protection 
works. Eligible highways consist of major highway systems of national 
importance, and principal highways, streets, and roads of importance to 
the local community, such as arterial streets, important access

[[Page 361]]

routes to other communities and adjacent settlements, and roads 
designated as primary farm-to-market roads.
    (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) Legislative interpretations. (1) ``Public Works'' are considered 
to be those important and essential public facilities which serve the 
general public and are owned and operated by the Federal, State, or 
local governments, such as municipal water supply systems and sewage 
disposal plants.
    (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) Local cooperation. The provisions of Sec. 263.23(d) are 
applicable.



                    Subpart D_Shore Protection Policy



Sec. 263.26  Small beach erosion control project authority (Section 103).

    (a) Legislative authority. Section 103(a) of the River and Harbor 
Act of 1962, as amended by section 310 of the River and Harbor Act of 
1965 and by section 112 of the River and Harbor Act of 1970, amends 
section 3 of Pub. L. 826, 84th Congress to read as follows:

    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: Provided, 
That not more than $1,000,000 shall be allotted for this purpose for any 
single project and the total amount allotted shall be sufficient to 
complete the Federal participation in the project under this section 
including periodic nourishment as provided for under section 1(c) of 
this Act: Provided further, That the work shall be complete in itself 
and shall not commit the United States to any additional improvements to 
insure its successful operation, except for participation in periodic 
beach nourishment in accordance with section 1(c) of this Act, and, as 
may result from the normal procedure applying to projects authorized 
after submission of survey reports.

    (b) Periodic nourishment. When it can be demonstrated as being part 
of the best plan to meet project objectives and a more economical 
remedial measure than others, provision for periodic nourishment may be 
recommended. The recommended Federal participation in periodic 
nourishment will be limited to a specific period of time. The total 
project costs shall include both initial construction and periodic 
nourishment.
    (c) Local cooperation. The provisions of ER 1120-2-110 and ER 1165-
2-19 are applicable.



Sec. 263.27  Authority for mitigation of shore damage attributable to
navigation works (Section 111).

    (a) Legislative authority. Section 111 of the River and Harbor Act 
of 1968 (Pub. L. 90-483, approved August 13, 1968) states:

    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) Definitions--(1) Federal navigation works is defined as a 
project or feature thereof that has been specifically authorized by the 
Congress in a River and

[[Page 362]]

Harbor Act or authorized under the continuing authorities granted by 
section 201 or the Flood Control Act of 1965, or by section 107 of the 
River and Harbor Act of 1960, as amended. These shall include projects 
or project features built by others but which have been adopted as a 
Federal Navigation project.
    (2) Beach erosion control project is defined as a project that has 
been specifically authorized by the Congress in a River and Harbor Act 
or authorized under the continuing authorities granted by section 201 of 
the Flood Control Act of 1965 or by section 103 of the River and Harbor 
Act of 1962. This is considered to include the beach erosion control 
portion of combined beach erosion and hurricane protection projects.
    (3) Mitigation of shore damages is defined as the construction of 
works or procedures to reduce erosion-type damages by shoreline 
stabilization. The degree of mitigation is the reduction of erosion or 
accretion to the level which would be obtained without the influence of 
navigation works at the time navigation works were accepted as a Federal 
responsibility. It is not intended that shorelines be restored to 
historic dimensions, but only to lessen the damages by an action that 
can be justified, the entire costs of which are Federal regardless of 
shore ownership.
    (c) General policies. (1) This Act authorizes the study, 
construction and maintenance of work for prevention or mitigation of 
damages to both public and privately owned shores to the extent of the 
damages that can be directly identified and attributed to Federal 
navigation work located along the coastal and Great Lakes shorelines of 
the United States. This authority will not be used:
    (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) Cost limitations. Section 111 provides that the Chief of 
Engineers has authority to authorize projects for which the estimated 
first costs will not exceed $1,000,000. The first costs will be the cost 
of the initial preventive or mitigative measures only. The limitation on 
costs does not include the cost of project maintenance. The project must 
be planned as a complete unit and not broken into reaches or stages for 
cost limitation purposes.
    (e) Reports. The Recon Report required by Sec. 263.15(c)(1) will:

[[Page 363]]

    (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) Evaluation of mitigation measures. The objective of section 111 
is to provide mitigation measures for shore damages attributable to 
Federal navigation projects, when equitable and in the public interest. 
All practicable alternatives, structural and non-structural should be 
identified and considered. Work recommended for construction should 
provide the most practicable and economical means of mitigating existing 
damages or the prevention of subsequent damages. Justification of 
mitigation measures should be made by comparing their costs with the 
values represented by the damages preventable. Any intangible values 
should be described and given due weight along with the tangible values 
in this justification. Exercise of the authority of section 111 to 
provide mitigation measures at Federal expense is not mandatory. A 
finding for or against its use should fully consider the pre-project 
conditions and the justification of incurring mitigation costs.
    (g) Criteria for a Favorable Recommendation. A recommendation 
favorable to adoption and construction of work to prevent or mitigate 
shore damage attributable to a Federal navigation project under the 
authority of section 111 of the River and Harbor Act of 1968 may be 
considered warranted when both of the following conditions exist:
    (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) Cost sharing--(1) Construction. (i) If the work recommended in 
the report is confined to mitigation work only under section 111, i.e., 
erosion totally attributable to the navigation works, costs will be 100 
percent Federal.
    (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) Maintenance. (i) If the initial work is confined to mitigation 
under section 111, all maintenance costs are 100 percent Federal.
    (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, i.e., the 
section 111 portion will be 100 percent Federal and remaining work 100 
percent local.
    (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) Local cooperation. (1) The law as written provided that the cost 
of installing, operating and maintaining projects under this authority 
shall be

[[Page 364]]

borne entirely by the United States; therefore there are no requirements 
for local cooperation. The cost of any lands, easements or rights-of-way 
required for construction or subsequent maintenance will be borne 
entirely by the United States.
    (2) Where section 111 projects are to be accomplished in conjunction 
with other works (Sec. 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.



Sec. Appendix A to Part 263--History of Program and Project Limitations 
                     Continuing Authorities Program

----------------------------------------------------------------------------------------------------------------
                                                                                       Federal cost     Annual
                Section/law                             Date               Public law   limitation     program
                                                                              No.       per project     limit
----------------------------------------------------------------------------------------------------------------
                                                    (1) Small Flood Control Project Authority (Sec. 205)
                                           ---------------------------------------------------------------------
Sec. 205 of 1948 FCA......................  June 30, 1948...............       80-858      $100,000   $2,000,000
Sec. 212 of 1950 FCA......................  May 17, 1950................       81-516       150,000    3,000,000
Public Law 685/84th Congress, 2d Sess.....  July 11, 1956...............       84-685       400,000   10,000,000
Sec. 205 of 1962 FCA......................  Oct. 23, 1962...............       87-874     1,000,000   25,000,000
Sec. 61 of WRDA of 1974...................  Mar. 7, 1974................       93-251           \1\   30,000,000
                                                                                          1,000,000
                                                                                                \3\
                                                                                          2,000,000
Sec. 133(6) WRDA of 1976..................  Oct. 22, 1976...............       94-587     2,000,000   30,000,000
                                                                                                \3\
                                                                                          3,000,000
                                           ---------------------------------------------------------------------
                                            (2) Authority for Snagging and Clearing for Flood Control (Sec. 208)
                                           ---------------------------------------------------------------------
Sec. 2 of 1937 FCA........................  Aug. 28, 1937...............       75-406       $25,000     $300,000
Sec. 13 of 1946 FCA.......................  July 24, 1946...............       79-526        50,000    1,000,000
Sec. 208 of 1954 FCA......................  Sept. 3, 1954...............       83-780       100,000    2,000,000
Sec. 26 of WRDA of 1974...................  Mar. 7, 1974................       93-251       250,000    5,000,000
                                           ---------------------------------------------------------------------
                                             (3) Authority for Emergency Streambank and Shoreline Protection of
                                                     Public Works and Nonprofit Public Services (Sec. 14)
                                           ---------------------------------------------------------------------
Sec. 14 of 1946 FCA.......................  July 24, 1946...............       79-526       $50,000   $1,000,000
Sec. 27 of WRDA of 1974...................  Mar. 7, 1974................       93-251       250,000   10,000,000
----------------------------------------------------------------------------------------------------------------
                                                      (4) Small Navigation Project Authority (Sec. 107)
                                           ---------------------------------------------------------------------
Sec. 107 of 1960 R. & H. Act..............  July 14, 1960...............       86-645      $200,000   $2,000,000
Sec. 310 of 1965 R. & H. Act..............  Oct. 27, 1965...............       89-298       500,000   10,000,000
Sec. 112 of 1970 R. & H. Act..............  Dec. 31, 1970...............       91-611     1,000,000   25,000,000
Sec. 133(a) of WRDA of 1976...............  Oct. 22, 1976...............       94-587     2,000,000   25,000,000
                                           ---------------------------------------------------------------------
                                               (5) Authority for Snagging and Clearing for Navigation (Sec. 3)
                                           ---------------------------------------------------------------------
Sec. 3 of 1945 R. & H. Act................  Mar. 2, 1945................        79-14          None     $300,000
                                           ---------------------------------------------------------------------
                                                (6) Small Beach Erosion Control Project Authority (Sec. 103)
                                           ---------------------------------------------------------------------
Sec. 103 of 1962 R. & H. Act..............  Oct. 23, 1962...............       87-874      $400,000   $3,000,000
Sec. 310 of 1965 R. & H. Act..............  Oct. 27, 1965...............       89-298       500,000   10,000,000
Sec. 112 of 1970 R. & H. Act..............  Dec. 31, 1970...............       91-611     1,000,000   25,000,000
                                           ---------------------------------------------------------------------
                                                (7) Authority for Mitigation of Shore Damages Attributable to
                                                                Navigation Projects (Sec. 111)
                                           ---------------------------------------------------------------------
Sec. 111 of 1968 R. & H. Act..............  Aug. 13, 1968...............       90-483           \2\         None
                                                                                         $1,000,000
----------------------------------------------------------------------------------------------------------------
\1\ Project cost may go to $2,000,000 if project is located in a major disaster area designated by the
  President.
\2\ A project exceeding $1 million will be transmitted to Congress for specific authorization.
\3\ Federal cost may go to higher amount if project is located in a major disaster area designated by the
  President.


[40 FR 51134, Nov. 3, 1975, as amended at 41 FR 56943, Dec. 30, 1976]

[[Page 365]]



  Sec. Appendix B to Part 263--Application of Multiobjective Planning 
               Framework to Continuing Authorities Program

    1. General. The planning process described in the ER 1105-2-200 
series of regulations including the implementation of Federal planning 
and evaluation criteria, are generally applicable to studies conducted 
under the Continuing Authorities Program. However, due to the limited 
scope of many of the plans and projects considered under this program, 
modification of the process is appropriate. Specific modification of the 
requirements of the planning criteria is not appropriate since the 
legislative and executive authorities setting forth these criteria do 
not differentiate between various types of level C implementation 
studies. Discretion must be employed by reporting officers and reviewers 
of Detailed Project Reports to insure that projects recommended for 
implementation by the Corps have been selected on the basis of 
information and analyses consistent with the WRC Principles and 
Standards, while at the same time keeping the requirements for 
information and analyses consistent with the scope of the study, 
solutions recommended, and the Program completion-time objectives 
outlined in Sec. 263.18 of this regulation.
    2. Plan Formulation Stages.
    a. Stage 1--Reconnaissance Study (Recon). As presented in para. 6c, 
a Reconnaissance will replace the Development of a Plan of Study as the 
primary element of Stage 1 planning. As a general rule, a Recon should 
be conducted by a study team consisting of an engineer, an economist, 
and an environmentalist. A one-to-two day field reconnaissance should be 
sufficient to analyze the need for a project, to develop sketch plans, 
discuss views and capabilities of local interests, and identify the 
economy of the potential project area and possible environmental issues 
that would need to be addressed if a feasibility study were to be 
conducted. Additional effort should pinpoint all data deficiencies, 
types of investigations required for the feasibility study, and the 
estimated cost of the study. The latter identification process can be 
developed as a Plan of Study for the feasibility study, if approved and 
funded. To accomplish the intended purpose of the Recon, within the time 
and cost objectives given in this regulation, reporting officers are not 
required to develop a specific project (except for emergency situations 
under Section 14 or 3 Authorities), but should only provide the 
information required to make a decision as to whether there is a Federal 
interest in conducting a feasibility study. Mature, seasoned judgment is 
a prime requisite.
    b. Stage 2--Development of Alternative Plans. While the ER 1105-2-
200 series of regulations provides for a three-stage development of 
plans, studies under Continuing Authorities may consolidate these two 
final stages (intermediate and detailed), into a single stage, if 
appropriate. This consolidation does not eliminate any of the planning 
tasks, as discussed in para 3 below, nor does it diminish the concept of 
screening a full array of alternatives including nonstructural measures, 
with increasing levels of detail in the assessment of impacts and 
evaluation as planning progresses to plan selection. The primary 
emphasis in making the consolidation of these two stages is that the 
plan selection is normally made on the basis of more limited data and 
analyses than appropriate for studies conducted under the Level C Survey 
Program or the Phase I AE&D Program.
    c. Stage 3--Development of Recommended Plan. The feasibility study 
under the Continuing Authorities Program will include the design of a 
recommended plan to the extent necessary to proceed directly from the 
Detailed Project Report to preparation of plans and specifications. 
While studies under the Level C Survey Program would complete plan 
formulation prior to accomplishing detailed project design, the nature 
of this Program necessitates a flexible design phase, wherein changes in 
scope of the selected plan, with accompanying changes in project impacts 
and evaluation, are to be expected and handled by planning personnel in 
order that the DPR will reflect a selected plan consistent with 
completed detailed design and a plan justified under the current Federal 
evaluation criteria for recommending Federal participation.
    3. Planning Tasks.
    a. Problem Identification. While planning under Continuing 
Authorities is to be on a multi-objective basis, the range of problems 
that can be addressed under a particular Program authority is more 
limited than normally considered in the conduct of studies specifically 
authorized by Congress. A good effort to focus the study on relevant 
problems should be made in the Recon phase of the study, while more 
intense efforts at data collection and definition of the problems and 
associated needs should be accomplished during Stage 2 planning.
    b. Formulation of Alternatives. There are no fundamental differences 
in the process of formulating alternatives under these Program 
authorities than in Level C Survey studies, with the exception that the 
array of alternatives will normally be more limited based on the 
discussion in para 3a above. The level of detail to which the 
alternatives are formulated, with associated assessments of impacts and 
evaluation of beneficial and adverse contributions, will vary greatly 
depending on the study authority. In some cases, alternatives will be 
screened and eliminated for various reasons without full development of 
a tentative plan which can be

[[Page 366]]

assessed and evaluated. Such screening is consistent with the nature of 
this Program; however, good judgment and interdisciplinary participation 
should be emphasized in such preliminary screenings. The guidance in the 
ER 1105-2-200 series of regulations with regard to consideration of non-
structural measures and formulation of NED and EQ plans, is fully 
applicable to studies conducted under this Program.
    c. Impact Assessment. There is no difference in the requirements for 
the assessment of impacts for studies conducted under Continuing 
Authorities and those under the Level C Survey Program. As in all 
studies, the extent to which information is obtained to adequately 
assess impacts of alternative plans is a matter of discretion of the 
reporting officer, bearing in mind the requirements of the National 
Environmental Policy Act of 1969 (NEPA) and Section 122, Public Law 91-
611.
    d. Evaluation. The processes, analyses and displays for evaluation 
of alternative plans as prescribed in the ER 1105-2-200 series of 
regulations are generally applicable to studies conducted under 
Continuing Authorities. Again, the level of detail, and not the process 
itself, is to be consistent with the study authority and the needs of 
the decision-making process.



PART 273_AQUATIC PLANT CONTROL--Table of Contents



Sec.
273.10 Purpose.
273.11 Applicability.
273.12 References.
273.13 Program policy.
273.14 Planning procedures.
273.15 Work Progress Report.
273.16 Operations.
273.17 Annual budget request.
273.18 Clearinghouse coordination.

Appendix A to Part 273--Aquatic Plant Control Program Legislative 
          Authority
Appendix B to Part 273--Information Requirements for Aquatic Plant 
          Control Program Reports
Appendix C to Part 273--Information Requirements for Aquatic Plant 
          Control Program Environmental Impact Statements
Appendix D to Part 273--Work Progress Report
Appendix E to Part 273--Preventive Safety Measures in Handling of 
          Herbicides

    Authority: Sec. 302, Title III, Pub. L. 89-298, River and Harbor Act 
of 1965 (33 U.S.C. 610), October 27, 1965.

    Source: 41 FR 22346, June 3, 1976, unless otherwise noted.



Sec. 273.10  Purpose.

    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.



Sec. 273.11  Applicability.

    This regulation is applicable to all OCE elements and all field 
operating agencies having civil works responsibilities.



Sec. 273.12  References.

    (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, 
Federal Register, Vol. 39, No. 9, 9 October 1974.
    (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) \1\
---------------------------------------------------------------------------

    \1\ 33 CFR 209.410 was removed at 45 FR 56761, Aug. 25, 1980.
---------------------------------------------------------------------------

    (i) ER 1105-2-811.



Sec. 273.13  Program policy.

    (a) Program orientation. The Aquatic Plant Control Program is 
designed to deal primarily with weed infestations of major economic 
significance including those that have reached that stage (such as 
water-hyacinth) and those that have that potential (such as 
alligatorweed and Eurasian watermilfoil) in navigable waters, 
tributaries, streams, connecting channels and allied waters. This does 
not imply

[[Page 367]]

that the infestation must have countrywide distribution. However, the 
infestation should constitute a known problem of economic importance in 
the area involved. Initial planning should constitute investigation of a 
specific problem weed or weed complex, not generalized surveys of 
aquatic vegetation. The common submersed aquatics and floating or 
emergent, wetland, marsh, and swamp vegetation do not generally meet 
those criteria for special problems merely because they may qualify as 
``obnoxious aquatic plants'' under the language of the legislation 
authorizing the program except as indicated in Sec. 273.13(b).
    (b) Work not eligible under this program. Weed control for operation 
and maintenance of reservoirs, channels, harbors, or other water areas 
of authorized projects under jurisdiction of the Corps of Engineers or 
other Federal agencies will not be undertaken as a part of the Aquatic 
Plant Control Program, except as such areas may be used for experimental 
purposes in research performed for the program. Aquatic plant control 
work for the operation and maintenance of Federal projects are eligible 
to be included under this authority for the purpose of cost-sharing with 
participating State or local agencies, but are not eligible for 
budgeting or funding under the Aquatic Plant Control Program.
    (c) Applied research. Applied research developed by OCE with the 
assistance of the Interagency Aquatic Plant Control Research Advisory 
Committee and the appropriate Division Engineer will be an all Federal 
cost. This research will be accomplished through contracts with Federal, 
State and private research institutions. A research planning meeting 
will be held the last quarter of each calendar year to provide 
professional presentation of current research projects, review of 
current operation activities, and review new research proposals. 
Requested programs, estimated cost, and other information will be 
developed in the field and submitted to HQDA (DAEN-CWD-R) Washington, DC 
20314, for approval and financing as prescribed by ER 70-2-3. Attendance 
of the Technical Advisory Committee meetings by Corps personnel has been 
authorized.
    (d) Planning. Planning will be an all Federal cost item, will be 
developed by reporting officers in accordance with their needs and will 
be fully justified for funds requested. Normally, the program will be 
initiated with a reconnaissance report (Sec. 273.14(a)) and will be 
accomplished under a State design memorandum (Sec. 273.14(b)). 
Supplement design memorandums will be used to implement changes in the 
program. These memorandums will establish a continuing program and will 
be used to enable the Chief of Engineers to allot available funds on a 
priority basis in accordance with the urgency of the needs of each area.
    (e) Criteria for recommending a Federal project. (1) A 
recommendation favorable to adoption of the project under the authority 
provided by section 302, as amended, will be warranted when the 
following conditions exist:
    (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.

[[Page 368]]



Sec. 273.14  Planning procedures.

    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) Reconnaissance reports. Investigations for reconnaissance 
reports will be limited to readily available data and information. Field 
surveys and office studies should be limited to minimum essentials for 
further detailed planning. The reconnaissance report will be used for 
the overall program planning and should contain adequate information for 
these purposes.
    (1) Authorization. Preparation of a reconnaissance report will be 
authorized by OCE granting of work allocations and allotment of funds 
based on requests submitted by reporting officers. Funds for such 
reports may be requested in annual submissions of budget requests and 
subsequently to DAEN-CWO-R as required to meet unanticipated needs. 
Since the program is proceeding under a limited budget, costs should be 
limited to minimum requirements. Only in exceptional cases will more 
than $3,000 be made available for a reconnaissance report on a problem 
in any one district.
    (2) Content of reports. Where findings and conclusions are 
unfavorable to undertaking further detailed planning, a brief letter 
report summarizing the problem and findings should be submitted to OCE 
to provide a basis for answering outstanding inquiries. Where findings 
and conclusions are favorable, a more detailed report should include, 
but not be limited to, the information contained in Appendix B.
    (b) State design memorandum. When authorized to prepare a detailed 
planning report, the reporting officer will proceed with necessary 
investigations and develop plans and data in sufficient detail to assure 
a complete and fully operable aquatic plant control operation. The 
report will be in the form of a State design memorandum (SDM). The SDM 
will be prepared by the District, reviewed by the Division, then 
forwarded to DAEN-CWO-R for review and approval. The data presented will 
be used to set priorities and request funds to finance activities on 
various projects. Fund requirements are divided into four categories: 
applied research; planning; control operations; and development.
    (c) Review of the proposed design Memoranda. Review of State design 
memoranda should insure that:
    (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) Environmental impact statement requirements. Prior to funding of 
a plant control project programs which involve pest control operations, 
such as aquatic plant control, and affect either man's health or his 
environment (soil, flora, fauna, aesthetics, water resources), are 
candidates for review and possible preparation of an environmental 
impact statement (EIS) under the National Environmental Policy Act. (The 
information outlined in Appendix C should be included in the analysis 
section of an EIS in addition to the treatment prescribed by 33 CFR 
209.410.) \2\
---------------------------------------------------------------------------

    \2\ 33 CFR 209.410 was removed at 45 FR 56761, Aug. 25, 1980.
---------------------------------------------------------------------------



Sec. 273.15  Work Progress Report.

    Reporting officers will prepare and submit to DAEN-CWO-R a detailed 
description of anticipated Aquatic Plant

[[Page 369]]

Control projects for the next calendar year. Submissions must reach OCE 
by 15 December of the preceding calendar year, in the format prescribed 
by Appendix D.



Sec. 273.16  Operations.

    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) Certification of pesticide applicators. Activities will be 
subject to the provisions of the Federal Insecticide, Fungicide and 
Rodenticide Act of 1972, (reference Sec. 273.12(b) and (c)), regarding 
the training and certification of pesticide supervisors and/or 
applicators.
    (b) Safety in use of herbicides. Use of herbicides will be in 
accordance with the Occupational Safety and Health Act of 1970, 
reference Sec. 273.12 (d) and (e). Some herbicides are toxic chemicals 
and must be used with utmost care. Operators and applicators are 
required to use respiratory protective devices to prevent inhalation of 
toxic dusts, vapors, or gases; protective clothing to protect the skin; 
and eye protection. Some of the primary precautions which must be 
observed in handling herbicides are listed in Appendix E. Questions 
concerning safety should be referred to HQDA (DAEN-SO) Washington, D.C. 
20314.



Sec. 273.17  Annual budget request.

    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.



Sec. 273.18  Clearinghouse coordination.

    Procedures prescribed under Sec. 384.15 of Chapter II will be 
observed.



 Sec. Appendix A to Part 273--Aquatic Plant Control Program Legislative 
                                Authority

    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:
    Sec. 302(a) There is hereby authorized a comprehensive program to 
provide for control and progressive eradication of waterhyacinth, 
alligatorweed, Eurasian watermilfoil, and other obnoxious aquatic plant 
growths, from the navigable waters, tributary streams, connecting 
channels, and other allied waters of the United States, in the combined 
interest of navigation, flood control, drainage, agriculture, fish and 
wildlife conservation, public health, and related purposes, including 
continued research for development of the most effective and economic 
control measures, to be administered by the Chief of Engineers, under 
the direction of the Secretary of the Army, in cooperation with other 
Federal and State agencies. Local interests shall agree to hold and save 
the United States free from claims that may occur from control 
operations and to participate to the extent of 30 per centum of the cost 
of such operations. Costs for research and planning undertaken pursuant 
to the authorities of this section shall be borne fully by the Federal 
Government.
    (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.



Sec. Appendix B to Part 273--Information Requirements for Aquatic Plant 
                         Control Program Reports

    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

[[Page 370]]

damages occasioned by presence of the infestation; and other information 
clarifying the nature and magnitude of the problem. Explanation should 
be given of how and why the infestation meets the principal criteria 
governing the program.
    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.



Sec. Appendix C to Part 273--Information Requirements for Aquatic Plant 
             Control Program Environmental Impact Statements

    1. Description of the problem.
    a. Pests. Identify the pest to be controlled by common name. Be as 
specific as possible.
    b. Location and size of infestation. Describe the target area as 
specifically as possible.
    c. Severity of infestation. Discuss the degree and importance of the 
pest problem.
    d. History of infestation. Discuss obvious development as 
established.
    e. Criteria for identification of the treatment areas. Include 
technical details as established.
    f. Possible cumulative effects of the proposed action in relation to 
other Federal or non-Federal pesticides application in the treatment 
area.
    g. Relationship to environmental situation. Non-target organisms and 
integrated pest management programs.
    2. Program accomplishments:
    a. Goals. Discuss practical control levels.
    b. Monitoring accomplishment level.
    3. Identification of each chemical:
    a. Name. Use common or coined names, and/or chemical name.
    b. Active ingredient. Give name and percentage.
    c. Status of Federal registration. Give registration number.
    4. Application:
    a. Form applied. Dust, granule, emulsion, bait solution, gas, etc.
    b. Choice of equipment and techniques. Discuss general details of 
method of application.
    c. Use strength. Give concentration of the active ingredient as 
applied.
    d. Rate. Give rate of application in pounds per acre or other rate.
    e. Frequency. Discuss probable frequency of application.
    f. Acreage or other descriptive unit. Discuss area of proposed 
control.
    g. Site description. Lake, river, drainage canal, irrigation canal, 
etc.
    h. Sensitive areas. Discuss areas of potential contamination.
    i. Container disposal. Discuss disposal requirements.
    j. Safety precautions. Discuss hazards of exposure.
    5. Alternative measures: Discuss details of alternative methods of 
control.



            Sec. Appendix D to Part 273--Work Progress Report

                      Aquatic Plant Control Program

                                (Example)

District: Vicksburg. Year Ending: 1 December 1974.
Division: Lower Mississippi Valley. Date Submitted: 15 December 1974.

    1. Status of contracts scheduled for award in current fiscal year.

------------------------------------------------------------------------
                                    Scheduled award
            Contract                     date          Actual award date
------------------------------------------------------------------------
Plant control operations........  July 1973.........  July 31, 1973.
------------------------------------------------------------------------

    2. Comparison of scheduled and actual current FY obligations and 
expenditures to date.

------------------------------------------------------------------------
                                          Approved
                                          Mar. 28,   Actual   Difference
                                            1974
------------------------------------------------------------------------
Obligations.............................      $4.7      $3.2      -$1.5
Expenditures............................       4.1       2.9       -1.2
------------------------------------------------------------------------

    3. Explanation of difference. Not applicable.
    4. Outlook for meeting programmed objectives.
    a. Programmed objectives. Full utilization of work allowance.
    b. Outlook. We expect to meet our programmed objectives.
    5. Problems and corrective action taken or proposed action. Not 
applicable.

[[Page 371]]

    6. Status of over-all program progress. Contract for plant control 
operations was awarded in July 1973 to take advantage of last part of 
plant growing season. Plant control operations began in October 1973 and 
have been completed for this fiscal year. Surplus funds in the amount of 
$21,700 will be revoked.



 Sec. Appendix E to Part 273--Preventive Safety Measures in Handling of 
                               Herbicides

    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.



PART 274_PEST CONTROL PROGRAM FOR CIVIL WORKS PROJECTS--Table of Contents



                            Project Operation

Sec.
274.1 Purpose.
274.2 Applicability.
274.3 References.
274.4 Pesticide management.
274.5 Certification.
274.6 Division/district pest control programs.
274.7 Authorization of pesticide use.

Appendix A to Part 274--Preventive Safety Measures in Handling of 
          Pesticides

    Authority: 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.

[[Page 372]]


    Source: 42 FR 41118, Aug. 15, 1977, unless otherwise noted.

                            Project Operation



Sec. 274.1  Purpose.

    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.



Sec. 274.2  Applicability.

    This regulation is applicable to all OCE elements and all field 
operating agencies having Civil Works responsibilities.



Sec. 274.3  References.

    (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.



Sec. 274.4  Pesticide management.

    (a) Administration. The Division Engineer is responsible for 
implementation of the program, and providing for the training of pest 
control personnel, safe use of highly toxic materials and the proper 
application of restricted-use pesticides. District programs will be 
reviewed by the Division Engineer for the selection of suitable pest 
control agents, up-to-date and economical methods of control, and the 
proper use and maintenance of pest control equipment. Field Operating 
Agencies (FOA) will designate a single point of contact for pesticide 
matters.
    (b) Personnel actions. Pesticide duties will be identified in 
applicable job descriptions whether they constitute a major duty or not. 
Such job descriptions will also note the employees responsibility for 
using personal protective equipment and clothing provided and for 
following established health and safety practices and procedures. 
Standard Form 78 medical examination will be augmented by the specific 
diagnostic tests for the occupations identified in Sec. 274.4(c). 
Prescribed preplacement medical examinations will be provided as part of 
the personnel action process before anyone is permitted to perform 
pesticide duties.
    (c) Medical surveillance. Preplacement, periodic and pretermination 
medical examinations of the type and extent set forth in Section III, 
U.S. Army Environmental Hygiene Agency (USAEHA) ``Guide for the Medical 
Surveillance of Pest Controllers'' will be provided for personnel 
involved in pesticide operations. Additional information is contained in 
USAEHA ``Medical Surveillance Guide (Guide for Job-Related 
Examinations).'' Appropriate medical records will be maintained in 
official personal folders.
    (d) Personnel training. All personnel directly involved in pest 
control must be properly trained in the safe application of herbicides, 
insecticides, rodenticides, fumigants and fungicides. The current plan 
for training and certification of pest control personnel requires that 
all pest control applicators and/or supervisors satisfactorily complete 
(1) the correspondence course, ``Basic Pest Control Technology'' NTTC 
150, available from NAVFAC Technical Training Command, Norfolk, Virginia 
23511 and a three day (20 hr) conference training course conducted by 
the Army Health Services Command (AHSC) at Fort Sam Houston, Texas 
78234, for Civil Works personnel, or a three day (20 hr) special 
training course conducted by the Division Engineer, to include 
information presented in the ``Pesticide Applicator Training Manual'', 
Sec. 274.3(e) or (2) a B.S. degree in agronomy, entomology, forestry or 
horticulture from an accredited college or university.
    (e) Restricted-use pesticide training. For agency certification 
Sec. 274.3(f) Civil Works supervisors and applicators

[[Page 373]]

using the higher toxicity Restricted-Use pesticides are required to 
complete Resticted-Use Pesticide training as given at Navy facilities at 
Jacksonville, Florida, or Alameda, California, Wichita Falls Air Base, 
or the Army Health Services Command, Fort Sam Houston, Texas. College 
and university programs which are acceptable for State certification of 
restricted-use pesticide applicators may be used in lieu of the above.
    (f) Coordination with EPA. The Environmental Protection Agency is 
expected to publish regulations listing pesticides classified for 
restricted-use by October 1977. The Division Engineer will be 
responsible for close coordination with EPA Regional Offices in order to 
comply with the regulatory requirements for restricted-use pesticides.
    (g) Exposure to and protection from pesticide hazards. Basic health 
and safety practices and procedures including personal protective 
equipment and clothing, work area layouts, storage and application 
considerations are identified in Appendix A of this regulation. 
Additional guidance is contained in Section II and Appendix A of the 
USAEHA ``Guide for Medical Surveillance of Pest Controllers.''
    (h) Contracting for pest control services. All contracts for pest 
control services must receive Technical review and approval from 
professional pest control management personnel prior to advertisement of 
the contract and procurement of services. The contractor will be 
required to submit proof that his supervisory personnel to be employed 
on the contract are certified in the specific categories for operations 
being conducted in accordance with an approved state plan in effect in 
the area concerned.



Sec. 274.5  Certification.

    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.



Sec. 274.6  Division/district pest control programs.

    (a) Guides. Referenced technical manuals, and Engineer Circulars 
issued from time to time, will be used as guides in selecting the type 
of chemicals and the method of application in the control of vegetation 
and pests at civil works projects.
    (b) Responsibilities and reports (RCS DAEN-CWO-48). Districts will 
prepare and submit to the Divisions detailed descriptions or their 
anticipated use of pesticides for review and approval by the appropriate 
Division.



Sec. 274.7  Authorization of pesticide use.

    (a) Programs approved in Sec. 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.

[[Page 374]]

    (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 Sec. 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]



 Sec. Appendix A to Part 274--Preventive Safety Measures in Handling of 
                               Pesticides

    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

[[Page 375]]

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 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.



PART 276_WATER RESOURCES POLICIES AND AUTHORITIES: APPLICATION OF 
SECTION 134a OF PUBLIC LAW 94	587--Table of Contents



Sec.
276.1 Purpose.
276.2 Applicability.
276.3 [Reserved]
276.4 Legislative provisions.
276.5 Legislative history.
276.6 General policy.
276.7 Procedures.
276.8 Cessation.

    Authority: Sec. 134a, Pub. L. 94-587, 90 Stat. 2928.

    Source: 42 FR 9175, Feb. 15, 1977, unless otherwise noted.



Sec. 276.1  Purpose.

    This establishes policy guidelines and procedures for Corps of 
Engineers application of the provisions of section 134a of Pub. L. 94-
587.



Sec. 276.2  Applicability.

    Policies and procedures contained herein apply to all elements and 
field operating agencies of the Corps of Engineers having Civil Works 
responsibilities.



Sec. 276.3  [Reserved]



Sec. 276.4  Legislative provisions.

    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.

[[Page 376]]



Sec. 276.5  Legislative history.

    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. * * *



Sec. 276.6  General policy.

    (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 Sec. 
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.

[[Page 377]]



Sec. 276.7  Procedures.

    (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.

[[Page 378]]



Sec. 276.8  Cessation.

    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.



PART 277_WATER RESOURCES POLICIES AND AUTHORITIES: NAVIGATION POLICY: 
COST APPORTIONMENT OF BRIDGE ALTERATIONS--Table of Contents



Sec.
277.1 Purpose.
277.2 Applicability.
277.3 References.
277.4 Definitions.
277.5 General.
277.6 Basic policies.
277.7 Coordination with the U.S. Coast Guard.
277.8 Procedures for apportionment of costs.

Appendix A to Part 277--Sec. 6, Pub. L. 647, as Amended (33 U.S.C. 516)
Appendix B to Part 277--Hypothetical Example of Cost Apportionment

    Authority: Sec. 2, River and Harbor Act of 1920, 41 Stat. 1009, June 
5, 1920; 33 U.S.C. 547.

    Source: 44 FR 31129, May 30, 1979, unless otherwise noted.



Sec. 277.1  Purpose.

    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.



Sec. 277.2  Applicability.

    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.

[69 FR 54216, Sept. 8, 2004]



Sec. 277.3  References.

    (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.

[44 FR 31129, May 30, 1979, as amended at 69 FR 54216, Sept. 8, 2004]



Sec. 277.4  Definitions.

    The following definitions are applicable to this regulation:
    (a) Bridge. The term bridge means a lawful bridge over navigable 
waters of the United States, including approaches, fenders, and 
appurtenances thereto, which is used and operated for the purpose of 
carrying railroad traffic, or both railroad and highway traffic, or if a 
State, county, municipality, or other political subdivision is the owner 
or joint owner thereof, which is used and operated for the purpose of 
carrying highway traffic.
    (b) Bridge owner. Bridge owner means any State, county, 
municipality, or other political subdivision, or any corporation, 
association, partnership, or individual owning, or jointly owning, any 
bridge, and, when any bridge shall be in the possession or under the 
control of any trustee, receiver, trustee in bankruptcy, or lessee, such 
term shall include both the owner of the legal title and the person or 
the entity in possession or control of such bridge.
    (c) Navigable waters. Navigable waters of the United States means 
those waterbodies, except the territorial seas, which are subject to the 
ebb and flow of the tide, or are presently, or have been in the past, or 
may be in the future susceptible for use for purposes of interstate or 
foreign commerce.
    (d) Alteration. The term alteration includes changes of any kind, 
reconstruction, or removal in whole or in part.

[[Page 379]]



Sec. 277.5  General.

    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 Sec. 277.3(c), to Corps of 
Engineers planning.



Sec. 277.6  Basic policies.

    (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).

[44 FR 31129, May 30, 1979, as amended at 69 FR 54216, Sept. 8, 2004]



Sec. 277.7  Coordination with the U.S. Coast Guard.

    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.

[69 FR 54216, Sept. 8, 2004]

[[Page 380]]



Sec. 277.8  Procedures for apportionment of costs.

    This paragraph provides the procedures for apportionment of costs of 
bridge alterations, as established by the U.S. Coast Guard (reference 
Sec. 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) Calculate the total estimated cost of bridge alteration. The 
total estimated cost, to be apportioned by these procedures, includes 
the cost of all necessary appurtenances required to complete the 
alteration for use by both highway and railway traffic, including 
engineering, design and inspection.
    (b) Determine the salvage value of bridge to be altered. The salvage 
value represents the worth of the materials in the old bridge which may 
be used for scrap or for other purposes. The value will vary depending 
on the intended use of the materials.
    (c) Determine direct and special benefits--(1) Removing old bridge. 
The bridge owner shall pay a share of the removal cost computed as that 
part of the removal cost that the used service life bears to the total 
estimated service life. The share of the bridge owner, thus computed, 
represents an obligation incurred by the owner now by reason of the 
needs of navigation which otherwise would not have to be met until the 
bridge had reached the end of its useful life. Accordingly, the present 
worth of the amount is computed deferred over the unexpired life. The 
discount rate to be used in the present worth computation is that 
established by the Water Resources Council, current at the time of the 
study.
    (2) Fixed charges. A fixed charge such as engineering, design, and 
inspection costs, realtor and counsel fees, and the bridge owner's 
administrative expenses is an undistributed cost, shared in the ratio 
that each party shares in 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.
    (3) Contribution. If a third party should be involved in a bridge 
alteration project, such as a party which might benefit from some 
reasonable modification beyond the needs of navigation and the needs and 
desires of the bridge owner, that party would be responsible for the 
incremental costs of such further modification, and such costs would not 
enter into the apportionment between the bridge owner and the Federal 
Government.
    (4) Betterments. Items desired by the bridge owner, but which have 
no counterpart in the old bridge or are of higher quality than similar 
items in the old bridge, will be included under this heading. Items 
considered to fall within this category are listed below. It is intended 
this list serve as a guide to indicate the types of items that may be 
considered betterments. The cost of such items will be borne by the 
bridge owner.
    (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.

[[Page 381]]

    (d) Determine expectable savings in repair or maintenance costs. (1) 
The provisions of any features that would reduce annual maintenance 
costs of the altered bridge, such as a wider navigation span eliminating 
the requirement for protection works, reducing the overall length of the 
bridge by fill in lieu of a trestle, or replacing two bridges with one 
bridge, will be included under this heading. The bridge owner should 
bear the increased annual maintenance cost that will accrue as a result 
of providing any increased loading and width desired by the bridge owner 
or attributable to the requirements of railway or highway traffic. Since 
33 U.S.C. 516 does not mention bridge operating costs, any increase or 
decrease in such costs shall not be included in the cost of alteration 
to be apportioned. The bridge owner's obligation is computed by 
capitalizing the estimated annual savings at the same rate of interest 
used in Sec. 277.8(e)(1).
    (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) Estimate costs attributable to requirements of railway and 
highway traffic. Items desired by the bridge owner to meet the 
requirements of railway and highway traffic, but which have no 
counterpart in the old bridge, will be included under this heading. 
Items considered to fall within this category are listed below. This 
list does not contain all such items, but it is intended to serve as a 
guide in determining which items might fall within this category.
    (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) Estimate expenditure for increased carrying capacity. The bridge 
owner is required to pay the difference in cost between a bridge meeting 
the navigation clearance requirements with the same live loading 
capacity as the old bridge and new or altered bridge having any 
increased live loading capacity desired. The cost of increased live 
loading capacity will be based on the estimated cost of the new or 
altered bridge with unit prices applied to the quantity of materials 
estimated for a hypothetical bridge with the same live loading as the 
old bridge, but with the increased clearances required by the navigation 
improvement. The live loading of the new or altered bridge should be 
compared with the live loading of the old bridge, based on normal 
working stresses without overstress, overload, or reduction of safety 
factor.
    (g) Determine value of expired service life of old bridge. (1) 
Section 6 of the Act provides, among other things, that the bridge owner 
shall bear such proportion of the actual capital cost of the old bridge 
or such part of the old bridge as may be altered or rebuilt, as the used 
service life of the whole or a part bears to the total estimated service 
life of the whole or such part. Guide service life figures have been 
obtained from retirement curves based on mortality statistics, which 
represent an attempt to consider economic causes of retirement in 
addition to physical causes.
    (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

[[Page 382]]

bridges, is usually limited by obsolescence as well as structural 
deficiency and deterioration. Obsolescence may be due to insufficent 
capacity for heavier loads and greater volume of traffic than the bridge 
was originally designed for, safety requirements, and location. 
Superstructures and pile bents are considered to have a service life of 
50 years. Masonry substructure which could be reused in the renovation 
of a bridge is considered to have a service life of 100 years.
    (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.



Sec. Appendix A to Part 277--Sec. 6, Pub. L. 647, as Amended (33 U.S.C. 
                                  516)

    At the time the Secretary* shall authorize the bridge owner to 
proceed with the project, as provided in Section 515 of this title, and 
after an opportunity to the bridge owner to be heard thereon, the 
Secretary shall determine and issue an order specifying the 
proportionate shares of the total cost of the project to be borne by the 
United States and by the bridge owner. Such apportionment shall be made 
on the following basis: 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; and that part of the 
cost attributable to the requirements of traffic by railroad or highway, 
or both, including any expenditure for increased carrying capacity of 
the bridge, and including such proportion of the actual capital cost of 
the old bridge or of such part of the old bridge as may be altered or 
changed or rebuilt, as the used service life of the whole or a part, as 
the case may be, bears to the total estimated service life of the whole 
or such part. Provided, 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 from any interested person, 
firm, association, corporation, municipality, county, or State desiring 
such alteration or relocation for such other reason, as a condition 
precedent to the making of an order for such alteration or relocation. 
The United States shall bear the balance of the costs, including that 
part attributable to the necessities of navigation: and provided 
further, that where the bridge owner proceeds with the alteration on a 
successive partial bid basis the Secretary is authorized to issue an 
order of apportionment of cost for the entire alteration based on the 
accepted bid for the first part of the alteration and an estimate of 
cost for the remainder of the work. The Secretary is authorized to 
revise the order of apportionment of cost, to the extent he deems 
reasonable and proper to meet any changed conditions.
---------------------------------------------------------------------------

    *Secretary of Transportation.

(June 21, 1940, ch. 409, Section 6, 54 Stat. 499; July 16, 1952, ch. 
889, Section 2, 66 Stat. 733; Aug. 14, 1958, Public Law 85-640, Section 
1(c), 72 Stat. 595.)



 Sec. Appendix B to Part 277--Hypothetical Example of Cost Apportionment

    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.

 
                                                        Reference table
 
1. Total estimated cost of alteration    $10,917,300  A
 project.
 

    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.

2. Salvage............................       $77,300
 

    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.

3. Direct and special benefits:
  a. Removing old bridge (owner's           $165,489  I
   share).
  b. Fixed charges (owner's share)....       284,460  II
 

    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).

  c. Contribution by third party......      $432,000
 

    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

[[Page 383]]

from any interested person, firm, association, corporation, 
municipality, county, or State desiring such alteration or relocation 
for such other reason, as a condition precedent to the making of an 
order for such alteration or relocation. In the instant case, testimony 
at the hearing developed that the bridge would require alteration 
because of the navigation project but also City A desires to relieve 
traffic on a nearby secondary road by providing access to the new 
bridge. It is considered that as an equitable contribution, City A 
should contribute an amount equal to one half of the expectable road 
user benefit accruing over the next 10 years. Other methods for 
determining the third party's contribution are acceptable depending on 
the circumstances.

  d. Betterments......................       $18,360  III
4. Expectable savings in repair or      ............  IV
 maintenance costs.
  Repair..............................      $100,000
  Maintenance.........................        16,288
 

    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.

5. Costs attributable to requirements     $1,534,000  V
 of railway and highway traffic.
 

    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.

6. Expenditure for increased carrying     $2,330,000  VI
 capacity.
 

    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.

7. Expired service life of old bridge.      $511,300  VII
 

    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 (Sec. 
277.8(b)), less contribution by third party, if applicable (Sec. 
277.8c(3)).
    (2) Share to be borne by the bridge owner is the sum of the direct 
and special benefits (Sec. 277.8(c)) expectable savings in repair or 
maintenane costs (paragraph 8d), costs attributable to requirements of 
railway and highway traffic (Sec. 277.8(e)), expenditure for increased 
carrying capacity (Sec. 277.8(f)) and expired service life of old 
bridge (Sec. 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.

                                 Tables

A. Summary of Estimated Project Costs.
B. Tabulation of Proportionate Shares of Cost To Be Borne by the United 
          States and the Bridge Owner.
I. Bridge Owner's Share of Removing Old Bridge.
II. Fixed Charges To Be Paid by Bridge Owner.
III. Betterments.
IV. Expectable Savings in Repair or Maintenance Costs.
V. Costs Attributable to Requirements of Railway and Highway Traffic.
VI. Expenditure for Increased Carrying Capacity.
VII. Value of Expired Service Life of Old Bridge.

[[Page 384]]



               Table A--Summary of Estimated Project Costs
------------------------------------------------------------------------
                                                   Fixed
           No. and item                Cost       charges       Total
------------------------------------------------------------------------
1 New bridge.....................   $8,104,052     $570,000   $8,674,052
2 Removal of old bridge..........      521,908          500      522,408
3 Approaches.....................       50,000        5,000       55,000
4 Additional highway approaches..    1,530,000       15,000    1,545,000
5 Railroad force account work....       41,800        3,500       45,300
6 Additional signaling...........       27,000        2,400       29,400
7 Right-of-way...................       13,240          900       14,140
8 Additional right-of-way........       30,900        1,100       32,000
                                  --------------------------------------
 Total...........................   10,318,900      598,400   10,917,300
                                  ======================================
 Total estimated cost of project.  ...........  ...........   10,917,300
                                  ======================================
  Less salvage...................  ...........  ...........      -77,300
  Less contribution by third       ...........  ...........     -432,000
   party.........................
                                  --------------------------------------
 Total cost of alteration to be    ...........  ...........   10,408,000
 apportioned.....................
Less right-of-way (Items 7 and 8)  ...........  ...........      -46.140
                                  --------------------------------------
 Total Cost of construction......  ...........  ...........   10,361,860
------------------------------------------------------------------------


 Table B--Tabulation of Proportionate Shares of Costs To Be Borne by the
                   United States and the Bridge Owner
Total estimated cost of project (excluding contingencies)    $10,917,300
 (table A).................................................
  Less salvage.............................................       77,300
  Less contribution by third party.........................      432,000
                                               --------------
 Total cost of alteration to be apportioned................   10,408,000
                                               ==============
Share to be borne by the bridge owner:
  Direct and special benefits:
    Removing old bridge.......................     $165,489
    Fixed charges.............................      284,460
    Betterments...............................       18,360
  Expectable savings in repair or maintenance
   costs:
    a. Repair.................................      100,000
    b. Maintenance............................       16,288
  Costs attributable to requirements of           1,534,000
   railway and highway traffic................
  Expenditure for increased carrying capacity.    2,330,000
  Expired service life of old bridge..........      511,300
                                               -------------
 Total.....................................................    4,959,897
                                               ==============
Share to be borne by the United States.....................    5,449,103
  Contingencies 15 pct.....................................      817,365
                                               --------------
 Total.....................................................    6,266,468
                                               ==============
Share to be borne by the bridge owner......................    4,959,897
  Contingencies 15 pct.....................................      743,985
                                               --------------
 Total.....................................................    5,703,882
 
Note: The exact amount to be borne by the bridge owner will be
  determined after completion of the project.


                                                  Table I--Bridge Owner's Share of Removing Old Bridge
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                         Age at time     Owner's                  Owner's                      Present        Owner's
                  Item to be removed                     of removal       share      Removal     share of         Years         worth         present
                                                        (years)--(1)  percent--(2)  cost--(3)  removal--(4)  remaining--(5)  factor--(6)  liability--(7)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Substructure..........................................          62            62     $241,935     $150,000            38          .1639        $24,585
Protection Works......................................          37            67       60,000       40,200            18          .4245         17,065
Superstructure........................................          61            87      206,896      180,000             9          .6516        117,288
Signaling.............................................          61           100          440          440             0            1.0            440
Ties and Timber.......................................          20            67        6,000        4,000            10          .6213          2,485
Rail and Accessories:
  Rail, 110 lb........................................          33           100        1,000        1,000             0            1.0          1,000
  Rail, 110 lb........................................          13            65        5,637        3,664   ..............  ...........         2,626
                                                       -------------------------------------------------------------------------------------------------

[[Page 385]]

 
 Total................................................  ............  ............    521,908      368,104   ..............  ...........       165,489
--------------------------------------------------------------------------------------------------------------------------------------------------------
Present Worth Factor based on 4\7/8\%, FY 1970, as established by Water Resources Council. The actual factor to be used shall be that current at the
  time of alteration.


           Table II--Fixed Charges To Be Paid by Bridge Owner
Cost of construction......................................   $10,361,860
Less fixed charges........................................       598,400
                                                           -------------
 Total....................................................     9,763,460
                                                           =============
Owner's share less fixed charges:
  Removing old bridge.....................................       165,489
  Betterments.............................................        18,360
  Expectable savings in repair or maintenance costs:
    a. Repair.............................................       100,000
    b. Maintenance........................................        16,288
  Costs attributable to requirements of railway and            1,503,100
   highway traffic (less right-of-way)....................
  Expenditure for increased carrying capacity.............     2,330,000
  Expired service life of old bridge......................       511,300
                                                           -------------
 Total....................................................     4,644,537
                                                           =============
Fixed charges by owner....................................       284,460
 
4,644,537x598,400=284,460
--------------------
9,763,460


                         Table III--Betterments
New furniture and water cooler in control house............       $1,050
Increased cost of elevators over stairways.................       13,360
Increased cost of galvanized steel grating walkways over           3,950
 timber walkways...........................................
                                                            ------------
 Total.....................................................       18,360
 


       Table IV--Expectable Savings in Repair or Maintenance Costs
                        Repair Cost
 
Cost in 1970 to repair damaged bridge......................     $100,000
                                                            ------------
Savings in repair costs....................................      100,000
                                                            ============
                      Maintenance Cost
 
Average annual maintenance cost for old bridge.............       16,875
Estimated annual maintenance cost for new bridge...........       16,000
                                                            ------------
 Total decrease in annual maintenance costs................          875
                                                            ============
Annual savings capitalized (50 years) @ 4\7/8\%:875/0.05372       16,288
 
Present worth factor based on 4\7/8\ pct., F.Y. 1970, as established by
  Water Resources Council. The actual factor to be used shall be that
  current at the time of the study.


   Table V--Costs Attributable to Requirements of Railway and Highway
                                 Traffic
Heavier running rail (130 lb in lieu of 110 lb)............      $11,200
Paving, lower deck.........................................       34,900
Additional signaling.......................................       27,000
Additional highway approaches..............................    1,430,000
                                                            ------------
 Subtotal..................................................    1,503,100
Additional right-of-way....................................       30,900
                                                            ------------
 Total.....................................................    1,534,000
 


          Table VI--Expenditure for Increased Carrying Capacity
Cost of new bridge designed for Cooper E 60 and AASHO HS20-   $8,609,592
 44 loading \1\............................................
Cost of replacement-in-kind (hypothetical) bridge designed     6,279,592
 for Cooper E 45 and AASHO H15-44 loading \1\..............
                                                            ------------

[[Page 386]]

 
 Total.....................................................    2,330,000
 
\1\ Excludes all items in Table III and first two items in Table V.


                                                 Table VII--Value of Expired Service Life of Old Bridge
                                                                [Replacement year--1970]
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                     Expired service life
                                                                                                                  -------------------------   Value of
                                                          Year      Original    Salvage      Actual     Estimated                  Percent     expired
                  Item to be removed                   built--(1)  cost--(2)  value--(3)  capital cost   service    Years 1970-   of total  service life
                                                                                          (2)-(3)--(4)  life--(5)     (1)--(6)    (6) (5)-- (4)x(7)--(8)
                                                                                                                                     (7)
--------------------------------------------------------------------------------------------------------------------------------------------------------
Substructure:
  Pivot Pier.........................................       1908     $34,500         $0      $34,500          100           62          62     $21,390
  Right End Pier.....................................       1908      18,580          0       18,580          100           62          62      11,520
  Left End Pier......................................       1908      21,410          0       21,410          100           62          62      13,274
  Right Abutment.....................................       1908       8,600          0        8,600          100           62          62       5,332
  Left Abutment......................................       1908      11,410          0       11,410          100           62          62       7,074
Protection Works:
  Pivot Pier.........................................       1909       5,800          0        5,800           37           61      \1\ 50       2,900
  Right End Pier.....................................       1942       3,200          0        3,200           37           28      \1\ 50       1,600
Superstructure:
  Swing Span.........................................       1909     168,920     19,400      149,520           70           61          87     130,082
  Electrification....................................       1957       5,000        500        4,500           22           13          59       2,655
  Left Approach Spans................................       1909     142,017     16,300      125,717           70           61          87     109,374
  Right Approach Spans...............................       1909     156,692     19,300      137,392           70           61          87     119,531
Signaling............................................       1909      15,000      1,000       14,000           35           61         100      14,000
  Ties and Timber....................................       1909       8,120          0        8,120           20           61      \1\ 50       4,060
Rail and Accessories:
  Rail, 110 lb.......................................       1937       6,600      2,200        4,400           20           33         100       4,400
  Rail, 110 lb.......................................       1957      43,679     18,600       25,079           20           13          65      16,301
Roadway Approaches: \2\
  Pavement...........................................       1908      17,841          0       17,841           20           62      \1\ 50       8,921
  New Lane...........................................       1961      43,609          0       43,609           20            9          45      19,624
                                                      --------------------------------------------------------------------------------------------------
 Subtotal............................................  ..........  .........     77,300      633,678    .........  .............  ........     492,038
Engineering..........................................  ..........     24,695          0       24,695    .........  .............    \3\ 78      19,262
                                                      --------------------------------------------------------------------------------------------------
 Total...............................................  ..........  .........     77,300   ............  .........  .............  ........     511.300
--------------------------------------------------------------------------------------------------------------------------------------------------------
\1\ Held at 50% if maintained in good condition.
\2\ Roadway approaches to be abandoned.
\3\ Weighted average 100 x492, 038/633, 678=78%.
 
Explanation of Columns for Table VII:
 
 Column (1): Year Built is the original date that an item to be removed became a part of the bridge or the last known date that it was replaced. The
  items to be removed should be broken down to show as much detail as possible, particularly where there is a variation in the year built and/or the
  estimated service life.
 Column (2): Original cost shall be supported by records furnished by bridge owner. Engineering cost should be estimated if unknown.
 Column (3): Salvage--refer to Sec. 277.8(b).
 Column (4): Actual capital cost is the original cost of the item to be removed minus the salvage value.
 Column (5): Estimated Service Life--refer to Sec. 277.8(g).
 Column (6) & (7): Expired Service Life--refer to Sec. 277.8(g).
 Column (8): Value of expired service life is the actual capital cost of the item to be removed multiplied by the percent of expired service life.



PART 279_RESOURCE USE: ESTABLISHMENT OF OBJECTIVES--Table of Contents



Sec.
279.1 Purpose.
279.2 Applicability.
279.3 References.
279.4 Definitions.
279.5 Policy.
279.6 Overview of objective setting process.
279.7 Information collection and preliminary analysis.
279.8 Synthesis and analysis.
279.9 Objective rationale.
279.10 Implementation.
279.11 Responsibilities.

Appendix A to Part 279--Sample Resource Use Objectives

    Authority: Pub. L. 89-72, Federal Water Project Recreation Act, 79 
Stat. 213 et seq.

    Source: 43 FR 14014, April 4, 1978, unless otherwise noted.



Sec. 279.1  Purpose.

    This regulation provides policy and guidance for establishing 
resource use objectives for all Civil Works water resource projects 
during Phase I/Phase II

[[Page 387]]

post-authorization studies and reevaluation of completed projects.



Sec. 279.2  Applicability.

    This regulation is applicable to all OCE elements and all field 
operating agencies having Civil Works responsibilities.



Sec. 279.3  References.

    (a) Pub. L. 89-72, ``Federal Water Project Recreation Act,'' July 9, 
1965 (79 Stat. 213 et seq.).
    (b) ER 1105-2-200, Multiobjective Planning Framework (33 CFR part 
290).



Sec. 279.4  Definitions.

    For the purposes of this regulation:
    (a) Resource use objectives are clearly written statements, specific 
to a given project, which specify the attainable options for resource 
use as determined from study and analysis of resource capabilities and 
public needs (opportunities and problems).
    (b) Natural resources are those elements, features, conditions, 
etc., of land and water that can be characterized as physiographic, 
biological and/or aesthetic.
    (c) Public benefits are the tangible and intangible gains to society 
directly attributable to a water resource project that satisfy the 
expressed or observed needs of the public (i.e., individuals, groups, 
organizations and local, county, state and federal governmental 
agencies).
    (d) Boundary plans are Division/District wide maps clearly 
delineating the limits of each regional recreation market area for one 
or more Civil Works water resource projects.



Sec. 279.5  Policy.

    (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.



Sec. 279.6  Overview of objective setting process.

    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.

[[Page 388]]

[GRAPHIC] [TIFF OMITTED] TC31OC91.024



Sec. 279.7  Information collection and preliminary analysis.

    (a) Data search. This effort consists of collecting existing data 
and accomplishing the minimum additional studies necessary to obtain the 
information required to generate and analyze the likely options. State 
and local agency input should be sought during this phase. The initial 
work will be to determine separately the options for resource use and 
public needs. A preliminary analysis comparing the two parts and their 
relationship to authorized project purposes and administrative 
constraints should be conducted prior to further public and agency 
input.
    (b) Project resources. The natural and man-made resources of the 
project area are to be identified and the inter-relationships analyzed 
to generate the options that are most viable to the overall region. The 
environmental information and analysis, among other things, should 
define and describe the physical limitations of the project, aquatic and 
terrestrial vegetation, game and non-game wildlife species and 
distribution, fisheries, terrain, soils, minerals, climate, capacity and 
sensitivity of these resources to public use, archaeological and 
historical resources, management techniques, and ecosystem interactions.
    (c) Social needs and benefits. The problems, opportunities, and 
desires of the people of the region to be served by the project must be 
identified in order to determine options that are in the best overall 
public interest. The basic approach for determining public needs and 
benefits is through a market analysis and a public involvement program. 
In considering options, the analysis as a minimum should include the 
indentification of the various publics served, views of other agencies 
and organizations, existing and planned recreational facilities in the 
market area of the consumer, the population base and distribution, 
institutional analysis of potential cost-sharing partners, constraints, 
the transportation network, the needs identified by local, State and 
Federal agencies, and the State Comprehensive Outdoor Recreation Plan 
(SCORP).



Sec. 279.8  Synthesis and analysis.

    (a) Option, synthesis and analysis. The project resources and market 
area information should be aggregated and analyzed to determine what 
trade-offs can be made among the possible options to establish 
objectives that can

[[Page 389]]

meet the highest and best use of the natural and man-made resources, 
efficiently meet the needs of the public to be served, and be of lasting 
value to the region and the nation as a whole. The options determined in 
the first step should be synthesized to combine the separate elements. 
Compatible options in the two parts would result in rational resource 
use objectives. Conflicting options require trade-off analysis to 
determine to what extent compromise can be made, or if any compromise is 
possible to achieve acceptable objectives. In both cases the impacts, 
beneficial and adverse, of implementing the compatible or compromise 
objective(s) should be stated. For example, the preservation of wildlife 
habitat could limit the development of high intensity recreational 
facilities in a physically suitable area, resulting in a lower 
attainment of tangible recreation benefits. However, preservation of the 
existing habitat would produce intangible benefits to society by 
enhancing a species otherwise likely to be lost to the area.
    (b) Diversity of opportunities. In regions where there are a number 
of Corps projects, this analysis must consider the larger regional 
context of interrelationships which will result in a diversity of 
opportunities available and emphasize the particular qualities of each 
project. For example, one project may emphasize swimming, another 
project weekend camping and power boating, while still another project 
may provide fishing and passive recreation use such as hiking trails, 
nature, and ecological study areas.
    (c) Constraints. In addition to constraints imposed by the 
authorizing legislation, other project purposes and resource 
capabilities, the resource use objectives must be consistent and 
compatible with State and Regional planning activities and programs. As 
an example, Corps management actions to achieve resource use objectives 
must be compatible with the State approved Best Management Practices 
(BMP) for waste treatment (and non-point sources of pollution) as 
prescribed by section 208, Federal Water Pollution Control Act 
Amendments of 1972 (Pub. L. 92-500), as amended.



Sec. 279.9  Objective rationale.

    (a) Statement of objectives. The last step in this process is the 
summarization of the preceding work by clearly stating the objective(s) 
and providing the rationale, impact, and basic management measures for 
their accomplishment. The logic, trade-offs, and judgments made in the 
process should be presented in a concise and readable manner. The 
impacts, both beneficial and adverse, that will result from attaining 
objectives selected must be presented. General implementation measures 
(e.g., campground development, use of fish attractors, limiting use in 
environmentally sensitive areas, lake fluctuation control, etc.) should 
be stated as a guide for the preparation of detailed development plans 
and management actions to achieve the objectives.
    (b) Purpose of objectives. The resource use objectives for each 
project will guide the design, development and management of the 
resource base to obtain the greatest possible benefit through meeting 
the needs of the public and to protect and enhance environmental 
quality. The resource use objectives should be reflected in reports and 
plans relating to a study or restudy of water resource projects. 
Management actions on existing projects, including leasing and 
licensing, will also be directed towards the attainment of the approved 
resource use objectives.



Sec. 279.10  Implementation.

    (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.

[[Page 390]]

    (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.



Sec. 279.11  Responsibilities.

    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.



       Sec. Appendix A to Part 279--Sample Resource Use Objectives

    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.
    Resource use objective: To provide high quality swimming opportunity 
with a variety of high density day-use which include picnicking, 
beaches, play fields, tot lots, open space, walks, and non-power 
boating.
    (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

[[Page 391]]

area; and there exists a non-Federal government agency to assist in 
carrying out this objective.
    Resource use objective: To establish and maintain a high quality 
warm water fishery which would support an initial use of 70,000 
fishermen recreation days.
    (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.
    Resource use objective: To establish an ecological study area at 
Wakulla Wash for the protection and study of its unique vegetative 
associations.
    (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.
    Resource use objective: To provide overnight use to accommodate 
transient cross-county travelers.
    (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.
    Resource use objective: To provide a high quality diversified 
recreation opportunity that would satisfy requirements for destination 
or vacation type activities.
    (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.
    Resource use objective: To establish a cultural interpretive area 
for the protection, study and viewing of its unique archeological 
(historical) resource.
    (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.



PART 320_GENERAL REGULATORY POLICIES--Table of Contents



Sec.
320.1 Purpose and scope.
320.2 Authorities to issue permits.
320.3 Related laws.
320.4 General policies for evaluating permit applications.

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 51 FR 41220, Nov. 13, 1986, unless otherwise noted.



Sec. 320.1  Purpose and scope.

    (a) Regulatory approach of the Corps of Engineers. (1) The U.S. Army 
Corps of Engineers has been involved in regulating certain activities in 
the nation's waters since 1890. Until 1968, the primary thrust of the 
Corps' regulatory program was the protection of navigation. As a result 
of several new laws and judicial decisions, the program has evolved to 
one involving the consideration of the full public interest by balancing 
the favorable impacts against the detrimental impacts. This is known as 
the ``public interest review.'' The program is one which reflects the 
national concerns for both the protection and utilization of important 
resources.
    (2) The Corps is a highly decentralized organization. Most of the 
authority for administering the regulatory program has been delegated to 
the thirty-six district engineers and eleven division engineers. A 
district engineer's

[[Page 392]]

decision on an approved jurisdictional determination, a permit denial, 
or a declined individual permit is subject to an administrative appeal 
by the affected party in accordance with the procedures and authorities 
contained in 33 CFR part 331. Such administrative appeal must meet the 
criteria in 33 CFR 331.5; otherwise, no administrative appeal of that 
decision is allowed. The terms ``approved jurisdictional 
determination,'' ``permit denial,'' and ``declined permit'' are defined 
at 33 CFR 331.2. There shall be no administrative appeal of any issued 
individual permit that an applicant has accepted, 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 (see 33 CFR 331.5(b)(1)). An affected party must exhaust any 
administrative appeal available pursuant to 33 CFR part 331 and receive 
a final Corps decision on the appealed action prior to filing a lawsuit 
in the Federal courts (see 33 CFR 331.12).
    (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) Types of activities regulated. This part and the parts that 
follow (33 CFR parts 321 through 330) prescribe the statutory 
authorities, and general and special policies and procedures applicable 
to the review of applications for Department of the Army (DA) permits 
for controlling certain activities in waters of the United States or the 
oceans. This part identifies the various federal statutes which require 
that DA permits be issued before these activities can be lawfully 
undertaken; and related Federal laws and the general policies applicable 
to the review of those activities. Parts 321 through 324 and 330 address 
special policies and procedures applicable to the following specific 
classes of activities:
    (1) Dams or dikes in navigable waters of the United States (part 
321);
    (2) Other structures or work including excavation, dredging, and/or 
disposal activities, in navigable waters of the United States (part 
322);
    (3) Activities that alter or modify the course, condition, location, 
or capacity of a navigable water of the United States (part 322);
    (4) Construction of artificial islands, installations, and other 
devices on the outer continental shelf (part 322);
    (5) Discharges of dredged or fill material into waters of the United 
States (part 323);
    (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) Forms of authorization. DA permits for the above described 
activities are issued under various forms of authorization. These 
include individual permits that are issued following a review of 
individual applications and general permits that authorize a category or 
categories of activities in specific geographical regions or nationwide. 
The term ``general permit'' as used in these regulations (33 CFR parts 
320 through

[[Page 393]]

330) refers to both those regional permits issued by district or 
division engineers on a regional basis and to nationwide permits which 
are issued by the Chief of Engineers through publication in the Federal 
Register and are applicable throughout the nation. The nationwide 
permits are found in 33 CFR part 330. If an activity is covered by a 
general permit, an application for a DA permit does not have to be made. 
In such cases, a person must only comply with the conditions contained 
in the general permit to satisfy requirements of law for a DA permit. In 
certain cases pre-notification may be required before initiating 
construction. (See 33 CFR 330.7)
    (d) General instructions. General policies for evaluating permit 
applications are found in this part. Special policies that relate to 
particular activities are found in parts 321 through 324. The procedures 
for processing individual permits and general permits are contained in 
33 CFR part 325. The terms ``navigable waters of the United States'' and 
``waters of the United States'' are used frequently throughout these 
regulations, and it is important from the outset that the reader 
understand the difference between the two. ``Navigable waters of the 
United States'' are defined in 33 CFR part 329. These are waters that 
are navigable in the traditional sense where permits are required for 
certain work or structures pursuant to Sections 9 and 10 of the Rivers 
and Harbors Act of 1899. ``Waters of the United States'' are defined in 
33 CFR part 328. These waters include more than navigable waters of the 
United States and are the waters where permits are required for the 
discharge of dredged or fill material pursuant to section 404 of the 
Clean Water Act.

[51 FR 41220, Nov. 13, 1986, as amended at 64 FR 11714, Mar. 9, 1999; 65 
FR 16492, Mar. 28, 2000]



Sec. 320.2  Authorities to issue permits.

    (a) Section 9 of the Rivers and Harbors Act, approved March 3, 1899 
(33 U.S.C. 401) (hereinafter referred to as section 9), prohibits the 
construction of any dam or dike across any navigable water of the United 
States in the absence of Congressional consent and approval of the plans 
by the Chief of Engineers and 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

[[Page 394]]

may be extended or deposits made without approval of the Secretary of 
the Army. Effective May 27, 1970, permits for work shoreward of those 
lines must be obtained in accordance with section 10 and, if applicable, 
section 404 of the Clean Water Act (see Sec. 320.4(o) of this part).
    (d) Section 13 of the Rivers and Harbors Act approved March 3, 1899, 
(33 U.S.C. 407), provides that the Secretary of the Army, whenever the 
Chief of Engineers determines that anchorage and navigation will not be 
injured thereby, may permit the discharge of refuse into navigable 
waters. In the absence of a permit, such discharge of refuse is 
prohibited. While the prohibition of this section, known as the Refuse 
Act, is still 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).



Sec. 320.3  Related laws.

    (a) Section 401 of the Clean Water Act (33 U.S.C. 1341) requires any 
applicant for a federal license or permit to conduct any 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

[[Page 395]]

waters at the point where the discharge originates or would originate, 
that the discharge will comply with the applicable effluent limitations 
and water quality standards. A certification obtained for the 
construction of any facility must also pertain to the subsequent 
operation of the facility.
    (b) Section 307(c) of the Coastal Zone Management Act of 1972, as 
amended (16 U.S.C. 1456(c)), requires federal agencies conducting 
activities, including development projects, directly affecting a state's 
coastal zone, to comply to the maximum extent practicable with an 
approved state coastal zone management program. Indian tribes 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, et seq.), the 
Migratory Marine Game-Fish Act (16 U.S.C. 760c-760g), the Fish and 
Wildlife Coordination Act (16 U.S.C. 661-666c) and other acts express 
the will of Congress to protect the quality of the aquatic environment 
as it affects the conservation, improvement and enjoyment of fish and 
wildlife resources. Reorganization Plan No. 4 of 1970 transferred 
certain functions, including certain fish and wildlife-water resources 
coordination responsibilities, from the Secretary of the Interior to the 
Secretary of Commerce. Under the Fish and Wildlife Coordination Act and 
Reorganization Plan No. 4, any federal agency that proposes to control 
or modify any body of water must first consult with the United States 
Fish and Wildlife Service or the National Marine Fisheries Service, as 
appropriate, and with the head of the appropriate state agency 
exercising administration over the wildlife resources of the affected 
state.
    (f) The Federal Power Act of 1920 (16 U.S.C. 791a et seq.), as 
amended, authorizes the Federal Energy Regulatory Agency (FERC) to issue 
licenses for the construction and the operation and maintenance of dams, 
water conduits, reservoirs, power houses, transmission lines, and other 
physical structures of a hydro-power project. However, where such 
structures will affect the navigable capacity of any navigable water of 
the United States (as defined in 16

[[Page 396]]

U.S.C. 796), the plans for the dam or other physical structures 
affecting navigation must be approved by the Chief of Engineers and the 
Secretary of the Army. In such cases, the interests of navigation should 
normally be protected by a DA recommendation to FERC for the inclusion 
of appropriate provisions in the FERC license rather than the issuance 
of a separate DA permit under 33 U.S.C. 401 et seq. As to any other 
activities in navigable waters not constituting construction and the 
operation and maintenance of physical structures licensed by FERC under 
the Federal Power Act of 1920, as amended, the provisions of 33 U.S.C. 
401 et seq. remain fully applicable. In all cases involving the 
discharge of dredged or fill material into waters of the United States 
or the transportation of dredged material for the purpose of disposal in 
ocean waters, section 404 or section 103 will be applicable.
    (g) The National Historic Preservation Act of 1966 (16 U.S.C. 470) 
created the Advisory Council on Historic Preservation to advise the 
President and Congress on matters involving historic preservation. In 
performing its function the Council is authorized to review and comment 
upon activities licensed by the Federal Government which will have an 
effect upon properties listed 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 et seq.), which amends the Act of June 27, 1960. By this Act, 
whenever a federal construction project or federally licensed project, 
activity, or program alters any terrain such that significant historical 
or archeological data is threatened, the Secretary of the Interior may 
take action necessary to recover and preserve the data prior to the 
commencement of the project.
    (h) The Interstate Land Sales Full Disclosure Act (15 U.S.C. 1701 et 
seq.) prohibits any developer or agent from selling or leasing any lot 
in a subdivision (as defined in 15 U.S.C. 1701(3)) unless the purchaser 
is furnished in advance a printed property report containing information 
which the Secretary of Housing and Urban Development may, by rules or 
regulations, require for the protection of purchasers. In the event the 
lot in question is part of a project that requires DA authorization, the 
property report is required by Housing and Urban Development regulation 
to state whether or not a permit for the development has been applied 
for, issued, or denied by the Corps of Engineers under section 10 or 
section 404. The property report is also required to state whether or 
not any enforcement action has been taken as a consequence of non-
application for or denial of such permit.
    (i) The Endangered Species Act (16 U.S.C. 1531 et seq.) declares the 
intention of the Congress to conserve threatened and endangered species 
and the ecosystems on which those species depend. The Act requires that 
federal agencies, in consultation with the U.S. Fish and Wildlife 
Service and the National Marine Fisheries Service, use their authorities 
in furtherance of its purposes by carrying out programs for the 
conservation of endangered or threatened species, and by taking such 
action necessary to insure that any action authorized, funded, or 
carried out by the Agency is not likely to jeopardize the continued 
existence of such endangered or threatened species or result in the 
destruction or adverse modification of habitat of such species which is 
determined by the Secretary of the Interior or Commerce, as appropriate, 
to be critical. (See 50 CFR part 17 and 50 CFR part 402.)
    (j) The Deepwater Port Act of 1974 (33 U.S.C. 1501 et seq.) 
prohibits the ownership, construction, or operation of a deepwater port 
beyond the territorial seas without a license issued by the Secretary of 
Transportation. The Secretary of Transportation may issue such a license 
to an applicant if he determines, among other things, that the 
construction and operation of the deepwater port is in the national 
interest and consistent with national security and other national policy 
goals and objectives. An application for a deepwater port license 
constitutes an application for all federal authorizations required for 
the ownership, construction,

[[Page 397]]

and operation of a deepwater port, including applications for section 
10, section 404 and section 103 permits which may also be required 
pursuant to the authorities listed in Sec. 320.2 and the policies 
specified in Sec. 320.4 of this part.
    (k) The Marine Mammal Protection Act of 1972 (16 U.S.C. 1361 et 
seq.) expresses the intent of Congress that marine mammals be protected 
and encouraged to develop in order to maintain the health and stability 
of the marine ecosystem. The Act imposes a perpetual moratorium on the 
harassment, hunting, capturing, or killing of marine mammals and on the 
importation of marine mammals and marine mammal products without a 
permit from either the Secretary of the Interior or the Secretary of 
Commerce, depending upon the species of marine mammal involved. Such 
permits may be issued only for purposes of scientific research and for 
public display if the purpose is consistent with the policies of the 
Act. The appropriate Secretary is also empowered in certain restricted 
circumstances to waive the requirements of the Act.
    (l) Section 7(a) of the Wild and Scenic Rivers Act (16 U.S.C. 1278 
et seq.) provides that no department or agency of the United States 
shall assist by loan, grant, license, or otherwise in the construction 
of any water resources project that would have a direct and adverse 
effect on the values for which such river was established, as determined 
by the Secretary charged with its administration.
    (m) The Ocean Thermal Energy Conversion Act of 1980, (42 U.S.C. 
section 9101 et seq.) establishes a licensing regime administered by the 
Administrator of NOAA for the ownership, construction, location, and 
operation of ocean thermal energy conversion (OTEC) facilities and 
plantships. An application for an OTEC license filed with the 
Administrator constitutes an application for all federal authorizations 
required for ownership, construction, location, and operation of an OTEC 
facility or plantship, except for certain activities within the 
jurisdiction of the Coast Guard. This includes applications for section 
10, section 404, section 103 and other DA authorizations which may be 
required.
    (n) 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.



Sec. 320.4  General policies for evaluating permit applications.

    The following policies shall be applicable to the review of all 
applications for DA permits. Additional policies specifically applicable 
to certain types of activities are identified in 33 CFR parts 321 
through 324.
    (a) Public Interest Review. (1) The decision whether to issue a 
permit will be based on an evaluation of the probable impacts, including 
cumulative impacts, of the proposed activity and its intended use on the 
public interest. Evaluation of the probable impact which the proposed 
activity may have on the public interest requires a careful weighing of 
all those factors which become relevant in each particular case. The 
benefits which reasonably may be expected to accrue from the proposal 
must be balanced against its reasonably foreseeable detriments. The 
decision whether to authorize a proposal, and if so, the conditions 
under which it will be allowed to occur, are therefore determined by the 
outcome of this general balancing process. That

[[Page 398]]

decision should reflect the national concern for both protection and 
utilization of important resources. All factors which may be relevant to 
the proposal must be considered including the cumulative effects 
thereof: among those are conservation, economics, aesthetics, general 
environmental concerns, wetlands, historic properties, fish and wildlife 
values, flood hazards, floodplain values, land use, navigation, shore 
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. For activities involving 404 discharges, a permit 
will be denied if the discharge that would be authorized by such permit 
would not comply with the Environmental Protection Agency's 404(b)(1) 
guidelines. Subject to the preceding sentence and any other applicable 
guidelines and criteria (see Sec. Sec. 320.2 and 320.3), a permit will 
be granted unless the district engineer determines that it would be 
contrary to the public interest.
    (2) The following general criteria will be considered in the 
evaluation of every 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) Effect on wetlands. (1) Most wetlands constitute a productive 
and valuable public resource, the unnecessary alteration or destruction 
of which should be discouraged as contrary to the public interest. For 
projects to be undertaken or partially or entirely funded by a federal, 
state, or local agency, additional requirements on wetlands 
considerations are stated in Executive Order 11990, dated 24 May 1977.
    (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

[[Page 399]]

will be evaluated with the recognition that it may be part of a complete 
and interrelated wetland area. In addition, the district engineer may 
undertake, where appropriate, reviews of particular wetland areas in 
consultation with the Regional Director of the U. S. Fish and Wildlife 
Service, the Regional Director of the National Marine Fisheries Service 
of the National Oceanic and Atmospheric Administration, the Regional 
Administrator of the Environmental Protection Agency, the local 
representative of the Soil Conservation Service of the Department of 
Agriculture, and the head of the appropriate state agency to assess the 
cumulative effect of activities in such areas.
    (4) No permit will be granted which involves the alteration of 
wetlands identified as important by paragraph (b)(2) of this section or 
because of provisions of paragraph (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) Fish and wildlife. In accordance with the Fish and Wildlife 
Coordination Act (paragraph 320.3(e) of this section) district engineers 
will consult with the Regional Director, U.S. Fish and Wildlife Service, 
the Regional Director, National Marine Fisheries Service, and the head 
of the agency responsible for fish and wildlife for the state in which 
work is to be performed, with a view to the conservation of wildlife 
resources by prevention of their direct and indirect loss and damage due 
to the activity proposed in a permit application. The Army will give 
full consideration to the views of those agencies on fish and wildlife 
matters in deciding on the issuance, denial, or conditioning of 
individual or general permits.
    (d) Water quality. Applications for permits for activities which may 
adversely affect the quality of waters of the United States will be 
evaluated for compliance with applicable effluent limitations and water 
quality standards, during the construction and subsequent operation of 
the proposed activity. The evaluation should include the consideration 
of both point and non-point sources of pollution. It should be noted, 
however, that the Clean Water Act assigns responsibility for control of 
non-point sources of pollution to the states. Certification of 
compliance with applicable effluent limitations and water quality 
standards required under provisions of section 401 of the Clean Water 
Act will be considered conclusive with respect to water quality 
considerations unless the Regional Administrator, Environmental 
Protection Agency (EPA), advises of other water quality aspects to be 
taken into consideration.
    (e) Historic, cultural, scenic, and recreational values. 
Applications for DA permits may involve areas which possess recognized 
historic, cultural, scenic, conservation, recreational or similar 
values. Full evaluation of the general public interest requires that due 
consideration be given to the effect which the proposed structure or 
activity may have on values such as those associated with wild and 
scenic rivers, historic properties and National Landmarks, National 
Rivers, National Wilderness Areas, National Seashores, National 
Recreation Areas, National Lakeshores, National Parks, National 
Monuments, estuarine and marine sanctuaries, archeological resources, 
including Indian religious or cultural sites, and such other areas as 
may be established under federal or state law for similar and related 
purposes. Recognition of those values is often reflected by state, 
regional, or local land use classifications, or by similar federal 
controls or policies. Action on permit applications should, insofar as 
possible, be consistent with, and avoid significant adverse effects on 
the values or purposes for which those classifications, controls, or 
policies were established.
    (f) Effects on limits of the territorial sea. Structures or work 
affecting coastal

[[Page 400]]

waters may modify the coast line or base line from which the territorial 
sea is measured for purposes of the Submerged Lands Act and 
international law. Generally, the coast line or base line is the line of 
ordinary low water on the mainland; however, there are exceptions where 
there are islands or lowtide elevations offshore (the Submerged Lands 
Act, 43 U.S.C. 1301(a) and United States v. California, 381 U.S.C. 139 
(1965), 382 U.S. 448 (1966)). Applications for structures or work 
affecting coastal waters will therefore be reviewed specifically to 
determine whether the coast line or base line might be altered. If it is 
determined that such a change might occur, coordination with the 
Attorney General and the Solicitor of the Department of the Interior is 
required before final action is taken. The district engineer will submit 
a description of the proposed work and a copy of the plans to the 
Solicitor, Department of the Interior, Washington, DC 20240, and request 
his comments concerning the effects of the proposed work on the outer 
continental rights of the United States. These comments will be included 
in the administrative record of the application. After completion of 
standard processing procedures, the record will be forwarded to the 
Chief of Engineers. The decision on the application will be made by the 
Secretary of the Army after coordination with the Attorney General.
    (g) Consideration of property ownership. Authorization of work or 
structures by DA does not convey a property right, nor authorize any 
injury to property or invasion of other rights.
    (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

[[Page 401]]

applicant possesses or will possess the requisite property interest to 
undertake the activity proposed in the application. The district 
engineer will not enter into disputes but will remind the applicant of 
the above. The dispute over property ownership will not be a factor in 
the Corps public interest decision.
    (h) Activities affecting coastal zones. Applications for DA permits 
for activities affecting the coastal zones of those states having a 
coastal zone management program approved by the Secretary of Commerce 
will be evaluated with respect to compliance with that program. No 
permit will be issued to a non-federal applicant until certification has 
been provided that the proposed activity complies with the coastal zone 
management program and the appropriate state agency has concurred with 
the certification or has waived its right to do so. However, a permit 
may be issued to a non-federal applicant if the Secretary of Commerce, 
on his own initiative or upon appeal by the applicant, finds that the 
proposed activity is consistent with the objectives of the Coastal Zone 
Management Act of 1972 or is otherwise necessary in the interest of 
national security. Federal agency and Indian tribe applicants for DA 
permits are responsible for complying with the Coastal Zone Management 
Act's directives for assuring that their activities directly affecting 
the coastal zone are consistent, to the maximum extent practicable, with 
approved state coastal zone management programs.
    (i) Activities in marine sanctuaries. Applications for DA 
authorization for activities in a marine sanctuary established by the 
Secretary of Commerce under authority of section 302 of the Marine 
Protection, Research and Sanctuaries Act of 1972, as amended, will be 
evaluated for impact on the marine sanctuary. No permit will be issued 
until the applicant provides a certification from the Secretary of 
Commerce that the proposed activity is consistent with the purposes of 
Title III of the Marine Protection, Research and Sanctuaries Act of 
1972, as amended, and can be carried out within the regulations 
promulgated by the Secretary of Commerce to control activities within 
the marine sanctuary.
    (j) Other Federal, state, or local requirements. (1) Processing of 
an application for a DA permit normally will proceed concurrently with 
the processing of other required Federal, state, and/or local 
authorizations or certifications. Final action on the DA permit will 
normally not be delayed pending action by another Federal, state or 
local agency (See 33 CFR 325.2 (d)(4)). However, where the required 
Federal, state and/or local authorization and/or certification has been 
denied for activities which also require a Department of the Army permit 
before final action has been taken on the Army permit application, the 
district engineer will, after considering the likelihood of subsequent 
approval of the other authorization and/or certification and the time 
and effort remaining to complete processing the Army permit application, 
either immediately deny the Army permit without prejudice or continue 
processing the application to a conclusion. If the district engineer 
continues processing the application, he will conclude by either denying 
the permit as contrary to the public interest, or denying it without 
prejudice indicating that except for the other Federal, state or local 
denial the Army permit could, under appropriate conditions, be issued. 
Denial without prejudice means that there is no prejudice to the right 
of the applicant to reinstate processing of the Army permit application 
if subsequent approval is received from the appropriate Federal, state 
and/or local agency on a previously denied authorization and/or 
certification. Even if official certification and/or authorization is 
not required by state or federal law, but a state, regional, or local 
agency having jurisdiction or interest over the particular activity 
comments on the application, due consideration shall be given to those 
official views as a reflection of local factors of the public interest.
    (2) The primary responsibility for determining zoning and land use 
matters rests with state, local and tribal governments. The district 
engineer will normally accept decisions by such governments on those 
matters unless there are significant issues of overriding national 
importance. Such

[[Page 402]]

issues would include but are not necessarily limited to national 
security, navigation, national economic development, water quality, 
preservation of special aquatic areas, including wetlands, with 
significant interstate importance, and national energy needs. Whether a 
factor has overriding importance will depend on the degree of impact in 
an individual case.
    (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) Safety of impoundment structures. To insure that all impoundment 
structures are designed for safety, non-Federal applicants may be 
required to demonstrate that the structures comply with established 
state dam safety criteria or have been designed by qualified persons 
and, in appropriate cases, that the design has been independently 
reviewed (and modified as the review would indicate) by similarly 
qualified persons.
    (l) Floodplain management. (1) Floodplains possess significant 
natural values and carry out numerous functions important to the public 
interest. These include:
    (i) Water resources values (natural moderation of floods, water 
quality maintenance, and groundwater recharge);
    (ii) Living resource values (fish, wildlife, and plant resources);
    (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

[[Page 403]]

floodplains, as well as the direct and indirect support of floodplain 
development whenever there is a practicable alternative. For those 
activities which in the public interest must occur in or impact upon 
floodplains, the district engineer shall ensure, to the maximum extent 
practicable, that the impacts of potential flooding on human health, 
safety, and welfare are minimized, the risks of flood losses are 
minimized, and, whenever practicable the natural and beneficial values 
served by floodplains are restored and preserved.
    (3) In accordance with Executive Order 11988, the district engineer 
should avoid authorizing floodplain developments whenever 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) Water supply and conservation. Water is an essential resource, 
basic to human survival, economic growth, and the natural environment. 
Water conservation requires the efficient use of water resources in all 
actions which involve the significant use of water or that significantly 
affect the availability of water for alternative uses including 
opportunities to reduce demand and improve efficiency in order to 
minimize new supply requirements. Actions affecting water quantities are 
subject to Congressional policy as stated in section 101(g) of the Clean 
Water Act which provides that the authority of states to allocate water 
quantities shall not be superseded, abrogated, or otherwise impaired.
    (n) Energy conservation and development. Energy conservation and 
development are major national objectives. District engineers will give 
high priority to the processing of permit actions involving energy 
projects.
    (o) Navigation. (1) Section 11 of the Rivers and Harbors Act of 1899 
authorized establishment of harbor lines shoreward of which no 
individual permits were required. Because harbor lines were established 
on the basis of navigation impacts only, the Corps of Engineers 
published a regulation on 27 May 1970 (33 CFR 209.150) which declared 
that permits would thereafter be required for activities shoreward of 
the harbor lines. Review of applications would be based on a full public 
interest evaluation and harbor lines would serve as guidance for 
assessing navigation impacts. Accordingly, activities constructed 
shoreward of harbor lines prior to 27 May 1970 do not require specific 
authorization.
    (2) The policy of considering harbor lines as guidance for assessing 
impacts on navigation continues.
    (3) Protection of navigation in all navigable waters of the United 
States continues to be a primary concern of the federal government.
    (4) District engineers should protect navigational and anchorage 
interests in connection with the NPDES program by recommending to EPA or 
to the state, if the program has been delegated, that a permit be denied 
unless appropriate conditions can be included to avoid any substantial 
impairment of navigation and anchorage.
    (p) Environmental benefits. Some activities that require Department 
of the Army permits result in beneficial effects to the quality of the 
environment. The district engineer will weigh these benefits as well as 
environmental detriments along with other factors of the public 
interest.
    (q) Economics. When private enterprise makes application for a 
permit, it will generally be assumed that appropriate economic 
evaluations have been completed, the proposal is economically viable, 
and is needed in the market place. However, the district engineer in 
appropriate cases, may make an independent review of the need for the 
project from the perspective of the overall public interest. The 
economic benefits of many projects are important to the local community 
and contribute to needed improvements in the local economic base, 
affecting such factors as employment, tax revenues, community cohesion, 
community services, and property values. Many projects also contribute 
to the National Economic Development (NED), (i.e., the increase in the 
net value of the national output of goods and services).

[[Page 404]]

    (r) Mitigation.\1\ (1) Mitigation is an important aspect of the 
review and balancing process on many Department of the Army permit 
applications. Consideration of mitigation will occur throughout the 
permit application review process and includes avoiding, minimizing, 
rectifying, reducing, or compensating for resource losses. Losses will 
be avoided to the extent practicable. Compensation may occur on-site or 
at an off-site location. Mitigation requirements generally fall into 
three categories.
---------------------------------------------------------------------------

    \1\ This is a general statement of mitigation policy which applies 
to all Corps of Engineers regulatory authorities covered by these 
regulations (33 CFR parts 320-330). It is not a substitute for the 
mitigation requirements necessary to ensure that a permit action under 
section 404 of the Clean Water Act complies with the section 404(b)(1) 
Guidelines. There is currently an interagency Working Group formed to 
develop guidance on implementing mitigation requirements of the 
Guidelines.
---------------------------------------------------------------------------

    (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.



PART 321_PERMITS FOR DAMS AND DIKES IN NAVIGABLE WATERS OF THE
UNITED STATES--Table of Contents



Sec.
321.1 General.
321.2 Definitions.
321.3 Special policies and procedures.

    Authority: 33 U.S.C. 401.

    Source: 51 FR 41227, Nov. 13, 1986, unless otherwise noted.



Sec. 321.1  General.

    This regulation prescribes, in addition to the general policies of 
33 CFR part 320 and procedures of 33 CFR part 325, those special 
policies, practices, and procedures to be followed by the Corps of 
Engineers in connection with

[[Page 405]]

the review of applications for Department of the Army (DA) permits to 
authorize the construction of a dike or dam in a navigable water of the 
United States pursuant to section 9 of the Rivers and Harbors Act of 
1899 (33 U.S.C. 401). See 33 CFR 320.2(a). Dams and dikes in navigable 
waters of the United States also require DA permits under section 404 of 
the Clean Water Act, as amended (33 U.S.C. 1344). Applicants for DA 
permits under this part should also refer to 33 CFR part 323 to satisfy 
the requirements of section 404.



Sec. 321.2  Definitions.

    For the purpose of this regulation, the following terms are defined:
    (a) The term navigable waters of the United States means those 
waters of the United States that are subject to the ebb and flow of the 
tide shoreward to the mean high water mark and/or are presently used, or 
have been used in the past, or may be susceptible to use to transport 
interstate or foreign commerce. See 33 CFR part 329 for a more complete 
definition of this term.
    (b) The term dike or dam means, for the purposes of section 9, any 
impoundment structure that completely spans a navigable water of the 
United States and that may obstruct interstate waterborne commerce. The 
term does not include a weir. Weirs are regulated pursuant to section 10 
of the Rivers and Harbors Act of 1899. (See 33 CFR part 322.)



Sec. 321.3  Special policies and procedures.

    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 (i.e., the navigable portion of the navigable water 
of the United States is solely within the boundaries of one state). The 
district engineer, upon receipt of such an application, will notify the 
applicant that the consent of Congress or the state legislature must be 
obtained before a permit can be issued.



PART 322_PERMITS FOR STRUCTURES OR WORK IN OR AFFECTING NAVIGABLE 
WATERS OF THE UNITED STATES--Table of Contents



Sec.
322.1 General.
322.2 Definitions.
322.3 Activities requiring permits.
322.4 Activities not requiring permits.
322.5 Special policies.

    Authority: 33 U.S.C. 403.

    Source: 51 FR 41228, Nov. 13, 1986, unless otherwise noted.



Sec. 322.1  General.

    This regulation prescribes, in addition to the general policies of 
33 CFR part 320 and procedures of 33 CFR part 325, those special 
policies, practices, and procedures to be followed by the Corps of 
Engineers in connection with the review of applications for 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

[[Page 406]]

the United States, including the territorial seas, pursuant to section 
404 of the Clean Water Act (33 U.S.C. 1344; see 33 CFR part 323) and the 
transportation of dredged material by vessel for purposes of dumping in 
ocean waters, including the territorial seas, pursuant to section 103 of 
the Marine Protection, Research and Sanctuaries Act of 1972, as amended 
(33 U.S.C. 1413; see 33 CFR part 324). A DA permit will also be required 
under these additional authorities if they are applicable to structures 
or work in or affecting navigable waters of the United States. 
Applicants for DA permits under this part should refer to the other 
cited authorities and implementing regulations for these additional 
permit requirements to determine whether they also are applicable to 
their proposed activities.



Sec. 322.2  Definitions.

    For the purpose of this regulation, the following terms are defined:
    (a) The term navigable waters of the United States and all other 
terms relating to the geographic scope of jurisdiction are defined at 33 
CFR part 329. Generally, they are those waters of the United States that 
are subject to the ebb and flow of the tide shoreward to the mean high 
water mark, and/or are presently used, or have been used in the past, or 
may be susceptible to use to transport interstate or foreign commerce.
    (b) The term structure shall include, without limitation, any pier, 
boat dock, boat ramp, wharf, dolphin, weir, boom, breakwater, bulkhead, 
revetment, riprap, jetty, artificial island, artificial reef, permanent 
mooring structure, power transmission line, permanently moored floating 
vessel, piling, aid to navigation, or any other obstacle or obstruction.
    (c) The term work shall include, without limitation, any dredging or 
disposal of dredged material, excavation, filling, or other modification 
of a navigable water of the United States.
    (d) The term letter of permission means a type of individual permit 
issued in accordance with the abbreviated procedures of 33 CFR 325.2(e).
    (e) The term individual permit means a DA authorization that is 
issued following a case-by-case evaluation of a specific structure or 
work in accordance with the procedures of this regulation and 33 CFR 
part 325, and a determination that the proposed structure or work is in 
the public interest pursuant to 33 CFR part 320.
    (f) The term general permit means a DA authorization that is issued 
on a nationwide or regional basis for a category or categories of 
activities when:
    (1) Those activities are substantially similar in nature and cause 
only minimal individual and cumulative environmental impacts; or
    (2) The general permit would result in avoiding unnecessary 
duplication of the regulatory control exercised by another Federal, 
state, or local agency provided it has been determined that the 
environmental consequences of the action are individually and 
cumulatively minimal. (See 33 CFR 325.2(e) and 33 CFR part 330.)
    (g) The term artificial reef means a structure which is constructed 
or placed in the navigable waters of the United States or in the waters 
overlying the outer continental shelf for the purpose of enhancing 
fishery resources and commercial and recreational fishing opportunities. 
The term does not include activities or structures such as wing 
deflectors, bank stabilization, grade stabilization structures, or low 
flow key ways, all of which may be useful to enhance fisheries 
resources.



Sec. 322.3  Activities requiring permits.

    (a) General. DA permits are required under section 10 for structures 
and/or work in or affecting navigable waters of the United States except 
as otherwise provided in Sec. 322.4 below. Certain activities specified 
in 33 CFR part 330 are permitted by that regulation (''nationwide 
general permits''). Other activities may be authorized by district or 
division engineers on a regional basis (``regional general permits''). 
If an activity is not exempted by section 322.4 of this part or 
authorized by a general permit, an individual section 10 permit will be 
required for the proposed activity. Structures or work are in navigable 
waters of the United States if they are within limits defined in 33 CFR 
part 329. Structures or work outside these limits are subject to the

[[Page 407]]

provisions of law cited in paragraph (a) of this section, if these 
structures or work affect the course, location, or condition of the 
waterbody in such a manner as to impact on its navigable capacity. For 
purposes of a section 10 permit, a tunnel or other structure or work 
under or over a navigable water of the United States is considered to 
have an impact on the navigable capacity of the waterbody.
    (b) Outer continental shelf. DA permits are required for the 
construction of artificial islands, installations, and other devices on 
the seabed, to the seaward limit of the outer continental shelf, 
pursuant to section 4(f) of the Outer Continental Shelf Lands Act as 
amended. (See 33 CFR 320.2(b).)
    (c) Activities of Federal agencies. (1) Except as specifically 
provided in this paragraph, activities of the type described in 
paragraphs (a) and (b) of this section, done by or on behalf of any 
Federal agency are subject to the authorization procedures of these 
regulations. Work or structures in or affecting navigable waters of the 
United States that are part of the civil works activities of the Corps 
of Engineers, unless covered by a nationwide or regional general permit 
issued pursuant to these regulations, are subject to the procedures of 
separate regulations. Agreement for construction or engineering services 
performed for other agencies by the Corps of Engineers does not 
constitute authorization under this regulation. Division and district 
engineers will therefore advise Federal agencies accordingly, and 
cooperate to the fullest extent in expediting the processing of their 
applications.
    (2) Congress has delegated to the Secretary of the Army in section 
10 the duty to authorize or prohibit certain work or structures in 
navigable waters of the United States, upon recommendation of the Chief 
of Engineers. The general legislation by which Federal agencies are 
enpowered to act generally is not considered to be sufficient 
authorization by Congress to satisfy the purposes of section 10. If an 
agency asserts that it has Congressional authorization meeting the test 
of section 10 or would otherwise be exempt from the provisions of 
section 10, the legislative history and/or provisions of the Act should 
clearly demonstrate that Congress was approving the exact location and 
plans from which Congress could have considered the effect on navigable 
waters of the United States or that Congress intended to exempt that 
agency from the requirements of section 10. Very often such legislation 
reserves final approval of plans or construction for the Chief of 
Engineers. In such cases 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.



Sec. 322.4  Activities not requiring permits.

    (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.



Sec. 322.5  Special policies.

    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) General. DA permits are required for structures or work in or 
affecting navigable waters of the United States. However, certain 
structures or work

[[Page 408]]

specified in 33 CFR part 330 are permitted by that regulation. If a 
structure or work is not permitted by that regulation, an individual or 
regional section 10 permit will be required.
    (b) Artificial Reefs. (1) When considering an application for an 
artificial reef, as defined in 33 CFR 322.2(g), the district engineer 
will review the applicant's provisions for siting, constructing, 
monitoring, operating, maintaining, and managing the proposed artificial 
reef and shall determine if those provisions are consistent with the 
following standards:
    (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) Non-Federal dredging for navigation. (1) The benefits which an 
authorized Federal navigation project are intended to produce will often 
require similar and related operations by non-Federal agencies (e.g., 
dredging access channels to docks and berthing facilities or deepening 
such channels to correspond to the Federal project depth). These non-
Federal activities will be considered by Corps of Engineers officials in 
planning the construction and maintenance of Federal navigation

[[Page 409]]

projects and, to the maximum practical extent, will be coordinated with 
interested Federal, state, regional and local agencies and the general 
public simultaneously with the associated Federal projects. Non-Federal 
activities which are not so coordinated will be individually evaluated 
in accordance with these regulations. In evaluating the public interest 
in connection with applications for permits for such coordinated 
operations, equal treatment will be accorded to the fullest extent 
possible to both Federal and non-Federal operations. Permits for non-
Federal dredging operations will normally contain conditions requiring 
the permittee to comply with the same practices or requirements utilized 
in connection with related Federal dredging operations with respect to 
such matters as turbidity, water quality, containment of material, 
nature and location of approved spoil disposal areas (non-Federal use of 
Federal contained disposal areas will be in accordance with laws 
authorizing such areas and regulations governing their use), extent and 
period of dredging, and other factors relating to protection of 
environmental and ecological values.
    (2) A permit for the dredging of a channel, slip, or other such 
project for navigation may also authorize the periodic maintenance 
dredging of the project. Authorization procedures and limitations for 
maintenance dredging shall be as prescribed in 33 CFR 325.6(e). The 
permit 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) Structures for small boats. (1) In the absence of overriding 
public interest, favorable consideration will generally be given to 
applications from riparian owners for permits for piers, boat docks, 
moorings, platforms and similar structures for small boats. Particular 
attention will be given to the location and general design of such 
structures to prevent possible obstructions to navigation with respect 
to both the public's use of the waterway and the neighboring 
proprietors' access to the waterway. Obstructions can result from both 
the existence of the structure, particularly in conjunction with other 
similar facilities in the immediate vicinity, and from its inability to 
withstand wave action or other forces which can be expected. District 
engineers will inform applicants of the hazards involved and encourage 
safety in location, design, and operation. District engineers will 
encourage cooperative or group use facilities in lieu of individual 
proprietary use facilities.
    (2) Floating structures for small recreational boats or other 
recreational purposes in lakes controlled by the Corps of Engineers 
under a resource manager are normally subject to permit authorities 
cited in Sec. 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) Aids to navigation. The placing of fixed and floating aids to 
navigation in a navigable water of the United States is within the 
purview of Section 10 of the Rivers and Harbors Act of 1899. 
Furthermore, these aids are of particular interest to the U.S. Coast 
Guard because of its control of marking, lighting and standardization of 
such navigation aids. A Section 10 nationwide permit has been issued for 
such aids provided they are approved by, and installed in accordance 
with the requirements of the U.S. Coast Guard (33 CFR 330.5(a)(1)). 
Electrical service cables to such aids are not included in the 
nationwide permit (an individual or regional Section 10 permit will be 
required).
    (f) Outer continental shelf. Artificial islands, installations, and 
other devices

[[Page 410]]

located on the seabed, to the seaward limit of the outer continental 
shelf, are subject to the standard permit procedures of this regulation. 
Where the islands, installations and other devices are to be constructed 
on lands which are under mineral lease from the Mineral Management 
Service, Department of the Interior, that agency, in cooperation with 
other federal agencies, fully evaluates the potential effect of the 
leasing program on the total environment. Accordingly, the decision 
whether to issue a permit on lands which are under mineral lease from 
the Department of the Interior will be limited to an evaluation of the 
impact of the proposed work on navigation and national security. The 
public notice will so identify the criteria.
    (g) Canals and other artificial waterways connected to navigable 
waters of the United States. A canal or similar artificial waterway is 
subject to the regulatory authorities discussed in Sec. 322.3, of this 
part, if it constitutes a navigable water of the United States, or if it 
is connected to navigable waters of the United States in a manner which 
affects their course, location, condition, or capacity, or if at some 
point in its construction or operation it results in an effect on the 
course, location, condition, or capacity of navigable waters of the 
United States. In all cases the connection to navigable waters of the 
United States requires a permit. Where the canal itself constitutes a 
navigable water of the United States, evaluation of the permit 
application and further exercise of regulatory authority will be in 
accordance with the standard procedures of these regulations. For all 
other canals, the exercise of regulatory authority is restricted to 
those activities which affect the course, location, condition, or 
capacity of the navigable waters of the United States. The district 
engineer will consider, for applications for canal work, a proposed plan 
of the entire development and the location and description of 
anticipated docks, piers and other similar structures which will be 
placed in the canal.
    (h) Facilities at the borders of the United States. (1) The 
construction, operation, maintenance, or connection of facilities at the 
borders of the United States are subject to Executive control and must 
be authorized by the President, Secretary of State, or other delegated 
official.
    (2) Applications for permits for the construction, operation, 
maintenance, or connection at the borders of the United States of 
facilities for the transmission of electric energy between the United 
States and a foreign 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

[[Page 411]]

or the transportation of dredged material for the purpose of dumping it 
into ocean waters, appropriate DA authorizations under section 404 of 
the Clean Water Act or under section 103 of the Marine Protection, 
Research and Sanctuaries Act of 1972, as amended, are also required. 
(See 33 CFR parts 323 and 324.)
    (i) Power transmission lines. (1) Permits under section 10 of the 
Rivers and Harbors Act of 1899 are required for power transmission lines 
crossing navigable waters of the United States unless those lines are 
part of a water power project subject to the regulatory authorities of 
the Department of Energy under the Federal Power Act of 1920. If an 
application is received for a permit for lines which are part of such a 
water power project, the applicant will be instructed to submit the 
application to the Department of Energy. If the lines are not part of 
such a water power project, the application will be processed in 
accordance with the procedures of these regulations.
    (2) The following minimum clearances are required for aerial 
electric power transmission lines crossing navigable waters of the 
United States. These clearances are related to the clearances over the 
navigable channel provided by existing fixed bridges, or the clearances 
which would be required by the U.S. Coast Guard for new fixed bridges, 
in the vicinity of the proposed power line crossing. The clearances are 
based on the low point of the line under conditions which produce the 
greatest sag, taking into consideration temperature, load, wind, length 
or span, and type of supports as outlined in the National Electrical 
Safety Code.

------------------------------------------------------------------------
                                                              Minimum
                                                            additional
                                                             clearance
               Nominal system voltage, kV                  (feet) above
                                                             clearance
                                                           required for
                                                              bridges
------------------------------------------------------------------------
115 and below...........................................        20
138.....................................................        22
161.....................................................        24
230.....................................................        26
350.....................................................        30
500.....................................................        35
700.....................................................        42
750-765.................................................        45
------------------------------------------------------------------------

    (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) Seaplane operations. (1) Structures in navigable waters of the 
United States associated with seaplane operations require DA permits, 
but close coordination with the Federal Aviation Administration (FAA), 
Department of Transportation, is required on such applications.
    (2) The FAA must be notified by an applicant whenever he proposes to 
establish or operate a seaplane base. The FAA will study the proposal 
and advise the applicant, district engineer, and other interested 
parties as to the effects of the proposal on the use of airspace. The 
district engineer will, therefore, refer any objections regarding the 
effect of the proposal on the use 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) Foreign trade zones. The Foreign Trade Zones Act (48 Stat. 998-
1003, 19 U.S.C. 81a to 81u, as anended) authorizes the establishnent of 
foreign-trade zones in or adjacent to United States ports of entry under 
terms of a grant

[[Page 412]]

and regulations prescribed by the Foreign-Trade Zones Board. Pertinent 
regulations are published at Title 15 of the Code of Federal 
Regulations, part 400. The Secretary of the Army is a member of the 
Board, and construction of a zone is under the supervision of the 
district engineer. Laws governing the navigable waters of the United 
States remain applicable to foreign-trade zones, including the general 
requirements of these regulations. Evaluation by a district engineer of 
a permit application may give recognition to the consideration by the 
Board of the general econonic effects of the zone on local and foreign 
commerce, general location of wharves and facilities, and other factors 
pertinent to construction, operation, and maintenance of the zone.
    (l) Shipping safety fairways and anchorage areas. DA permits are 
required for structures located within shipping safety fairways and 
anchorage areas established by the U.S. Coast Guard.
    (1) The Department of the Army will grant no permits for the 
erection of structures in areas designated as fairways, except that 
district engineers may permit 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

[[Page 413]]

lighted buoy as approved by the United States Coast Guard.

[51 FR 41228, Nov. 13, 1986, as amended at 60 FR 44761, Aug. 29, 1995]



PART 323_PERMITS FOR DISCHARGES OF DREDGED OR FILL MATERIAL INTO 
WATERS OF THE UNITED STATES--Table of Contents



Sec.
323.1 General.
323.2 Definitions.
323.3 Discharges requiring permits.
323.4 Discharges not requiring permits.
323.5 Program transfer to States.
323.6 Special policies and procedures.

    Authority: 33 U.S.C. 1344.

    Source: 51 FR 41232, Nov. 13, 1986, unless otherwise noted.



Sec. 323.1  General.

    This regulation prescribes, in addition to the general policies of 
33 CFR part 320 and procedures of 33 CFR part 325, those special 
policies, practices, and procedures to be followed by the Corps of 
Engineers in connection with the review of applications for DA permits 
to authorize the discharge of dredged or fill material into waters of 
the United States pursuant to section 404 of the Clean Water Act (CWA) 
(33 U.S.C. 1344) (hereinafter referred to as section 404). (See 33 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.



Sec. 323.2  Definitions.

    For the purpose of this part, the following terms are defined:
    (a) The term waters of the United States and all other terms 
relating to the geographic scope of jurisdiction are defined at 33 CFR 
part 328.
    (b) The term lake means a standing body of open water that occurs in 
a natural depression fed by one or more streams from which a stream may 
flow, that occurs due to the widening or natural blockage or cutoff of a 
river or stream, or that occurs in an isolated natural depression that 
is not a part of a surface river or stream. The term also includes a 
standing body of open water created by artificially blocking or 
restricting the flow of a river, stream, or tidal area. As used in this 
regulation, the term does not include artificial lakes or ponds created 
by excavating and/or diking dry land to collect and retain water for 
such purposes as stock watering, irrigation, settling basins, cooling, 
or rice growing.
    (c) The term dredged material means material that is excavated or 
dredged from waters of the United States.
    (d)(1) Except as provided below in paragraph (d)(2), the term 
discharge of dredged material means any addition of dredged material 
into, including redeposit of dredged material other than incidential 
fallback within, the waters of the United States. The term includes, but 
is not limited to, the following:
    (i) The addition of dredged material to a specified discharge site 
located in waters of the United States;
    (ii) The runoff or overflow from a contained land or water disposal 
area; and
    (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 discharge of dredged material does not include the 
following:
    (i) Discharges of pollutants into waters of the United States 
resulting

[[Page 414]]

from the onshore subsequent processing of dredged material that is 
extracted for any commercial use (other than fill). These discharges are 
subject to section 402 of the Clean Water Act even though the extraction 
and deposit of such material may require a permit from the Corps or 
applicable State section 404 program.
    (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 navigable 
waters of the United States, as that term is defined in part 329 of this 
chapter, with proper authorization from the Congress and/or the Corps 
pursuant to part 322 of this Chapter; however, this exception is not 
applicable to dredging activities in wetlands, as that term is defined 
at section 328.3 of this Chapter.
    (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.
    Note: 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 de minimis (i.e., inconsequential) effect 
on the area by causing an identifiable individual or cumulative adverse 
effect on any aquatic function.
    (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 discharge of fill material means the addition of fill 
material into waters of the United States. The term generally includes, 
without limitation, the following activities: Placement of fill that is 
necessary for the construction of any structure or infrastructure in a 
water of the United States; the building of any structure, 
infrastructure, or impoundment requiring rock,

[[Page 415]]

sand, dirt, or other material for its construction; site-development 
fills for recreational, industrial, commercial, residential, or other 
uses; causeways or road fills; dams and dikes; artificial islands; 
property protection and/or reclamation devices such as riprap, groins, 
seawalls, breakwaters, and revetments; beach nourishment; levees; fill 
for structures such as sewage treatment facilities, intake and outfall 
pipes associated with power plants and subaqueous utility lines; 
placement of fill material for construction or maintenance of any liner, 
berm, or other infrastructure associated with solid waste landfills; 
placement of overburden, slurry, or tailings or similar mining-related 
materials; and artificial reefs. The term does not include plowing, 
cultivating, seeding and harvesting for the production of food, fiber, 
and forest products (See Sec. 323.4 for the definition of these terms). 
See Sec. 323.3(c) concerning the regulation of the placement of pilings 
in waters of the United States.
    (g) The term individual permit means a Department of the Army 
authorization that is issued following a case-by-case evaluation of a 
specific project involving the proposed discharge(s) in accordance with 
the procedures of this part and 33 CFR part 325 and a determination that 
the proposed discharge is in the public interest pursuant to 33 CFR part 
320.
    (h) The term general permit means a Department of the Army 
authorization that is issued on a nationwide or regional basis for a 
category or categories of activities when:
    (1) Those activities are substantially similar in nature and cause 
only minimal individual and cumulative environmental impacts; or
    (2) The general permit would result in avoiding unnecessary 
duplication of regulatory control exercised by another Federal, State, 
or local agency provided it has been determined that the environmental 
consequences of the action are individually and cumulatively minimal. 
(See 33 CFR 325.2(e) and 33 CFR part 330.)

[51 FR 41232, Nov. 13, 1986, as amended at 58 FR 45035, Aug. 25, 1993; 
58 FR 48424, Sept. 15, 1993; 63 FR 25123, May 10, 1999; 66 FR 4574, Jan. 
17, 2001; 66 FR 10367, Feb. 15, 2001; 67 FR 31142, May 9, 2002; 73 FR 
79645, Dec. 30, 2008]



Sec. 323.3  Discharges requiring permits.

    (a) General. Except as provided in Sec. 323.4 of this part, DA 
permits will be required for the discharge of dredged or fill material 
into waters of the United States. Certain discharges specified in 33 CFR 
part 330 are permitted by that regulation (``nationwide permits''). 
Other discharges may be authorized by district or division engineers on 
a regional basis (``regional permits''). If a discharge of dredged or 
fill material is not exempted by Sec. 323.4 of this part or permitted 
by 33 CFR part 330, an individual or regional section 404 permit will be 
required for the discharge of dredged or fill material into waters of 
the United States.
    (b) Activities of Federal agencies. Discharges of dredged or fill 
material into waters of the United States done by or on behalf of any 
Federal agency, other than the Corps of Engineers (see 33 CFR 209.145), 
are subject to the authorization procedures of these regulations. 
Agreement for construction or engineering services performed for other 
agencies by the Corps of Engineers does not constitute authorization 
under the regulations. Division and district engineers will therefore 
advise Federal agencies and instrumentalities accordingly and cooperate 
to the fullest extent in expediting the processing of their 
applications.
    (c) Pilings. (1) Placement of pilings in waters of the United States 
constitutes a discharge of fill material and requires a section 404 
permit when such placement has or would have the effect of a discharge 
of fill material. Examples of such activities that have the effect of a 
discharge of fill material include, but are not limited to, the 
following: Projects where the pilings are so closely spaced that 
sedimentation rates would be increased; projects in which the pilings 
themselves effectively would replace the bottom of a waterbody; projects 
involving the placement of pilings that would reduce

[[Page 416]]

the reach or impair the flow or circulation of waters of the United 
States; and projects involving the placement of pilings which would 
result in the adverse alteration or elimination of aquatic functions.
    (2) Placement of pilings in waters of the United States that does 
not have or would not have the effect of a discharge of fill material 
shall not require a section 404 permit. Placement of pilings for linear 
projects, such as bridges, elevated walkways, and powerline structures, 
generally does not have the effect of a discharge of fill material. 
Furthermore, placement of pilings in waters of the United States for 
piers, wharves, and an individual house on stilts generally does not 
have the effect of a discharge of fill material. All pilings, however, 
placed in the navigable waters of the United States, as that term is 
defined in part 329 of this chapter, require authorization under section 
10 of the Rivers and Harbors Act of 1899 (see part 322 of this chapter).

[51 FR 41232, Nov. 13, 1986, as amended at 58 FR 45036, Aug. 25, 1993]



Sec. 323.4  Discharges not requiring permits.

    (a) General. Except as specified in paragraphs (b) and (c) of this 
section, any discharge of dredged or fill material that may result from 
any of the following activities is not prohibited by or otherwise 
subject to regulation under section 404:
    (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 
(i.e., on-going) farming, silviculture, or ranching operation and must 
be in accordance with definitions in Sec. 323.4(a)(1)(iii). Activities 
on areas lying fallow as part of a conventional rotational cycle are 
part of an established operation. Activities which bring an area into 
farming, silviculture, or ranching use are not part of an established 
operation. An operation ceases to be established when the area on which 
it was conducted has been coverted to another use or has lain idle so 
long that modifications to the hydrological regime are necessary to 
resume operations. If an activity takes place outside the waters of the 
United States, or if it does not involve a discharge, it does not need a 
section 404 permit, whether or not it is part of an established farming, 
silviculture, or ranching operation.
    (iii)(A) Cultivating means physical methods of soil treatment 
employed within established farming, ranching and silviculture lands on 
farm, ranch, or forest crops to aid and improve their growth, quality or 
yield.
    (B) Harvesting means physical measures employed directly upon farm, 
forest, or ranch crops within established agricultural and silvicultural 
lands to bring about their removal from farm, forest, or ranch land, but 
does not include the construction of farm, forest, or ranch roads.
    (C)(1) Minor drainage means:
    (i) The discharge of dredged or fill material incidental to 
connecting upland drainage facilities to waters of the United States, 
adequate to effect the removal of excess soil moisture from upland 
croplands. (Construction and maintenance of upland (dryland) facilities, 
such as ditching and tiling, incidential to the planting, cultivating, 
protecting, or harvesting of crops, involve no discharge of dredged or 
fill material into waters of the United States, and as such never 
require a section 404 permit.);
    (ii) The discharge of dredged or fill material for the purpose of 
installing ditching or other such water control facilities incidental to 
planting, cultivating, protecting, or harvesting of rice, cranberries or 
other wetland crop species, where these activities and the discharge 
occur in waters of the United States which are in established use for 
such agricultural and silvicultural wetland crop production;
    (iii) The discharge of dredged or fill material for the purpose of 
manipulating the water levels of, or regulating the flow or distribution 
of water within, existing impoundments which have been constructed in 
accordance with

[[Page 417]]

applicable requirements of CWA, and which are in established use for the 
production of rice, cranberries, or other wetland crop species. (The 
provisions of paragraphs (a)(1)(iii)(C)(1) (ii) and (iii) of this 
section apply to areas that are in established use exclusively for 
wetland crop production as well as areas in established use for 
conventional wetland/non-wetland crop rotation (e.g., the rotations of 
rice and soybeans) where such rotation results in the cyclical or 
intermittent temporary dewatering of such areas.)
    (iv) The discharges of dredged or fill material incidental to the 
emergency removal of sandbars, gravel bars, or other similar blockages 
which are formed during flood flows or other events, where such 
blockages close or constrict previously existing drainageways and, if 
not promptly removed, would result in damage to or loss of existing 
crops or would impair or prevent the plowing, seeding, harvesting or 
cultivating of crops on land in established use for crop production. 
Such removal does not include enlarging or extending the dimensions of, 
or changing the bottom elevations of, the affected drainageway as it 
existed prior to the formation of the blockage. Removal must be 
accomplished within one year of discovery of such blockages in order to 
be eligible for exemption.
    (2) Minor drainage in waters of the U.S. is limited to drainage 
within areas that are part of an established farming or silviculture 
operation. It does not include drainage associated with the immediate or 
gradual conversion of a wetland to a non-wetland (e.g., wetland species 
to upland species not typically adapted to life in saturated soil 
conditions), or conversion from one wetland use to another (for example, 
silviculture to farming). In addition, minor drainage does not include 
the construction of any canal, ditch, dike or other waterway or 
structure which drains or otherwise significantly modifies a stream, 
lake, swamp, bog or any other wetland or aquatic area constituting 
waters of the United States. Any discharge of dredged or fill material 
into the waters of the United States incidental to the construction of 
any such structure or waterway requires a permit.
    (D) Plowing means all forms of primary tillage, including moldboard, 
chisel, or wide-blade plowing, discing, harrowing and similar physical 
means utilized on farm, forest or ranch land for the breaking up, 
cutting, turning over, or stirring of soil to prepare it for the 
planting of crops. The term does not include the redistribution of soil, 
rock, sand, or other surficial materials in a manner which changes any 
area of the waters of the United States to dry land. For example, the 
redistribution of surface materials by blading, grading, or other means 
to fill in wetland areas is not plowing. Rock crushing activities which 
result in the loss of natural drainage characteristics, the reduction of 
water storage and recharge capabilities, or the overburden of natural 
water filtration capacities do not constitute plowing. Plowing as 
described above will never involve a discharge of dredged or fill 
material.
    (E) Seeding means the sowing of seed and placement of seedlings to 
produce farm, ranch, or forest crops and includes the placement of soil 
beds for seeds or seedlings on established farm and forest lands.
    (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

[[Page 418]]

any site involving the erection of buildings, roads, and other discrete 
structures and the installation of support facilities necessary for 
construction and utilization of such structures. The term also includes 
any other land areas which involve land-disturbing excavation 
activities, including quarrying or other mining activities, where an 
increase in the runoff of sediment is controlled through the use of 
temporary sedimentation basins.
    (5) Any activity with respect to which a State has an approved 
program under section 208(b)(4) of the 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

[[Page 419]]

States incidental to any of the activities identified in paragraphs (a) 
(1) through (6) of this section must have a permit if it is part of an 
activity whose purpose is to convert an area of the waters of the United 
States into a use to which it was not previously subject, where the flow 
or circulation of waters of the United States nay be impaired or the 
reach of such waters reduced. Where the proposed discharge will result 
in significant discernible alterations to flow or circulation, the 
presumption is that flow or circulation may be impaired by such 
alteration. For example, a permit will be required for the conversion of 
a cypress swamp to some other use or the conversion of a wetland from 
silvicultural to agricultural use when there is a discharge of dredged 
or fill material into waters of the United States in conjunction with 
construction of dikes, drainage ditches or other works or structures 
used to effect such conversion. A conversion of a section 404 wetland to 
a non-wetland is a change in use of an area of waters of the United 
States. A discharge which elevates the bottom of waters of the United 
States without converting it to dry land does not thereby reduce the 
reach of, but may alter the flow or circulation of, waters of the United 
States.
    (d) Federal projects which qualify under the criteria contained in 
section 404(r) of the CWA are exempt from section 404 permit 
requirements, but may be subject to other State or Federal requirements.



Sec. 323.5  Program transfer to States.

    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.



Sec. 323.6  Special policies and procedures.

    (a) The Secretary of the Army has delegated to the Chief of 
Engineers the authority to issue or deny section 404 permits. The 
district engineer will review applications for permits for the discharge 
of dredged or fill material into waters of the United States in 
accordance with guidelines promulgated by the Administrator, EPA, under 
authority of section 404(b)(1) of the CWA. (see 40 CFR part 230.) 
Subject to consideration of any economic impact on navigation and 
anchorage pursuant to section 404(b)(2), a permit will be denied if the 
discharge that would be authorized by such a permit would not comply 
with the 404(b)(1) guidelines. If the district engineer determines that 
the proposed discharge would comply with the 404(b)(1) 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.

[[Page 420]]



PART 324_PERMITS FOR OCEAN DUMPING OF DREDGED MATERIAL--
Table of Contents



Sec.
324.1 General.
324.2 Definitions.
324.3 Activities requiring permits.
324.4 Special procedures.

    Authority: 33 U.S.C. 1413.

    Source: 51 FR 41235, Nov. 13, 1986, unless otherwise noted.



Sec. 324.1  General.

    This regulation prescribes in addition to the general policies of 33 
CFR part 320 and procedures of 33 CFR part 325, those special policies, 
practices and procedures to be followed by the Corps of Engineers in 
connection with the review of applications for 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.



Sec. 324.2  Definitions.

    For the purpose of this regulation, the following terms are defined:
    (a) The term ocean waters means those waters of the open seas lying 
seaward of the base line from which the territorial sea is measured, as 
provided for in the Convention on the Territorial Sea and the Contiguous 
Zone (15 UST 1606: TIAS 5639).
    (b) The term dredged material means any material excavated or 
dredged from navigable waters of the United States.
    (c) The term transport or transportation refers to the conveyance 
and related handling of dredged material by a vessel or other vehicle.



Sec. 324.3  Activities requiring permits.

    (a) General. DA permits are required for the transportation of 
dredged material for the purpose of dumping it in ocean waters.
    (b) Activities of Federal agencies. (1) The transportation of 
dredged material for the purpose of disposal in ocean waters done by or 
on behalf of any Federal agency other than the activities of the Corps 
of Engineers is subject to the procedures of this regulation. Agreement 
for construction or engineering services performed for other agencies by 
the Corps of Engineers does not constitute authorization under these 
regulations. Division and district engineers will therefore advise 
Federal agencies accordingly and cooperate to the fullest extent in the 
expeditious processing of their applications. The activities of the 
Corps of Engineers that involve the transportation of dredged material 
for disposal in ocean waters are regulated by 33 CFR 209.145.
    (2) The policy provisions set out in 33 CFR 320.4(j) relating to 
state or local authorizations do not apply to work or structures 
undertaken by Federal agencies, except where compliance with non-Federal 
authorization is 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.



Sec. 324.4  Special procedures.

    The Secretary of the Army has delegated to the Chief of Engineers 
the authority to issue or deny section 103 permits. The following 
additional procedures shall also be applicable under this regulation.
    (a) Public notice. For all applications for section 103 permits, the 
district engineer will issue a public notice which shall contain the 
information specified in 33 CFR 325.3.
    (b) Evaluation. Applications for permits for the transportation of 
dredged

[[Page 421]]

material for the purpose of dumping it in ocean waters will be evaluated 
to determine whether the proposed dumping will unreasonably degrade or 
endanger human health, welfare, amenities, or the marine environment, 
ecological systems or economic potentialities. District engineers will 
apply the criteria established by the Administrator of EPA pursuant to 
section 102 of the Marine Protection, Research and Sanctuaries Act of 
1972 in making this evaluation. (See 40 CFR parts 220-229) Where ocean 
dumping is determined to be necessary, the district engineer will, to 
the extent feasible, specify disposal sites using the recommendations of 
the Administrator pursuant to section 102(c) of the Act.
    (c) EPA review. When the Regional Administrator, EPA, in accordance 
with 40 CFR 225.2(b), advises the district engineer, in writing, that 
the proposed dumping will comply with the criteria, the district 
engineer will complete his evaluation of the application under this part 
and 33 CFR parts 320 and 325. If, however, the Regional Administrator 
advises the district engineer, in writing, that the proposed dumping 
does not comply with the criteria, the district engineer will proceed as 
follows:
    (1) The district engineer will determine whether there is an 
economically feasible alternative method or site available other than 
the proposed ocean disposal site. If there are other feasible 
alternative methods or sites available, the district engineer will 
evaluate them in accordance with 33 CFR parts 320, 322, 323, and 325 and 
this part, as appropriate.
    (2) 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) Chief of Engineers review. The Chief of Engineers shall evaluate 
the permit application and make a decision to deny the permit or 
recommend its issuance. If the decision of the Chief of Engineers is 
that ocean dumping at the proposed disposal site is required because of 
the unavailability of economically feasible alternatives, he shall so 
certify and request that the Secretary of the Army seek a waiver from 
the Administrator, EPA, of the criteria or of the critical site 
designation in accordance with 40 CFR 225.4.



PART 325_PROCESSING OF DEPARTMENT OF THE ARMY PERMITS--
Table of Contents



Sec.
325.1 Applications for permits.
325.2 Processing of applications.
325.3 Public notice.
325.4 Conditioning of permits.
325.5 Forms of permits.
325.6 Duration of permits.
325.7 Modification, suspension, or revocation of permits.
325.8 Authority to issue or deny permits.
325.9 Authority to determine jurisdiction.
325.10 Publicity.

Appendix A to Part 325--Permit Form and Special Conditions
Appendix B to Part 325--NEPA Implementation Procedures for the 
          Regulatory Program
Appendix C to Part 325--Procedures for the Protection of Historic 
          Properties

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 51 FR 41236, Nov. 13, 1986, unless otherwise noted.



Sec. 325.1  Applications for permits.

    (a) General. The processing procedures of this part apply to any 
Department of the Army (DA) permit. Special procedures and additional 
information are contained in 33 CFR parts 320 through 324, 327 and part 
330. This part is arranged in the basic timing sequence used by the 
Corps of Engineers in processing applications for DA permits.
    (b) Pre-application consultation for major applications. The 
district staff

[[Page 422]]

element having responsibility for administering, processing, and 
enforcing federal laws and regulations relating to the Corps of 
Engineers regulatory program shall be available to advise potential 
applicants of studies or other information foreseeably required for 
later federal action. The district engineer will establish local 
procedures and policies including appropriate publicity programs which 
will allow potential applicants to contact the district engineer or the 
regulatory staff element to request pre-application consultation. Upon 
receipt of such request, the district engineer will assure the conduct 
of an orderly process which may involve other staff elements and 
affected agencies (Federal, state, or local) and the public. This early 
process should be brief but thorough so that the potential applicant may 
begin to assess the viability of some of the more obvious potential 
alternatives in the application. The district engineer will endeavor, at 
this stage, to provide the potential applicant with all helpful 
information necessary in pursuing the application, including factors 
which the Corps must consider in its permit decision making process. 
Whenever the district engineer becomes aware of planning for work which 
may require a DA permit and which may involve the preparation of an 
environmental document, he shall contact the principals involved to 
advise them of the requirement for the permit(s) and the attendant 
public interest review including the development of an environmental 
document. Whenever a potential applicant indicates the intent to submit 
an application for work which may require the preparation of an 
environmental document, a single point of contact shall be designated 
within the district's regulatory staff to effectively coordinate the 
regulatory process, including the National Environmental Policy Act 
(NEPA) procedures and all attendant reviews, meetings, hearings, and 
other actions, including the scoping process if appropriate, leading to 
a decision by the district engineer. Effort devoted to this process 
should be commensurate with the likelihood of a permit application 
actually being submitted to the Corps. The regulatory staff coordinator 
shall maintain an open relationship with each potential applicant or his 
consultants so as to assure that the potential applicant is fully aware 
of the substance (both quantitative and qualitative) of the data 
required by the district engineer for use in preparing an environmental 
assessment or an environmental impact statement (EIS) in accordance with 
33 CFR part 230, Appendix B.
    (c) Application form. Applicants for all individual DA permits must 
use the standard application form (ENG Form 4345, OMB Approval No. OMB 
49-R0420). Local variations of the application form for purposes of 
facilitating coordination with federal, state and local agencies may be 
used. The appropriate form may be obtained from the district office 
having jurisdiction over the waters in which the activity is proposed to 
be located. Certain activities have been authorized by general permits 
and do not require submission of an application form but may require a 
separate notification.
    (d) Content of application. (1) The application must include a 
complete description of the proposed activity including necessary 
drawings, sketches, or plans sufficient for public notice (detailed 
engineering plans and specifications are not required); the location, 
purpose and need for the proposed activity; scheduling of the activity; 
the names and addresses of adjoining property owners; the location and 
dimensions of adjacent structures; and a list of authorizations required 
by other federal, interstate, state, or local agencies for the work, 
including all approvals received or denials already made. See Sec. 
325.3 for information required to be in public notices. District and 
division engineers are not authorized to develop additional information 
forms but may request specific information on a case-by-case basis. (See 
Sec. 325.1(e)).
    (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

[[Page 423]]

well as any fill associated with construction of the marina.
    (3) If the activity would involve dredging in navigable waters of 
the United States, the application must include a description of the 
type, composition and quantity of the material to be dredged, the method 
of dredging, and the site and plans for disposal of the dredged 
material.
    (4) If the activity would include the discharge of dredged or fill 
material into the waters of the United States or the transportation of 
dredged material for the purpose of disposing of it in ocean waters the 
application must include the source of the 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 Sec. 332.4(b)(1) 
of this chapter.)
    (8) Signature on application. The application must be signed by the 
person who desires to undertake the proposed activity (i.e., the 
applicant) or by a duly authorized agent. When the applicant is 
represented by an agent, that information will be included in the space 
provided on the application or by a separate written statement. The 
signature of the applicant or the agent will be an affirmation that the 
applicant possesses or will possess the requisite property interest to 
undertake the activity proposed in the application, except where the 
lands are under the control of the Corps of Engineers, in which cases 
the district engineer will coordinate the transfer of the real estate 
and the permit action. An application may include the activity of more 
than one owner provided the character of the activity of each owner is 
similar and in the same general area and each owner submits a statement 
designating the same agent.
    (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) Complete application. An application will be determined to be 
complete when sufficient information is received to issue a public 
notice (See 33 CFR 325.1(d) and 325.3(a).) The issuance of a public 
notice will not be delayed to obtain information necessary to evaluate 
an application.
    (e) Additional information. In addition to the information indicated 
in paragraph (d) of this section, the applicant will be required to 
furnish only such additional information as the district engineer deems 
essential to make a public interest determination including, where 
applicable, a determination of compliance with the section 404(b)(1) 
guidelines or ocean dumping criteria. Such additional information may 
include environmental data and information on alternate methods and 
sites as may be necessary for the preparation

[[Page 424]]

of the required environmental documentation.
    (f) Fees. Fees are required for permits under section 404 of the 
Clean Water Act, section 103 of the Marine Protection, Research and 
Sanctuaries Act of 1972, as amended, and sections 9 and 10 of the Rivers 
and Harbors Act of 1899. A fee of $100.00 will be charged when the 
planned or ultimate purpose of the project is commercial or industrial 
in nature and is in support of operations that charge for the 
production, distribution or sale of goods or services. A $10.00 fee will 
be charged for permit applications when the proposed work is non-
commercial in nature and would provide personal benefits that have no 
connection with a commercial enterprise. The final decision as to the 
basis for a fee (commercial vs. non-commercial) shall be solely the 
responsibility of the district engineer. No fee will be charged if the 
applicant withdraws the application at any time prior to issuance of the 
permit or if the permit is denied. Collection of the fee will be 
deferred until the proposed activity has been determined to be not 
contrary to the public interest. Multiple fees are not to be charged if 
more than one law is applicable. Any modification significant enough to 
require publication of a public notice will also require a fee. No fee 
will be assessed when a permit is transferred from one property owner to 
another. No fees will be charged for time extensions, general permits or 
letters of permission. Agencies or instrumentalities of federal, state 
or local governments will not be required to pay any fee in connection 
with permits.

[51 FR 41236, Nov. 13, 1986, as amended at 73 FR 19670, Apr. 10, 2008]



Sec. 325.2  Processing of applications.

    (a) Standard procedures. (1) When an application for a permit is 
received the district engineer shall immediately assign it a number for 
identification, acknowledge receipt thereof, and advise the applicant of 
the number assigned to it. He shall review the application for 
completeness, and if the application is incomplete, request from the 
applicant within 15 days of receipt of the application any additional 
information necessary for further processing.
    (2) Within 15 days of receipt of an application the district 
engineer will either determine that the application is complete (see 33 
CFR 325.1(d)(9) and issue a public notice as described in Sec. 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 Sec. 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

[[Page 425]]

mediate differences, or to gather information to aid in the decision 
process. The district engineer should not delay processing of the 
application unless the applicant requests a reasonable delay, normally 
not to exceed 30 days, to provide additional information or comments.
    (4) The district engineer will follow Appendix B of 33 CFR part 230 
for environmental procedures and documentation required by the National 
Environmental Policy Act of 1969. A decision on a permit application 
will require either an environmental assessment or an environmental 
impact statement unless it is included within a categorical exclusion.
    (5) The district engineer will also evaluate the application to 
determine the need for a public hearing pursuant to 33 CFR part 327.
    (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 Sec. 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

[[Page 426]]

brief description of activity involved. It will also note that relevant 
environmental documents and the SOF's or ROD's are available upon 
written request and, where applicable, upon the payment of 
administrative fees. This list will be distributed to all persons who 
may have an interest in any of the public notices listed.
    (9) Copies of permits will be furnished to other agencies in 
appropriate cases as follows:
    (i) If the activity involves the construction of artificial islands, 
installations or other devices on the outer continental shelf, to the 
Director, Defense Mapping Agency, 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) Procedures for particular types of permit situations--(1) 
Section 401 Water Quality Certification. If the district engineer 
determines that water quality certification for the proposed activity is 
necessary under the provisions of section 401 of the Clean Water Act, he 
shall so notify the applicant and obtain from him or the certifying 
agency a copy of such certification.
    (i) The public notice for such activity, which will contain a 
statement on certification requirements (see Sec. 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

[[Page 427]]

of such a request unless the district engineer determines a shorter or 
longer period is reasonable for the state to act. In determining whether 
or not a waiver period has commenced or waiver has occurred, the 
district engineer will verify that the certifying agency has received a 
valid request for certification. If, however, special circumstances 
identified by the district engineer require that action on an 
application be taken within a more limited period of time, the district 
engineer shall determine a reasonable lesser period of time, advise the 
certifying agency of the need for action by a particular date, and that, 
if certification is not received by that date, it will be considered 
that the requirement for certification has been waived. Similarly, if it 
appears that circumstances may reasonably require a period of time 
longer than sixty days, the district engineer, based on information 
provided by the certifying agency, will determine a longer reasonable 
period of time, not to exceed one year, at which time a waiver will be 
deemed to occur.
    (2) Coastal Zone Management consistency. If the proposed activity is 
to be undertaken in a state operating under a coastal zone management 
program approved by the Secretary of Commerce pursuant to the Coastal 
Zone Management (CZM) Act (see 33 CFR 320.3(b)), the district engineer 
shall proceed as follows:
    (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) Historic properties. If the proposed activity would involve any 
property

[[Page 428]]

listed or eligible for listing in the National Register of Historic 
Places, the district engineer will proceed in accordance with Corps 
National Historic Preservation Act implementing regulations.
    (4) Activities associated with Federal projects. If the proposed 
activity would consist of the dredging of an access channel and/or 
berthing facility associated with an authorized federal navigation 
project, the activity will be included in the planning and coordination 
of the construction or maintenance of the federal project to the maximum 
extent feasible. Separate notice, hearing, and environmental 
documentation will not be required for activities so included and 
coordinated, and the public notice issued by the district engineer for 
these federal and associated non-federal activities will be the notice 
of intent to issue permits for those included non-federal dredging 
activities. The decision whether to issue or deny such a permit will be 
consistent with the decision on the federal project unless special 
considerations applicable to the proposed activity are identified. (See 
Sec. 322.5(c).)
    (5) Endangered Species. Applications will be reviewed for the 
potential impact on threatened or endangered species pursuant to section 
7 of the Endangered Species Act as amended. The district engineer will 
include a statement in the public notice of his current knowledge of 
endangered species based on his initial review of the application (see 
33 CFR 325.2(a)(2)). If the district engineer determines that the 
proposed activity would not affect listed species or their critical 
habitat, he will include a statement to this effect in the public 
notice. If he finds the proposed activity may affect an endangered or 
threatened species or their critical habitat, he will initiate formal 
consultation procedures with the U.S. Fish and Wildlife Service or 
National Marine Fisheries Service. Public notices forwarded to the U.S. 
Fish and Wildlife Service or National Marine Fisheries Service will 
serve as the request for information on whether any listed or proposed 
to be listed endangered or threatened species may be present in the area 
which would be affected by the proposed activity, pursuant to section 
7(c) of the Act. References, definitions, and consultation procedures 
are found in 50 CFR part 402.
    (c) [Reserved]
    (d) Timing of processing of applications. The district engineer will 
be guided by the following time limits for the indicated steps in the 
evaluation process:
    (1) The public notice will be issued within 15 days of receipt of 
all information required to be submitted by the applicant in accordance 
with paragraph 325.1.(d) of this part.
    (2) The comment period on the public notice should be for a 
reasonable period of time within which interested parties may express 
their views concerning the permit. The comment period should not be more 
than 30 days nor less than 15 days from the date of the notice. Before 
designating comment periods less than 30 days, the district engineer 
will 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 Sec. 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-

[[Page 429]]

day period has been satisfied or eliminated, the 60-day clock will start 
running again from where it was suspended. For example, if the comment 
period is extended by 30 days, the district engineer will, absent other 
restraints, decide on the application within 90 days of receipt of a 
complete application. Certain laws (e.g., the Clean Water Act, the CZM 
Act, the National Environmental Policy Act, the National Historic 
Preservation Act, the Preservation of Historical and Archeological Data 
Act, the Endangered Species Act, the Wild and Scenic Rivers Act, and the 
Marine Protection, Research and Sanctuaries Act) require procedures such 
as state or other federal agency certifications, public hearings, 
environmental impact statements, consultation, special studies, and 
testing which may prevent district engineers from being able to decide 
certain applications within 60 days.
    (4) Once the district engineer has sufficient information to make 
his public interest determination, he should decide the permit 
application even though other agencies which may have regulatory 
jurisdiction have not yet granted their authorizations, except where 
such authorizations are, by federal law, a prerequisite to making a 
decision on the DA permit application. Permits granted prior to other 
(non-prerequisite) authorizations by other agencies should, where 
appropriate, be conditioned in such manner as to give those other 
authorities an opportunity to undertake their review without the 
applicant biasing such review by making substantial resource commitments 
on the basis of the DA permit. In unusual cases the district engineer 
may decide that due to the nature or 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) Alternative procedures. Division and district engineers are 
authorized to use alternative procedures as follows:
    (1) Letters of permission. Letters of permission are a type of 
permit issued through an abbreviated processing procedure which includes 
coordination with Federal and state fish and wildlife agencies, as 
required by the Fish and Wildlife Coordination Act, and a public 
interest evaluation, but without the publishing of an individual public 
notice. The letter of permission will not be used to authorize the 
transportation of dredged material for the purpose of dumping it in 
ocean waters. Letters of permission may be used:
    (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

[[Page 430]]

    (C) A 401 certification has been issued or waived and, if 
appropriate, CZM consistency concurrence obtained or presumed either on 
a generic or individual basis.
    (2) Regional permits. Regional permits are a type of general permit 
as defined in 33 CFR 322.2(f) and 33 CFR 323.2(n). They may be issued by 
a division or district engineer after compliance with the other 
procedures of this regulation. After a regional permit has been issued, 
individual activities falling within those categories that are 
authorized by such regional permits do not have to be further authorized 
by the procedures of this regulation. The issuing authority will 
determine and add appropriate conditions to protect the public interest. 
When the issuing authority determines on a case-by-case basis that the 
concerns for the aquatic environment so indicate, he may exercise 
discretionary authority to override the regional permit and require an 
individual application and review. A regional permit may be revoked by 
the issuing authority if it is determined that it is contrary to the 
public interest provided the procedures of Sec. 325.7 of this part are 
followed. Following revocation, applications for future activities in 
areas covered by the regional permit shall be processed as applications 
for individual permits. No regional permit shall be issued for a period 
of more than five years.
    (3) Joint procedures. Division and district engineers are authorized 
and encouraged to develop joint procedures with states and other Federal 
agencies with ongoing permit programs for activities also regulated by 
the Department of the Army. Such procedures may be substituted for the 
procedures in paragraphs (a)(1) through (a)(5) of this section provided 
that the substantive requirements of those sections are maintained. 
Division and district engineers are also encouraged to develop 
management techniques such as joint agency review meetings to expedite 
the decision-making process. However, in doing so, the applicant's 
rights to a full public interest review and independent decision by the 
district or division engineer must be strictly observed.
    (4) Emergency procedures. Division engineers are authorized to 
approve special processing procedures in emergency situations. An 
``emergency'' is a situation which would result in an unacceptable 
hazard to life, a significant loss of property, or an immediate, 
unforeseen, and significant economic hardship if corrective action 
requiring a permit is not undertaken within a time period less than the 
normal time needed to process the application under standard procedures. 
In emergency situations, the district engineer will explain the 
circumstances and recommend special procedures to the division engineer 
who will instruct the district engineer as to further processing of the 
application. Even in an emergency situation, reasonable efforts will be 
made to receive comments from interested Federal, state, and local 
agencies and the affected public. Also, notice of any special procedures 
authorized and their rationale is to be appropriately published as soon 
as practicable.

[51 FR 41236, Nov. 13, 1986, as amended at 62 FR 26230, May 13, 1997]



Sec. 325.3  Public notice.

    (a) General. The public notice is the primary method of advising all 
interested parties of the proposed activity for which a permit is sought 
and of soliciting comments and information necessary to evaluate the 
probable impact on the public interest. The notice must, therefore, 
include sufficient information to give a clear understanding of the 
nature and magnitude of the activity to generate meaningful comment. The 
notice should include the following items of information:
    (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

[[Page 431]]

to generate meaningful comments, including a description of the type of 
structures, if any, to be erected on fills or pile or float-supported 
platforms, and a description of the type, composition, and quantity of 
materials to be discharged or disposed of in the ocean;
    (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 Sec. 325.2(b)(5));
    (12) A statement(s) on evaluation factors (see Sec. 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 Sec. 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) Public notice for general permits. District engineers will 
publish a public notice for all proposed regional general permits and 
for significant modifications to, or reissuance of, existing regional 
permits within their area of jurisdiction. Public notices for statewide 
regional permits may be issued jointly by the affected Corps districts. 
The notice will include all applicable information necessary to provide 
a clear understanding of the proposal. In addition, the notice will 
state the availability of information at the district office which 
reveals the Corps' provisional determination that the proposed 
activities comply with the requirements for issuance of general permits. 
District engineers will publish a public notice for nationwide permits 
in accordance with 33 CFR 330.4.
    (c) Evaluation factors. A paragraph describing the various 
evaluation factors on which decisions are based shall be included in 
every public notice.
    (1) Except as provided in paragraph (c)(3) of this section, the 
following will be included:


[[Page 432]]


    ``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) Distribution of public notices. (1) Public notices will be 
distributed for posting in post offices or other appropriate public 
places in the vicinity of the site of the proposed work and will be sent 
to the applicant, to appropriate city and county officials, to adjoining 
property owners, to appropriate state agencies, to appropriate Indian 
Tribes or tribal representatives, to concerned Federal agencies, to 
local, regional and national shipping and other concerned business and 
conservation organizations, to appropriate River Basin Commissions, to 
appropriate state and areawide clearing houses as prescribed by OMB 
Circular A-95, to local news media and to any other interested party. 
Copies of public notices will be sent to all parties who have 
specifically requested copies of public notices, to the U.S. Senators 
and Representatives for the area where the work is to be performed, the 
field representative of the Secretary of the Interior, the Regional 
Director of the Fish and Wildlife Service, the Regional Director of the 
National Park Service, the Regional Administrator of the Environmental 
Protection Agency (EPA), the Regional Director of the National Marine 
Fisheries Service of the National Oceanic and Atmospheric Administration 
(NOAA), the head of the state agency responsible for fish and wildlife 
resources, the State Historic Preservation Officer, and the District 
Commander, U.S. Coast Guard.
    (2) In addition to the general distribution of public notices cited 
above, notices will be sent to other addressees in appropriate cases as 
follows:
    (i) 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.

[[Page 433]]

    (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.



Sec. 325.4  Conditioning of permits.

    (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) Bonds. If the district engineer has reason to consider that the 
permittee might be prevented from completing work which is necessary to 
protect the public interest, he may require the permittee to post a bond 
of sufficient amount to indemnify the government against any loss as a 
result of corrective action it might take.



Sec. 325.5  Forms of permits.

    (a) General discussion. (1) DA permits under this regulation will be 
in the form of individual permits or general permits. The basic format 
shall be ENG Form 1721, DA Permit (Appendix A).
    (2) The general conditions included in ENG Form 1721 are normally 
applicable to all permits; however, some conditions may not apply to 
certain permits and may be deleted by the issuing officer. Special 
conditions applicable to

[[Page 434]]

the specific activity will be included in the permit as necessary to 
protect the public interest in accordance with Sec. 325.4 of this part.
    (b) Individual permits--(1) Standard permits. A standard permit is 
one which has been processed through the public interest review 
procedures, including public notice and receipt of comments, described 
throughout this part. The standard individual permit shall be issued 
using ENG Form 1721.
    (2) Letters of permission. A letter of permission will be issued 
where procedures of Sec. 325.2(e)(1) have been followed. It will be in 
letter form and will identify the permittee, the authorized work and 
location of the work, the statutory authority, any limitations on the 
work, a construction time limit and a requirement for a report of 
completed work. A copy of the relevant general conditions from ENG Form 
1721 will be attached and will be incorporated by reference into the 
letter of permission.
    (c) General permits--(1) Regional permits. Regional permits are a 
type of general permit. They may be issued by a division or district 
engineer after compliance with the other procedures of this regulation. 
If the public interest so requires, the issuing authority may condition 
the regional permit to require a case-by-case reporting and 
acknowledgment system. However, no separate applications or other 
authorization documents will be required.
    (2) Nationwide permits. Nationwide permits are a type of general 
permit and represent DA authorizations that have been issued by the 
regulation (33 CFR part 330) for certain specified activities 
nationwide. If certain conditions are met, the specified activities can 
take place without the need for an individual or regional permit.
    (3) Programmatic permits. Programmatic permits are a type of general 
permit founded on an existing state, local or other Federal agency 
program and designed to avoid duplication with that program.
    (d) Section 9 permits. Permits for structures in interstate 
navigable waters of the United States under section 9 of the Rivers and 
Harbors Act of 1899 will be drafted at DA level.



Sec. 325.6  Duration of permits.

    (a) General. DA permits may authorize both the work and the 
resulting use. Permits continue in effect until they automatically 
expire or are modified, suspended, or revoked.
    (b) Structures. Permits for the existence of a structure or other 
activity of a permanent nature are usually for an indefinite duration 
with no expiration date cited. However, where a temporary structure is 
authorized, or where restoration of a waterway is contemplated, the 
permit will be of limited duration with a definite expiration date.
    (c) Works. Permits for construction work, discharge of dredged or 
fill material, or other activity and any construction period for a 
structure with a permit of indefinite duration under paragraph (b) of 
this section will specify time limits for completing the work or 
activity. The permit may also specify a date by which the work must be 
started, normally within one year from the date of issuance. The date 
will be established by the issuing official and will provide reasonable 
times based on the scope and nature of the work involved. Permits issued 
for the transport of dredged material for the purpose of disposing of it 
in ocean waters will specify a completion date for the disposal not to 
exceed three years from the date of permit issuance.
    (d) Extensions of time. An authorization or construction period will 
automatically expire if the permittee fails to request and receive an 
extension of time. Extensions of time may be granted by the district 
engineer. The permittee must request the extension and explain the basis 
of the request, which will be granted unless the district engineer 
determines that an extension would be contrary to the public interest. 
Requests for extensions will be processed in accordance with the regular 
procedures of Sec. 325.2 of this part, including issuance of a public 
notice, except that such processing is not required where the district 
engineer determines that there have been no significant changes in the 
attendant circumstances since the authorization was issued.

[[Page 435]]

    (e) Maintenance dredging. If the authorized work includes periodic 
maintenance dredging, an expiration date for the authorization of that 
maintenance dredging will be included in the permit. The expiration 
date, which in no event is to exceed ten years from the date of issuance 
of the permit, will be established by the issuing official after 
evaluation of the proposed method of dredging and disposal of the 
dredged material in accordance with the requirements of 33 CFR parts 320 
to 325. In such cases, the district engineer shall require notification 
of the maintenance dredging prior to actual performance to insure 
continued compliance with the requirements of this regulation and 33 CFR 
parts 320 to 324. If the permittee desires to continue maintenance 
dredging beyond the expiration date, he must request a new permit. The 
permittee should be advised to apply for the new permit six months prior 
to the time he wishes to do the maintenance work.



Sec. 325.7  Modification, suspension, or revocation of permits.

    (a) General. The district engineer may reevaluate the circumstances 
and conditions of any permit, including regional permits, either on his 
own motion, at the request of the permittee, or a third party, or as the 
result of periodic progress inspections, and initiate action to modify, 
suspend, or revoke a permit as may be made necessary by considerations 
of the public interest. In the case of regional permits, this 
reevaluation may cover individual activities, categories of activities, 
or geographic areas. Among the factors to be considered are the extent 
of the permittee's compliance with the terms and conditions of the 
permit; whether or not circumstances relating to the authorized activity 
have changed since the permit was issued or extended, and the continuing 
adequacy of or need for the permit conditions; any significant 
objections to the authorized activity which were not earlier considered; 
revisions to applicable statutory and/or regulatory authorities; and the 
extent to which modification, suspension, or other action would 
adversely affect plans, investments and actions the permittee has 
reasonably made or taken in reliance on the permit. Significant 
increases in scope of a permitted activity will be processed as new 
applications for permits in accordance with Sec. 325.2 of this part, 
and not as modifications under this section.
    (b) Modification. Upon request by the permittee or, as a result of 
reevaluation of the circumstances and conditions of a permit, the 
district engineer may determine that the public interest requires a 
modification of the terms or conditions of the permit. In such cases, 
the district engineer will hold informal consultations with the 
permittee to ascertain whether the terms and conditions can be modified 
by mutual agreement. If a mutual agreement is reached on modification of 
the terms and conditions of the permit, the district engineer will give 
the permittee written notice of the modification, which will then become 
effective on such date as the district engineer may establish. In the 
event a mutual agreement cannot be reached by the district engineer and 
the permittee, the district engineer will proceed in accordance with 
paragraph (c) of this section if immediate suspension is warranted. In 
cases where immediate suspension is not warranted but the district 
engineer determines that the permit should be modified, he will notify 
the permittee of the proposed modification and reasons therefor, and 
that he may request a meeting with the district engineer and/or a public 
hearing. The modification will become effective on the date set by the 
district engineer which shall be at least ten days after receipt of the 
notice by the permittee unless a hearing or meeting is requested within 
that period. If the permittee fails or refuses to comply with the 
modification, the district engineer will proceed in accordance with 33 
CFR part 326. The district engineer shall consult with resource agencies 
before modifying any permit terms or conditions, that would result in 
greater impacts, for a project about which that agency expressed a 
significant interest in the term, condition, or feature being modified 
prior to permit issuance.
    (c) Suspension. The district engineer may suspend a permit after 
preparing a written determination and finding that immediate suspension 
would be in the

[[Page 436]]

public interest. The district engineer will notify the permittee in 
writing by the most expeditious means available that the permit has been 
suspended with the reasons therefor, and order the permittee to stop 
those activities previously authorized by the suspended permit. The 
permittee will also be advised that following this suspension a decision 
will be made to either reinstate, modify, or revoke the permit, and that 
he may within 10 days of receipt of notice of the suspension, request a 
meeting with the district engineer and/or a public hearing to present 
information in this matter. If a hearing is requested, the procedures 
prescribed in 33 CFR part 327 will be followed. After the completion of 
the meeting or hearing (or within a reasonable period of time after 
issuance of the notice to the permittee that the permit has been 
suspended if no hearing or meeting is requested), the district engineer 
will take action to reinstate, modify, or revoke the permit.
    (d) Revocation. Following completion of the suspension procedures in 
paragraph (c) of this section, if revocation of the permit is found to 
be in the public interest, the authority who made the decision on the 
original permit may revoke it. The permittee will be advised in writing 
of the final decision.
    (e) Regional permits. The issuing official may, by following the 
procedures of this section, revoke regional permits for individual 
activities, categories of activities, or geographic areas. Where groups 
of permittees are involved, such as for categories of activities or 
geographic areas, the informal discussions provided in paragraph (b) of 
this section may be waived and any written notification nay be made 
through the general public notice procedures of this regulation. If a 
regional permit is revoked, any permittee may then apply for an 
individual permit which shall be processed in accordance with these 
regulations.



Sec. 325.8  Authority to issue or deny permits.

    (a) General. Except as otherwise provided in this regulation, the 
Secretary of the Army, subject to such conditions as he or his 
authorized representative may from time to time impose, has authorized 
the Chief of Engineers and his authorized representatives to issue or 
deny permits for dams or dikes in intrastate waters of the United States 
pursuant to section 9 of the Rivers and Harbors Act of 1899; for 
construction or other work in or affecting navigable waters of the 
United States pursuant to section 10 of the Rivers and Harbors Act of 
1899; for the discharge of dredged or fill material into waters of the 
United States pursuant to section 404 of the Clean Water Act; or for the 
transportation of dredged material for the purpose of disposing of it 
into ocean waters pursuant to section 103 of the Marine Protection, 
Research and Sanctuaries Act of 1972, as amended. The authority to issue 
or deny permits in interstate navigable waters of the United States 
pursuant to section 9 of the Rivers and Harbors Act of March 3, 1899 has 
not been delegated to the Chief of Engineers or his authorized 
representatives.
    (b) District engineer's authority. District engineers are authorized 
to issue or deny permits in accordance with these regulations pursuant 
to sections 9 and 10 of the Rivers and Harbors Act of 1899; section 404 
of the Clean Water Act; and section 103 of the Marine Protection, 
Research and Sanctuaries Act of 1972, as amended, in all cases not 
required to be referred to higher authority (see below). It is essential 
to the legality of a permit that it contain the name of the district 
engineer as the issuing officer. However, the permit need not be signed 
by the district engineer in person but may be signed for and in behalf 
of him by whomever he designates. In cases where permits are denied for 
reasons other than navigation or failure to obtain required local, 
state, or other federal approvals or certifications, the Statement of 
Findings must conclusively justify a denial decision. District engineers 
are authorized to deny permits without issuing a public notice or taking 
other procedural steps where required local, state, or other federal 
permits for the proposed activity have been denied or where he 
determines that the activity will clearly interfere with navigation 
except in all cases required to be referred to higher authority (see 
below). District engineers are also authorized to add,

[[Page 437]]

modify, or delete special conditions in permits in accordance with Sec. 
325.4 of this part, except for those conditions which may have been 
imposed by higher authority, and to modify, suspend and revoke permits 
according to the procedures of Sec. 325.7 of this part. District 
engineers will refer the following applications to the division engineer 
for resolution:
    (1) When a referral is required by a written agreement between the 
head of a Federal agency and the Secretary of the Army;
    (2) When the recommended decision is contrary to the written 
position of the Governor of the state in which the work would be 
performed;
    (3) When there is substantial doubt as to authority, law, 
regulations, or policies applicable to the proposed activity;
    (4) When higher authority requests the application be forwarded for 
decision; or
    (5) When the district engineer is precluded by law or procedures 
required by law from taking final action on the application (e.g. 
section 9 of the Rivers and Harbors Act of 1899, or territorial sea 
baseline changes).
    (c) Division engineer's authority. Division engineers will review 
and evaluate all permit applications referred by district engineers. 
Division engineers may authorize the issuance or denial of permits 
pursuant to section 10 of the Rivers and Harbors Act of 1899; section 
404 of the Clean Water Act; and section 103 of the Marine Protection, 
Research and Sanctuaries Act of 1972, as amended; and the inclusion of 
conditions in accordance with Sec. 325.4 of this part in all cases not 
required to be referred to the Chief of Engineers. Division engineers 
will refer the following applications to the Chief of Engineers for 
resolution:
    (1) When a referral is required by a written agreement between the 
head of a Federal agency and the Secretary of the Army;
    (2) When there is substantial doubt as to authority, law, 
regulations, or policies applicable to the proposed activity;
    (3) When higher authority requests the application be forwarded for 
decision; or
    (4) When the division engineer is precluded by law or procedures 
required by law from taking final action on the application.



Sec. 325.9  Authority to determine jurisdiction.

    District engineers are authorized to determine the area defined by 
the terms ``navigable waters of the United States'' and ``waters of the 
United States'' except:
    (a) When a determination of navigability is made pursuant to 33 CFR 
329.14 (division engineers have this authority); or
    (b) When EPA makes a section 404 jurisdiction determination under 
its authority.



Sec. 325.10  Publicity.

    The district engineer will establish and maintain a program to 
assure that potential applicants for permits are informed of the 
requirements of this regulation 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.



     Sec. Appendix A to Part 325--Permit Form and Special Conditions

                             A. Permit Form

                      Department of the Army Permit

Permittee_______________________________________________________________
Permit No.______________________________________________________________
Issuing Office__________________________________________________________
    Note: 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.

[[Page 438]]

    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

[[Page 439]]

suspension, modification, and revocation procedures contained in 33 CFR 
325.7 or enforcement procedures such as those contained in 33 CFR 326.4 
and 326.5. The referenced enforcement procedures provide for the 
issuance of an administrative order requiring you to comply with the 
terms and conditions of your permit and for the initiation of legal 
action where appropriate. You will be required to pay for any corrective 
measures ordered by this office, and if you fail to comply with such 
directive, this office may in certain situations (such as those 
specified in 33 CFR 209.170) accomplish the corrective measures by 
contract or otherwise and bill you for the cost.
    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.
________________________________________________________________________

                               (Permittee)

________________________________________________________________________

                                 (Date)

    This permit becomes effective when the Federal official, designated 
to act for the Secretary of the Army, has signed below.

________________________________________________________________________

                           (District Engineer)

________________________________________________________________________

                                 (Date)

    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.

________________________________________________________________________

                              (Transferee)

________________________________________________________________________

                                 (Date)

    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.

[51 FR 41236, Nov. 13, 1986, as amended at 62 FR 26230, May 13, 1997]



  Sec. Appendix B to Part 325--NEPA Implementation Procedures for the 
                           Regulatory Program

1. Introduction
2. General
3. Development of Information and Data
4. Elimination of Duplication with State and Local Procedures
5. Public Involvement
6. Categorical Exclusions

[[Page 440]]

7. EA/FONSI Document
8. Environmental Impact Statement--General
9. Organization and Content of Draft EISs
10. Notice of Intent
11. Public Hearing
12. Organization and Content of Final EIS
13. Comments Received on the Final EIS
14. EIS Supplement
15. Filing Requirements
16. Timing
17. Expedited Filing
18. Record of Decision
19. Predecision Referrals by Other Agencies
20. Review of Other Agencies' EISs
21. Monitoring

    1. Introduction. In keeping with Executive Order 12291 and 40 CFR 
1500.2, where interpretive problems arise in implementing this 
regulation, and consideration of all other factors do not give a clear 
indication of a reasonable interpretation, the interpretation 
(consistent with the spirit and intent of NEPA) which results in the 
least paperwork and delay will be used. Specific examples of ways to 
reduce paperwork in the NEPA process are found at 40 CFR 1500.4. Maximum 
advantage of these recommendations should be taken.
    2. General. This Appendix sets forth implementing procedures for the 
Corps regulatory program. For additional guidance, see the Corps NEPA 
regulation 33 CFR part 230 and for general policy guidance, see the CEQ 
regulations 40 CFR 1500-1508.
    3. Development of Information and Data. See 40 CFR 1506.5. The 
district engineer may require the applicant to furnish appropriate 
information that the district engineer considers necessary for the 
preparation of an Environmental Assessment (EA) or Environmental Impact 
Statement (EIS). See also 40 CFR 1502.22 regarding incomplete or 
unavailable information.
    4. Elimination of Duplication with State and Local Procedures. See 
40 CFR 1506.2.
    5. Public Involvement. Several paragraphs of this appendix 
(paragraphs 7, 8, 11, 13, and 19) provide information on the 
requirements for district engineers to make available to the public 
certain environmental documents in accordance with 40 CFR 1506.6.
    6. Categorical Exclusions--a. General. Even though an EA or EIS is 
not legally mandated for any Federal action falling within one of the 
``categorical exclusions,'' that fact does not exempt any Federal action 
from procedural or substantive compliance with any other Federal law. 
For example, compliance with the Endangered Species Act, the Clean Water 
Act, etc., is always mandatory, even for actions not requiring an EA or 
EIS. The following activities are not considered to be major Federal 
actions significantly affecting the quality of the human environment and 
are therefore categorically excluded from NEPA documentation:
    (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. Extraordinary Circumstances. District engineers should be alert 
for extraordinary circumstances where normally excluded actions could 
have substantial environmental effects and thus require an EA or EIS. 
For a period of one year from the effective data of these regulations, 
district engineers 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/FONSI or EIS. If a district 
engineer determines that a categorical exclusion should be modified, the 
information will be furnished to the division engineer 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-OR) will review recommended changes for Corps-
wide consistency and revise the list accordingly.
    7. EA/FONSI Document. (See 40 CFR 1508.9 and 1508.13 for 
definitions)--a. Environmental Assessment (EA) and Findings of No 
Significant Impact (FONSI). The EA should normally be combined with 
other required documents (EA/404(b)(1)/SOF/FONSI). ``EA'' as used 
throughout this Appendix normally refers to this combined document. The 
district engineer should complete an EA as soon as practicable after all 
relevant information is available (i.e., after the comment period for 
the public notice of the permit application has expired) and when the EA 
is a separate document it must be completed prior to completion of the 
statement of finding (SOF). When the EA confirms that the impact of the 
applicant's proposal is not significant and there are no ``unresolved 
conflicts concerning alternative uses of available resources * * *'' 
(section 102(2)(E) of NEPA), and the proposed activity is a ``water 
dependent'' activity as defined in 40 CFR 230.10(a)(3), the EA need not 
include a discussion on alternatives. In all other cases where the 
district engineer determines that there are unresolved conflicts 
concerning alternative uses of available resources, the EA shall include 
a discussion of the reasonable alternatives which are to be considered 
by the ultimate decision-maker. The decision options available to the 
Corps, which embrace all of the applicant's alternatives, are issue the 
permit, issue with modifications or deny the permit. Modifications are 
limited to those project modifications within the

[[Page 441]]

scope of established permit conditioning policy (See 33 CFR 325.4). The 
decision option to deny the permit results in the ``no action'' 
alternative (i.e., no activity requiring a Corps permit). The combined 
document normally should not exceed 15 pages and shall conclude with a 
FONSI (See 40 CFR 1508.13) or a determination that an EIS is required. 
The district engineer may delegate the signing of the NEPA document. 
Should the EA demonstrate that an EIS is necessary, the district 
engineer shall follow the procedures outlined in paragraph 8 of this 
Appendix. In those cases where it is obvious an EIS is required, an EA 
is not required. However, the district engineer should document his 
reasons for requiring an EIS.
    b. Scope of Analysis. (1) In some situations, a permit applicant may 
propose to conduct a specific activity requiring a Department of the 
Army (DA) permit (e.g., construction of a pier in a navigable water of 
the United States) which is merely one component of a larger project 
(e.g., construction of an oil refinery on an upland area). The district 
engineer should establish the scope of the NEPA document (e.g., the EA 
or EIS) to address the impacts of the specific activity requiring a DA 
permit and those portions of the entire project over which the district 
engineer has sufficient control and responsibility to warrant Federal 
review.
    (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 et seq.), the National Historic Preservation Act of 1966 (16 U.S.C. 
470 et seq.), the Endangered Species Act of 1973 (16 U.S.C. 1531 et 
seq.), Executive Order 11990, Protection of Wetlands, (42 U.S.C. 4321 
91977), and other environmental review laws and executive orders.
    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) Examples: If a non-Federal oil refinery, electric generating 
plant, or industrial facility is proposed to be built on an upland site 
and the only DA permit requirement relates to a connecting pipeline, 
supply loading terminal or fill road, that pipeline, terminal or fill 
road permit, in and of itself, normally would not constitute sufficient 
overall Federal involvement with the project to justify expanding the 
scope of a Corps NEPA document to cover upland portions of the facility 
beyond the structures in the immediate vicinity of the regulated 
activity that would effect the location and configuration of the 
regulated activity.
    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.

[[Page 442]]

    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, i.e., the specific activity requiring 
a DA permit and any other portion of the project that is within the 
control or responsibility of the Corps of Engineers (or other Federal 
agencies).
    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. Environmental Impact Statement--General--a. Determination of Lead 
and Cooperating Agencies. When the district engineer determines that an 
EIS is required, he will contact all appropriate Federal agencies to 
determine their respective role(s), i.e., that of lead agency or 
cooperating agency.
    b. Corps as Lead Agency. When the Corps is lead agency, it will be 
responsible for managing the EIS process, including those portions which 
come under the jurisdiction of other Federal agencies. The district 
engineer is authorized to require the applicant to furnish appropriate 
information as discussed in paragraph 3 of this appendix. It is 
permissable for the Corps to reimburse, under agreement, staff support 
from other Federal agencies beyond the immediate jurisdiction of those 
agencies.
    c. Corps as Cooperating Agency. If another agency is the lead agency 
as set forth by the CEQ regulations (40 CFR 1501.5 and 1501.6(a) and 
1508.16), the district engineer will coordinate with that agency as a 
cooperating agency under 40 CFR 1501.6(b) and 1508.5 to insure that 
agency's resulting EIS may be adopted by the Corps for purposes of 
exercising its regulatory authority. As a cooperating agency the Corps 
will be responsible to the lead agency for providing environmental 
information which is directly related to the regulatory matter involved 
and which is required for the preparation of an EIS. This in no way 
shall be construed as lessening the district engineer's ability to 
request the applicant to furnish appropriate information as discussed in 
paragraph 3 of this appendix.
    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. Scope of Analysis. See paragraph 7b.
    e. Scoping Process. Refer to 40 CFR 1501.7 and 33 CFR 230.12.
    f. Contracting. See 40 CFR 1506.5.
    (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/

[[Page 443]]

or his consultant from time to time and provide him with the district 
engineer's views regarding adequacy of the data that are being developed 
(including how the district engineer will view such data in light of any 
possible conflicts of interest).
    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. Change in EIS Determination. If it is determined that an EIS is 
not required after a notice of intent has been published, the district 
engineer shall terminate the EIS preparation and withdraw the notice of 
intent. The district engineer shall notify in writing the appropriate 
division engineer; HQUSACE (CECW-OR); the appropriate EPA regional 
administrator, the Director, Office of Federal Activities (A-104), EPA, 
401 M Street SW., Washington, DC 20460 and the public of the 
determination.
    h. Time Limits. For regulatory actions, the district engineer will 
follow 33 CFR 230.17(a) unless unusual delays caused by applicant 
inaction or compliance with other statutes require longer time frames 
for EIS preparation. At the outset of the EIS effort, schedule 
milestones will be developed and made available to the applicant and the 
public. If the milestone dates are not met the district engineer will 
notify the applicant and explain the reason for delay.
    9. Organization and Content of Draft EISs--a. General. This section 
gives detailed information for preparing draft EISs. When the Corps is 
the lead agency, this draft EIS format and these procedures will be 
followed. When the Corps is one of the joint lead agencies, the joint 
lead agencies will mutually decide which agency's format and procedures 
will be followed.
    b. Format--(1) Cover Sheet. (a) Ref. 40 CFR 1502.11.
    (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) Summary. In addition to the requirements of 40 CFR 1502.12, this 
section should identify the proposed action as a Corps permit action 
stating the authorities (sections 9, 10, 404, 103, etc.) under which the 
Corps is exerting its jurisdiction. It shall also summarize the purpose 
and need for the proposed action and shall briefly state the beneficial/
adverse impacts of the proposed action.
    (3) Table of Contents.
    (4) Purpose and Need. See 40 CFR 1502.13. If the scope of analysis 
for the NEPA document (see paragraph 7b) covers only the proposed 
specific activity requiring a Department of the Army permit, then the 
underlying purpose and need for that specific activity should be stated. 
(For example, ``The purpose and need for the pipe is to obtain cooling 
water from the river for the electric generating plant.'') If the scope 
of analysis covers a more extensive project, only part of which may 
require a DA permit, then the underlying purpose and need for the entire 
project should be stated. (For example, ``The purpose and need for the 
electric generating plant is to provide increased supplies of 
electricity to the (named) geographic area.'') Normally, the applicant 
should be encouraged to provide a statement of his proposed activity's 
purpose and need from his perspective (for example, ``to construct an 
electric generating plant''). However, whenever the NEPA document's 
scope of analysis renders it appropriate, the Corps also should consider 
and express that activity's underlying purpose and need from a public 
interest perspective (to use that same example, ``to meet the public's 
need for electric energy''). Also, while generally focusing on the 
applicant's statement, the Corps, will in all cases, exercise 
independent judgment in defining the purpose and need for the project 
from both the applicant's and the public's perspective.
    (5) Alternatives. See 40 CFR 1502.14. The Corps is neither an 
opponent nor a proponent of the applicant's proposal; therefore, the 
applicant's final proposal will be identified as the ``applicant's 
preferred alternative'' in the final EIS. Decision options available to 
the district engineer, which embrace all of the applicant's 
alternatives, are issue the permit, issue with modifications or 
conditions or deny the permit.
    (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.

[[Page 444]]

    (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) Affected Environment. See Ref. 40 CFR 1502.15.
    (7) Environmental Consequences. See Ref. 40 CFR 1502.16.
    (8) List of Preparers. See Ref. 40 CFR 1502.17.
    (9) Public Involvement. This section should list the dates and 
nature of all public notices, scoping meetings and public hearings and 
include a list of all parties notified.
    (10) Appendices. See 40 CFR 1502.18. Appendices should be used to 
the maximum extent practicable to minimize the length of the main text 
of the EIS. Appendices normally should not be circulated with every copy 
of the EIS, but appropriate appendices should be provided routinely to 
parties with special interest and expertise in the particular subject.
    (11) Index. The Index of an EIS, at the end of the document, should 
be designed to provide for easy reference to items discussed in the main 
text of the EIS.
    10. Notice of Intent. The district engineer shall follow the 
guidance in 33 CFR part 230, Appendix C in preparing a notice of intent 
to prepare a draft EIS for publication in the Federal Register.
    11. Public Hearing. If a public hearing is to be held pursuant to 33 
CFR part 327 for a permit application requiring an EIS, the actions 
analyzed by the draft EIS should be considered at the public hearing. 
The district engineer should make the draft EIS available to the public 
at least 15 days in advance of the hearing. If a hearing request is 
received from another agency having jurisdiction as provided in 40 CFR 
1506.6(c)(2), the district engineer should coordinate a joint hearing 
with that agency whenever appropriate.
    12. Organization and Content of Final EIS. The organization and 
content of the final EIS including the abbreviated final EIS procedures 
shall follow the guidance in 33 CFR 230.14(a).
    13. Comments Received on the Final EIS. For permit cases to be 
decided at the district level, the district engineer should consider all 
incoming comments and provide responses when substantive issues are 
raised which have not been addressed in the final EIS. For permit cases 
decided at higher authority, the district engineer shall forward the 
final EIS comment letters together with appropriate responses to higher 
authority along with the case. In the case of a letter recommending a 
referral under 40 CFR part 1504, the district engineer will follow the 
guidance in paragraph 19 of this appendix.
    14. EIS Supplement. See 33 CFR 230.13(b).
    15. Filing Requirements. See 40 CFR 1506.9. Five (5) copies of EISs 
shall be sent to Director, Office of Federal Activities (A-104), 
Environmental Protection Agency, 401 M Street SW., Washington, DC 20460. 
The official review periods commence with EPA's publication of a notice 
of availability of the draft or final EISs in the Federal Register. 
Generally, this notice appears on Friday of each week. At the same time 
they are mailed to EPA for filing, one copy of each draft or final EIS, 
or EIS supplement should be mailed to HQUSACE (CECW-OR) WASH DC 20314-
1000.
    16. Timing. 40 CFR 1506.10 describes the timing of an agency action 
when an EIS is involved.
    17. Expedited Filing. 40 CFR 1506.10 provides information on 
allowable time reductions and time extensions associated with the EIS 
process. The district engineer will provide the necessary information 
and facts to HQUSACE (CECW-RE) WASH DC 20314-1000 (with copy to CECW-OR) 
for consultation with EPA for a reduction in the prescribed review 
periods.
    18. Record of Decision. In those cases involving an EIS, the 
statement of findings will be called the record of decision and shall 
incorporate the requirements of 40 CFR 1505.2. The record of decision is 
not to be included when filing a final EIS and may not be signed until 
30 days after the notice of availability of the final EIS is published 
in the Federal Register. To avoid duplication, the record of decision 
may reference the EIS.
    19. Predecision Referrals by Other Agencies. See 40 CFR part 1504. 
The decisionmaker should notify any potential referring Federal agency 
and CEQ of a final decision if it is contrary to the announced position 
of a potential referring agency. (This pertains to a

[[Page 445]]

NEPA referral, not a 404(q) referral under the Clean Water Act. The 
procedures for a 404(q) referral are outlined in the 404(q) Memoranda of 
Agreement. The potential referring agency will then have 25 calendar 
days to refer the case to CEQ under 40 CFR part 1504. Referrals will be 
transmitted through division to CECW-RE for further guidance with an 
information copy to CECW-OR.
    20. Review of Other Agencies' EISs. District engineers should 
provide comments directly to the requesting agency specifically related 
to the Corps jurisdiction by law or special expertise as defined in 40 
CFR 1508.15 and 1508.26 and identified in Appendix II of CEQ regulations 
(49 FR 49750, December 21, 1984). If the district engineer determines 
that another agency's draft EIS which involves a Corps permit action is 
inadequate with respect to the Corps permit action, the district 
engineer should attempt to resolve the differences concerning the Corps 
permit action prior to the filing of the final EIS by the other agency. 
If the district engineer finds that the final EIS is inadequate with 
respect to the Corps permit action, the district engineer should 
incorporate the other agency's final EIS or a portion thereof and 
prepare an appropriate and adequate NEPA document to address the Corps 
involvement with the proposed action. See 33 CFR 230.21 for guidance. 
The agency which prepared the original EIS should be given the 
opportunity to provide additional information to that contained in the 
EIS in order for the Corps to have all relevant information available 
for a sound decision on the permit.
    21. Monitoring. Monitoring compliance with permit requirements 
should be carried out in accordance with 33 CFR 230.15 and with 33 CFR 
part 325.

[53 FR 3134, Feb. 3, 1988]



 Sec. Appendix C to Part 325--Procedures for the Protection of Historic 
                               Properties

 1. Definitions
 2. General Policy
 3. Initial Review
 4. Public Notice
 5. Investigations
 6. Eligibility Determinations
 7. Assessing Effects
 8. Consultation
 9. ACHP Review and Comment
10. District Engineer Decision
11. Historic Properties Discovered During Construction
12. Regional General Permits
13. Nationwide General Permits
14. Emergency Procedures
15. Criteria of Effect and Adverse Effect

                             1. Definitions

    a. Designated historic property is a historic property listed in the 
National Register of Historic Places (National Register) or which has 
been determined eligible for listing in the National Register pursuant 
to 36 CFR part 63. A historic property that, in both the opinion of the 
SHPO and the district engineer, appears to meet the criteria for 
inclusion in the National Register will be treated as a ``designated 
historic property.''
    b. Historic property is a property which has historical importance 
to any person or group. This term includes the types of districts, 
sites, buildings, structures or objects eligible for inclusion, but not 
necessarily listed, on the National Register.
    c. Certified local government is a local government certified in 
accordance with section 101(c)(1) of the NHPA (See 36 CFR part 61).
    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.

[[Page 446]]

    (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 can be undertaken without Corps 
authorization, if they are designed to avoid affecting the waters of the 
United States. Corps authorization is sought because it is less 
expensive or more convenient for the applicant to do so than to avoid 
affecting the waters of the United States. Thus the ``but for'' test is 
not met by the entire project right-of-way. The ``same undertaking'' and 
``integral relationship'' tests are met, but this is not sufficient to 
make the whole right-of-way part of the permit area. Typically, however, 
some portion of the right-of-way, approaching the crossing, would not 
occur in its given configuration ``but for'' the authorized activity. 
This portion of the right-of-way, whose location is determined by the 
location of the crossing, meets all three tests and hence is part of the 
permit area.
    (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.

                            2. General Policy

    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

[[Page 447]]

historic properties at the earliest practical time in the planning 
process.
    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.

                            3. Initial Review

    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.

                            4. Public Notice.

    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

[[Page 448]]

the Freedom of Information Act (Section 304 of the NHPA and Section 9 of 
ARPA). If the district engineer or the Secretary of the Interior 
determine that the disclosure of information to the public relating to 
the location or character of sensitive historic resources may create a 
substantial risk of harm, theft, or destruction to such resources or to 
the area or place where such resources are located, then the district 
engineer will not include such information in the public notice nor 
otherwise make it available to the public. Therefore, the district 
engineer will furnish such information to the ACHP and the SHPO by 
separate notice.

                            5. Investigations

    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.

                      6. Eligibility determinations

    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.

[[Page 449]]

    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.

                          7. Assessing Effects

    a. Applying the Criteria of Effect and Adverse Effect. During the 
public notice comment period or within 30 days after the determination 
or discovery of a designated history property the district engineer will 
coordinate with the SHPO and determine if there is an effect and if so, 
assess the effect. (See Paragraph 15.)
    b. No Effect. If the SHPO concurs with the district engineer's 
determination of no effect or fails to respond within 15 days of the 
district engineer's notice to the SHPO of a no effect determination, 
then the district engineer may proceed with the final decision.
    c. No Adverse Effect. If the district engineer, based on his 
coordination with the SHPO (see paragraph 7.a.), determines that an 
effect is not adverse, the district engineer will notify the ACHP and 
request the comments of the ACHP. The district engineer's notice will 
include a description of both the project and the designated historic 
property; both the district engineer's and the SHPO's views, as well as 
any views of affected local governments, Indian tribes, Federal 
agencies, and the public, on the no adverse effect determination; and a 
description of the efforts to identify historic properties and solicit 
the views of those above. The district engineer may conclude the permit 
decision if the ACHP does not object to the district engineer's 
determination or if the district engineer accepts any conditions 
requested by the ACHP for a no adverse effect determination, or the ACHP 
fails to respond within 30 days of the district engineer's notice to the 
ACHP. If the ACHP objects or the district engineer does not accept the 
conditions proposed by the ACHP, then the effect shall be considered as 
adverse.
    d. Adverse Effect. If an adverse effect on designated historic 
properties is found, the district engineer will notify the ACHP and 
coordinate with the SHPO to seek ways to avoid or reduce effects on 
designated historic properties. Either the district engineer or the SHPO 
may request the ACHP to participate. At its discretion, the ACHP may 
participate without such a request. The district engineer, the SHPO or 
the ACHP may state that further coordination will not be productive. The 
district engineer shall then request the ACHP's comments in accordance 
with paragraph 9.

                             8. Consultation

    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.

                       9. ACHP Review and Comment

    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

[[Page 450]]

specifications (such as, dimensions of structures, fills, or 
excavations; types of materials and quantity of material);
    (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.

                     10. District Engineer Decision

    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.

         11. Historic Properties Discovered During Construction

    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.

                      12. Regional General Permits

    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.

                      13. Nationwide General Permit

    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

[[Page 451]]

SHPO the opportunity to comment in accordance with the provisions of 
this Appendix. Once these provisions have been satisfied, the district 
engineer may notify the general permittee that the activity is 
authorized including any special activity specific conditions identified 
or that an individual permit is required.

                        14. Emergency Procedures

    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.

                15. Criteria of Effect and Adverse Effect

    (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.

[55 FR 27003, June 29, 1990]



PART 326_ENFORCEMENT--Table of Contents



Sec.
326.1 Purpose.
326.2 Policy.
326.3 Unauthorized activities.
326.4 Supervision of authorized activities.
326.5 Legal action.
326.6 Class I administrative penalties.

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413; 33 
U.S.C. 2104; 33 U.S.C. 1319; 28 U.S.C. 2461 note.

    Source: 51 FR 41246, Nov. 13, 1986, unless otherwise noted.



Sec. 326.1  Purpose.

    This part prescribes enforcement policies (Sec. 326.2) and 
procedures applicable to activities performed without required 
Department of the Army permits (Sec. 326.3) and to activities not in 
compliance with the terms and conditions of issued Department of the 
Army permits (Sec. 326.4). Procedures for initiating legal actions are 
prescribed in Sec. 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.



Sec. 326.2  Policy.

    Enforcement, as part of the overall regulatory program of the Corps, 
is based on a policy of regulating the waters of the United States by 
discouraging activities that have not been properly authorized and by 
requiring corrective measures, where appropriate, to ensure those waters 
are not misused and to maintain the integrity of the program. There are 
several methods discussed in the remainder of

[[Page 452]]

this part which can be used either singly or in combination to implement 
this policy, while making the most effective use of the enforcement 
resources available. As EPA has independent enforcement authority under 
the Clean Water Act for unauthorized discharges, the district engineer 
should normally coordinate with EPA to determine the most effective and 
efficient manner by which resolution of a section 404 violation can be 
achieved.



Sec. 326.3  Unauthorized activities.

    (a) Surveillance. To detect unauthorized activities requiring 
permits, district engineers should make the best use of all available 
resources. Corps employees; members of the public; and representatives 
of state, local, and other Federal agencies should be encouraged to 
report suspected violations. Additionally, district engineers should 
consider developing joint surveillance procedures with Federal, state, 
or local agencies having similar regulatory responsibilities, special 
expertise, or interest.
    (b) Initial investigation. District engineers should take steps to 
investigate suspected violations in a timely manner. The scheduling of 
investigations will reflect the nature and location of the suspected 
violations, the anticipated impacts, and the most effective use of 
inspection resources available to the district engineer. These 
investigations should confirm whether a violation exists, and if so, 
will identify the extent of the violation and the parties responsible.
    (c) Formal notifications to parties responsible for violations. Once 
the district engineer has determined that a violation exists, he should 
take appropriate steps to notify the responsible parties.
    (1) If the violation involves a project that is not complete, the 
district engineer's notification should be in the form of a cease and 
desist order prohibiting any further work pending resolution of the 
violation in accordance with the procedures contained in this part. See 
paragraph (c)(4) of this section for exception to this procedure.
    (2) If the violation involves a completed project, a cease and 
desist order should not be necessary. However, the district engineer 
should still notify the responsible parties of the violation.
    (3) All notifications, pursuant to paragraphs (c) (1) and (2) of 
this section, should identify the relevant statutory authorities, 
indicate potential enforcement consequences, and direct the responsible 
parties to submit any additional information that the district engineer 
may need at that time to determine what course of action he should 
pursue in resolving the violation; further information may be requested, 
as needed, in the future.
    (4) In situations which would, 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) Initial corrective measures. (1) The district engineer should, 
in appropriate cases, depending upon the nature of the impacts 
associated with the unauthorized, completed work, solicit the views of 
the Environmental Protection Agency; the U.S. Fish and Wildlife Service; 
the National Marine Fisheries Service, and other Federal, state, and 
local agencies to facilitate his decision on what initial corrective 
measures are

[[Page 453]]

required. If the district engineer determines as a result of his 
investigation, coordination, and preliminary evaluation that initial 
corrective measures are required, he should issue an appropriate order 
to the parties responsible for the violation. In determining what 
initial corrective measures are required, the district engineer should 
consider whether serious jeopardy to life, property, or important public 
resources (see 33 CFR 320.4) may be reasonably anticipated to occur 
during the period required for the ultimate resolution of the violation. 
In his order, the district engineer will specify the initial corrective 
measures required and the time limits for completing this work. In 
unusual cases where initial corrective measures substantially eliminate 
all current and future detrimental impacts resulting from the 
unauthorized work, further enforcement actions should normally be 
unnecessary. For all other cases, the district engineer's order should 
normally specify that compliance with the order will not foreclose the 
Government's options to initiate appropriate legal action or to later 
require the submission of a permit application.
    (2) An order requiring initial corrective measures that resolve the 
violation may also be issued by the district engineer in situations 
where the acceptance or processing of an after-the-fact permit 
application is prohibited or considered not appropriate pursuant to 
Sec. 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) After-the-fact permit applications. (1) Following the completion 
of any required initial corrective measures, the district engineer will 
accept an after-the-fact permit application unless he determines that 
one of the exceptions listed in subparagraphs i-iv below is applicable. 
Applications for after-the-fact permits will be processed in accordance 
with the applicable procedures in 33 CFR parts 320 through 325. 
Situations where no permit application will be processed or where the 
acceptance of a permit application must be deferred are as follows:
    (i) No permit application will be processed when restoration of the 
waters of the United States has been completed that eliminates 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 (Sec. 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-

[[Page 454]]

the-fact permit application, and/or any administrative appeal. Such 
agreement will state that, in exchange for the Corps acceptance of any 
after-the-fact permit application and/or any administrative appeal 
associated with the unauthorized activity, the responsible party agrees 
that the statute of limitations will be suspended (i.e., tolled) until 
one year after the final Corps decision on the after-the-fact permit 
application or, if there is an administrative appeal, one year after the 
final Corps decision as defined at 33 CFR 331.10, whichever date is 
later.
    (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 Sec. 326.5.
    (f) Combining steps. The procedural steps in this section are in the 
normal sequence. However, these regulations do not prohibit the 
streamlining of the enforcement process through the combining of steps.
    (g) Coordination with EPA. In all cases where the district engineer 
is aware that EPA is considering enforcement action, he should 
coordinate with EPA to attempt to avoid conflict or duplication. Such 
coordination applies to interim protective measures and after-the-fact 
permitting, as well as to appropriate legal enforcement actions.

[51 FR 41246, Nov. 13, 1986, as amended at 64 FR 11714, Mar. 9, 1999; 65 
FR 16493, Mar. 28, 2000]



Sec. 326.4  Supervision of authorized activities.

    (a) Inspections. District engineers will, at their discretion, take 
reasonable measures to inspect permitted activities, as required, to 
ensure that these activities comply with specified terms and conditions. 
To supplement inspections by their enforcement personnel, district 
engineers should encourage their other personnel; members of the public; 
and interested state, local, and other Federal agency representatives to 
report suspected violations of Corps permits. To facilitate inspections, 
district engineers will, in appropriate cases, require that copies of 
ENG Form 4336 be posted conspicuously at the sites of authorized 
activities and will make available to all interested persons information 
on the terms and conditions of issued permits. The U.S. Coast Guard will 
inspect permitted ocean dumping activities pursuant to section 107(c) of 
the Marine Protection, Research and Sanctuaries Act of 1972, as amended.
    (b) Inspection limitations. Section 326.4 does not establish a non-
discretionary duty to inspect permitted activities for safety, sound 
engineering practices, or interference with other permitted or 
unpermitted structures or uses in the area. Further, the regulations 
implementing the Corps regulatory program do not establish a non-
discretionary duty to inspect permitted activities for any other 
purpose.
    (c) Inspection expenses. The expenses incurred in connection with 
the inspection of permitted activities will normally be paid by the 
Federal Government unless daily supervision or other unusual expenses 
are involved. In such unusual cases, the district engineer may condition 
permits to require permittees to pay inspection expenses pursuant to the 
authority contained in section 9701 of Pub L. 97-258 (33 U.S.C. 9701). 
The collection and disposition of inspection expense funds obtained from

[[Page 455]]

applicants will be administered in accordance with the relevant Corps 
regulations governing such funds.
    (d) Non-compliance. If a district engineer determines that a 
permittee has violated the terms or conditions of the permit and that 
the violation is sufficiently serious to require an enforcement action, 
then he should, unless at his discretion he deems it inappropriate: (1) 
First contact the permittee;
    (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 Sec. 326.5.



Sec. 326.5  Legal action.

    (a) General. For cases the district engineer determines to be 
appropriate, he will recommend criminal or civil actions to obtain 
penalties for violations, compliance with the orders and directives he 
has issued pursuant to Sec. Sec. 326.3 and 326.4, or other relief as 
appropriate. Appropriate cases for criminal or civil action include, but 
are not limited to, violations which, in the district engineer's 
opinion, are willful, repeated, flagrant, or of substantial impact.
    (b) Preparation of case. If the district engineer determines that 
legal action is appropriate, he will prepare a litigation report or such 
other documentation that he and the local U.S. Attorney have mutually 
agreed to, which contains an analysis of the information obtained during 
his investigation of the violation or during the processing of a permit 
application and a recommendation of appropriate legal action. The 
litigation report or alternative documentation will also recommend what, 
if any, restoration or mitigative measures are required and will provide 
the rationale for any such recommendation.
    (c) Referral to the local U.S. Attorney. Except as provided in 
paragraph (d) of this section, district engineers are authorized to 
refer cases directly to the U.S. Attorney. Because of the unique legal 
system in the Trust Territories, all cases over which the Department of 
Justice has no authority will be referred to the Attorney General for 
the trust Territories. Information copies of all letters of referral 
shall be forwarded to the appropriate division counsel, the Office, 
Chief of Engineers, ATTN: DAEN-CCK, the Office of the Assistant 
Secretary of the Army (Civil Works), and the Chief of the Environmental 
Defense Section, Lands and Natural Resources Division, U.S. Department 
of Justice.
    (d) Referral to the Office, Chief of Engineers. District engineers 
will forward litigation reports with recommendations through division 
offices to the Office, Chief of Engineers, ATTN: DAEN-CCK, for all cases 
that qualify under the following criteria:
    (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) Legal option not available. In cases where the local U.S. 
Attorney declines to take legal action, it would be appropriate for the 
district engineer to close

[[Page 456]]

the enforcement case record unless he believes that the case warrants 
special attention. In that situation, he is encouraged to forward a 
litigation report to the Office, Chief of Engineers, ATTN: DAEN-CCK, for 
direct coordination through the Office of the Assistant Secretary of the 
Army (Civil Works) with the Department of Justice. Further, the case 
record should not be closed if the district engineer anticipates that 
further administrative enforcement actions, taken in accordance with the 
procedures prescribed in this part, will identify remedial measures 
which, if not complied with by the parties responsible for the 
violation, will result in appropriate legal action at a later date.



Sec. 326.6  Class I administrative penalties.

    (a) Introduction. (1) This section sets forth procedures for 
initiation and administration of Class I administrative penalty orders 
under section 309(g) of the Clean Water Act, and section 205 of the 
National Fishing Enhancement Act. Under section 309(g)(2)(A) of the 
Clean Water Act, Class I civil penalties may not exceed $11,000 per 
violation, except that the maximum amount of any Class I civil penalty 
shall not exceed $27,500. Under section 205(e) of the National Fishing 
Enhancement Act, penalties for violations of permits issued in 
accordance with that Act shall not exceed $11,000 for each violation.
    (2) These procedures supplement the existing enforcement procedures 
at Sec. Sec. 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 Sec. 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 Sec. 326.4.
    (3) Definitions. For the purposes of this section of the regulation:
    (i) Corps means the Secretary of the Army, acting through the U.S. 
Army Corps of Engineers, with respect to the matters covered by this 
regulation.
    (ii) Interested person outside the Corps includes the permittee, any 
person who filed written comments on the proposed penalty order, and any 
other person not employed by the Corps with an interest in the subject 
of proposed penalty order, and any attorney of record for those persons.
    (iii) Interested Corps staff means those Corps employees, whether 
temporary or permanent, who may investigate, litigate, or present 
evidence, arguments, or the position of the Corps in the hearing or who 
participated in the preparation, investigation or deliberations 
concerning the proposed penalty order, including any employee, 
contractor, or consultant who may be called as a witness.
    (iv) Permittee means the person to whom the Corps issued a permit 
under section 404 of the Clean Water Act, (or section 10 of the Rivers 
and Harbors Act for an Artificial Reef) the conditions and limitations 
of which permit have allegedly been violated.
    (v) Presiding Officer means a member of Corps Counsel staff or any 
other qualified person designated by the District Engineer (DE), to hold 
a hearing on a proposed administrative civil penalty order (hereinafter 
referred to as ``proposed order'') in accordance with the rules set 
forth in this regulation and to make such recommendations to the DE as 
prescribed in this regulation.
    (vi) Ex parte communication means any communication, written or 
oral, relating to the merits of the proceeding, between the Presiding 
Officer and an interested person outside the Corps or the interested 
Corps staff, which was not originally filed or stated in the 
administrative record or in the hearing. Such communication is not an 
``ex parte communication'' if all parties have received prior written 
notice of the proposed communication and have been given the opportunity 
to participate herein.
    (b) Initiation of action. (1) If the DE or a delegatee of the DE 
finds that a recipient of a Department of the Army permit (hereinafter 
referred to as ``the permittee'') has violated any permit condition or 
limitation contained in that permit, the DE is authorized to

[[Page 457]]

prepare and process a proposed order in accordance with these 
procedures. The proposed order shall specify the amount of the penalty 
which the permittee may be assessed and shall describe with reasonable 
specificity the nature of the violation.
    (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 Sec. 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 Sec. 326.6(d).
    (c) Public notice and comment. (1) At the same time the permittee 
and the appropriate state agency are provided actual notice, the DE 
shall provide public notice of and a reasonable opportunity to comment 
on the DE's proposal to issue an administrative civil penalty against 
the permittee.
    (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

[[Page 458]]

the commenter in support of the commenter's petition for a hearing is 
material and was not considered when the order was issued. If the DE 
denies a hearing, the DE shall provide notice to the commenter filing 
the petition for the hearing, together with the reasons for the denial. 
Notice of the denial and the reasons for the denial shall be published 
in the Federal Register by the DE.
    (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 Sec. 
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 Sec. 
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 Sec. 
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) State consultation. (1) At the same time that the permittee is 
provided actual notice, the DE shall send the appropriate state agency 
written notice of proposal to issue an administrative civil penalty 
order. This notice will include the same information required pursuant 
to Sec. 326.6(c)(5).
    (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 Sec. 326.6(c).
    (e) Availability of the administrative record. (1) At any time after 
the public notice of a proposed penalty order is given under Sec. 
326.6(c), the DE shall make available the administrative record at 
reasonable times for inspection and copying by any interested person, 
subject to provisions of law restricting the public disclosure of 
confidential information. Any person requesting copies of the 
administrative record or portions of the administrative record may be 
required by the DE to pay reasonable charges for reproducing the 
information requested.
    (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;

[[Page 459]]

    (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) Counsel. A permittee may be represented at all stages of the 
proceeding by counsel. After receiving notification that a permittee or 
any other party or commenter is represented by counsel, the Presiding 
Officer and DE shall direct all further communications to that counsel.
    (g) Opportunity for hearing. (1) The permittee may request a hearing 
and may provide written comments on the proposed administrative penalty 
order at any time within 30 calendar days after receipt of the notice 
set forth in Sec. 326.6(b)(2). The permittee must request the hearing 
in writing, specifying in summary form the factual and legal issues 
which are in dispute and the specific factual and legal grounds for the 
permittee's defense.
    (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 Sec. 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) Hearing. (1) Hearings shall afford permittees with an 
opportunity to present evidence on alleged violations and shall be 
informal, adjudicatory hearings and shall not be subject to section 554 
or 556 of the Administrative Procedure Act. Permittees may present 
evidence either orally or in written form in accordance with the hearing 
procedures specified in Sec. 326.6(i).
    (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 Sec. 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 Sec. 
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) Ex parte communications. (i) No interested person outside the 
Corps or member of the interested Corps staff shall make, or knowingly 
cause to be made, any ex parte communication on the merits of the 
proceeding.
    (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.

[[Page 460]]

    (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) Hearing procedures. (1) The Presiding Officer shall conduct a 
fair and impartial proceeding in which the participants are given a 
reasonable opportunity to present evidence.
    (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

[[Page 461]]

taking official notice of a matter, the Presiding Officer shall give the 
Corps and the permittee an opportunity to show why such notice should 
not be taken. In any case in which official notice is taken, the 
Presiding Officer shall place a written statement of the matters as to 
which such notice was taken in the record, including the basis for such 
notice and a statement that the Corps or permittee consented to such 
notice being taken or a summary of the objections of the Corps or the 
permittee.
    (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) The decision. (1) Within a reasonable time following the close 
of the hearing and receipt of any statements following the hearing and 
after consultation with the state pursuant to Sec. 326.6(d), the 
Presiding Officer shall forward a recommended decision accompanied by a 
written statement of reasons to the DE. The decision shall recommend 
that the DE withdraw, issue, or modify and issue the proposed order as a 
final order. The recommended decision shall be based on a preponderance 
of the evidence in the administrative record. If the Presiding Officer 
finds that there is not a preponderance of evidence in the record to 
support the penalty or the amount of the penalty in a proposed order, 
the Presiding Officer may recommend that the order be withdrawn or 
modified and then issued on terms that are supported by a preponderance 
of evidence on the record. The Presiding Officer also shall make the 
complete administrative record available to the DE for review.
    (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 Sec. 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 Sec. 
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

[[Page 462]]

issuance, or withdrawal of the proposed order to every person who 
submitted written comments on the proposed order.
    (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) Effective date of order. (1) Any final order issued under this 
subpart shall become effective 30 calendar days following its issuance 
unless an appeal is taken pursuant to section 309(g)(8) of the Clean 
Water Act, or in the case where no hearing was held prior to the final 
order, and a petition for hearing is filed by a prior commenter.
    (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 Federal Register, 
notice of, and the reasons for, such denial.
    (l) Judicial review. (1) Any permittee against whom a final order 
assessing a civil penalty under these regulations or any person who 
provided written comments on a proposed order may obtain judicial review 
of the final order.
    (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.

[54 FR 50709, Dec. 8, 1989, as amended at 69 FR 35518, June 25, 2004]



PART 327_PUBLIC HEARINGS--Table of Contents



Sec.
327.1 Purpose.
327.2 Applicability.
327.3 Definitions.
327.4 General policies.
327.5 Presiding officer.
327.6 Legal adviser.
327.7 Representation.
327.8 Conduct of hearings.
327.9 Filing of the transcript of the public hearing.
327.10 Authority of the presiding officer.
327.11 Public notice.

    Authority: 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 51 FR 41249, Nov. 13, 1986, unless otherwise noted.



Sec. 327.1  Purpose.

    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 Sec. 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).



Sec. 327.2  Applicability.

    This regulation is applicable to all divisions and districts 
responsible for the conduct of public hearings.



Sec. 327.3  Definitions.

    (a) Public hearing means a public proceeding conducted for the 
purpose of acquiring information or evidence which will be considered in 
evaluating a proposed DA permit action, or Federal project, and which 
affords the public an opportunity to present their views, opinions, and 
information on such permit actions or Federal projects.
    (b) Permit action, as used herein means the evaluation of and 
decision on an application for a DA permit pursuant to sections 9 or 10 
of the Rivers and Harbors Act of 1899, section 404 of

[[Page 463]]

the Clean Water Act, or section 103 of the MPRSA, as amended, or the 
modification, suspension or revocation of any DA permit (see 33 CFR 
325.7).
    (c) Federal project means a Corps of Engineers project (work or 
activity of any nature for any purpose which is to be performed by the 
Chief of Engineers pursuant to Congressional authorizations) involving 
the discharge of dredged or fill material into waters of the United 
States or the transportation of dredged material for the purpose of 
dumping it in ocean waters subject to section 404 of the Clean Water 
Act, or section 103 of the MPRSA.



Sec. 327.4  General policies.

    (a) A public hearing will be held in connection with the 
consideration of a DA permit application or a Federal project whenever a 
public hearing is needed for making a decision on such permit 
application or Federal project. In addition, a public hearing may be 
held when it is proposed to modify or revoke a permit. (See 33 CFR 
325.7).
    (b) Unless the public notice specifies that a public hearing will be 
held, any person may request, in writing, within the comment period 
specified in the public notice on a DA permit application or on a 
Federal project, that a public hearing be held to consider the material 
matters at issue in the permit application or with respect to Federal 
project. Upon receipt of any such request, stating with particularity 
the reasons for holding a public hearing, the district engineer may 
expeditiously attempt to resolve the issues informally. Otherwise, he 
shall promptly set a time and place for the public hearing, and give due 
notice thereof, as prescribed in Sec. 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.



Sec. 327.5  Presiding officer.

    (a) The district engineer, in whose district a matter arises, shall 
normally serve as the presiding officer. When the district engineer is 
unable to serve, he may designate the deputy district engineer or other 
qualified person as presiding officer. In cases of unusual interest, the 
Chief of Engineers or the division engineer may appoint such person as 
he deems appropriate to serve as the presiding officer.
    (b) The presiding officer shall include in the administrative record 
of the permit action the request or requests for the hearing and any 
data or material submitted in justification thereof, materials submitted 
in opposition to or in support of the proposed action, the hearing 
transcript, and such other material as may be relevant or pertinent to 
the subject matter of the hearing. The administrative record shall be 
available for public inspection with the exception of material exempt 
from disclosure under the Freedom of Information Act.



Sec. 327.6  Legal adviser.

    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.



Sec. 327.7  Representation.

    At the public hearing, any person may appear on his own behalf, or 
may be represented by counsel, or by other representatives.



Sec. 327.8  Conduct of hearings.

    (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

[[Page 464]]

be permitted to submit oral or written statements concerning the subject 
matter of the hearing, to call witnesses who may present oral or written 
statements, and to present recommendations as to an appropriate 
decision. Any person may present written statements for the hearing 
record prior to the time the hearing record is closed to public 
submissions, and may present proposed findings and recommendations. The 
presiding officer shall afford participants a reasonable opportunity for 
rebuttal.
    (c) The presiding officer shall have discretion to establish 
reasonable limits upon the time allowed for statements of witnesses, for 
arguments of parties or their counsel or representatives, and upon the 
number of rebuttals.
    (d) Cross-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.



Sec. 327.9  Filing of the transcript of the public hearing.

    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.



Sec. 327.10  Authority of the presiding officer.

    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.



Sec. 327.11  Public notice.

    (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

[[Page 465]]

for the hearing. Notice shall also be given to all Federal agencies 
affected by the proposed action, and to state and local agencies and 
other parties having an interest in the subject matter of the hearing. 
Notice shall be sent to all persons requesting a hearing and shall be 
posted in appropriate government buildings and provided to newspapers of 
general circulation for publication. 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.
    (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.



PART 328_DEFINITION OF WATERS OF THE UNITED STATES--Table of Contents



Sec.
328.1 Purpose.
328.2 General scope.
328.3 Definitions.
328.4 Limits of jurisdiction.
328.5 Changes in limits of waters of the United States.

    Authority: 33 U.S.C. 1344.

    Source: 51 FR 41250, Nov. 13, 1986, unless otherwise noted.



Sec. 328.1  Purpose.

    This section defines the term ``waters of the United States'' as it 
applies to the jurisdictional limits of the authority of the Corps of 
Engineers under the Clean Water Act. It prescribes the policy, practice, 
and procedures to be used in determining the extent of jurisdiction of 
the Corps of Engineers concerning ``waters of the United States.'' The 
terminology used by section 404 of the Clean Water Act includes 
``navigable waters'' which is defined at section 502(7) of the Act as 
``waters of the United States including the territorial seas.'' To 
provide clarity and to avoid 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).



Sec. 328.2  General scope.

    Waters of the United States include those waters listed in Sec. 
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).



Sec. 328.3  Definitions.

    For the purpose of this regulation these terms are defined as 
follows:
    (a) The term waters of the United States means
    (1) All waters which are currently used, or were used in the past, 
or may be susceptible to use in interstate or foreign commerce, 
including all waters which are subject to the ebb and flow of the tide;
    (2) All interstate waters including interstate wetlands;
    (3) All other waters such as intrastate lakes, rivers, streams 
(including intermittent streams), mudflats, sandflats, wetlands, 
sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, 
the use, degradation or destruction of which could affect interstate or 
foreign commerce including any such waters:
    (i) Which are or could be used by interstate or foreign travelers 
for recreational or other purposes; or
    (ii) From which fish or shellfish are or could be taken and sold in 
interstate or foreign commerce; or
    (iii) Which are used or could be used for industrial purpose by 
industries in interstate commerce;
    (4) All impoundments of waters otherwise defined as waters of the 
United States under the definition;
    (5) Tributaries of waters identified in paragraphs (a) (1) 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

[[Page 466]]

an area's status as prior converted cropland by any other Federal 
agency, for the purposes of the Clean Water Act, the final authority 
regarding Clean Water Act jurisdiction remains with EPA.

Waste treatment systems, including treatment ponds or lagoons designed 
to meet the requirements of CWA (other than cooling ponds as defined in 
40 CFR 423.11(m) which also meet the criteria of this definition) are 
not waters of the United States.
    (b) The term wetlands means those areas that are inundated or 
saturated by surface or ground water at a frequency and duration 
sufficient to support, and that under normal circumstances do support, a 
prevalence of vegetation typically adapted for life in saturated soil 
conditions. Wetlands generally include swamps, marshes, bogs, and 
similar areas.
    (c) The term adjacent means bordering, contiguous, or neighboring. 
Wetlands separated from other waters of the United States by man-made 
dikes or barriers, natural river berms, beach dunes and the like are 
``adjacent wetlands.''
    (d) The term high tide line means the line of intersection of the 
land with the water's surface at the maximum height reached by a rising 
tide. The high tide line may be determined, in the absence of actual 
data, by a line of oil or scum along shore objects, a more or less 
continuous deposit of fine shell or debris on the foreshore or berm, 
other physical markings or characteristics, vegetation lines, tidal 
gages, or other suitable means that delineate the general height reached 
by a rising tide. The line encompasses spring high tides and other high 
tides that occur with periodic frequency but does not include storm 
surges in which there is a departure from the normal or predicted reach 
of the tide due to the piling up of water against a coast by strong 
winds such as those accompanying a hurricane or other intense storm.
    (e) The term ordinary high water mark means that line on the shore 
established by the fluctuations of water and indicated by physical 
characteristics such as clear, natural line impressed on the bank, 
shelving, changes in the character of soil, destruction of terrestrial 
vegetation, the presence of litter and debris, or other appropriate 
means that consider the characteristics of the surrounding areas.
    (f) The term tidal waters means those waters that rise and fall in a 
predictable and measurable rhythm or cycle due to the gravitational 
pulls of the moon and sun. Tidal waters end where the rise and fall of 
the water surface can no longer be practically measured in a predictable 
rhythm due to masking by hydrologic, wind, or other effects.

[51 FR 41250, Nov. 13, 1986, as amended at 58 FR 45036, Aug. 25, 1993]



Sec. 328.4  Limits of jurisdiction.

    (a) Territorial Seas. The limit of jurisdiction in the territorial 
seas is measured from the baseline in a seaward direction a distance of 
three nautical miles. (See 33 CFR 329.12)
    (b) Tidal waters of the United States. The landward limits of 
jurisdiction in tidal waters:
    (1) Extends to the high tide line, or
    (2) When adjacent non-tidal waters of the United States are present, 
the jurisdiction extends to the limits identified in paragraph (c) of 
this section.
    (c) Non-tidal waters of the United States. The limits of 
jurisdiction in non-tidal waters:
    (1) In the absence of adjacent wetlands, the jurisdiction extends to 
the ordinary high water mark, or
    (2) When adjacent wetlands are present, the jurisdiction extends 
beyond the ordinary high water mark to the limit of the adjacent 
wetlands.
    (3) When the water of the United States consists only of wetlands 
the jurisdiction extends to the limit of the wetland.



Sec. 328.5  Changes in limits of waters of the United States.

    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

[[Page 467]]

some areas to become waters of the United States while siltation or a 
change in drainage may remove an area from waters of the United States. 
Man-made changes may affect the limits of waters of the United States; 
however, permanent changes should not be presumed until the particular 
circumstances have been examined and verified by the district engineer. 
Verification of changes to the lateral limits of jurisdiction may be 
obtained from the district engineer.



PART 329_DEFINITION OF NAVIGABLE WATERS OF THE UNITED STATES--
Table of Contents



Sec.
329.1 Purpose.
329.2 Applicability.
329.3 General policies.
329.4 General definition.
329.5 General scope of determination.
329.6 Interstate or foreign commerce.
329.7 Intrastate or interstate nature of waterway.
329.8 Improved or natural conditions of the waterbody.
329.9 Time at which commerce exists or determination is made.
329.10 Existence of obstructions.
329.11 Geographic and jurisdictional limits of rivers and lakes.
329.12 Geographic and jurisdictional limits of oceanic and tidal waters.
329.13 Geographic limits: Shifting boundaries.
329.14 Determination of navigability.
329.15 Inquiries regarding determinations.
329.16 Use and maintenance of lists of determinations.

    Authority: 33 U.S.C. 401 et seq.

    Source: 51 FR 41251, Nov. 13, 1986, unless otherwise noted.



Sec. 329.1  Purpose.

    This regulation defines the term ``navigable waters of the United 
States'' as it is used to define authorities of the Corps of Engineers. 
It also prescribes the policy, practice and procedure to be used in 
determining the extent of the jurisdiction of the Corps of 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.



Sec. 329.2  Applicability.

    This regulation is applicable to all Corps of Engineers districts 
and divisions having civil works responsibilities.



Sec. 329.3  General policies.

    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.



Sec. 329.4  General definition.

    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.



Sec. 329.5  General scope of determination.

    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.



Sec. 329.6  Interstate or foreign commerce.

    (a) Nature of commerce: type, means, and extent of use. The types of 
commercial use of a waterway are extremely varied and will depend on the 
character of the region, its products, and the difficulties or dangers 
of navigation. It is the waterbody's capability of use by

[[Page 468]]

the public for purposes of transportation of commerce which is the 
determinative factor, and not the time, extent or manner of that use. As 
discussed in Sec. 329.9 of this part, it is sufficient to establish the 
potential for commercial use at any past, present, or future time. Thus, 
sufficient commerce may be shown by historical use of canoes, bateaux, 
or other frontier craft, as long as that type of boat was common or 
well-suited to the place and period. Similarly, the particular items of 
commerce may vary widely, depending again on the region and period. The 
goods involved might be grain, furs, or other commerce of the time. Logs 
are a common example; transportation of logs has been a substantial and 
well-recognized commercial use of many navigable waters of the United 
States. Note, however, that the mere presence of floating logs will not 
of itself make the river ``navigable''; the logs must have been related 
to a commercial venture. Similarly, the presence of recreational craft 
may indicate that a waterbody is capable of bearing some forms of 
commerce, either presently, in the future, or at a past point in time.
    (b) Nature of commerce: interstate and intrastate. Interstate 
commerce may of course be existent on an intrastate voyage which occurs 
only between places within the same state. It is only necessary that 
goods may be brought from, or eventually be destined to go to, another 
state. (For purposes of this regulation, the term ``interstate 
commerce'' hereinafter includes ``foreign commerce'' as well.)



Sec. 329.7  Intrastate or interstate nature of waterway.

    A waterbody may be entirely within a state, yet still be capable of 
carrying interstate commerce. This is especially clear when it 
physically connects with a generally acknowledged avenue of interstate 
commerce, such as the ocean or one of the Great Lakes, and is yet wholly 
within one state. Nor is it necessary that there be a physically 
navigable 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.



Sec. 329.8  Improved or natural conditions of the waterbody.

    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) Existing improvements: artificial waterbodies. (1) An artificial 
channel may often constitute a navigable water of the United States, 
even though it has been privately developed and maintained, or passes 
through private property. The test is generally as developed above, that 
is, whether the waterbody is capable of use to transport interstate 
commerce. Canals which connect two navigable waters of the United States 
and which are used for commerce clearly fall within the test, and 
themselves become navigable. A canal open to navigable waters of the 
United States on only one end is itself navigable where it in fact 
supports interstate commerce. A canal or other artificial waterbody that 
is subject to ebb and flow of the tide is also a navigable water of the 
United States.
    (2) The artificial waterbody may be a major portion of a river or 
harbor area or merely a minor backwash, slip, or turning area (see Sec. 
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) Non-existing improvements, past or potential. A waterbody may 
also be considered navigable depending on the feasibility of use to 
transport interstate commerce after the construction of whatever 
``reasonable'' improvements

[[Page 469]]

may potentially be made. The improvement need not exist, be planned, nor 
even authorized; it is enough that potentially they could be made. What 
is a ``reasonable'' improvement is always a matter of degree; there must 
be a balance between cost and need at a time when the improvement would 
be (or would have been) useful. Thus, if an improvement were 
``reasonable'' at a time of past use, the water was therefore navigable 
in law from that time forward. The changes in engineering practices or 
the coming of new industries with varying classes of freight may affect 
the type of the improvement; those which may be entirely reasonable in a 
thickly populated, highly developed industrial region may have been 
entirely too costly for the same region in the days of the pioneers. The 
determination of reasonable improvement is often similar to the cost 
analyses presently made in Corps of Engineers studies.



Sec. 329.9  Time at which commerce exists or determination is made.

    (a) Past use. A waterbody which was navigable in its natural or 
improved state, or which was susceptible of reasonable improvement (as 
discussed in Sec. 329.8(b) of this part) retains its character as 
``navigable in law'' even though it is not presently used for commerce, 
or is presently incapable of such use because of changed conditions or 
the presence of obstructions. Nor does absence of use because of changed 
economic conditions affect the legal character of the waterbody. Once 
having attained the character of ``navigable in law,'' the Federal 
authority remains in existence, and cannot be abandoned by 
administrative officers or court action. Nor is mere inattention or 
ambiguous action by Congress an abandonment of Federal control. However, 
express statutory declarations by Congress that described portions of a 
waterbody are non-navigable, or have been abandoned, are binding upon 
the Department of the Army. Each statute must be carefully examined, 
since Congress often reserves the power to amend the Act, or assigns 
special duties of supervision and control to the Secretary of the Army 
or Chief of Engineers.
    (b) Future or potential use. Navigability may also be found in a 
waterbody's susceptibility for use in its ordinary condition or by 
reasonable improvement to transport interstate commerce. This may be 
either in its natural or improved condition, and may thus be existent 
although there has been no actual use to date. Non-use in the past 
therefore does not prevent recognition of the potential for future use.



Sec. 329.10  Existence of obstructions.

    A stream may be navigable despite the existence of falls, rapids, 
sand bars, bridges, portages, shifting currents, or similar 
obstructions. Thus, a waterway in its original condition might have had 
substantial obstructions which were overcome by frontier boats and/or 
portages, and nevertheless be a ``channel'' of commerce, even though 
boats had to be removed from the water 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.



Sec. 329.11  Geographic and jurisdictional limits of rivers and lakes.

    (a) Jurisdiction over entire bed. Federal regulatory jurisdiction, 
and powers of improvement for navigation, extend laterally to the entire 
water surface and bed of a navigable waterbody, which includes all the 
land and waters below the ordinary high water mark. Jurisdiction thus 
extends to the edge (as determined above) of all such waterbodies, even 
though portions of the waterbody may be extremely shallow, or obstructed 
by shoals, vegetation or other barriers. Marshlands and similar areas 
are thus considered navigable in law, but only so far as the area is 
subject to inundation by the ordinary high waters.
    (1) The ``ordinary high water mark'' on non-tidal rivers is the line 
on the shore established by the fluctuations of water and indicated by 
physical characteristics such as a clear, natural line impressed on the 
bank; shelving; changes in the character of soil; destruction of 
terrestrial vegetation; the

[[Page 470]]

presence of litter and debris; or other appropriate means that consider 
the characteristics of the surrounding areas.
    (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) Upper limit of navigability. The character of a river will, at 
some point along its length, change from navigable to non-navigable. 
Very often that point will be at a major fall or rapids, or other place 
where there is a marked decrease in the navigable capacity of the river. 
The upper limit will therefore often be the same point traditionally 
recognized as the head of navigation, but may, under some of the tests 
described above, be at some point yet farther upstream.



Sec. 329.12  Geographic and jurisdictional limits of oceanic and tidal waters.

    (a) Ocean and coastal waters. The navigable waters of the United 
States over which Corps of Engineers regulatory jurisdiction extends 
include all ocean and coastal waters within a zone three geographic 
(nautical) miles seaward from the baseline (The Territorial Seas). Wider 
zones are recognized for special regulatory powers exercised over the 
outer continental shelf. (See 33 CFR 322.3(b)).
    (1) Baseline defined. Generally, where the shore directly contacts 
the open sea, the line on the shore reached by the ordinary low tides 
comprises the baseline from which the distance of three geographic miles 
is measured. The baseline has significance for both domestic and 
international law and is subject to precise definitions. Special 
problems arise when offshore rocks, islands, or other bodies exist, and 
the baseline may have to be drawn seaward of such bodies.
    (2) Shoreward limit of jurisdiction. Regulatory jurisdiction in 
coastal areas extends to the line on the shore reached by the plane of 
the mean (average) high water. Where precise determination of the actual 
location of the line becomes necessary, it must be established by survey 
with reference to the available tidal datum, preferably averaged over a 
period of 18.6 years. Less precise methods, such as observation of the 
``apparent shoreline'' which is determined by reference to physical 
markings, lines of vegetation, or changes in type of vegetation, may be 
used only where an estimate is needed of the line reached by the mean 
high water.
    (b) Bays and estuaries. Regulatory jurisdiction extends to the 
entire surface and bed of all waterbodies subject to tidal action. 
Jurisdiction thus extends to the edge (as determined by paragraph (a)(2) 
of this section) of all such waterbodies, even though portions of the 
waterbody may be extremely shallow, or obstructed by shoals, vegetation, 
or other barriers. Marshlands and similar areas are thus considered 
``navigable in law,'' but only so far as the area is subject to 
inundation by the mean high waters. The relevant test is therefore the 
presence of the mean high tidal waters, and not the general test 
described above, which generally applies to inland rivers and lakes.



Sec. 329.13  Geographic limits: Shifting boundaries.

    Permanent changes of the shoreline configuration result in similar 
alterations of the boundaries of the navigable waters of the United 
States. Thus, gradual changes which are due to natural causes and are 
perceptible only over some period of time constitute changes in the bed 
of a waterbody which also change the shoreline boundaries of the 
navigable waters of the United States. However, an area will remain 
``navigable in law,'' even though no longer covered with water, whenever 
the change has occurred suddenly, or was caused by artificial forces 
intended to produce that change. For example, shifting sand bars within 
a river or estuary remain part of the navigable water of the United 
States, regardless that they may be dry at a particular point in time.



Sec. 329.14  Determination of navigability.

    (a) Effect on determinations. Although conclusive determinations of 
navigability can be made only by federal Courts, those made by federal 
agencies

[[Page 471]]

are nevertheless accorded substantial weight by the courts. It is 
therefore necessary that when jurisdictional questions arise, district 
personnel carefully investigate those waters which may be subject to 
Federal regulatory jurisdiction under guidelines set out above, as the 
resulting determination may have substantial impact upon a judicial 
body. Official determinations by an agency made in the past can be 
revised or reversed as necessary to reflect changed rules or 
interpretations of the law.
    (b) Procedures of determination. A determination whether a waterbody 
is a navigable water of the United States will be made by the division 
engineer, and will be based on a report of findings prepared at the 
district level in accordance with the criteria set out in this 
regulation. Each report of findings will be prepared by the district 
engineer, accompanied by an opinion of the district counsel, and 
forwarded to the division engineer for final determination. Each report 
of findings will be based substantially on applicable portions of the 
format in paragraph (c) of this section.
    (c) Suggested format of report of findings:
    (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:



Sec. 329.15  Inquiries regarding determinations.

    (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 navigability of specific portions of waterbodies 
covered by these determinations may be answered as follows:
    This Department, in the administration of the laws enacted by 
Congress for the protection and preservation of 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 jurisdiction of the Corps of 
Engineers

[[Page 472]]

can be answered only after a determination whether (1) the waters are 
navigable waters of the United States or
    (2) If not navigable, whether the proposed type of activity may 
nevertheless so affect the navigable waters of the United States that 
the assertion of regulatory jurisdiction is deemed necessary.



Sec. 329.16  Use and maintenance of lists of determinations.

    (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.



PART 330_NATIONWIDE PERMIT PROGRAM--Table of Contents



Sec.
330.1 Purpose and policy.
330.2 Definitions.
330.3 Activities occurring before certain dates.
330.4 Conditions, limitations, and restrictions.
330.5 Issuing, modifying, suspending, or revoking nationwide permits and 
          authorizations.
330.6 Authorization by nationwide permit.

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 56 FR 59134, Nov. 22, 1991, unless otherwise noted.



Sec. 330.1  Purpose and policy.

    (a) Purpose. This part describes the policy and procedures used in 
the Department of the Army's nationwide permit program to issue, modify, 
suspend, or revoke nationwide permits; to identify conditions, 
limitations, and restrictions on the nationwide permits; and, to 
identify any procedures, whether required or optional, for authorization 
by nationwide permits.
    (b) Nationwide permits. Nationwide permits (NWPs) are a type of 
general permit issued by the Chief of Engineers and are designed to 
regulate with little, if any, delay or paperwork certain activities 
having minimal impacts. The NWPs are proposed, issued, modified, 
reissued (extended), and revoked from time to time after an opportunity 
for public notice and comment. Proposed NWPs or modifications to or 
reissuance of existing NWPs will be adopted only after the Corps gives 
notice and allows the public an opportunity to comment on and request a 
public hearing regarding the proposals. The Corps will give full 
consideration to all comments received prior to reaching a final 
decision.
    (c) Terms and conditions. An activity is authorized under an NWP 
only if that activity and the permittee satisfy all of the NWP's terms 
and conditions. Activities that do not qualify for authorization under 
an NWP still may be authorized by an individual or regional general 
permit. The Corps will consider unauthorized any activity requiring 
Corps authorization if that activity is under construction or completed 
and does not comply with all of the terms and conditions of an NWP, 
regional general permit, or an individual permit. The Corps will 
evaluate unauthorized activities for enforcement action under 33 CFR 
part 326. The district engineer (DE) may elect to suspend enforcement 
proceedings if the permittee modifies his project to comply with an NWP 
or a regional general permit. After considering whether a violation was 
knowing or intentional, and other indications of the need for a penalty, 
the DE can elect to terminate an enforcement proceeding with an after-
the-fact authorization under an NWP, if all terms and conditions of the 
NWP have been satisfied, either before or after the activity has been 
accomplished.
    (d) Discretionary authority. District and division engineers have 
been delegated a discretionary authority to suspend, modify, or revoke 
authorizations

[[Page 473]]

under an NWP. This discretionary authority may be used by district and 
division engineers only to further condition or restrict the 
applicability of an NWP for cases where they have concerns for the 
aquatic environment under the Clean Water Act section 404(b)(1) 
Guidelines or for any factor of the public interest. Because of the 
nature of most activities authorized by NWP, district and division 
engineers will not have to review every such activity to decide whether 
to exercise discretionary authority. The terms and conditions of certain 
NWPs require the DE to review the proposed activity before the NWP 
authorizes its construction. However, the DE has the discretionary 
authority to review any activity authorized by NWP to determine whether 
the activity complies with the NWP. If the DE finds that the proposed 
activity would have more than minimal individual or cumulative net 
adverse effects on the environment or otherwise may be contrary to the 
public interest, he shall modify the NWP authorization to reduce or 
eliminate those adverse effects, or he shall instruct the prospective 
permittee to apply for a regional general permit or an individual 
permit. Discretionary authority is also discussed at 33 CFR 330.4(e) and 
330.5.
    (e) Notifications. (1) In most cases, permittees may proceed with 
activities authorized by NWPs without notifying the DE. However, the 
prospective permittee should carefully review the language of the NWP to 
ascertain whether he must notify the DE prior to commencing the 
authorized activity. For NWPs requiring advance notification, such 
notification must be made in writing as early as possible prior to 
commencing the proposed activity. The permittee may presume that his 
project qualifies for the NWP unless he is otherwise notified by the DE 
within a 30-day period. The 30-day period starts on the date of receipt 
of the notification in the Corps district office and ends 30 calendar 
days later regardless of weekends or holidays. If the DE notifies the 
prospective permittee that the notification is incomplete, a new 30-day 
period will commence upon receipt of the revised notification. The 
prospective permittee may not proceed with the proposed activity before 
expiration of the 30-day period unless otherwise notified by the DE. If 
the DE fails to act within the 30-day period, he must use the procedures 
of 33 CFR 330.5 in order to modify, suspend, or revoke the NWP 
authorization.
    (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) Individual Applications. DEs should review all incoming 
applications for individual permits for possible eligibility under 
regional general permits or NWPs. If the activity complies with the 
terms and conditions of one or more NWP, he should verify the 
authorization and so notify the applicant. If the DE determines that the 
activity could comply after reasonable project modifications and/or 
activity-specific

[[Page 474]]

conditions, he should notify the applicant of such modifications and 
conditions. If such modifications and conditions are accepted by the 
applicant, verbally or in writing, the DE will verify the authorization 
with the modifications and conditions in accordance with 33 CFR 
330.6(a). However, the DE will proceed with processing the application 
as an individual permit and take the appropriate action within 15 
calendar days of receipt, in accordance with 33 CFR 325.2(a)(2), unless 
the applicant indicates that he will accept the modifications or 
conditions.
    (g) Authority. NWPs can be issued to satisfy the permit requirements 
of section 10 of the Rivers and Harbors Act of 1899, section 404 of the 
Clean Water Act, section 103 of the Marine Protection, Research, and 
Sanctuaries Act, or some combination thereof. The applicable authority 
will be indicated at the end of each NWP. NWPs and their conditions 
previously published at 33 CFR 330.5 and 330.6 will remain in effect 
until they expire or are modified or revoked in accordance with the 
procedures of this part.



Sec. 330.2  Definitions.

    (a) The definitions found in 33 CFR parts 320-329 are applicable to 
the terms used in this part.
    (b) Nationwide permit refers to a type of general permit which 
authorizes activities on a nationwide basis unless specifically limited. 
(Another type of general permit is a ``regional permit'' which is issued 
by division or district engineers on a regional basis in accordance with 
33 CFR part 325). (See 33 CFR 322.2(f) and 323.2(h) for the definition 
of a general permit.)
    (c) Authorization means that specific activities that qualify for an 
NWP may proceed, provided that the terms and conditions of the NWP are 
met. After determining that the activity complies with all applicable 
terms and conditions, the prospective permittee may assume an 
authorization under an NWP. This assumption is subject to the DE's 
authority to determine if an activity complies with the terms and 
conditions of an NWP. If requested by the permittee in writing, the DE 
will verify in writing that the permittee's proposed activity complies 
with the terms and conditions of the NWP. A written verification may 
contain activity-specific conditions and regional conditions which a 
permittee must satisfy for the authorization to be valid.
    (d) Headwaters means non-tidal rivers, streams, and their lakes and 
impoundments, including adjacent wetlands, that are part of a surface 
tributary system to an interstate or navigable water of the United 
States upstream of the point on the river or stream at which the average 
annual flow is less than five cubic feet per second. The DE may estimate 
this point from available data by using the mean annual area 
precipitation, area drainage basin maps, and the average runoff 
coefficient, or by similar means. For streams that are dry for long 
periods of the year, DEs may establish the point where headwaters begin 
as that point on the stream where a flow of five cubic feet per second 
is equaled or exceeded 50 percent of the time.
    (e) Isolated waters means those non-tidal waters of the United 
States that are:
    (1) Not part of a surface tributary system to interstate or 
navigable waters of the United States; and
    (2) Not adjacent to such tributary waterbodies.
    (f) Filled area means the area within jurisdictional waters which is 
eliminated or covered as a direct result of the discharge (i.e., the 
area actually covered by the discharged material). It does not include 
areas excavated nor areas impacted as an indirect effect of the fill.
    (g) Discretionary authority means the authority described in 
Sec. Sec. 330.1(d) and 330.4(e) which the Chief of Engineers delegates 
to division or district engineers to modify an NWP authorization by 
adding conditions, to suspend an NWP authorization, or to revoke an NWP 
authorization and thus require individual permit authorization.
    (h) Terms and conditions. The ``terms'' of an NWP are the 
limitations and provisions included in the description of the NWP 
itself. The ``conditions'' of NWPs are additional provisions which place 
restrictions or limitations on all of the NWPs. These are published with 
the NWPs. Other conditions may be imposed by district or division 
engineers

[[Page 475]]

on a geographic, category-of-activity, or activity-specific basis (See 
33 CFR 330.4(e)).
    (i) Single and complete project means the total project proposed or 
accomplished by one owner/developer or partnership or other association 
of owners/developers. For example, if construction of a residential 
development affects several different areas of a headwater or isolated 
water, or several different headwaters or isolated waters, the 
cumulative total of all filled areas should be the basis for deciding 
whether or not the project will be covered by an NWP. For linear 
projects, the ``single and complete project'' (i.e., single and complete 
crossing) will apply to each crossing of a separate water of the United 
States (i.e., single waterbody) at that location; except that for linear 
projects crossing a single waterbody several times at separate and 
distant locations, each crossing is considered a single and complete 
project. However, individual channels in a braided stream or river, or 
individual arms of a large, irregularly-shaped wetland or lake, etc., 
are not separate waterbodies.
    (j) Special aquatic sites means wetlands, mudflats, vegetated 
shallows, coral reefs, riffle and pool complexes, sanctuaries, and 
refuges as defined at 40 CFR 230.40 through 230.45.



Sec. 330.3  Activities occurring before certain dates.

    The following activities were permitted by NWPs issued on July 19, 
1977, and, unless the activities are modified, they do not require 
further permitting:
    (a) Discharges of dredged or fill material into waters of the United 
States outside the limits of navigable waters of the United States that 
occurred before the phase-in dates which extended Section 404 
jurisdiction to all waters of the United States. The phase-in dates 
were: After July 25, 1975, discharges into navigable waters of the 
United States and adjacent wetlands; after September 1, 1976, discharges 
into navigable waters of the United States and their primary 
tributaries, including adjacent wetlands, and into natural lakes, 
greater than 5 acres in surface area; and after July 1, 1977, discharges 
into all waters of the United States, including wetlands. (section 404)
    (b) Structures or work completed before December 18, 1968, or in 
waterbodies over which the DE had not asserted jurisdiction at the time 
the activity occurred, provided in both instances, there is no 
interference with navigation. Activities completed shoreward of 
applicable Federal Harbor lines before May 27, 1970 do not require 
specific authorization. (section 10)



Sec. 330.4  Conditions, limitations, and restrictions.

    (a) General. A prospective permittee must satisfy all terms and 
conditions of an NWP for a valid authorization to occur. Some conditions 
identify a ``threshold'' that, if met, requires additional procedures or 
provisions contained in other paragraphs in this section. It is 
important to remember that the NWPs only authorize activities from the 
perspective of the Corps regulatory authorities and that other Federal, 
state, and local permits, approvals, or authorizations may also be 
required.
    (b) Further information. (1) DEs have authority to determine if an 
activity complies with the terms and conditions of an NWP.
    (2) NWPs do not obviate the need to obtain other Federal, state, or 
local permits, approvals, or authorizations required by law.
    (3) NWPs do not grant any property 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) State 401 water quality certification. (1) State 401 water 
quality certification pursuant to section 401 of the Clean Water Act, or 
waiver thereof, is required prior to the issuance or reissuance of NWPs 
authorizing activities which may result in a discharge into waters of 
the United States.
    (2) 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

[[Page 476]]

States in that state, unless he determines that such conditions do not 
comply with the provisions of 33 CFR 325.4. In the latter case, the 
conditioned 401 water quality certification will be considered a denial 
of the certification (see paragraph (c)(3) of this section).
    (3) If a state denies a required 401 water quality certification for 
an activity otherwise meeting the terms and conditions of a particular 
NWP, that NWP's authorization for all such activities within that state 
is denied without prejudice until the state issues an individual 401 
water quality certification or waives its right to do so. State denial 
of 401 water quality certification for any specific NWP affects only 
those activities which may result in a discharge. That NWP continues to 
authorize activities which could not reasonably be expected to result in 
discharges into waters of the United States. \1\
---------------------------------------------------------------------------

    \1\ NWPs numbered 1, 2, 8, 9, 10, 11, 19, 24, 28, and 35, do not 
require 401 water quality certification since they would authorize 
activities which, in the opinion of the Corps, could not reasonably be 
expected to result in a discharge and in the case of NWP 8 is seaward of 
the territorial seas. NWPs numbered 3, 4, 5, 6, 7, 13, 14, 18, 20, 21, 
22, 23, 27, 32, 36, 37, and 38, involve various activities, some of 
which may result in a discharge and require 401 water quality 
certification, and others of which do not. State denial of 401 water 
quality certification for any specific NWP in this category affects only 
those activities which may result in a discharge. For those activities 
not involving discharges, the NWP remains in effect. NWPs numbered 12, 
15, 16, 17, 25, 26, and 40 involve activities which would result in 
discharges and therefore 401 water quality certification is required.
---------------------------------------------------------------------------

    (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 Sec. 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) Coastal zone management consistency determination. (1) Section 
307(c)(1) of the Coastal Zone Management Act (CZMA) requires the Corps 
to provide a

[[Page 477]]

consistency determination and receive state agreement prior to the 
issuance, reissuance, or expansion of activities authorized by an NWP 
that authorizes activities within a state with a Federally-approved 
Coastal Management Program when activities that would occur within, or 
outside, that state's coastal zone will affect land or water uses or 
natural resources of the state's coastal zone.
    (2) If, prior to the issuance, reissuance, or expansion of 
activities authorized by an NWP, a state indicates that additional 
conditions are necessary for the state to agree with the Corps 
consistency determination, the division engineer will make such 
conditions regional conditions for the 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.

[[Page 478]]

    (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) Discretionary authority. The Corps reserves the right (i.e., 
discretion) to modify, suspend, or revoke NWP authorizations. 
Modification means the imposition of additional or revised terms or 
conditions on the authorization. Suspension means the temporary 
cancellation of the authorization while a decision is made to either 
modify, revoke, or reinstate the authorization. Revocation means the 
cancellation of the authorization. The procedures for modifying, 
suspending, or revoking NWP authorizations are detailed in Sec. 330.5.
    (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 Sec. 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) Endangered species. No activity is authorized by any NWP if that 
activity is likely to jeopardize the continued existence of a threatened 
or endangered species as listed or proposed for listing under the 
Federal Endangered Species Act (ESA), or to destroy or adversely modify 
the critical habitat of such species.
    (1) Federal agencies should follow their own procedures for 
complying with the requirements of the ESA.
    (2) Non-federal 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:

[[Page 479]]

    (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) Historic properties. No activity which may affect properties 
listed or properties eligible for listing in the National Register of 
Historic Places, is authorized until the DE has complied with the 
provisions of 33 CFR part 325, appendix C.
    (1) Federal permittees should follow their own procedures for 
compliance with the requirements of the National Historic Preservation 
Act and other Federal historic preservation laws.
    (2) Non-federal permittees will notify the DE if the activity may 
affect historic properties which the National Park Service has listed, 
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.



Sec. 330.5  Issuing, modifying, suspending, or revoking nationwide permits
and authorizations.

    (a) General. This section sets forth the procedures for issuing and 
reissuing NWPs and for modifying, suspending, or revoking NWPs and 
authorizations under NWPs.
    (b) Chief of Engineers. (1) Anyone may, at any time, suggest to the 
Chief of Engineers, (ATTN: CECW-OR), any new NWPs or conditions for 
issuance, or changes to existing NWPs, which he believes to be 
appropriate for consideration. From time-to-time new NWPs and 
revocations of or modifications to existing NWPs will be evaluated by 
the Chief of Engineers following the procedures specified in this 
section. Within five years of issuance of the NWPs, the Chief of 
Engineers will review the NWPs and propose modification, revocation, or 
reissuance.
    (2) Public notice. (i) Upon proposed issuance of new NWPs or 
modification, suspension, revocation, or reissuance of existing NWPs, 
the Chief of Engineers will publish a document seeking public comments, 
including the opportunity to request a public hearing. This document 
will also state that the information supporting the Corps' provisional 
determination that proposed activities comply with the requirements for 
issuance under general permit authority is available at the Office of 
the Chief of Engineers and at all district

[[Page 480]]

offices. The Chief of Engineers will prepare this information which will 
be supplemented, if appropriate, by division engineers.
    (ii) Concurrent with the Chief of Engineers' notification of 
proposed, modified, reissued, or revoked NWPs, DEs will notify the known 
interested public by a notice issued at the district level. The notice 
will include proposed regional conditions or proposed revocations of NWP 
authorizations for specific geographic areas, classes of activities, or 
classes of waters, if any, developed by the division engineer.
    (3) Documentation. The Chief of Engineers will prepare appropriate 
NEPA documents and, if applicable, section 404(b)(1) Guidelines 
compliance analyses for proposed NWPs. Documentation for existing NWPs 
will be modified to reflect any changes in these permits and to reflect 
the Chief of Engineers' evaluation of the use of the permit since the 
last issuance. Copies of all comments received on the document will be 
included in the administrative record. The Chief of Engineers will 
consider these comments in making his decision on the NWPs, and will 
prepare a statement of findings outlining his views regarding each NWP 
and discussing how substantive comments were considered. The Chief of 
Engineers will also determine the need to hold a public hearing for the 
proposed NWPs.
    (4) Effective dates. The Chief of Engineers will advise the public 
of the effective date of any issuance, modification, or revocation of an 
NWP.
    (c) Division Engineer. (1) A division engineer may use his 
discretionary authority to modify, suspend, or revoke NWP authorizations 
for any specific geographic area, class of activities, or class of 
waters within his division, including on a statewide basis, by issuing a 
public notice or notifying the individuals involved. The notice will 
state his concerns regarding the environment or the other relevant 
factors of the public interest. Before using his discretionary authority 
to modify or revoke such NWP authorizations, division engineers will:
    (i) Give an opportunity for interested parties to express their 
views on the proposed action (the DE will publish and 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 Sec. 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) District Engineer. (1) When deciding whether to exercise his 
discretionary authority to modify, suspend, or revoke a case specific 
activity's authorization under an NWP, the DE should consider to the 
extent relevant and appropriate: Changes in circumstances relating to 
the authorized activity since the NWP itself was issued or since the DE 
confirmed authorization under the NWP by written verification; the 
continuing need for, or adequacy of, the specific conditions of the 
authorization; any significant objections to the authorization not 
previously considered; progress inspections of individual activities 
occurring under an NWP; cumulative adverse environmental effects 
resulting from activities occurring under the NWP; the

[[Page 481]]

extent of the permittee's compliance with the terms and conditions of 
the NWPs; revisions to applicable statutory or regulatory authorities; 
and, the extent to which asserting discretionary authority would 
adversely affect plans, investments, and actions the permittee has made 
or taken in reliance on the permit; and, other concerns for the 
environment, including the aquatic environment under the section 
404(b)(1) Guidelines, and other relevant factors of the public interest.
    (2) Procedures. (i) When considering whether to modify or revoke a 
specific authorization under an NWP, whenever practicable, the DE will 
initially hold informal consultations with the permittee to determine 
whether special conditions to modify the authorization would be mutually 
agreeable or to allow the permittee to furnish information which 
satisfies the DE's concerns. If a mutual agreement is reached, the DE 
will give the permittee written verification of the authorization, 
including the special conditions. If the permittee furnishes information 
which satisfies the DE's concerns, the permittee may proceed. If 
appropriate, the DE may suspend the NWP authorization while holding 
informal consultations with the permittee.
    (ii) If the DE's concerns remain after the informal consultation, 
the DE may suspend a specific authorization under an 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.



Sec. 330.6  Authorization by nationwide permit.

    (a) Nationwide permit verification. (1) Nationwide permittees may, 
and in some cases must, request from a DE confirmation that an activity 
complies with the terms and conditions of an NWP. DEs should respond as 
promptly as practicable to such requests.
    (2) If the DE decides that an activity does not comply with the 
terms or conditions of an NWP, he will notify the person desiring to do 
the work and instruct him on the procedures to seek authorization under 
a regional general permit or individual permit.
    (3) 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,

[[Page 482]]

the NWP authorization is reissued without modification or the activity 
complies with any subsequent modification of the NWP authorization. 
Furthermore, the response should include a statement that the provisions 
of Sec. 330.6(b) will apply, if during that period of time, the NWP 
authorization expires, or is suspended or revoked, or is modified, such 
that the activity would no longer comply with the terms and conditions 
of an NWP. Finally, the response should include any known expiration 
date that would occur during the specified period of time. A period of 
time less than two years may be used if deemed appropriate.
    (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 Sec. Sec. 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) Expiration of nationwide permits. The Chief of Engineers will 
periodically review NWPs and their conditions and will decide to either 
modify, reissue, or revoke the permits. If an NWP is not modified or 
reissued within five years of its effective date, it automatically 
expires and becomes null and void. Activities which have commenced (i.e, 
are under construction) or are under contract to commence in reliance 
upon an NWP will remain authorized provided the activity is completed 
within twelve months of the date of an NWP's expiration, modification, 
or revocation, unless discretionary authority has been exercised on a 
case-by-case basis to modify, suspend, or revoke the authorization in 
accordance with 33 CFR 330.4(e) and 33 CFR 330.5 (c) or (d). Activities 
completed under the authorization of an NWP which was in effect at the 
time the activity was completed continue to be authorized by that NWP.
    (c) Multiple use of nationwide permits. Two or more different NWPs 
can be combined to authorize a ``single and complete project'' as 
defined at 33 CFR 330.2(i). However, the same NWP cannot be used more 
than once for a single and complete project.
    (d) Combining nationwide permits with individual permits. Subject to 
the following qualifications, portions of a larger project may proceed 
under the authority of the NWPs while the DE evaluates an individual 
permit application for other portions of the same project, but only if 
the portions of the project qualifying for NWP authorization would have 
independent utility and are able to function or meet their purpose 
independent of the total project. When the functioning or usefulness of 
a portion of the total project qualifying for an NWP is dependent on the 
remainder of the project, such that its construction and use would not 
be fully justified even if the Corps were to deny the individual permit, 
the NWP does not apply and all portions of the project must be evaluated 
as part of the individual permit process.
    (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) After-the-fact authorizations. These authorizations often play 
an important part in the resolution of violations. In appropriate cases 
where the activity complies with the terms and conditions of an NWP, the 
DE can elect to use the NWP for resolution of an after-the-fact

[[Page 483]]

permit situation following a consideration of whether the violation 
being resolved was knowing or intentional and other indications of the 
need for a penalty. For example, where an unauthorized fill meets the 
terms and conditions of NWP 13, the DE can consider the appropriateness 
of allowing the residual fill to remain, in situations where said fill 
would normally have been permitted under NWP 13. A knowing, intentional, 
willful violation should be the subject of an enforcement action leading 
to a penalty, rather than an after-the-fact authorization. Use of after-
the-fact NWP authorization must be consistent with the terms of the 
Army/EPA Memorandum of Agreement on Enforcement. Copies are available 
from each district engineer.



PART 331_ADMINISTRATIVE APPEAL PROCESS--Table of Contents



Sec.
331.1 Purpose and policy.
331.2 Definitions.
331.3 Review officer.
331.4 Notification of appealable actions.
331.5 Criteria.
331.6 Filing an appeal.
331.7 Review procedures.
331.8 Timeframes for final appeal decisions.
331.9 Final appeal decision.
331.10 Final Corps decision.
331.11 Unauthorized activities.
331.12 Exhaustion of administrative remedies.

Appendix A to Part 331--Administrative Appeal Process for Permit Denials 
          and Proffered Permits
Appendix B to Part 331--Applicant Options With Initial Proffered Permit
Appendix C to Part 331--Administrative Appeal Process for Approved 
          Jurisdictional Determinations
Appendix D to Part 331--Process for Unacceptable Request for Appeal

    Authority: 33 U.S.C. 401 et seq., 1344, 1413.

    Source: 65 FR 16493, Mar. 28, 2000, unless otherwise noted.



Sec. 331.1  Purpose and policy.

    (a) General. The purpose of this part is to establish policies and 
procedures to be used for the administrative appeal of approved 
jurisdictional determinations (JDs), permit applications denied with 
prejudice, and declined permits. The appeal process will allow the 
affected party to pursue an administrative appeal of certain Corps of 
Engineers decisions with which they disagree. The basis for an appeal 
and the specific policies and procedures of the appeal process are 
described in the following sections. It shall be the policy of the Corps 
of Engineers to promote and maintain an administrative appeal process 
that is independent, objective, fair, prompt, and efficient.
    (b) Level of decision maker. Appealable actions decided by a 
division engineer or higher authority may be appealed to an Army 
official at least one level higher than the decision maker. This higher 
Army official shall make the decision on the merits of the appeal, and 
may appoint a qualified individual to act as a review officer (as 
defined in Sec. 331.2). References to the division engineer in this 
part shall be understood as also referring to a higher level Army 
official when such official is conducting an administrative appeal.



Sec. 331.2  Definitions.

    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:
    Affected party means a permit applicant, landowner, a lease, 
easement or option holder (i.e., an individual who has an identifiable 
and substantial legal interest in the property) who has received an 
approved JD, permit denial, or has declined a proffered individual 
permit.
    Agent(s) means the affected party's business partner, attorney, 
consultant, engineer, planner, or any individual with legal authority to 
represent the appellant's interests.
    Appealable action means an approved JD, a permit denial, or a 
declined permit, as these terms are defined in this section.
    Appellant means an affected party who has filed an appeal of an 
approved JD, a permit denial or declined permit under the criteria and 
procedures of this part.
    Approved jurisdictional determination means a Corps document stating 
the presence or absence of waters of the United States on a parcel or a 
written statement and map identifying the limits of waters of the United 
States

[[Page 484]]

on a parcel. Approved JDs are clearly designated appealable actions and 
will include a basis of JD with the document.
    Basis of jurisdictional determination is a summary of the indicators 
that support the Corps approved JD. Indicators supporting the Corps 
approved JD can include, but are not limited to: indicators of wetland 
hydrology, hydric soils, and hydrophytic plant communities; indicators 
of ordinary high water marks, high tide lines, or mean high water marks; 
indicators of adjacency to navigable or interstate waters; indicators 
that the wetland or waterbody is of part of a tributary system; or 
indicators of linkages between isolated water bodies and interstate or 
foreign commerce.
    Declined permit means a proffered individual permit, including a 
letter of permission, that an applicant has refused to accept, because 
he has objections to the terms and special conditions therein. A 
declined permit can also be an individual permit that the applicant 
originally accepted, but where such permit was subsequently modified by 
the district engineer, pursuant to 33 CFR 325.7, in such a manner that 
the resulting permit contains terms and special conditions that lead the 
applicant to decline the modified permit, provided that the applicant 
has not started work in waters of the United States authorized by such 
permit. Where an applicant declines a permit (either initial or 
modified), the applicant does not have a valid permit to conduct 
regulated activities in waters of the United States, and must not begin 
construction of the work requiring a Corps permit unless and until the 
applicant receives and accepts a valid Corps permit.
    Denial determination means a letter from the district engineer 
detailing the reasons a permit was denied with prejudice. The decision 
document for the project will be attached to the denial determination in 
all cases.
    Jurisdictional determination (JD) means a written Corps 
determination that a wetland and/or waterbody is subject to regulatory 
jurisdiction under Section 404 of the Clean Water Act (33 U.S.C. 1344) 
or a written determination that a waterbody is subject to regulatory 
jurisdiction under Section 9 or 10 of the Rivers and Harbors Act of 1899 
(33 U.S.C. 401 et seq.). Additionally, the term includes a written 
reverification of expired JDs and a written reverification of JDs where 
new information has become available that may affect the previously 
written determination. For example, such geographic JDs may include, but 
are not limited to, one or more of the following determinations: the 
presence or absence of wetlands; the location(s) of the wetland 
boundary, ordinary high water mark, mean high water mark, and/or high 
tide line; interstate commerce nexus for isolated waters; and adjacency 
of wetlands to other waters of the United States. All JDs will be in 
writing and will be identified as either preliminary or approved. JDs do 
not include determinations that a particular activity requires a DA 
permit.
    Notification of Appeal Process (NAP) means a fact sheet that 
explains the criteria and procedures of the administrative appeal 
process. Every approved JD, permit denial, and every proffered 
individual permit returned for reconsideration after review by the 
district engineer in accordance with Sec. 331.6(b) will have an NAP 
form attached.
    Notification of Applicant Options (NAO) means a fact sheet 
explaining an applicant's options with a proffered individual permit 
under the administrative appeal process.
    Permit denial means a written denial with prejudice (see 33 CFR 
320.4(j)) of an individual permit application as defined in 33 CFR 
325.5(b).
    Preliminary JDs are written indications that there may be waters of 
the United States on a parcel or indications of the approximate 
location(s) of waters of the United States on a parcel. Preliminary JDs 
are advisory in nature and may not be appealed. Preliminary JDs include 
compliance orders that have an implicit JD, but no approved JD.
    Proffered permit means a permit that is sent to an applicant that is 
in the proper format for the applicant to sign (for a standard permit) 
or accept (for a letter of permission). The term ``initial proffered 
permit'' as used in this part refers to the first time a permit is sent 
to the applicant. The initial proffered

[[Page 485]]

permit is not an appealable action. However, the applicant may object to 
the terms or conditions of the initial proffered permit and, if so, a 
second reconsidered permit will be sent to the applicant. The term 
``proffered permit'' as used in this part refers to the second permit 
that is sent to the applicant. Such proffered permit is an appealable 
action.
    Request for appeal (RFA) means the affected party's official request 
to initiate the appeal process. The RFA must include the name of the 
affected party, the Corps file number of the approved JD, denied permit, 
or declined permit, the reason(s) for the appeal, and any supporting 
data and information. No new information may be submitted. A grant of 
right of entry for the Corps to the project site is a condition of the 
RFA to allow the RO to clarify elements of the record or to conduct 
field tests or sampling for purposes directly related to the appeal. A 
standard RFA form will be provided to the affected party with the NAP 
form. For appeals of decisions related to unauthorized activities a 
signed tolling agreement, as required by 33 CFR 326.3(e)(1)(v), must be 
included with the RFA, unless a signed tolling agreement has previously 
been furnished to the Corps district office. The affected party 
initiates the administrative appeal process by providing an acceptable 
RFA to the appropriate Corps of Engineers division office. An acceptable 
RFA contains all the required information and provides reasons for 
appeal that meets the criteria identified in Sec. 331.5.
    Review officer (RO) means the Corps official responsible for 
assisting the division engineer or higher authority responsible for 
rendering the final decision on the merits of an appeal.
    Tolling agreement refers to a document signed by any person who 
appeals an approved JD associated with an unauthorized activity or 
applies for an after-the-fact (ATF) permit, where the application is 
accepted and evaluated by the Corps. The agreement states that the 
affected party agrees to have the statute of limitations regarding any 
violation associated with that approved JD or application ``tolled'' or 
temporarily set aside until one year after the final Corps decision, as 
defined at Sec. 331.10. No ATF permit application or administrative 
appeal associated with an unauthorized activity will be accepted until a 
tolling agreement is furnished to the district engineer.



Sec. 331.3  Review officer.

    (a) Authority. (1) The division engineer has the authority and 
responsibility for administering a fair, reasonable, prompt, and 
effective administrative appeal process. The division engineer may act 
as the review officer (RO), or may delegate, either generically or on a 
case-by-case basis, any authority or responsibility described in this 
part as that of the RO. With the exception of JDs, as described in this 
paragraph (a)(1), the division engineer may not delegate any authority 
or responsibility described in this part as that of the division 
engineer. For approved JDs only, the division engineer may delegate any 
authority or responsibility described in this part as that of the 
division engineer, including the final appeal decision. In such cases, 
any delegated authority must be granted to an official that is at the 
same or higher grade level than the grade level of the official that 
signed the approved JD. Regardless of any delegation of authority or 
responsibility for ROs or for final appeal decisions for approved JDs, 
the division engineer retains overall responsibility for the 
administrative appeal process.
    (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

[[Page 486]]

case, any appeal process of the district engineer's initial decision is 
terminated. If a particular permit application is elevated to the 
division engineer pursuant to 33 CFR 325.8(c), and the division 
engineer's decision on the permit application is a permit denial or 
results in a declined permit, that permit denial or declined permit 
would be subject to an administrative appeal to the Chief of Engineers.
    (3) Qualifications. The RO will be a Corps employee with extensive 
knowledge of the Corps regulatory program. Where the permit decision 
being appealed was made by the division engineer or higher authority, a 
Corps official at least one level higher than the decision maker shall 
make the decision on the merits of the RFA, and this Corps official 
shall appoint a qualified individual as the RO to conduct the appeal 
process.
    (b) General--(1) Independence. The RO will not perform, or have been 
involved with, the preparation, review, or decision making of the action 
being appealed. The RO will be independent and impartial in reviewing 
any appeal, and when assisting the division engineer to make a decision 
on the merits of the appeal.
    (2) Review. The RO will conduct an independent review of the 
administrative record to address the reasons for the appeal cited by the 
applicant in the RFA. In addition, to the extent that it is practicable 
and feasible, the RO will also conduct an independent review of the 
administrative record to verify that the record provides an adequate and 
reasonable basis supporting the district engineer's decision, that facts 
or analysis essential to the district engineer's decision have not been 
omitted from the administrative record, and that all relevant 
requirements of law, regulations, and officially promulgated Corps 
policy guidance have been satisfied. Should the RO require expert advice 
regarding any subject, he may seek such advice from any employee of the 
Corps or of another Federal or state agency, or from any recognized 
expert, so long as that person had not been previously involved in the 
action under review.



Sec. 331.4  Notification of appealable actions.

    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 (i.e., proffered individual permits 
that the applicant refuses to accept and sends back to the Corps), the 
notification must include an NAP fact sheet and an RFA form. 
Additionally, an affected party has the right to obtain a copy of the 
administrative record.



Sec. 331.5  Criteria.

    (a) Criteria for appeal--(1) Submission of RFA. The appellant must 
submit a completed RFA (as defined at Sec. 331.2) to the appropriate 
division office in order to appeal an approved JD, a permit denial, or a 
declined permit. An individual permit that has been signed by the 
applicant, and subsequently unilaterally modified by the district 
engineer pursuant to 33 CFR 325.7, may be appealed under this process, 
provided that the applicant has not started work in waters of the United 
States authorized by the permit. The RFA must be received by the 
division engineer within 60 days of the date of the NAP.
    (2) Reasons for appeal. The reason(s) for requesting an appeal of an 
approved JD, a permit denial, or a declined permit must be specifically 
stated in the RFA and must be more than a simple request for appeal 
because the affected party did not like the approved JD, permit 
decision, or the permit conditions. Examples of reasons for appeals 
include, but are not limited to, the following: A procedural error; an 
incorrect application of law, regulation or officially promulgated 
policy; omission of material fact; incorrect application of the current 
regulatory criteria and associated guidance for identifying and

[[Page 487]]

delineating wetlands; incorrect application of the Section 404(b)(1) 
Guidelines (see 40 CFR part 230); or use of incorrect data. The reasons 
for appealing a permit denial or a declined permit may include 
jurisdiction issues, whether or not a previous approved JD was appealed.
    (b) Actions not appealable. An action or decision is not subject to 
an administrative appeal under this part if it falls into one or more of 
the following categories:
    (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 Sec. 331.11.



Sec. 331.6  Filing an appeal.

    (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

[[Page 488]]

declined permit may be appealed to the division engineer upon submittal 
of a complete RFA form. The completed RFA must be received by the 
division engineer within 60 days of the NAP. A flow chart of an 
applicant's options for an initial proffered individual permit is shown 
in appendix B of this part. A flow chart of the appeal process for a 
permit denial or a declined permit (i.e., a proffered permit declined 
after the Corps decision on the applicant's objections to the initial 
proffered permit) is shown in appendix A of this part. A flow chart of 
the appeal process for an approved jurisdictional determination is shown 
in appendix C of this part. A flow chart of the process for when an 
unacceptable request for appeal is returned to an applicant is shown in 
appendix D of this part.
    (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 
Sec. 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.



Sec. 331.7  Review procedures.

    (a) General. The administrative appeal process for approved JDs, 
permit denials, and declined permits is a one level appeal, normally to 
the division engineer. The appeal process will normally be conducted by 
the RO. The RO will document the appeal process, and assist the division 
engineer in making a decision on the merits of the appeal. The division 
engineer may participate in the appeal process as the division engineer 
deems appropriate. The division engineer will make the decision on the 
merits of the appeal, and provide any instructions, as appropriate, to 
the district engineer.
    (b) Requests for the appeal of approved JDs, permit denials, or 
declined permits. Upon receipt of an RFA, the RO shall review the RFA to 
determine whether the RFA is acceptable (i.e., complete and meets the 
criteria for appeal). If the RFA is acceptable, the RO will so notify 
the appellant in writing within 30 days of the receipt of the acceptable 
RFA. If the RO determines that the RFA is not complete the RO will so 
notify the appellant in writing within 30 days of the receipt of the RFA 
detailing the reason(s) why the RFA is not complete. If the RO believes 
that the RFA does not meet the criteria for appeal (see Sec. 331.5), 
the RO will make a recommendation on the RFA to the division engineer. 
If the division engineer determines that the RFA is not acceptable, the 
division engineer will notify the appellant of this determination by a 
certified letter detailing the reason(s) why the appeal failed to meet 
the criteria for appeal. No further administrative appeal is available, 
unless

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the appellant revises the RFA to correct the deficiencies noted in the 
division engineer's letter or the RO's letter. The revised RFA must be 
received by the division engineer within 30 days of the date of the 
Corps letter indicating that the initial RFA is not acceptable. If the 
RO determines that the revised RFA is still not complete, the RO will 
again so notify the appellant in writing within 30 days of the receipt 
of the RFA detailing the reason(s) why the RFA is not complete. If the 
division engineer determines that the revised RFA is still not 
acceptable, the division engineer will notify the appellant of this 
determination by a certified letter within 30 days of the date of the 
receipt of the revised RFA, and will advise the appellant that the 
matter is not eligible for appeal. No further RFAs will be accepted 
after this point.
    (c) Site investigations. Within 30 days of receipt of an acceptable 
RFA, the RO should determine if a site investigation is needed to 
clarify the administrative record. The RO should normally conduct any 
such site investigation within 60 days of receipt of an acceptable RFA. 
The RO may also conduct a site investigation at the request of the 
appellant, provided the RO has determined that such an investigation 
would be of benefit in interpreting the administrative record. The 
appellant and the appellant's authorized agent(s) must be provided an 
opportunity to participate in any site investigation, and will be given 
15 days notice of any site investigation. The RO will attempt to 
schedule any site investigation at the earliest practicable time 
acceptable to both the RO and the appellant. The RO, the appellant, the 
appellant's agent(s) and the Corps district staff are authorized 
participants at any site investigation. The RO may also invite any other 
party the RO has determined to be appropriate, such as any technical 
experts consulted by the Corps. For permit denials and declined permit 
appeals, any site investigation should be scheduled in conjunction with 
the appeal review conference, where practicable. If extenuating 
circumstances occur at the site that preclude the appellant and/or the 
RO from conducting any required site visit within 60 days, the RO may 
extend the time period for review. Examples of extenuating circumstances 
may include seasonal hydrologic conditions, winter weather, or disturbed 
site conditions. The site visit must be conducted as soon as practicable 
as allowed by the extenuating circumstances, however, in no case shall 
any site visit extend the total appeals process beyond twelve months 
from the date of receipt of the RFA. If any site visit delay is 
necessary, the RO will notify the appellant in writing.
    (d) Approved JD appeal meeting. The RO may schedule an informal 
meeting moderated by the RO or conference call with the appellant, his 
authorized agent, or both, and appropriate Corps regulatory personnel to 
review and discuss issues directly related to the appeal for the purpose 
of clarifying the administrative record. If a meeting is held, the 
appellant will bear his own costs associated with necessary 
arrangements, exhibits, travel, and representatives. The approved JD 
appeal meeting should be held at a location of reasonable convenience to 
the appellant and near the site where the approved JD was conducted.
    (e) Permit denials and declined permits appeal conference. 
Conferences held in accordance with this part will be informal, and will 
be chaired by the RO. The purpose of the appeal conference is to provide 
a forum that allows the participants to discuss freely all relevant 
issues and material facts associated with the appeal. An appeal 
conference will be held for every appeal of a permit denial or a 
declined permit, unless the RO and the appellant mutually agree to 
forego a conference. The conference will take place within 60 days of 
receipt of an acceptable RFA, unless the RO determines that unforeseen 
or unusual circumstances require scheduling the conference for a later 
date. The purpose of the conference will be to allow the appellant and 
the Corps district representatives to discuss supporting data and 
information on issues previously identified in the administrative 
record, and to allow the RO the opportunity to clarify elements of the 
administrative record. Presentations by the appellant and the Corps 
district representatives may include interpretation, clarification, or 
explanation of the legal, policy, and factual bases for

[[Page 490]]

their positions. The conference will be governed by the following 
guidelines:
    (1) Notification. The RO will set a date, time, and location for the 
conference. The RO will notify the appellant and the Corps district 
office in writing within 30 days of receipt of the RFA, and not less 
than 15 days before the date of the conference.
    (2) Facilities. The conference will be held at a location that has 
suitable facilities and that is reasonably convenient to the appellant, 
preferably in the proximity of the project site. Public facilities 
available at no expense are preferred. If a free facility is not 
available, the Corps will pay the cost for the facility.
    (3) Participants. The RO, the appellant, the appellant's agent(s) 
and the Corps district staff are authorized participants in the 
conference. The RO may also invite any other party the RO has determined 
to be appropriate, such as any technical experts consulted by the Corps, 
adjacent property owners or Federal or state agency personnel to clarify 
elements of the administrative record. The division engineer and/or the 
district engineer may attend the conference at their discretion. If the 
appellant or his authorized agent(s) fail to attend the appeal 
conference, the appeal process is terminated, unless the RO excuses the 
appellant for a justifiable reason. Furthermore, should the process be 
terminated in such a manner, the district engineer's original decision 
on the appealed action will be sustained.
    (4) The role of the RO. The RO shall be in charge of conducting the 
conference. The RO shall open the conference with a summary of the 
policies and procedures for conducting the conference. The RO will 
conduct a fair and impartial conference, hear and fully consider all 
relevant issues and facts, and seek clarification of any issues of the 
administrative record, as needed, to allow the division engineer to make 
a final determination on the merits of the appeal. The RO will also be 
responsible for documenting the appeal conference.
    (5) Appellant rights. The appellant, and/or the appellant's 
authorized agent(s), will be given a reasonable opportunity to present 
the appellant's views regarding the subject permit denial or declined 
permit.
    (6) Subject matter. The purpose of the appeal conference will be to 
discuss the reasons for appeal contained in the RFA. Any material in the 
administrative record may be discussed during the conference, but the 
discussion should be focused on relevant issues needed to address the 
reasons for appeal contained in the RFA. The RO may question the 
appellant or the Corps representatives with respect to interpretation of 
particular issues in the record, or otherwise to clarify elements of the 
administrative record. Issues not identified in the administrative 
record by the date of the NAP for the application may not be raised or 
discussed, because substantive new information or project modifications 
would be treated as a new permit application (see Sec. 331.5(b)(5)).
    (7) Documentation of the appeal conference. The appeal conference is 
an informal proceeding, intended to provide clarifications and 
explanations of the administrative record for the RO and the division 
engineer; it is not intended to supplement the administrative record. 
Consequently, the proceedings of the conference will not be recorded 
verbatim by the Corps or any other party attending the conference, and 
no verbatim transcripts of the conference will be made. However, after 
the conference, the RO will write a memorandum for the record (MFR) 
summarizing the presentations made at the conference, and will provide a 
copy of that MFR to the division engineer, the appellant, and the 
district engineer.
    (8) Appellant costs. The appellant will be responsible for his own 
expenses for attending the appeal conference.
    (f) Basis of decision and communication with the RO. The appeal of 
an approved JD, a permit denial, or a declined permit is limited to the 
information contained in the administrative record by the date of the 
NAP for the application or approved JD, the proceedings of the appeal 
conference, and any relevant information gathered by the RO as described 
in Sec. 331.5. Neither the appellant nor the Corps may present new 
information not already contained in the administrative record, but both 
parties may interpret, clarify or explain issues

[[Page 491]]

and information contained in the record.
    (g) Applicability of appeal decisions. Because a decision to 
determine geographic jurisdiction, deny a permit, or condition a permit 
depends on the facts, circumstances, and physical conditions particular 
to the specific project and/or site being evaluated, appeal decisions 
would be of little or no precedential utility. Therefore, an appeal 
decision of the division engineer is applicable only to the instant 
appeal, and has no other precedential effect. Such a decision may not be 
cited in any other administrative appeal, and may not be used as 
precedent for the evaluation of any other jurisdictional determination 
or permit application. While administrative appeal decisions lack 
precedential value and may not be cited by an appellant or a district 
engineer in any other appeal proceeding, the Corps goal is to have the 
Corps regulatory program operate as consistently as possible, 
particularly with respect to interpretations of law, regulation, an 
Executive Order, and officially-promulgated policy. Therefore, a copy of 
each appeal decision will be forwarded to Corps Headquarters; those 
decisions will be periodically reviewed at the headquarters level for 
consistency with law, Executive Orders, and policy. Additional official 
guidance will be issued as necessary to maintain or improve the 
consistency of the Corps' appellate and permit decisions.



Sec. 331.8  Timeframes for final appeal decisions.

    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 Sec. 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 Sec. 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.



Sec. 331.9  Final appeal decision.

    (a) In accordance with the authorities contained in Sec. 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 (i.e., that 
was not a ``harmless'' procedural error), or to reconsider the decision 
where any essential part of the district engineer's decision was not 
supported by accurate or sufficient information, or analysis, in the 
administrative record. The division engineer will document his decision 
on the merits of the appeal in writing, and provide a copy of this 
decision to the applicant (using certified mail) and the district 
engineer.

[[Page 492]]

    (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.



Sec. 331.10  Final Corps decision.

    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.



Sec. 331.11  Unauthorized activities.

    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) Initial corrective measures. If the district engineer determines 
that initial corrective measures are necessary pursuant to 33 CFR 
326.3(d), an RFA for an appealable action will not be accepted by the 
Corps, until the initial corrective measures have been completed to the 
satisfaction of the district engineer.
    (b) Penalties. If an affected party requests, under this Section, an 
administrative appeal of an appealable action prior to the resolution of 
the unauthorized activity, and the division engineer determines that the 
appeal has no merit, the responsible party remains subject to any civil, 
criminal, and administrative penalties as provided by law.
    (c) Tolling of statute of limitations. 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 processed 
by the Corps, thereby agrees

[[Page 493]]

that the statute of limitations regarding any violation associated with 
that approved JD or application is tolled until one year after the final 
Corps decision, as defined at Sec. 331.10. Moreover, the recipient of 
an approved JD associated with an unauthorized activity or applicant 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-the-fact permit 
application, and/or any administrative appeal (See 33 CFR 
326.3(e)(1)(v)). No administrative appeal associated with an 
unauthorized activity or after-the-fact permit application will be 
accepted until such signed tolling agreement is furnished to the 
district engineer.



Sec. 331.12  Exhaustion of administrative remedies.

    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 Sec. 331.10.

[[Page 494]]



 Sec. Appendix A to Part 331--Administrative Appeal Process for Permit 
                      Denials and Proffered Permits
[GRAPHIC] [TIFF OMITTED] TR28MR00.000


[[Page 495]]





 Sec. Appendix B to Part 331--Applicant Options With Initial Proffered 
                                 Permit
[GRAPHIC] [TIFF OMITTED] TR28MR00.001


[[Page 496]]





Sec. Appendix C to Part 331--Administrative Appeal Process for Approved 
                      Jurisdictional Determinations
[GRAPHIC] [TIFF OMITTED] TR28MR00.002


[[Page 497]]





Sec. Appendix D to Part 331--Process for Unacceptable Request for Appeal
[GRAPHIC] [TIFF OMITTED] TR28MR00.003


[[Page 498]]





PART 332_COMPENSATORY MITIGATION FOR LOSSES OF AQUATIC RESOURCES--
Table of Contents



Sec.
332.1 Purpose and general considerations.
332.2 Definitions.
332.3 General compensatory mitigation requirements.
332.4 Planning and documentation.
332.5 Ecological performance standards.
332.6 Monitoring.
332.7 Management.
332.8 Mitigation banks and in-lieu fee programs.

    Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. 1344; and Pub. L. 108-
136.

    Source: 73 FR 19670, Apr. 10, 2008, unless otherwise noted.



Sec. 332.1  Purpose and general considerations.

    (a) Purpose. (1) The purpose of this part is to establish standards 
and criteria for the use of all types of compensatory mitigation, 
including on-site and off-site permittee-responsible mitigation, 
mitigation banks, and in-lieu fee mitigation to offset unavoidable 
impacts to waters of the United States authorized through the issuance 
of Department of the Army (DA) permits pursuant to section 404 of the 
Clean Water Act (33 U.S.C. 1344) and/or sections 9 or 10 of the Rivers 
and Harbors Act of 1899 (33 U.S.C. 401, 403). This part implements 
section 314(b) of the 2004 National Defense Authorization Act (Pub. L. 
108-136), which directs that the standards and criteria shall, to the 
maximum extent practicable, maximize available credits and opportunities 
for mitigation, provide for regional variations in wetland conditions, 
functions, and values, and apply equivalent standards and criteria to 
each type of compensatory mitigation. This part is intended to further 
clarify mitigation requirements established under U.S. Army Corps of 
Engineers (Corps) and U.S. Environmental Protection Agency (U.S. EPA) 
regulations at 33 CFR part 320 and 40 CFR part 230, respectively.
    (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 et seq.).
    (b) Applicability. This part does not alter the regulations at Sec. 
320.4(r) of this title, which address the general mitigation 
requirements for DA permits. In particular, it does not alter the 
circumstances under which compensatory mitigation is required or the 
definitions of ``waters of the United States'' or ``navigable waters of 
the United States,'' which are provided at parts 328 and 329 of this 
chapter, respectively. Use of resources as compensatory mitigation that 
are not otherwise subject to regulation under section 404 of the Clean 
Water Act and/or sections 9 or 10 of the Rivers and Harbors Act of 1899 
does not in and of itself make them subject to such regulation.
    (c) Sequencing. (1) Nothing in this section affects the requirement 
that all DA permits subject to section 404 of the Clean Water Act comply 
with applicable provisions of the Section 404(b)(1) Guidelines at 40 CFR 
part 230.
    (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

[[Page 499]]

404(b)(1) Guidelines compliance analysis, the district engineer may 
determine that a DA permit for the proposed activity cannot be issued 
because of the lack of appropriate and practicable compensatory 
mitigation options.
    (d) Public interest. Compensatory mitigation may also be required to 
ensure that an activity requiring authorization under section 404 of the 
Clean Water Act and/or sections 9 or 10 of the Rivers and Harbors Act of 
1899 is not contrary to the public interest.
    (e) Accounting for regional variations. Where appropriate, district 
engineers shall account for regional characteristics of aquatic resource 
types, functions and services when determining performance standards and 
monitoring requirements for compensatory mitigation projects.
    (f) Relationship to other guidance documents. (1) This part applies 
instead of the ``Federal Guidance for the Establishment, Use, and 
Operation of Mitigation Banks,'' which was issued on November 28, 1995, 
the ``Federal Guidance on the Use of In-Lieu Fee Arrangements for 
Compensatory Mitigation Under Section 404 of the Clean Water Act and 
Section 10 of the Rivers and Harbors Act,'' which was issued on November 
7, 2000, and Regulatory Guidance Letter 02-02, ``Guidance on 
Compensatory Mitigation Projects for Aquatic Resource Impacts Under the 
Corps Regulatory Program Pursuant to Section 404 of the Clean Water Act 
and Section 10 of the Rivers and Harbors Act of 1899'' which was issued 
on December 24, 2002. These guidance documents are no longer to be used 
as compensatory mitigation policy in the Corps Regulatory Program.
    (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.



Sec. 332.2  Definitions.

    For the purposes of this part, the following terms are defined:
    Adaptive management means the development of a management strategy 
that anticipates likely challenges associated with compensatory 
mitigation projects and provides for the implementation of actions to 
address those challenges, as well as unforeseen changes to those 
projects. It requires consideration of the risk, uncertainty, and 
dynamic nature of compensatory mitigation projects and guides 
modification of those projects to optimize performance. It includes the 
selection of appropriate measures that will ensure that the aquatic 
resource functions are provided and involves analysis of monitoring 
results to identify potential problems of a compensatory mitigation 
project and the identification and implementation of measures to rectify 
those problems.
    Advance credits means any credits of an approved in-lieu fee program 
that are available for sale prior to being fulfilled in accordance with 
an approved mitigation project plan. Advance credit sales require an 
approved in-lieu fee program instrument that meets all applicable 
requirements including a specific allocation of advance credits, by 
service area where applicable. The instrument must also contain a 
schedule for fulfillment of advance credit sales.
    Buffer means an upland, wetland, and/or riparian area that protects 
and/or enhances aquatic resource functions associated with wetlands, 
rivers, streams, lakes, marine, and estuarine systems from disturbances 
associated with adjacent land uses.
    Compensatory mitigation means the restoration (re-establishment or 
rehabilitation), establishment (creation), enhancement, and/or in 
certain circumstances preservation of aquatic resources for the purposes 
of offsetting unavoidable adverse impacts which remain after all 
appropriate and practicable avoidance and minimization has been 
achieved.
    Compensatory mitigation project means compensatory mitigation 
implemented by the permittee as a requirement of a DA permit (i.e., 
permittee-responsible mitigation), or by a mitigation bank or an in-lieu 
fee program.

[[Page 500]]

    Condition means the relative ability of an aquatic resource to 
support and maintain a community of organisms having a species 
composition, diversity, and functional organization comparable to 
reference aquatic resources in the region.
    Credit means a unit of measure (e.g., a functional or areal measure 
or other suitable metric) representing the accrual or attainment of 
aquatic functions at a compensatory mitigation site. The measure of 
aquatic functions is based on the resources restored, established, 
enhanced, or preserved.
    DA means Department of the Army.
    Days means calendar days.
    Debit means a unit of measure (e.g., a functional or areal measure 
or other suitable metric) representing the loss of aquatic functions at 
an impact or project site. The measure of aquatic functions is based on 
the resources impacted by the authorized activity.
    Enhancement means the manipulation of the physical, chemical, or 
biological characteristics of an aquatic resource to heighten, 
intensify, or improve a specific aquatic resource function(s). 
Enhancement results in the gain of selected aquatic resource 
function(s), but may also lead to a decline in other aquatic resource 
function(s). Enhancement does not result in a gain in aquatic resource 
area.
    Establishment (creation) means the manipulation of the physical, 
chemical, or biological characteristics present to develop an aquatic 
resource that did not previously exist at an upland site. Establishment 
results in a gain in aquatic resource area and functions.
    Fulfillment of advance credit sales of an in-lieu fee program means 
application of credits released in accordance with a credit release 
schedule in an approved mitigation project plan to satisfy the 
mitigation requirements represented by the advance credits. Only after 
any advance credit sales within a service area have been fulfilled 
through the application of released credits from an in-lieu fee project 
(in accordance with the credit release schedule for an approved 
mitigation project plan), may additional released credits from that 
project be sold or transferred to permittees. When advance credits are 
fulfilled, an equal number of new advance credits is restored to the 
program sponsor for sale or transfer to permit applicants.
    Functional capacity means the degree to which an area of aquatic 
resource performs a specific function.
    Functions means the physical, chemical, and biological processes 
that occur in ecosystems.
    Impact means adverse effect.
    In-kind means a resource of a similar structural and functional type 
to the impacted resource.
    In-lieu fee program means a program involving the restoration, 
establishment, enhancement, and/or preservation of aquatic resources 
through funds paid to a governmental or non-profit natural resources 
management entity to satisfy compensatory mitigation requirements for DA 
permits. Similar to a mitigation bank, an in-lieu fee program sells 
compensatory mitigation credits to permittees whose obligation to 
provide compensatory mitigation is then transferred to the in-lieu 
program sponsor. However, the rules governing the operation and use of 
in-lieu fee programs are somewhat different from the rules governing 
operation and use of mitigation banks. The operation and use of an in-
lieu fee program are governed by an in-lieu fee program instrument.
    In-lieu fee program instrument means the legal document for the 
establishment, operation, and use of an in-lieu fee program.
    Instrument means mitigation banking instrument or in-lieu fee 
program instrument.
    Interagency Review Team (IRT) means an interagency group of federal, 
tribal, state, and/or local regulatory and resource agency 
representatives that reviews documentation for, and advises the district 
engineer on, the establishment and management of a mitigation bank or an 
in-lieu fee program.
    Mitigation bank means a site, or suite of sites, where resources 
(e.g., wetlands, streams, riparian areas) are restored, established, 
enhanced, and/or preserved for the purpose of providing compensatory 
mitigation for impacts authorized by DA permits. In general, a 
mitigation bank sells compensatory mitigation credits to permittees 
whose

[[Page 501]]

obligation to provide compensatory mitigation is then transferred to the 
mitigation bank sponsor. The operation and use of a mitigation bank are 
governed by a mitigation banking instrument.
    Mitigation banking instrument means the legal document for the 
establishment, operation, and use of a mitigation bank.
    Off-site means an area that is neither located on the same parcel of 
land as the impact site, nor on a parcel of land contiguous to the 
parcel containing the impact site.
    On-site means an area located on the same parcel of land as the 
impact site, or on a parcel of land contiguous to the impact site.
    Out-of-kind means a resource of a different structural and 
functional type from the impacted resource.
    Performance standards are observable or measurable physical 
(including hydrological), chemical and/or biological attributes that are 
used to determine if a compensatory mitigation project meets its 
objectives.
    Permittee-responsible mitigation means an aquatic resource 
restoration, establishment, enhancement, and/or preservation activity 
undertaken by the permittee (or an authorized agent or contractor) to 
provide compensatory mitigation for which the permittee retains full 
responsibility.
    Preservation means the removal of a threat to, or preventing the 
decline of, aquatic resources by an action in or near those aquatic 
resources. This term includes activities commonly associated with the 
protection and maintenance of aquatic resources through the 
implementation of appropriate legal and physical mechanisms. 
Preservation does not result in a gain of aquatic resource area or 
functions.
    Re-establishment means the manipulation of the physical, chemical, 
or biological characteristics of a site with the goal of returning 
natural/historic functions to a former aquatic resource. Re-
establishment results in rebuilding a former aquatic resource and 
results in a gain in aquatic resource area and functions.
    Reference aquatic resources are a set of aquatic resources that 
represent the full range of variability exhibited by a regional class of 
aquatic resources as a result of natural processes and anthropogenic 
disturbances.
    Rehabilitation means the manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of repairing natural/
historic functions to a degraded aquatic resource. Rehabilitation 
results in a gain in aquatic resource function, but does not result in a 
gain in aquatic resource area.
    Release of credits means a determination by the district engineer, 
in consultation with the IRT, that credits associated with an approved 
mitigation plan are available for sale or transfer, or in the case of an 
in-lieu fee program, for fulfillment of advance credit sales. A 
proportion of projected credits for a specific mitigation bank or in-
lieu fee project may be released upon approval of the mitigation plan, 
with additional credits released as milestones specified in the credit 
release schedule are achieved.
    Restoration means the manipulation of the physical, chemical, or 
biological characteristics of a site with the goal of returning natural/
historic functions to a former or degraded aquatic resource. For the 
purpose of tracking net gains in aquatic resource area, restoration is 
divided into two categories: re-establishment and rehabilitation.
    Riparian areas are lands adjacent to streams, rivers, lakes, and 
estuarine-marine shorelines. Riparian areas provide a variety of 
ecological functions and services and help improve or maintain local 
water quality.
    Service area means the geographic area within which impacts can be 
mitigated at a specific mitigation bank or an in-lieu fee program, as 
designated in its instrument.
    Services mean the benefits that human populations receive from 
functions that occur in ecosystems.
    Sponsor means any public or private entity responsible for 
establishing, and in most circumstances, operating a mitigation bank or 
in-lieu fee program.
    Standard permit means a standard, individual permit issued under the 
authority of section 404 of the Clean Water Act and/or sections 9 or 10 
of the Rivers and Harbors Act of 1899.

[[Page 502]]

    Temporal loss is the time lag between the loss of aquatic resource 
functions caused by the permitted impacts and the replacement of aquatic 
resource functions at the compensatory mitigation site. Higher 
compensation ratios may be required to compensate for temporal loss. 
When the compensatory mitigation project is initiated prior to, or 
concurrent with, the permitted impacts, the district engineer may 
determine that compensation for temporal loss is not necessary, unless 
the resource has a long development time.
    Watershed means a land area that drains to a common waterway, such 
as a stream, lake, estuary, wetland, or ultimately the ocean.
    Watershed approach means an analytical process for making 
compensatory mitigation decisions that support the sustainability or 
improvement of aquatic resources in a watershed. It involves 
consideration of watershed needs, and how locations and types of 
compensatory mitigation projects address those needs. A landscape 
perspective is used to identify the types and locations of compensatory 
mitigation projects that will benefit the watershed and offset losses of 
aquatic resource functions and services caused by activities authorized 
by DA permits. The watershed approach may involve consideration of 
landscape scale, historic and potential aquatic resource conditions, 
past and projected aquatic resource impacts in the watershed, and 
terrestrial connections between aquatic resources when determining 
compensatory mitigation requirements for DA permits.
    Watershed plan means a plan developed by federal, tribal, state, 
and/or local government agencies or appropriate non-governmental 
organizations, in consultation with relevant stakeholders, for the 
specific goal of aquatic resource restoration, establishment, 
enhancement, and preservation. A watershed plan addresses aquatic 
resource conditions in the watershed, multiple stakeholder interests, 
and land uses. Watershed plans may also identify priority sites for 
aquatic resource restoration and protection. Examples of watershed plans 
include special area management plans, advance identification programs, 
and wetland management plans.



Sec. 332.3  General compensatory mitigation requirements.

    (a) General considerations. (1) The fundamental objective of 
compensatory mitigation is to offset environmental losses resulting from 
unavoidable impacts to waters of the United States authorized by DA 
permits. The district engineer must determine the compensatory 
mitigation to be required in a DA permit, based on what is practicable 
and capable of compensating for the aquatic resource functions that will 
be lost as a result of the permitted activity. When evaluating 
compensatory mitigation options, the district engineer will consider 
what would be environmentally preferable. In making this determination, 
the district engineer must assess the likelihood for ecological success 
and sustainability, the location of the compensation site relative to 
the impact site and their significance within the watershed, and the 
costs of the compensatory mitigation project. In many cases, the 
environmentally preferable compensatory mitigation may be provided 
through mitigation banks or in-lieu fee programs because they usually 
involve consolidating compensatory mitigation projects where 
ecologically appropriate, consolidating resources, providing financial 
planning and scientific expertise (which often is not practical for 
permittee-responsible compensatory mitigation projects), reducing 
temporal losses of functions, and reducing uncertainty over project 
success. Compensatory mitigation requirements must be commensurate with 
the amount and type of impact that is associated with a particular DA 
permit. Permit applicants are responsible for proposing an appropriate 
compensatory mitigation option to offset unavoidable impacts.
    (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

[[Page 503]]

functions are greater, compared to enhancement and preservation.
    (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) Type and location of compensatory mitigation. (1) When 
considering options for successfully providing the required compensatory 
mitigation, the district engineer shall consider the type and location 
options in the order presented in paragraphs (b)(2) through (b)(6) of 
this section. In general, the required compensatory mitigation should be 
located within the same watershed as the impact site, and should be 
located where it is most likely to successfully replace lost functions 
and services, taking into account such watershed scale features as 
aquatic habitat diversity, habitat connectivity, relationships to 
hydrologic sources (including the availability of water rights), trends 
in land use, ecological benefits, and compatibility with adjacent land 
uses. When compensating for impacts to marine resources, the location of 
the compensatory mitigation site should be chosen to replace lost 
functions and services within the same marine ecological system (e.g., 
reef complex, littoral drift cell). Compensation for impacts to aquatic 
resources in coastal watersheds (watersheds that include a tidal water 
body) should also be located in a coastal watershed where practicable. 
Compensatory mitigation projects should not be located where they will 
increase risks to aviation by attracting wildlife to areas where 
aircraft-wildlife strikes may occur (e.g., near airports).
    (2) Mitigation bank credits. When permitted impacts are located 
within the service area of an approved mitigation bank, and the bank has 
the appropriate number and resource type of credits available, the 
permittee's compensatory mitigation requirements may be met by securing 
those credits from the sponsor. Since an approved instrument (including 
an approved mitigation plan and appropriate real estate and financial 
assurances) for a mitigation bank is required to be in place before its 
credits can begin to be used to compensate for authorized impacts, use 
of a mitigation bank can help reduce risk and uncertainty, as well as 
temporal loss of resource functions and services. Mitigation bank 
credits are not released for debiting until specific milestones 
associated with the mitigation bank site's protection and development 
are achieved, thus use of mitigation bank credits can also help reduce 
risk that mitigation will not be fully successful. Mitigation banks 
typically involve larger, more ecologically valuable parcels, and more 
rigorous scientific and technical analysis, planning and implementation 
than permittee-responsible mitigation. Also, development of a mitigation 
bank requires site identification in advance, project-specific planning, 
and significant investment of financial resources that is often not 
practicable for many in-lieu fee programs. For these reasons, the 
district engineer should give preference to the use of mitigation bank 
credits when these considerations are applicable. However, these same 
considerations may also be used to override this preference, where 
appropriate, as, for example, where an in-lieu fee program has released 
credits available from a specific approved in-lieu fee project, or a 
permittee-responsible project will restore an outstanding resource based 
on rigorous scientific and technical analysis.
    (3) In-lieu fee program credits. Where permitted impacts are located 
within the service area of an approved in-lieu fee program, and the 
sponsor has the appropriate number and resource type of credits 
available, the permittee's compensatory mitigation requirements may be 
met by securing those credits from the sponsor. Where permitted impacts 
are not located in the service area of an approved mitigation bank, or 
the approved mitigation bank does not have the appropriate number and

[[Page 504]]

resource type of credits available to offset those impacts, in-lieu fee 
mitigation, if available, is generally preferable to permittee-
responsible mitigation. In-lieu fee projects typically involve larger, 
more ecologically valuable parcels, and more rigorous scientific and 
technical analysis, planning and implementation than permittee-
responsible mitigation. They also devote significant resources to 
identifying and addressing high-priority resource needs on a watershed 
scale, as reflected in their compensation planning framework. For these 
reasons, the district engineer should give preference to in-lieu fee 
program credits over permittee-responsible mitigation, where these 
considerations are applicable. However, as with the preference for 
mitigation bank credits, these same considerations may be used to 
override this preference where appropriate. Additionally, in cases where 
permittee-responsible mitigation is likely to successfully meet 
performance standards before advance credits secured from an in-lieu fee 
program are fulfilled, the district engineer should also give 
consideration to this factor in deciding between in-lieu fee mitigation 
and permittee-responsible mitigation.
    (4) Permittee-responsible mitigation under a watershed approach. 
Where permitted impacts are not in the service area of an approved 
mitigation bank or in-lieu fee program that has the appropriate number 
and resource type of credits available, permittee-responsible mitigation 
is the only option. Where practicable and likely to be successful and 
sustainable, the resource type and location for the required permittee-
responsible compensatory mitigation should be determined using the 
principles of a watershed approach as outlined in paragraph (c) of this 
section.
    (5) Permittee-responsible mitigation through on-site and in-kind 
mitigation. In cases where a watershed approach is not practicable, the 
district engineer should consider opportunities to offset anticipated 
aquatic resource impacts by requiring on-site and in-kind compensatory 
mitigation. The district engineer must also consider the practicability 
of on-site compensatory mitigation and its compatibility with the 
proposed project.
    (6) Permittee-responsible mitigation through off-site and/or out-of-
kind mitigation. If, after considering opportunities for on-site, in-
kind compensatory mitigation as provided in paragraph (b)(5) of this 
section, the district engineer determines that these compensatory 
mitigation opportunities are not practicable, are unlikely to compensate 
for the permitted impacts, or will be incompatible with the proposed 
project, and an alternative, practicable off-site and/or out-of-kind 
mitigation opportunity is identified that has a greater likelihood of 
offsetting the permitted impacts or is environmentally preferable to on-
site or in-kind mitigation, the district engineer should require that 
this alternative compensatory mitigation be provided.
    (c) Watershed approach to compensatory mitigation. (1) The district 
engineer must use a watershed approach to establish compensatory 
mitigation requirements in DA permits to the extent appropriate and 
practicable. Where a watershed plan is available, the district engineer 
will determine whether the plan is appropriate for use in the watershed 
approach for compensatory mitigation. In cases where the district 
engineer determines that an appropriate watershed plan is available, the 
watershed approach should be based on that plan. Where no such plan is 
available, the watershed approach should be based on information 
provided by the project sponsor or available from other sources. The 
ultimate goal of a watershed approach is to maintain and improve the 
quality and quantity of aquatic resources within watersheds through 
strategic selection of compensatory mitigation sites.
    (2) Considerations. (i) A watershed approach to compensatory 
mitigation considers the importance of landscape position and resource 
type of compensatory mitigation projects for the sustainability of 
aquatic resource functions within the watershed. Such an approach 
considers how the types and locations of compensatory mitigation 
projects will provide the desired aquatic resource functions, and will 
continue to function over time in a changing landscape. It also 
considers the habitat requirements of important species, habitat loss or 
conversion trends,

[[Page 505]]

sources of watershed impairment, and current development trends, as well 
as the requirements of other regulatory and non-regulatory programs that 
affect the watershed, such as storm water management or habitat 
conservation programs. It includes the protection and maintenance of 
terrestrial resources, such as non-wetland riparian areas and uplands, 
when those resources contribute to or improve the overall ecological 
functioning of aquatic resources in the watershed. Compensatory 
mitigation requirements determined through the watershed approach should 
not focus exclusively on specific functions (e.g., water quality or 
habitat for certain species), but should provide, where practicable, the 
suite of functions typically provided by the affected aquatic resource.
    (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) Information needs. (i) In the absence of a watershed plan 
determined by the district engineer under paragraph (c)(1) of this 
section to be appropriate for use in the watershed approach, the 
district engineer will use a watershed approach based on analysis of 
information regarding watershed conditions and needs, including 
potential sites for aquatic resource restoration activities and 
priorities for aquatic resource restoration and preservation. Such 
information includes: current trends in habitat loss or conversion; 
cumulative impacts of past development activities, current development 
trends, the presence and needs of sensitive species; site conditions 
that favor or hinder the success of compensatory mitigation projects; 
and chronic environmental problems such as flooding or poor water 
quality.
    (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) Watershed scale. The size of watershed addressed using a 
watershed approach should not be larger than is appropriate to ensure 
that the aquatic resources provided through compensation activities will 
effectively compensate

[[Page 506]]

for adverse environmental impacts resulting from activities authorized 
by DA permits. The district engineer should consider relevant 
environmental factors and appropriate locally developed standards and 
criteria when determining the appropriate watershed scale in guiding 
compensation activities.
    (d) Site selection. (1) The compensatory mitigation project site 
must be ecologically suitable for providing the desired aquatic resource 
functions. In determining the ecological suitability of the compensatory 
mitigation project site, the district engineer must consider, to the 
extent practicable, the following factors:
    (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) Mitigation type. (1) In general, in-kind mitigation is 
preferable to out-of-kind mitigation because it is most likely to 
compensate for the functions and services lost at the impact site. For 
example, tidal wetland compensatory mitigation projects are most likely 
to compensate for unavoidable impacts to tidal wetlands, while perennial 
stream compensatory mitigation projects are most likely to compensate 
for unavoidable impacts to perennial streams. Thus, except as provided 
in paragraph (e)(2) of this section, the required compensatory 
mitigation shall be of a similar type to the affected aquatic resource.
    (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) Amount of compensatory mitigation. (1) If the district engineer 
determines that compensatory mitigation is necessary to offset 
unavoidable impacts to aquatic resources, the amount of required 
compensatory mitigation must be, to the extent practicable, sufficient 
to replace lost aquatic resource functions. In cases where appropriate 
functional or condition assessment methods or other suitable metrics are 
available, these methods should be used where practicable to determine 
how

[[Page 507]]

much compensatory mitigation is required. If a functional or condition 
assessment or other suitable metric is not used, a minimum one-to-one 
acreage or linear foot compensation ratio must be used.
    (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) Use of mitigation banks and in-lieu fee programs. Mitigation 
banks and in-lieu fee programs may be used to compensate for impacts to 
aquatic resources authorized by general permits and individual permits, 
including after-the-fact permits, in accordance with the preference 
hierarchy in paragraph (b) of this section.
    (h) Preservation. (1) Preservation may be used to provide 
compensatory mitigation for activities authorized by DA permits when all 
the following criteria are met:
    (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) Buffers. District engineers may require the restoration, 
establishment, enhancement, and preservation, as well as the 
maintenance, of riparian areas and/or buffers around aquatic resources 
where necessary to ensure the long-term viability of those resources. 
Buffers may also provide habitat or corridors necessary for the 
ecological functioning of aquatic resources. If buffers are required by 
the district engineer as part of the compensatory mitigation project, 
compensatory mitigation credit will be provided for those buffers.
    (j) Relationship to other federal, tribal, state, and local 
programs. (1) Compensatory mitigation projects for DA permits may also 
be used to satisfy the environmental requirements of other programs, 
such as tribal, state, or local wetlands regulatory programs, other 
federal programs such as the Surface Mining Control and Reclamation Act, 
Corps civil works projects, and Department of Defense military 
construction projects, consistent with the terms and requirements of 
these programs and subject to the following considerations:
    (i) The compensatory mitigation project must include appropriate 
compensation required by the DA permit

[[Page 508]]

for unavoidable impacts to aquatic resources authorized by that 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) Permit conditions. (1) The compensatory mitigation requirements 
for a DA permit, including the amount and type of compensatory 
mitigation, must be clearly stated in the special conditions of the 
individual permit or general permit verification (see 33 CFR 325.4 and 
330.6(a)). The special conditions must be enforceable.
    (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) Party responsible for compensatory mitigation. (1) For 
permittee-responsible mitigation, the special conditions of the DA 
permit must clearly indicate the party or parties responsible for the 
implementation, performance, and

[[Page 509]]

long-term management of the compensatory mitigation project.
    (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) Timing. Implementation of the compensatory mitigation project 
shall be, to the maximum extent practicable, in advance of or concurrent 
with the activity causing the authorized impacts. The district engineer 
shall require, to the extent appropriate and practicable, additional 
compensatory mitigation to offset temporal losses of aquatic functions 
that will result from the permitted activity.
    (n) Financial assurances. (1) The district engineer shall require 
sufficient financial assurances to ensure a high level of confidence 
that the compensatory mitigation project will be successfully completed, 
in accordance with applicable performance standards. In cases where an 
alternate mechanism is available to ensure a high level of confidence 
that the compensatory mitigation will be provided and maintained (e.g., 
a formal, documented commitment from a government agency or public 
authority) the district engineer may determine that financial assurances 
are not necessary for that compensatory mitigation project.
    (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

[[Page 510]]

standards. The DA permit or instrument must clearly specify the 
conditions under which the financial assurances are to be released to 
the permittee, sponsor, and/or other financial assurance provider, 
including, as appropriate, linkage to achievement of performance 
standards, adaptive management, or compliance with special conditions.
    (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) Compliance with applicable law. The compensatory mitigation 
project must comply with all applicable federal, state, and local laws. 
The DA permit, mitigation banking instrument, or in-lieu fee program 
instrument must not require participation by the Corps or any other 
federal agency in project management, including receipt or management of 
financial assurances or long-term financing mechanisms, except as 
determined by the Corps or other agency to be consistent with its 
statutory authority, mission, and priorities.



Sec. 332.4  Planning and documentation.

    (a) Pre-application consultations. Potential applicants for standard 
permits are encouraged to participate in pre-application meetings with 
the Corps and appropriate agencies to discuss potential mitigation 
requirements and information needs.
    (b) Public review and comment. (1) For an activity that requires a 
standard DA permit pursuant to section 404 of the Clean Water Act, the 
public notice for the proposed activity must contain a statement 
explaining how impacts associated with the proposed activity are to be 
avoided, minimized, and compensated for. This explanation shall address, 
to the extent that such information is provided in the mitigation 
statement required by Sec. 325.1(d)(7) of this chapter, the proposed 
avoidance and minimization and the amount, type, and location of any 
proposed compensatory mitigation, including any out-of-kind 
compensation, or indicate an intention to use an approved mitigation 
bank or in-lieu fee program. The level of detail provided in the public 
notice must be commensurate with the scope and scale of the impacts. The 
notice shall not include information that the district engineer and the 
permittee believe should be kept confidential for business purposes, 
such as the exact location of a proposed mitigation site that has not 
yet been secured. The permittee must clearly identify any information 
being claimed as confidential in the mitigation statement when 
submitted. In such cases, the notice must still provide enough 
information to enable the public to provide meaningful comment on the 
proposed mitigation.
    (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) Mitigation plan--(1) Preparation and approval. (i) For 
individual permits, the permittee must prepare a draft mitigation plan 
and submit it to the district engineer for review. After addressing any 
comments provided by the district engineer, the permittee must prepare a 
final mitigation plan, which must be approved by the district engineer 
prior to issuing the individual permit. The approved final mitigation

[[Page 511]]

plan must be incorporated into the individual permit by reference. The 
final mitigation plan must include the items described in paragraphs 
(c)(2) through (c)(14) of this section, but the level of detail of the 
mitigation plan should be commensurate with the scale and scope of the 
impacts. 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 the name of the 
specific mitigation bank or in-lieu fee program to be used.
    (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 Sec. 332.8.
    (2) Objectives. A description of the resource type(s) and amount(s) 
that will be provided, the method of compensation (i.e., restoration, 
establishment, enhancement, and/or preservation), and the manner in 
which the resource functions of the compensatory mitigation project will 
address the needs of the watershed, ecoregion, physiographic province, 
or other geographic area of interest.
    (3) Site selection. A description of the factors considered during 
the site selection process. This should include consideration of 
watershed needs, on-site alternatives where applicable, and the 
practicability of accomplishing ecologically self-sustaining aquatic 
resource restoration, establishment, enhancement, and/or preservation at 
the compensatory mitigation project site. (See Sec. 332.3(d).)
    (4) Site protection instrument. A description of the legal 
arrangements and instrument, including site ownership, that will be used 
to ensure the long-term protection of the compensatory mitigation 
project site (see Sec. 332.7(a)).
    (5) Baseline information. A description of the ecological 
characteristics of the proposed compensatory mitigation project site 
and, in the case of an application for a DA permit, the impact site. 
This may include descriptions of historic and existing plant 
communities, historic and existing hydrology, soil conditions, a map 
showing the locations of the impact and mitigation site(s) or the 
geographic coordinates for those site(s), and other site characteristics 
appropriate to the type of resource proposed as compensation. The 
baseline information should also include a delineation of waters of the 
United States on the proposed compensatory mitigation project site. A 
prospective permittee planning to secure credits from an approved 
mitigation bank or in-lieu fee program only needs to provide baseline 
information about

[[Page 512]]

the impact site, not the mitigation bank or in-lieu fee project site.
    (6) Determination of credits. A description of the number of credits 
to be provided, including a brief explanation of the rationale for this 
determination. (See Sec. 332.3(f).)
    (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) Mitigation work plan. Detailed written specifications and work 
descriptions for the compensatory mitigation project, including, but not 
limited to, the geographic boundaries of the project; construction 
methods, timing, and sequence; source(s) of water, including connections 
to existing waters and uplands; methods for establishing the desired 
plant community; plans to control invasive plant species; the proposed 
grading plan, including elevations and slopes of the substrate; soil 
management; and erosion control measures. For stream compensatory 
mitigation projects, the mitigation work plan may also include other 
relevant information, such as planform geometry, channel form (e.g., 
typical channel cross-sections), watershed size, design discharge, and 
riparian area plantings.
    (8) Maintenance plan. A description and schedule of maintenance 
requirements to ensure the continued viability of the resource once 
initial construction is completed.
    (9) Performance standards. Ecologically-based standards that will be 
used to determine whether the compensatory mitigation project is 
achieving its objectives. (See Sec. 332.5.)
    (10) Monitoring requirements. A description of parameters to be 
monitored in order to determine if the compensatory mitigation project 
is on track to meet performance standards and if adaptive management is 
needed. A schedule for monitoring and reporting on monitoring results to 
the district engineer must be included. (See Sec. 332.6.)
    (11) Long-term management plan. A description of how the 
compensatory mitigation project will be managed after performance 
standards have been achieved to ensure the long-term sustainability of 
the resource, including long-term financing mechanisms and the party 
responsible for long-term management. (See Sec. 332.7(d).)
    (12) Adaptive management plan. A management strategy to address 
unforeseen changes in site conditions or other components of the 
compensatory mitigation project, including the party or parties 
responsible for implementing adaptive management measures. The adaptive 
management plan will guide decisions for revising compensatory 
mitigation plans and implementing measures to address both foreseeable 
and unforeseen circumstances that adversely affect compensatory 
mitigation success. (See Sec. 332.7(c).)
    (13) Financial assurances. A description of financial assurances 
that will be provided and how they are sufficient to ensure a high level 
of confidence that the compensatory mitigation project will be 
successfully completed, in accordance with its performance standards 
(see Sec. 332.3(n)).
    (14) Other information. The district engineer may require additional 
information as necessary to determine the appropriateness, feasibility, 
and practicability of the compensatory mitigation project.



Sec. 332.5  Ecological performance standards.

    (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

[[Page 513]]

available science that can be measured or assessed in a practicable 
manner. Performance standards may be based on variables or measures of 
functional capacity described in functional assessment methodologies, 
measurements of hydrology or other aquatic resource characteristics, 
and/or comparisons to reference aquatic resources of similar type and 
landscape position. The use of reference aquatic resources to establish 
performance standards will help ensure that those performance standards 
are reasonably achievable, by reflecting the range of variability 
exhibited by the regional class of aquatic resources as a result of 
natural processes and anthropogenic disturbances. Performance standards 
based on measurements of hydrology should take into consideration the 
hydrologic variability exhibited by reference aquatic resources, 
especially wetlands. Where practicable, performance standards should 
take into account the expected stages of the aquatic resource 
development process, in order to allow early identification of potential 
problems and appropriate adaptive management.



Sec. 332.6  Monitoring.

    (a) General. (1) Monitoring the compensatory mitigation project site 
is necessary to determine if the project is meeting its performance 
standards, and to determine if measures are necessary to ensure that the 
compensatory mitigation project is accomplishing its objectives. The 
submission of monitoring reports to assess the development and condition 
of the compensatory mitigation project is required, but the content and 
level of detail for those monitoring reports must be commensurate with 
the scale and scope of the compensatory mitigation project, as well as 
the compensatory mitigation project type. The mitigation plan must 
address the monitoring requirements for the compensatory mitigation 
project, including the parameters to be monitored, the length of the 
monitoring period, the party responsible for conducting the monitoring, 
the frequency for submitting monitoring reports to the district 
engineer, and the party responsible for submitting those monitoring 
reports to the district engineer.
    (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) Monitoring period. The mitigation plan must provide for a 
monitoring period that is sufficient to demonstrate that the 
compensatory mitigation project has met performance standards, but not 
less than five years. A longer monitoring period must be required for 
aquatic resources with slow development rates (e.g., forested wetlands, 
bogs). Following project implementation, the district engineer may 
reduce or waive the remaining monitoring requirements upon a 
determination that the compensatory mitigation project has achieved its 
performance standards. Conversely the district engineer may extend the 
original monitoring period upon a determination that performance 
standards have not been met or the compensatory mitigation project is 
not on track to meet them. The district engineer may also revise 
monitoring requirements when remediation and/or adaptive management is 
required.
    (c) Monitoring reports. (1) The district engineer must determine the 
information to be included in monitoring reports. This information must 
be sufficient for the district engineer to determine how the 
compensatory mitigation project is progressing towards meeting its 
performance standards, and may include plans (such as as-built plans), 
maps, and photographs to illustrate site conditions. Monitoring reports 
may also include the results of functional, condition, or other 
assessments used to provide quantitative or qualitative measures of the 
functions provided by the compensatory mitigation project site.
    (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

[[Page 514]]

resource agencies, and the public, upon request.



Sec. 332.7  Management.

    (a) Site protection. (1) The aquatic habitats, riparian areas, 
buffers, and uplands that comprise the overall compensatory mitigation 
project must be provided long-term protection through real estate 
instruments or other available mechanisms, as appropriate. Long-term 
protection may be provided through real estate instruments such as 
conservation easements held by entities such as federal, tribal, state, 
or local resource agencies, non-profit conservation organizations, or 
private land managers; the transfer of title to such entities; or by 
restrictive covenants. For government property, long-term protection may 
be provided through federal facility management plans or integrated 
natural resources management plans. When approving a method for long-
term protection of non-government property other than transfer of title, 
the district engineer shall consider relevant legal constraints on the 
use of conservation easements and/or restrictive covenants in 
determining whether such mechanisms provide sufficient site protection. 
To provide sufficient site protection, a conservation easement or 
restrictive covenant should, where practicable, establish in an 
appropriate third party (e.g., governmental or non-profit resource 
management agency) the right to enforce site protections and provide the 
third party the resources necessary to monitor and enforce these site 
protections.
    (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) Sustainability. Compensatory mitigation projects shall be 
designed, to the maximum extent practicable, to be self-sustaining once 
performance standards have been achieved. This includes minimization of 
active engineering features (e.g., pumps) and appropriate siting to 
ensure that natural hydrology and landscape context will support long-
term sustainability. Where active long-term management and maintenance 
are necessary to ensure long-term sustainability (e.g., prescribed 
burning, invasive species control, maintenance of water control 
structures, easement enforcement), the responsible party must provide 
for such management and maintenance. This includes the provision of 
long-term financing mechanisms where necessary. Where needed, the 
acquisition and protection of water rights must be secured and 
documented in the permit conditions or instrument.
    (c) Adaptive management. (1) If the compensatory mitigation project 
cannot be constructed in accordance with

[[Page 515]]

the approved mitigation plans, the permittee or sponsor must notify the 
district engineer. A significant modification of the compensatory 
mitigation project requires approval from the district engineer.
    (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) Long-term management. (1) The permit conditions or instrument 
must identify the party responsible for ownership and all long-term 
management of the compensatory mitigation project. The permit conditions 
or instrument may contain provisions allowing the permittee or sponsor 
to transfer the long-term management responsibilities of the 
compensatory mitigation project site to a land stewardship entity, such 
as a public agency, non-governmental organization, or private land 
manager, after review and approval by the district engineer. The land 
stewardship entity need not be identified in the original permit or 
instrument, as long as the future transfer of long-term management 
responsibility is approved by the district engineer.
    (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.



Sec. 332.8  Mitigation banks and in-lieu fee programs.

    (a) General considerations. (1) All mitigation banks and in-lieu fee 
programs must have an approved instrument signed by the sponsor and the 
district engineer prior to being used to provide compensatory mitigation 
for DA permits.
    (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

[[Page 516]]

the absence of natural fire and controlling invasive exotic plant 
species.
    (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) Interagency Review Team. (1) The district engineer will 
establish an Interagency Review Team (IRT) to review documentation for 
the establishment and management of mitigation banks and in-lieu fee 
programs. The district engineer or his designated representative serves 
as Chair of the IRT. In cases where a mitigation bank or in-lieu fee 
program is proposed to satisfy the requirements of another federal, 
tribal, state, or local program, in addition to compensatory mitigation 
requirements of DA permits, it may be appropriate for the administering 
agency to serve as co-Chair of the IRT.
    (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) MOAs with other agencies. The district engineer and members of 
the IRT may enter into a memorandum of agreement (MOA) with any other 
federal, state or local government agency to perform all or some of the 
IRT review functions described in this section. Such MOAs must include 
provisions for appropriate federal oversight of the review process. The 
district engineer retains sole authority for final approval of 
instruments and other documentation required under this section.
    (c) Compensation planning framework for in-lieu fee programs. (1) 
The approved instrument for an in-lieu fee program must include a 
compensation planning framework that will be used to select, secure, and 
implement aquatic resource restoration, establishment, enhancement, and/
or preservation activities. The compensation planning framework must 
support a watershed approach to compensatory mitigation.

[[Page 517]]

All specific projects used to provide compensation for DA permits must 
be consistent with the approved compensation planning framework. 
Modifications to the framework must be approved as a significant 
modification to the instrument by the district engineer, after 
consultation with the IRT.
    (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 Sec. 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) Review process. (1) The sponsor is responsible for preparing all 
documentation associated with establishment of the mitigation bank or 
in-lieu fee program, including the prospectus, instrument, and other 
appropriate documents, such as mitigation plans for a mitigation bank. 
The prospectus provides an overview of the proposed mitigation bank or 
in-lieu fee program and serves as the basis for public and initial IRT 
comment. For a mitigation bank, the mitigation plan, as described in 
Sec. 332.4(c), provides detailed plans and specifications for the 
mitigation bank site. For in-lieu fee programs, mitigation plans will be 
prepared as in-lieu fee project sites are identified after the 
instrument has been approved and the in-lieu fee program becomes 
operational. The instrument provides the authorization for the 
mitigation bank or in-lieu fee program to provide credits to be used as 
compensatory mitigation for DA permits.
    (2) Prospectus. The prospectus must provide a summary of the 
information regarding the proposed mitigation bank or in-lieu fee 
program, at a sufficient level of detail to support informed public and 
IRT comment. The review process begins when the sponsor submits a 
complete prospectus to the district engineer. For modifications of 
approved instruments, submittal of a new prospectus is not required; 
instead, the sponsor must submit a written request for an instrument 
modification accompanied by appropriate documentation. The district 
engineer must notify the sponsor within 30 days whether or not a 
submitted prospectus is complete. A complete prospectus includes the 
following information:

[[Page 518]]

    (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) Preliminary review of prospectus. Prior to submitting a 
prospectus, the sponsor may elect to submit a draft prospectus to the 
district engineer for comment and consultation. The district engineer 
will provide copies of the draft prospectus to the IRT and will provide 
comments back to the sponsor within 30 days. Any comments from IRT 
members will also be forwarded to the sponsor. This preliminary review 
is optional but is strongly recommended. It is intended to identify 
potential issues early so that the sponsor may attempt to address those 
issues prior to the start of the formal review process.
    (4) Public review and comment. Within 30 days of receipt of a 
complete prospectus or an instrument modification request that will be 
processed in accordance with paragraph (g)(1) of this section, the 
district engineer will provide public notice of the proposed mitigation 
bank or in-lieu fee program, in accordance with the public notice 
procedures at 33 CFR 325.3. The public notice must, at a minimum, 
include a summary of the prospectus and indicate that the full 
prospectus is available to the public for review upon request. For 
modifications of approved instruments, the public notice must instead 
summarize, and make available to the public upon request, whatever 
documentation is appropriate for the modification (e.g., a new or 
revised mitigation plan). The comment period for public notice will be 
30 days, unless the district engineer determines that a longer comment 
period is appropriate. The district engineer will notify the sponsor if 
the comment period is extended beyond 30 days, including an explanation 
of why the longer comment period is necessary. Copies of all comments 
received in response to the public notice must be distributed to the 
other IRT members and to the sponsor within 15 days of the close of the 
public comment period. The district engineer and IRT members may also 
provide comments to the sponsor at this time, and copies of any such 
comments will also be distributed to all IRT members. If the 
construction of a mitigation bank or an in-lieu fee program project 
requires a DA permit, the public notice requirement may be satisfied 
through the public notice provisions of the permit processing 
procedures, provided all of the relevant information is provided.
    (5) Initial evaluation. (i) After the end of the comment period, the 
district engineer will review the comments received in response to the 
public notice, and make a written initial evaluation as to the potential 
of the proposed mitigation bank or in-lieu fee program to provide 
compensatory mitigation for activities authorized by DA permits. This 
initial evaluation letter must be provided to the sponsor within 30 days 
of the end of the public notice comment period.
    (ii) If the district engineer determines that the proposed 
mitigation

[[Page 519]]

bank or in-lieu fee program has potential for providing appropriate 
compensatory mitigation for activities authorized by DA permits, the 
initial evaluation letter will inform the sponsor that he/she may 
proceed with preparation of the draft instrument (see paragraph (d)(6) 
of this section).
    (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) Draft instrument. (i) After considering comments from the 
district engineer, the IRT, and the public, if the sponsor chooses to 
proceed with establishment of the mitigation bank or in-lieu fee 
program, he must prepare a draft instrument and submit it to the 
district engineer. In the case of an instrument modification, the 
sponsor must prepare a draft amendment (e.g., a specific instrument 
provision, a new or modified mitigation plan), and submit it to the 
district engineer. The district engineer must notify the sponsor within 
30 days of receipt, whether the draft instrument or amendment is 
complete. If the draft instrument or amendment is incomplete, the 
district engineer will request from the sponsor the information 
necessary to make the draft instrument or amendment complete. Once any 
additional information is submitted, the district engineer must notify 
the sponsor as soon as he determines that the draft instrument or 
amendment is complete. The draft instrument must be based on the 
prospectus and must describe in detail the physical and legal 
characteristics of the mitigation bank or in-lieu fee program and how it 
will be established and operated.
    (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 
Sec. 332.4(c)(2) through (14); and

[[Page 520]]

    (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) IRT review. Upon receipt of notification by the district 
engineer that the draft instrument or amendment is complete, the sponsor 
must provide the district engineer with a sufficient number of copies of 
the draft instrument or amendment to distribute to the IRT members. The 
district engineer will promptly distribute copies of the draft 
instrument or amendment to the IRT members for a 30-day comment period. 
The 30-day comment period begins 5 days after the district engineer 
distributes the copies of the draft instrument or amendment to the IRT. 
Following the comment period, the district engineer will discuss any 
comments with the appropriate agencies and with the sponsor. The 
district engineer will seek to resolve issues using a consensus based 
approach, to the extent practicable, while still meeting the decision-
making time frames specified in this section. Within 90 days of receipt 
of the complete draft instrument or amendment by the IRT members, the 
district engineer must notify the sponsor of the status of the IRT 
review. Specifically, the district engineer must indicate to the sponsor 
if the draft instrument or amendment is generally acceptable and what 
changes, if any, are needed. If there are significant unresolved 
concerns that may lead to a formal objection from one or more IRT 
members to the final instrument or amendment, the district engineer will 
indicate the nature of those concerns.
    (8) Final instrument. The sponsor must submit a final instrument to 
the district engineer for approval, with supporting documentation that 
explains how the final instrument addresses the comments provided by the 
IRT. For modifications of approved instruments, the sponsor must submit 
a final amendment to the district engineer for approval, with supporting 
documentation that explains how the final amendment addresses the 
comments provided by the IRT. The final instrument or amendment must be 
provided directly by the sponsor to all members of the IRT. Within 30 
days of receipt of the final instrument or amendment, the district 
engineer will notify the IRT members whether or not he intends to 
approve the instrument or amendment. If no IRT member objects, by 
initiating the dispute resolution process in paragraph (e) of this 
section within 45 days of receipt of the final instrument or amendment, 
the district engineer will notify the sponsor of his final decision and, 
if the instrument or amendment is approved, arrange for it to be signed 
by the appropriate parties. If any IRT member initiates the dispute 
resolution process, the district engineer will notify the sponsor. 
Following conclusion of the dispute resolution process, the district 
engineer will notify the sponsor of his final decision, and if the 
instrument or amendment is approved, arrange for it to be signed by the 
appropriate parties. For mitigation banks, the final instrument must 
contain the information items listed in paragraphs (d)(6)(ii), and (iii) 
of this section. For in-lieu fee programs, the

[[Page 521]]

final instrument must contain the information items listed in paragraphs 
(d)(6)(ii) and (iv) of this section. For the modification of an approved 
instrument, the amendment must contain appropriate information, as 
determined by the district engineer. The final instrument or amendment 
must be made available to the public upon request.
    (e) Dispute resolution process. (1) Within 15 days of receipt of the 
district engineer's notification of intent to approve an instrument or 
amendment, the Regional Administrator of the U.S. EPA, the Regional 
Director of the U.S. Fish and Wildlife Service, the Regional Director of 
the National Marine Fisheries Service, and/or other senior officials of 
agencies represented on the IRT may notify the district engineer and 
other IRT members by letter if they object to the approval of the 
proposed final instrument or amendment. This letter must include an 
explanation of the basis for the objection and, where feasible, offer 
recommendations for resolving the objections. If the district engineer 
does not receive any objections within this time period, he may proceed 
to final action on the instrument or amendment.
    (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.

[[Page 522]]

    (f) Extension of deadlines. (1) The deadlines in paragraphs (d) and 
(e) of this section may be extended by the district engineer at his sole 
discretion in cases where:
    (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) Modification of instruments--(1) Approval of an amendment to an 
approved instrument. Modification of an approved instrument, including 
the addition and approval of umbrella mitigation bank sites or in-lieu 
fee project sites or expansions of previously approved mitigation bank 
or in-lieu fee project sites, must follow the appropriate procedures in 
paragraph (d) of this section, unless the district engineer determines 
that the streamlined review process described in paragraph (g)(2) of 
this section is warranted.
    (2) Streamlined review process. The streamlined modification review 
process may be used for the following modifications of instruments: 
changes reflecting adaptive management of the mitigation bank or in-lieu 
fee program, credit releases, changes in credit releases and credit 
release schedules, and changes that the district engineer determines are 
not significant. If the district engineer determines that the 
streamlined review process is warranted, he must notify the IRT members 
and the sponsor of this determination and provide them with copies of 
the proposed modification. IRT members and the sponsor have 30 days to 
notify the district engineer if they have concerns with the proposed 
modification. If IRT members or the sponsor notify the district engineer 
of such concerns, the district engineer shall attempt to resolve those 
concerns. Within 60 days of providing the proposed modification to the 
IRT, the district engineer must notify the IRT members of his intent to 
approve or disapprove the proposed modification. If no IRT member 
objects, by initiating the dispute resolution process in paragraph (e) 
of this section, within 15 days of receipt of this notification, the 
district engineer will notify the sponsor of his final decision and, if 
the modification is approved, arrange for it to be signed by the 
appropriate parties. If any IRT member initiates the dispute resolution 
process, the district engineer will so notify the sponsor. Following 
conclusion of the dispute resolution process, the district engineer will 
notify the sponsor of his final decision, and if the modification is 
approved, arrange for it to be signed by the appropriate parties.
    (h) Umbrella mitigation banking instruments. A single mitigation 
banking instrument may provide for future authorization of additional 
mitigation bank sites. As additional sites are selected, they must be 
included in the mitigation banking instrument as modifications, using 
the procedures in paragraph (g)(1) of this section. Credit withdrawal 
from the additional bank sites shall be consistent with paragraph (m) of 
this section.
    (i) In-lieu fee program account. (1) The in-lieu fee program sponsor 
must establish a program account after the instrument is approved by the 
district engineer, prior to accepting any fees from permittees. If the 
sponsor accepts funds from entities other than permittees, those funds 
must be kept in separate accounts. The program account must be 
established at a financial institution that is a member of the Federal 
Deposit Insurance Corporation. All interests and earnings accruing to 
the program account must remain in that account for use by the in-lieu 
fee program for the purposes of providing

[[Page 523]]

compensatory mitigation for DA permits. The program account may only be 
used for the selection, design, acquisition, implementation, and 
management of in-lieu fee compensatory mitigation projects, except for a 
small percentage (as determined by the district engineer in consultation 
with the IRT and specified in the instrument) that can be used for 
administrative costs.
    (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) In-lieu fee project approval. (1) As in-lieu fee project sites 
are identified and secured, the sponsor must submit mitigation plans to 
the district engineer that include all applicable items listed in Sec. 
332.4(c)(2) through (14). The mitigation plan must also include a credit 
release schedule consistent with paragraph (o)(8) of this section that 
is tied to achievement of specific performance standards. The review and 
approval of in-lieu fee projects will be conducted in accordance with 
the procedures in paragraph (g)(1) of this section, as modifications of 
the in-lieu fee program instrument. This includes compensatory 
mitigation projects conducted by another party on behalf of the sponsor 
through requests for proposals and awarding of contracts.
    (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) Coordination of mitigation banking instruments and DA permit 
issuance. In cases where initial establishment of the mitigation bank, 
or the development of a new project site under an umbrella banking 
instrument, involves activities requiring DA authorization, the permit 
should not be issued until all relevant provisions of the mitigation 
plan have been substantively determined. This is to ensure that the DA 
permit accurately reflects all relevant provisions of the final 
instrument, such as performance standards.
    (l) Project implementation. (1) The sponsor must have an approved 
instrument prior to collecting funds from permittees to satisfy 
compensatory mitigation requirements for DA permits.

[[Page 524]]

    (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) Credit withdrawal from mitigation banks. The mitigation banking 
instrument may allow for an initial debiting of a percentage of the 
total credits projected at mitigation bank maturity, provided the 
following conditions are satisfied: the mitigation banking instrument 
and mitigation plan have been approved, the mitigation bank site has 
been secured, appropriate financial assurances have been established, 
and any other requirements determined to be necessary by the district 
engineer have been fulfilled. The mitigation banking instrument must 
provide a schedule for additional credit releases as appropriate 
milestones are achieved (see paragraph (o)(8) of this section). 
Implementation of the approved mitigation plan shall be initiated no 
later than the first full growing season after the date of the first 
credit transaction.
    (n) Advance credits for in-lieu fee programs. (1) The in-lieu fee 
program instrument may make a limited number of advance credits 
available to permittees when the instrument is approved. The number of 
advance credits will be determined by the district engineer, in 
consultation with the IRT, and will be specified for each service area 
in the instrument. The number of advance credits will be based on the 
following considerations:
    (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

[[Page 525]]

determines that there is a compensatory mitigation deficit in a specific 
service area by the third growing season after the first advance credit 
in that service area is sold, and determines that it would not be in the 
public interest to allow the sponsor additional time to plan and 
implement an in-lieu fee project, the district engineer must direct the 
sponsor to disburse funds from the in-lieu fee program account to 
provide alternative compensatory mitigation to fulfill those 
compensation obligations.
    (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) Determining credits. (1) Units of measure. The principal units 
for credits and debits are acres, linear feet, functional assessment 
units, or other suitable metrics of particular resource types. 
Functional assessment units or other suitable metrics may be linked to 
acres or linear feet.
    (2) Assessment. Where practicable, an appropriate assessment method 
(e.g., hydrogeomorphic approach to wetlands functional assessment, index 
of biological integrity) or other suitable metric must be used to assess 
and describe the aquatic resource types that will be restored, 
established, enhanced and/or preserved by the mitigation bank or in-lieu 
fee project.
    (3) Credit production. The number of credits must reflect the 
difference between pre- and post-compensatory mitigation project site 
conditions, as determined by a functional or condition assessment or 
other suitable metric.
    (4) Credit value. Once a credit is debited (sold or transferred to a 
permittee), its value cannot change.
    (5) Credit costs. (i) The cost of compensatory mitigation credits 
provided by a mitigation bank or in-lieu fee program is determined by 
the sponsor.
    (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) Credits provided by preservation. These credits should be 
specified as acres, linear feet, or other suitable metrics of 
preservation of a particular resource type. In determining the 
compensatory mitigation requirements for DA permits using mitigation 
banks or in-lieu fee programs, the district engineer should apply a 
higher mitigation ratio if the requirements are to be met through the 
use of preservation credits. In determining this higher ratio, the 
district engineer must consider the relative importance of both the 
impacted and the preserved aquatic resources in sustaining watershed 
functions.
    (7) Credits provided by riparian areas, buffers, and uplands. These 
credits should be specified as acres, linear feet, or other suitable 
metrics of riparian area, buffer, and uplands, respectively. Non-aquatic 
resources can only be used as compensatory mitigation for impacts to 
aquatic resources authorized by DA permits when those resources are 
essential to maintaining the ecological viability of adjoining aquatic

[[Page 526]]

resources. In determining the compensatory mitigation requirements for 
DA permits using mitigation banks and in-lieu fee programs, the district 
engineer may authorize the use of riparian area, buffer, and/or upland 
credits if he determines that these areas are essential to sustaining 
aquatic resource functions in the watershed and are the most appropriate 
compensation for the authorized impacts.
    (8) Credit release schedule. (i) General considerations. Release of 
credits must be tied to performance-based milestones (e.g., 
construction, planting, establishment of specified plant and animal 
communities). The credit release schedule should reserve a significant 
share of the total credits for release only after full achievement of 
ecological performance standards. When determining the credit release 
schedule, factors to be considered may include, but are not limited to: 
The method of providing compensatory mitigation credits (e.g., 
restoration), the likelihood of success, the nature and amount of work 
needed to generate the credits, and the aquatic resource type(s) and 
function(s) to be provided by the mitigation bank or in-lieu fee 
project. The district engineer will determine the credit release 
schedule, including the share to be released only after full achievement 
of performance standards, after consulting with the IRT. Once released, 
credits may only be used to satisfy compensatory mitigation requirements 
of a DA permit if the use of credits for a specific permit has been 
approved by the district engineer.
    (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) Credit release approval. Credit releases for mitigation banks 
and in-lieu fee projects must be approved by the district engineer. In 
order for credits to be released, the sponsor must submit documentation 
to the district engineer demonstrating that the appropriate milestones 
for credit release have been achieved and requesting the release. The 
district engineer will provide copies of this documentation to the IRT 
members for review. IRT members must provide any comments to the 
district engineer within 15 days of receiving this documentation. 
However, if the district engineer determines that a site visit is 
necessary, IRT members must provide any comments to the district 
engineer within 15 days of the site visit. The district engineer must 
schedule the site visit so that it occurs as soon as it is practicable, 
but the site visit may be delayed by seasonal considerations that affect 
the ability of the district engineer and the IRT to assess whether the 
applicable credit release milestones have been achieved. After full 
consideration of any comments received, the district engineer will 
determine whether the milestones have been achieved and the credits can 
be released. The district engineer shall make a decision within 30 days 
of the end of that comment period, and notify the sponsor and the IRT.
    (10) Suspension and termination. If the district engineer determines 
that the mitigation bank or in-lieu fee program is not meeting 
performance standards or complying with the terms of the instrument, 
appropriate action will be taken. Such actions may include, but are not 
limited to, suspending credit sales, adaptive management, decreasing 
available credits, utilizing financial assurances, and terminating the 
instrument.
    (p) Accounting procedures. (1) For mitigation banks, the instrument 
must

[[Page 527]]

contain a provision requiring the sponsor to establish and maintain a 
ledger to account for all credit transactions. Each time an approved 
credit transaction occurs, the sponsor must notify the district 
engineer.
    (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) Reporting. (1) Ledger account. The sponsor must compile an 
annual ledger report showing the beginning and ending balance of 
available credits and permitted impacts for each resource type, all 
additions and subtractions of credits, and any other changes in credit 
availability (e.g., additional credits released, credit sales 
suspended). The ledger report must be submitted to the district 
engineer, who will distribute copies to the IRT members. The ledger 
report is part of the administrative record for the mitigation bank or 
in-lieu fee program. The district engineer will make the ledger report 
available to the public upon request.
    (2) Monitoring reports. The sponsor is responsible for monitoring 
the mitigation bank site or the in-lieu fee project site in accordance 
with the approved monitoring requirements to determine the level of 
success and identify problems requiring remedial action or adaptive 
management measures. Monitoring must be conducted in accordance with the 
requirements in Sec. 332.6, and at time intervals appropriate for the 
particular project type and until such time that the district engineer, 
in consultation with the IRT, has determined that the performance 
standards have been attained. The instrument must include requirements 
for periodic monitoring reports to be submitted to the district 
engineer, who will provide copies to other IRT members.
    (3) Financial assurance and long-term management funding report. The 
district engineer may require the sponsor to provide an annual report 
showing beginning and ending balances, including deposits into and any 
withdrawals from, the accounts providing funds for financial assurances 
and long-term management activities. The report should also include 
information on the amount of required financial assurances and the 
status of those assurances, including their potential expiration.
    (r) Use of credits. Except as provided below, all activities 
authorized by DA permits are eligible, at the discretion of the district 
engineer, to use mitigation banks or in-lieu fee programs to fulfill 
compensatory mitigation requirements for DA permits. The district 
engineer will determine the number and type(s) of credits required to 
compensate for the authorized impacts. Permit applicants may propose to 
use a particular mitigation bank or in-lieu fee program to provide the 
required compensatory mitigation. In such cases, the sponsor must 
provide the permit applicant with a statement of credit availability. 
The district engineer must review the permit applicant's compensatory 
mitigation proposal, and notify the applicant of his determination 
regarding the acceptability of using that mitigation bank or in-lieu fee 
program.
    (s) IRT concerns with use of credits. If, in the view of a member of 
the IRT, an issued permit or series of issued permits raises concerns 
about how credits from a particular mitigation bank or in-lieu fee 
program are being used to satisfy compensatory mitigation requirements 
(including concerns about whether credit use is consistent with the 
terms of the instrument), the IRT member may notify the district 
engineer in writing of the concern. The district engineer shall promptly 
consult with the IRT to address the concern. Resolution of the concern 
is at the discretion of the district engineer, consistent with 
applicable statutes, regulations, and policies regarding compensatory 
mitigation requirements for DA permits. Nothing in this section limits 
the authorities designated to IRT agencies under existing statutes or 
regulations.
    (t) Site protection. (1) For mitigation bank sites, real estate 
instruments, management plans, or other long-term mechanisms used for 
site protection must be finalized before any credits can be released.

[[Page 528]]

    (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) Long-term management. (1) The legal mechanisms and the party 
responsible for the long-term management and the protection of the 
mitigation bank site must be documented in the instrument or, in the 
case of umbrella mitigation banking instruments and in-lieu fee 
programs, the approved mitigation plans. The responsible party should 
make adequate provisions for the operation, maintenance, and long-term 
management of the compensatory mitigation project site. The long-term 
management plan should include a description of long-term management 
needs and identify the funding mechanism that will be used to meet those 
needs.
    (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) Grandfathering of existing instruments--(1) Mitigation banking 
instruments. All mitigation banking instruments approved on or after 
July 9, 2008 must meet the requirements of this part. Mitigation banks 
approved prior to July 9, 2008 may continue to operate under the terms 
of their existing instruments. However, any modification to such a 
mitigation banking instrument on or after July 9, 2008, including 
authorization of additional sites under an umbrella mitigation banking 
instrument, expansion of an existing site, or addition of a different 
type of resource credits (e.g., stream credits to a wetland bank) must 
be consistent with the terms of this part.
    (2) In-lieu fee program instruments. All in-lieu fee program 
instruments approved on or after July 9, 2008 must meet the requirements 
of this part. In-lieu fee programs operating under instruments approved 
prior to July 9, 2008 may continue to operate under those instruments 
for two years after the effective date of this rule, after which time 
they must meet the requirements of this part, unless the district 
engineer determines that circumstances warrant an extension of up to 
three additional years. The district engineer must consult with the IRT 
before approving such extensions. Any revisions made to the in-lieu fee 
program instrument on or after July 9, 2008 must be consistent with the 
terms of this part. Any approved project for which construction was 
completed under the terms of a previously approved instrument may 
continue to operate indefinitely under those terms if the district 
engineer determines that the project is providing appropriate mitigation 
substantially consistent with the terms of this part.



PART 334_DANGER ZONE AND RESTRICTED AREA REGULATIONS--Table of Contents



Sec.
334.1 Purpose.
334.2 Definintions.
334.3 Special policies.
334.4 Establishment and amendment procedures.
334.5 Disestablishment of a danger zone.
334.6 Datum.
334.10 Gulf of Maine off Seal Island, Maine; naval aircraft bombing 
          target area.
334.20 Gulf of Maine off Cape Small, Maine; naval aircraft practice 
          mining range area.
334.30 Gulf of Maine off Pemaquid Point, Maine; naval sonobuoy test 
          area.
334.40 Atlantic Ocean in vicinity of Duck Island, Maine, Isles of 
          Shoals; naval aircraft bombing target area.
334.45 Kennebec River, Bath Iron Works Shipyard, naval restricted area, 
          Bath, Maine.
334.50 Piscataqua River at Portsmouth Naval Shipyard, Kittery, Maine; 
          restricted areas.
334.60 Cape Cod Bay south of Wellfleet Harbor, Mass.; naval aircraft 
          bombing target area.

[[Page 529]]

334.70 Buzzards Bay, and adjacent waters, Mass.; danger zones for naval 
          operations.
334.75 Thames River, Naval Submarine Base New London, restricted area.
334.78 Rhode Island Sound, Atlantic Ocean, approximately 4.0 nautical 
          miles due south of Lands End in Newport, RI; restricted area 
          for naval practice minefield.
334.80 Narragansett Bay, RI; restricted area.
334.81 Narragansett Bay, East Passage, Coddington Cove, Naval Station 
          Newport, naval restricted area, Newport, Rhode Island.
334.82 Narragansett Bay, East Passage, Coasters Harbor Island, Naval 
          Station Newport, Newport, Rhode Island, restricted area.
334.85 New York Harbor, adjacent to the Stapleton Naval Station, Staten 
          Island, New York; restricted area.
334.100 Atlantic Ocean off Cape May, N.J.; Coast Guard Rifle Range.
334.102 Sandy Hook Bay, Naval Weapons Station EARLE, Piers and Terminal 
          Channel, restricted area, Middletown, New Jersey.
334.110 Delaware Bay off Cape Henlopen, Del.; naval restricted area.
334.120 Delaware Bay off Milford Neck; naval aircraft bombing target 
          area.
334.130 Atlantic Ocean off Wallops Island and Chincoteague Inlet, Va.; 
          danger zone.
334.140 Chesapeake Bay; U.S. Army Proving Ground Reservation, Aberdeen, 
          Md.
334.150 Severn River at Annapolis, Md.; experimental test area, U.S. 
          Navy Marine Engineering Laboratory.
334.155 Severn River, Naval Station Annapolis, Small Boat Basin, 
          Annapolis, MD; naval restricted area.
334.160 Severn River, at U.S. Naval Academy Santee Basin, Annapolis, 
          Md.; naval restricted area.
334.170 Chesapeake Bay, in the vicinity of Chesapeake Beach, Md.; firing 
          range, Naval Research Laboratory.
334.180 Patuxent River, Md.; restricted areas, U.S. Naval Air Test 
          Center, Patuxent River, Md.
334.190 Chesapeake Bay, in vicinity of Bloodsworth Island, MD, U.S. 
          Navy.
334.200 Chesapeake Bay, Point Lookout to Cedar Point; aerial and surface 
          firing range and target area, U.S. Naval Air Station, Patuxent 
          River, Maryland, danger zones.
334.210 Chesapeake Bay, in vicinity of Tangier Island; naval guided 
          missiles test operations area.
334.220 Chesapeake Bay, south of Tangier Island, Va.; naval firing 
          range.
334.230 Potomac River.
334.240 Potomac River, Mattawoman Creek and Chicamuxen Creek; U.S. Naval 
          Propellant Plant, Indian Head, Md.
334.250 Gunston Cove, at Whitestone Point, Va.; U.S. Army restricted 
          area.
334.260 York River, Va.; naval restricted areas.
334.270 York River adjacent to Cheatham Annex Depot, Naval Supply 
          Center, Williamsburg, Va.; restricted area.
334.275 North and Southwest Branch, Back River, Hampton, U.S. Air Force 
          Base, Langley, Va.; restricted area.
334.280 James River between the entrance to Skiffes Creek and Mulberry 
          Point, Va.; army training and small craft testing area.
334.290 Elizabeth River, Southern Branch, Va.; naval restricted areas.
334.293 Elizabeth River, Craney Island Refueling Pier Restricted Area, 
          Portsmouth VA; naval restricted area.
334.300 Hampton Roads and Willoughby Bay, Norfolk Naval Base, naval 
          restricted area, Norfolk, Virginia.
334.310 Chesapeake Bay, Lynnhaven Roads; navy amphibious training area.
334.320 Chesapeake Bay entrance; naval restricted area.
334.330 Atlantic Ocean and connecting waters in vicinity of Myrtle 
          Island, Va.; Air Force practice bombing, rocket firing, and 
          gunnery range.
334.340 Chesapeake Bay off Plumtree Island, Hampton, Va.; Air Force 
          precision test area.
334.350 Chesapeake Bay off Fort Monroe, Va.; firing range danger zone.
334.360 Chesapeake Bay off Fort Monroe, Virginia; restricted area, U.S. 
          Naval Base and Naval Surface Weapon Center.
334.370 Chesapeake Bay, Lynnhaven Roads; danger zones, U.S. Naval 
          Amphibious Base.
334.380 Atlantic Ocean south of entrance to Chesapeake Bay off Dam Neck, 
          Virginia; naval firing range.
334.390 Atlantic Ocean south of entrance to Chesapeake Bay; firing 
          range.
334.400 Atlantic Ocean south of entrance to Chesapeake Bay off Camp 
          Pendleton, Virginia; naval restricted area.
334.410 Albermarle Sound, Pamlico Sound, and adjacent waters, N.C.; 
          danger zones for naval aircraft operations.
334.412 Albemarle Sound, Pamilico Sound, Harvey Point and adjacent 
          waters, NC; restricted area.
334.420 Pamlico Sound and adjacent waters, N.C.; danger zones for Marine 
          Corps operations.
334.430 Neuse River and tributaries at Marine Corps Air Station Cherry 
          Point, North Carolina; restricted area and danger zone.
334.440 New River, N.C., and vicinity; Marine Corps firing ranges.
334.450 Cape Fear River and tributaries at Sunny Point Army Terminal, 
          Brunswick County, N.C.; restricted area.

[[Page 530]]

334.460 Cooper River and tributaries at Charleston, SC.
334.470 Cooper River and Charleston Harbor, S.C.; restricted areas.
334.475 Brickyard Creek and tributaries and the Broad River at Beaufort, 
          SC.
334.480 Archers Creek, Ribbon Creek and Broad River, S.C.; U.S. Marine 
          Corps Recruit Depot rifle and pistol ranges, Parris Island.
334.490 Atlantic Ocean off Georgia Coast; air-to-air and air-to-water 
          gunnery and bombing ranges for fighter and bombardment 
          aircraft, U.S. Air Force.
334.500 St. Johns River, Atlantic Ocean, Sherman Creek; restricted areas 
          and danger zone, Naval Station Mayport, Florida.
334.510 U.S. Navy Fuel Depot Pier, St. Johns River, Jacksonville, Fla.; 
          restricted area.
334.515 Blount Island Command and Marine Corps Support Facility-Blount 
          Island; Jacksonville, Florida restricted areas.
334.520 Lake George, Fla.; naval bombing area.
334.525 Atlantic Ocean off John F. Kennedy Space Center, FL; restricted 
          area.
334.530 Canaveral Harbor adjacent to the Navy pier at Port Canaveral, 
          Fla.; restricted area.
334.540 Banana River at the Eastern Range, 45th Space Wing, Cape 
          Canaveral Air Force Station, FL; restricted area.
334.560 Banana River at Patrick Air Force Base, Fla.; restricted area.
334.570 Banana River near Orsino, Fla.; restricted area.
334.580 Atlantic Ocean near Port Everglades, Fla.
334.590 Atlantic Ocean off Cape Canaveral, Fla.; Air Force missile 
          testing area, Patrick Air Force Base, Fla.
334.595 Atlantic Ocean off Cape Canaveral; 45th Space Wing, Cape 
          Canaveral Air Force Station, FL; restricted area.
334.600 TRIDENT Basin adjacent to Canaveral Harbor at Cape Canaveral Air 
          Force Station, Brevard County, Fla.; danger zone.
334.610 Key West Harbor, at U.S. Naval Base, Key West, Fla.; naval 
          restricted areas and danger zone.
334.620 Straits of Florida and Florida Bay in vicinity of Key West, 
          Fla.; operational training area, aerial gunnery range, and 
          bombing and strafing target areas, Naval Air Station, Key 
          West, Fla.
334.630 Tampa Bay south of MacDill Air Force Base, Fla.; small-arms 
          firing range and aircraft jettison, U.S. Air Force, MacDill 
          Air Force Base.
334.635 Hillsborough Bay and waters contiguous to MacDill Air Force 
          Base, Fla.; restricted area.
334.640 Gulf of Mexico south of Apalachee Bay, Fla.; Air Force rocket 
          firing range.
334.650 Gulf of Mexico, south of St. George Island, Fla.; test firing 
          range.
334.660 Gulf of Mexico and Apalachicola Bay south of Apalachicola, Fla., 
          Drone Recovery Area, Tyndall Air Force Base, Fla.
334.670 Gulf of Mexico south and west of Apalachicola, San Blas, and St. 
          Joseph bays; air-to-air firing practice range, Tyndall Air 
          Force Base, Fla.
334.680 Gulf of Mexico, southeast of St. Andrew Bay East Entrance, 
          small- arms firing range, Tyndall Air Force Base, Fla.
334.690 [Reserved]
334.700 Choctawhatchee Bay, aerial gunnery ranges, Air Proving Ground 
          Center, Air Research and Development Command, Eglin Air Force 
          Base, Fla.
334.710 The Narrows and Gulf of Mexico adjacent to Santa Rosa Island, 
          Air Force Proving Ground Command, Eglin Air Force Base, Fla.
334.720 Gulf of Mexico, south from Choctawhatchee Bay; guided missiles 
          test operations area, Headquarters Air Proving Ground Command, 
          U.S. Air Force, Eglin Air Force Base, Fla.
334.730 Waters of Santa Rosa Sound and Gulf of Mexico adjacent to Santa 
          Rosa Island, Air Force Proving Ground Command, Eglin Air Force 
          Base, Fla.
334.740 Weekley Bayou, an arm of Boggy Bayou, Fla., at Eglin Air Force 
          Base; restricted area.
334.750 Ben's Lake, a tributary of Choctawhatchee Bay, Fla., at Eglin 
          Air Force Base; restricted area.
334.760 Naval Support Activity Panama City and Alligator Bayou, a 
          tributary of St. Andrew Bay, Fla.; naval restricted area.
334.761 Naval Support Activity Panama City; St. Andrews Bay; restricted 
          areas.
334.762 Naval Support Activity Panama City; North Bay and West Bay; 
          restricted areas.
334.763 Naval Support Activity Panama City; Gulf of Mexico; restricted 
          area.
334.770 Gulf of Mexico and St. Andrew Sound, south of East Bay, Fla., 
          Tyndall Drone Launch Corridor, Tyndall Air Force Base, Fla.; 
          restricted area.
334.775 Naval Air Station Pensacola, Pensacola Bay, Pensacola and Gulf 
          Breeze, Fla.; naval restricted area.
334.778 Pensacola Bay and waters contiguous to the Naval Air Station, 
          Pensacola, FL; restricted area.
334.780 Pensacola Bay, Fla.; seaplane restricted area.
334.782 SUPSHIP Bath Maine Detachment Mobile at AUSTAL, USA, Mobile, AL; 
          restricted area.
334.783 Arlington Channel, U.S. Coast Guard Base Mobile, Mobile, 
          Alabama, Coast Guard restricted area.

[[Page 531]]

334.790 Sabine River at Orange, Tex.; restricted area in vicinity of the 
          Naval and Marine Corps Reserve Center.
334.800 Corpus Christi Bay, Tex.; seaplane restricted area, U.S. Naval 
          Air Station, Corpus Christi.
334.802 Ingleside Naval Station, Ingleside, Texas; restricted area.
334.810 Holston River at Holston Ordnance Works, Kingsport, Tenn.; 
          restricted area.
334.820 Lake Michigan; naval restricted area, U.S. Naval Training 
          Center, Great Lakes, Ill.
334.830 Lake Michigan; small-arms range adjacent to U.S. Naval Training 
          Center, Great Lakes, Ill.
334.840 Waters of Lake Michigan south of Northerly Island at entrance to 
          Burnham Park Yacht Harbor, Chicago, Ill.; danger zone adjacent 
          to airport on Northerly Island.
334.845 Wisconsin Air National Guard, Volk Field military exercise area 
          located in Lake Michigan offshore from Manitowoc and Sheboygan 
          Counties; danger zone.
334.850 Lake Erie, west end, north of Erie Ordnance Depot, Lacarne, 
          Ohio.
334.855 Salt River, Rolling Fork River, Otter Creek; U.S. Army Garrison, 
          Fort Knox Military Reservation; Fort Knox, Kentucky; danger 
          zone.
334.860 San Diego Bay, Calif., Naval Amphibious Base; restricted area.
334.865 Naval Air Station North Island, San Diego, California, 
          restricted area.
334.866 Pacific Ocean at Naval Base Coronado, in the City of Coronado, 
          San Diego County, California; naval danger zone.
334.870 San Diego Harbor, Calif.; restricted area.
334.880 San Diego Harbor, Calif.; naval restricted area adjacent to 
          Point Loma.
334.890 Pacific Ocean off Point Loma, Calif.; naval restricted area.
334.900 Pacific Ocean, U.S. Marine Corps Base, Camp Pendleton, Calif.; 
          restricted area.
334.905 Pacific Ocean, offshore of Camp Pendleton, California; Fallbrook 
          restricted area.
334.910 Pacific Ocean, Camp Pendleton Boat Basin, U.S. Marine Corps 
          Base, Camp Pendleton, Calif.; restricted area.
334.920 Pacific Ocean off the east coast of San Clemente Island, Calif.; 
          naval restricted area.
334.921 Pacific Ocean at San Clemente Island, Calif.; naval restricted 
          area.
334.930 Anaheim Bay Harbor, Calif.; Naval Weapons Station, Seal Beach.
334.938 Federal Correctional Institution, Terminal Island, San Pedro 
          Bay, California; restricted area.
334.940 Pacific Ocean in vicinity of San Pedro, Calif.; practice firing 
          range for U.S. Army Reserve, National Guard, and Coast Guard 
          units.
334.950 Pacific Ocean at San Clemente Island, California; Navy shore 
          bombardment areas.
334.960 Pacific Ocean, San Clemente Island, Calif.; naval danger zone 
          off West Cove.
334.961 Pacific Ocean, San Clemente Island, California; naval danger 
          zone off northwest shore.
334.980 Pacific Ocean, around San Nicolas Island, Calif.; naval 
          restricted area.
334.990 Long Beach Harbor, Calif.; naval restricted area.
334.1010 San Francisco Bay in vicinity of Hunters Point; naval 
          restricted area.
334.1020 San Francisco Bay and Oakland Inner Harbor; restricted areas in 
          vincinity of Naval Air Station, Alameda.
334.1030 Oakland Inner Harbor adjacent to Alameda Facility, Naval Supply 
          Center, Oakland; restricted area.
334.1040 Oakland Harbor in vicinity of Naval Supply Center, Oakland; 
          restricted area and navigation.
334.1050 Oakland Outer Harbor adjacent to the Military Ocean Terminal, 
          Bay Area, Pier No. 8 (Port of Oakland Berth No. 10); 
          restricted area.
334.1060 Oakland Outer Harbor adjacent to the Oakland Army base; 
          restricted area.
334.1065 U.S. Coast Guard Station, San Francisco Bay, Yerba Buena 
          Island, San Francisco Bay, California; restricted area.
334.1070 San Francisco Bay between Treasure Island and Yerba Buena 
          Island; naval restricted area.
334.1080 San Francisco Bay adjacent to northeast corner of Treasure 
          Island; naval restricted area.
334.1090 San Francisco Bay in vicinity of the NSC Fuel Department, Point 
          Molate restricted area.
334.1100 San Pablo Bay, Carquinez Strait, and Mare Island Strait in 
          vicinity of U.S. Naval Shipyard, Mare Island; restricted area.
334.1110 Suisun Bay at Naval Weapons Station, Concord; restricted area.
334.1120 Pacific Ocean in the vicinity of Point Mugu, Calif.; naval 
          small arms firing range.
334.1125 Pacific Ocean Naval Air Weapons Station, Point Mugu, Small Arms 
          Range, Ventura County, California; danger zone.
334.1126 Naval Base Ventura County, Point Mugu, California; restricted 
          area.
334.1127 Naval Base Ventura County, Port Hueneme, California; restricted 
          area.
334.1130 Pacific Ocean, Western Space and Missile Center (WSMC), 
          Vandenberg AFB, Calif.; danger zones.
334.1140 Pacific Ocean at San Miguel Island, Calif.; naval danger zone.
334.1150 Monterey Bay, Calif.
334.1160 San Pablo Bay, Calif.; target practice area, Mare Island Naval 
          Shipyard, Vallejo.

[[Page 532]]

334.1170 San Pablo Bay, Calif.; gunnery range, Naval Inshore Operations 
          Training Center, Mare Island, Vallejo.
334.1180 Strait of Juan de Fuca, Wash.; air-to-surface weapon range, 
          restricted area.
334.1190 Hood Canal and Dabob Bay, Wash.; naval non-explosive torpedo 
          testing area.
334.1200 Strait of Juan de Fuca, eastern end; off the westerly shore of 
          Whidbey Island; naval restricted areas.
334.1210 Admiralty Inlet, entrance; naval restricted area.
334.1215 Port Gardner, Everett Naval Base, naval restricted area, 
          Everett, Washington.
334.1220 Hood Canal, Bangor; naval restricted areas.
334.1230 Port Orchard; naval restricted area.
334.1240 Sinclair Inlet; naval restricted areas.
334.1244 Puget Sound, Manchester Fuel Depot, Manchester, Washington; 
          naval restricted area.
334.1250 Carr Inlet; naval restricted areas.
334.1260 Dabob Bay, Whitney Point; naval restricted area.
334.1270 Port Townsend, Indian Island, Walan Point; naval restricted 
          area.
334.1275 West Arm Behm Canal, Ketchikan, Alaska, restricted areas.
334.1280 Bristol Bay, Alaska; air-to-air weapon range, Alaskan Air 
          Command, U.S. Air Force.
334.1290 In Bering Sea, Shemya Island Area, Alaska; meteorological 
          rocket launching facility, Alaskan Air Command, U.S. Air 
          Force.
334.1300 Blying Sound area, Gulf of Alaska, Alaska; air-to-air gunnery 
          practice area, Alaskan Air Command, U.S. Air Force.
334.1310 Lutak Inlet, Alaska; restricted areas.
334.1320 Kuluk Bay, Adak, Alaska; naval restricted area.
334.1325 United States Army Restricted Area, Kuluk Bay, Adak, Alaska.
334.1330 Bering Strait, Alaska; naval restricted area off Cape Prince of 
          Wales.
334.1340 Pacific Ocean, Hawaii; danger zones.
334.1350 Pacific Ocean, Island of Oahu, Hawaii; danger zone.
334.1360 Pacific Ocean at Barber's Point, Island of Oahu, Hawaii; danger 
          zone.
334.1370 Pacific Ocean at Keahi Point, Island of Oahu, Hawaii; danger 
          zone.
334.1380 Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of Oahu, 
          Hawaii--Ulupau Crater Weapons Training Range; danger zone.
334.1390 Pacific Ocean at Barking Sands, Island of Kauai, Hawaii; 
          missile range facility.
334.1400 Pacific Ocean, at Barbers Point, Island of Oahu, Hawaii; 
          restricted area.
334.1410 Pacific Ocean, at Makapuu Point, Waimanalo, Island of Oahu, 
          Hawaii, Makai Undersea Test Range.
334.1420 Pacific Ocean off Orote Point, Apra Harbor, Island of Guam, 
          Marianas Islands; small-arms firing range.
334.1430 Apra Inner Harbor, Island of Guam; restricted area.
334.1440 Pacific Ocean at Kwajalein Atoll, Marshall Islands; missile 
          testing area.
334.1450 Atlantic Ocean off north coast of Puerto Rico; practice firing 
          areas, U.S. Army Forces Antilles.
334.1460 Atlantic Ocean and Vieques Sound, in vicinity of Culebra 
          Island; bombing and gunnery target area.
334.1470 Caribbean Sea and Vieques Sound, in vicinity of Eastern 
          Vieques; bombing and gunnery target area.
334.1480 Vieques Passage and Atlantic Ocean, off east coast of Puerto 
          Rico and coast of Vieques Island; naval restricted areas.
334.1490 Caribbean Sea, at St. Croix, V.I.; restricted areas.

    Authority: 40 Stat. 266 (33 U.S.C. 1) and 40 Stat. 892 (33 U.S.C. 
3).

    Source: 50 FR 42696, Oct. 22, 1985, unless otherwise noted.



Sec. 334.1  Purpose.

    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.

[58 FR 37607, July 12, 1993]



Sec. 334.2  Definitions.

    (a) Danger zone. A defined water area (or areas) used for target 
practice, bombing, rocket firing or other especially hazardous 
operations, normally for the armed forces. The danger zones may be 
closed to the public on a full-time or intermittent basis, as stated in 
the regulations.
    (b) Restricted area. A defined water area for the purpose of 
prohibiting or limiting public access to the area. Restricted areas 
generally provide security for Government property and/or protection to 
the public from the risks

[[Page 533]]

of damage or injury arising from the Government's use of that area.

[58 FR 37607, July 12, 1993]



Sec. 334.3  Special policies.

    (a) General. The general regulatory policies stated in 33 CFR part 
320 will be followed as appropriate. In addition, danger zone and 
restricted area regulations shall provide for public access to the area 
to the maximum extent practicable.
    (b) Food fishing industry. The authority to prescribe danger zone 
and restricted area regulations must be exercised so as not to 
unreasonably interfere with or restrict the food fishing industry. 
Whenever the proposed establishment of a 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 and the Regional Director, National Marine Fisheries Service, 
National Oceanic & Atmospheric Administration (NOAA).
    (c) Temporary, occasional or intermittent use. If the use of the 
water area is desired for a short period of time, not to exceed thirty 
days in duration, and that planned operations can be conducted safely 
without imposing unreasonable restrictions on navigation, and without 
promulgating restricted area regulations in accordance with the 
regulations in this section, applicants may be informed that formal 
regulations are not required. Activities of this type shall not reoccur 
more often than biennially (every other year), unless danger zone/
restricted area rules are promulgated under this part. Proper notices 
for mariners requesting that vessels avoid the area will be issued by 
the Agency requesting such use of the water area, or if appropriate, by 
the District Engineer, to all known interested persons. Copies will also 
be sent to appropriate State agencies, the Commandant, U.S. Coast Guard, 
Washington, DC 20590, and Director, Defense Mapping Agency, Hydrographic 
Center, Washington, DC 20390, ATTN: Code NS 12. Notification to all 
parties and Agencies shall be made at least two weeks prior to the 
planned event, or earlier, if required for distribution of Local Notice 
to Mariners by the Coast Guard.

[58 FR 37607, July 12, 1993]



Sec. 334.4  Establishment and amendment procedures.

    (a) Application. Any request for the establishment, amendment or 
revocation of a danger zone or restricted area must contain sufficient 
information for the District Engineer to issue a public notice, and as a 
minimum must contain the following:
    (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) Public notice. (1) The Corps will normally publish public 
notices and Federal Register documents concurrently. Upon receipt of a 
request for the establishment, amendment or revocation of a danger zone 
or restricted area, the District Engineer should forward a copy of the 
request with his/her recommendation, a copy of the draft public notice 
and a draft Federal Register document to the Office of the Chief of 
Engineers, ATTN: CECW-OR. The Chief of Engineers will publish the 
proposal in the Federal Register concurrent with the public notice 
issued by the District Engineer.
    (2) Content. The public notice and Federal Register documents must 
include sufficient information to give a clear understanding of the 
proposed action and should include the following items of information:
    (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

[[Page 534]]

date within which comments will be received, normally a period not less 
than 30 days after publication of the notice.
    (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) Distribution. Public notice will be distributed in accordance 
with 33 CFR 325.3(d)(1). In addition to this general distribution, 
public notices will be sent to the following Agencies:
    (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:

Alaska, Oregon and Washington:
    Commander, Naval Base, Seattle
California:
    Commander, Naval Base, San Diego
Hawaii and Trust Territories:
    Commander, Naval Base, Pearl Harbor

    (c) Public hearing. The District Engineer may conduct a public 
hearing in accordance with 33 CFR part 327.
    (d) Environmental documentation. The District Engineer shall prepare 
environmental documentation in accordance with appendix B to 33 CFR part 
325.
    (e) District Engineer's recommendation. After closure of the comment 
period, and upon completion of the District Engineer's review he/she 
shall forward the case through channels to the Office of the Chief of 
Engineers, ATTN: CECW-OR with a recommendation of whether or not the 
danger zone or restricted area regulation should be promulgated. The 
District Engineer shall include a copy of environmental documentation 
prepared in accordance with appendix B to 33 CFR part 325, the record of 
any public hearings, if held, a summary of any comments received and a 
response thereto, and a draft of the regulation as it is to appear in 
the Federal Register.
    (f) Final decision. The Chief of Engineers will notify the District 
Engineer of the final decision to either approve or disapprove the 
regulations. The District Engineer will notify the applicant/proponent 
and publish a public notice of the final decision. Concurrent with 
issuance of the public notice the Office of the Chief of Engineers will 
publish the final decision in the Federal Register and either withdraw 
the proposed regulation or issue the final regulation, as appropriate. 
The final rule shall become effective no sooner than 30 days after 
publication in the Federal Register unless the Chief of Engineers finds 
that sufficient cause exists and publishes that rationale with the 
regulations.

[58 FR 37608, July 12, 1993]



Sec. 334.5  Disestablishment of a danger zone.

    (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 Sec. 334.4 are not normally required before publication 
of the final rule revoking a restricted area or danger zone regulation. 
The

[[Page 535]]

disestablishment/revocation of the danger zone or restricted area 
regulation removes a restriction on a waterway.

[58 FR 37608, July 12, 1993]



Sec. 334.6  Datum.

    (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.

[60 FR 15233, Mar. 23, 1995]



Sec. 334.10  Gulf of Maine off Seal Island, Maine; naval aircraft 
bombing target area.

    (a) The danger zone. A circular area with a radius of 1.5 nautical 
miles, having its center just easterly of Seal Island at latitude 
43[deg]53[min]00[sec] and longitude 68[deg]44[min]00[sec].
    (b) The regulations. (1) No aerial bombing practice will take place 
in the danger zone after 5:00 p.m. Mondays through Saturdays, at any 
time on Sundays, or during foggy or inclement weather.
    (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.

[24 FR 7379, Sept. 12, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985; 
as amended at 62 FR 17551, Apr. 10, 1997]



Sec. 334.20  Gulf of Maine off Cape Small, Maine; naval aircraft practice
mining range area.

    (a) The danger zone. Within an area bounded as follows: Beginning at 
latitude 43[deg]43[min]00[sec], longitude 69[deg]46[min]00[sec]; thence 
to latitude 43[deg]38[min]30[sec], longitude 69[deg]46[min]00[sec]; 
thence to latitude 43[deg]38[min]30[sec], longitude 
69[deg]49[min]30[sec]; thence to latitude 43[deg]42[min]10[sec], 
longitude 69[deg]49[min]30[sec]; thence to the point of beginning.
    (b) The regulations. (1) Test drops from aircraft will be made 
within the area at intermittent periods from noon until sunset local 
time and only during periods of good visibility.
    (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.

[36 FR 5218, Mar. 18, 1971. Redesignated at 50 FR 42696, Oct. 22, 1985]

[[Page 536]]



Sec. 334.30  Gulf of Maine off Pemaquid Point, Maine; naval sonobuoy 
test area.

    (a) The area. The test area or ``Foul Area'' encompasses a circular 
area one nautical mile in radius, the center of which is located 7.9 
nautical miles, bearing 187[deg] magnetic from Pemaquid Light.
    (b) The regulations. (1) Sonobuoy drops will be made only in the 
designated area and when visibility is at least three miles.
    (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.

[27 FR 4280, May 4, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17551, Apr. 10, 1997]



Sec. 334.40  Atlantic Ocean in vicinity of Duck Island, Maine, Isles
of Shoals; naval aircraft bombing target area.

    (a) The danger zone. A circular area with a radius of 500 yards 
having its center on Shag Rock in the vicinity of Duck Island at 
latitude 43[deg]00[min]12[sec], longitude 70[deg]36[min]12[sec].
    (b) The regulations. (1) No person or vessel shall enter or remain 
in the danger zone from 8:00 a.m. to 5:00 p.m. (local time) daily, 
except as authorized by the enforcing agency.
    (2) This section shall be enforced by the Commandant, First Naval 
District, and such agencies as he may designate.

[14 FR 5592, Sept. 13, 1949. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17551, Apr. 10, 1997]



Sec. 334.45  Kennebec River, Bath Iron Works Shipyard, naval restricted
area, Bath, Maine.

    (a) The area. The waters within a coffin shaped area on the west 
side of the river south of the Carlton (Route 1) highway bridge 
beginning on the western shore at latitude 43[deg]54[min]40.7[sec] N, 
longitude 069[deg]48[min]44.8[sec] W; thence easterly to latitude 
43[deg]54[min] 40.7[sec] N, longitude 069[deg]48[min]36.8[sec] W; thence 
southeasterly to latitude 43[deg]54[min]10.4[sec] N, longitude 
069[deg]48[min]34.7[sec] W; thence southwesterly to latitude 
43[deg]53[min]55.1[sec] N, longitude 069[deg]48[min]39.1[sec] W; thence 
westerly to latitude 43[deg]53[min]55.1[sec] N, longitude 
69[deg]48[min]51.8[sec] W; thence northerly along the westerly shoreline 
to the point of origin.
    (b) The regulation. All persons, swimmers, vessels and other craft, 
except those vessels under the supervision or contract to local military 
or Naval authority, vessels of the United States Coast Guard, and local 
or state law enforcement vessels, are prohibited from entering the 
restricted areas without permission from the Supervisor of Shipbuilding, 
USN Bath Maine or his authorized representative
    (c) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the, 
Supervisor of Shipbuilding, Conversion and Repair Bath, United States 
Navy and/or such agencies or persons as he/she may designate.

[67 FR 20446, Apr. 25, 2002]



Sec. 334.50  Piscataqua River at Portsmouth Naval Shipyard, Kittery, 
Maine; restricted areas.

    (a) The areas.

Area No. 1: The area bounded by a line at a point on the easterly side 
of Seavey Island at latitude 43[deg]04[min]37[sec] N, longitude 
70[deg]43[min]44[sec] W, thence to latitude 43[deg]04[min]36[sec] N; 
longitude 70[deg]43[min]40[sec] N, thence to the pier on the westerly 
side of Clark Island at latitude 43[deg]04[min]36.5[sec] N, longitude 
70[deg]43[min]34[sec] W; thence along the northerly side of Clark Island 
to a point on the easterly side at latitude

[[Page 537]]

43[deg]04[min]37[sec] N, longitude 70[deg]43[min]25[sec] W, thence 
northeasterly to the easterly side of Jamaica Island at latitude 
43[deg]04[min]49[sec] N, longitude 70[deg]43[min]24[sec] W, thence along 
the southerly and westerly sides of Jamaica Island and thence generally 
along the easterly side of Seavey Island to the point of beginning.
Area No. 2: The area bounded by a line beginning at a point on the 
southerly side of Seavey Island at Henderson Point at latitude 
43[deg]04[min]29[sec] N, longitude 70[deg]44[min]14[sec] W; thence to 
latitude 43[deg]04[min]29.5[sec] N, longitude 70[deg]44[min]17.4[sec] W; 
thence to latitude 43[deg]04[min]36.6[sec] N, longitude 
70[deg]44[min]22.6[sec] W; thence to latitude 43[deg]04[min]44.8[sec] N, 
longitude 70[deg]44[min]33.2[sec] W; thence to latitude 
43[deg]04[min]47.4[sec] N, longitude 70[deg]44[min]42.1[sec] W; thence 
to latitude 43[deg]04[min]48[sec] N, longitude 70[deg]44[min]52[sec] W; 
thence to latitude 43[deg]04[min]49[sec] N, longitude 
70[deg]44[min]54[sec] W; thence to latitude 43[deg]04[min]51[sec] N, 
longitude 70[deg]44[min]55[sec] W; thence to latitude 
43[deg]04[min]53[sec] N, longitude 70[deg]44[min]53[sec] W; thence to 
latitude 43[deg]04[min]57[sec] N, longitude 70[deg]44[min]47[sec] W; 
thence to latitude 43[deg]04[min]58[sec] N, longitude 
70[deg]44[min]46[sec] W; thence to latitude 43[deg]05[min]02[sec] N, 
longitude 70[deg]44[min]36[sec] W; thence to latitude 
43[deg]05[min]04[sec] N, longitude 70[deg]44[min]31[sec] W; thence along 
the westerly side of Seavey Island to the beginning point.

    (b) The regulations. All persons, vessels and other craft, except 
those vessels under the supervision of or contract to local military or 
naval authority, are prohibited from entering the restricted areas 
without permission from the Commander, Portsmouth Naval Shipyard or his/
her authorized representative.

[46 FR 43045, Aug. 26, 1981, 46 FR 61116, Dec. 15, 1981. Redesignated at 
50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17551, Apr. 10, 1997]



Sec. 334.60  Cape Cod Bay south of Wellfleet Harbor, Mass.; naval aircraft
bombing target area.

    (a) The danger zone. A circular area with a radius of 1,000 yards 
having its center on the aircraft bombing target hulk James Longstreet 
in Cape Cod Bay at latitude 41[deg]49[min]46[sec], longitude 
70[deg]02[min]54[sec].
    (b) The regulations. (1) No person or vessel shall enter or remain 
in the danger zone at any time, except as authorized by the enforcing 
agency.
    (2) This section shall be enforced by the Commandant, First Naval 
District, and such agencies as he may designate.

[14 FR 5592, Sept. 13, 1949. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17551, Apr. 10, 1997]



Sec. 334.70  Buzzards Bay, and adjacent waters, Mass.; danger zones for
naval operations.

    (a) Atlantic Ocean in vicinity of No Mans Land--(1) The area. The 
waters surrounding No Mans Land within an area bounded as follows: 
Beginning at latitude 41[deg]12[min]30[sec], longitude 
70[deg]50[min]30[sec]; thence northwesterly to latitude 
41[deg]15[min]30[sec], longitude 70[deg]51[min]30[sec]; thence 
northeasterly to latitude 41[deg]17[min]30[sec], longitude 
70[deg]50[min]30[sec]; thence southeasterly to latitude 
41[deg]16[min]00[sec], longitude 70[deg]47[min]30[sec]; thence south to 
latitude 41[deg]12[min]30[sec], longitude 70[deg]47[min]30[sec]; thence 
westerly to the point of beginning.
    (2) The regulations. The vessel or person shall at any time enter or 
remain within a rectangular portion of the area bounded on the north by 
latitude 41[deg]16[min]00[sec], on the east by longitude 
70[deg]47[min]30[sec], on the south by latitude 41[deg]12[min]30[sec], 
and on the west by longitude 70[deg]50[min]30[sec], or within the 
remainder of the area between November 1, and April 30, inclusive, 
except by permission of the enforcing agency.
    (3) The regulations in this paragraph shall be enforced by the 
Commandant, First Naval District, and such agencies as he may designate.

[26 FR 11195, Nov. 28, 1961, as amended at 27 FR 10296, Oct. 20, 1962; 
33 FR 10930, Aug. 1, 1968. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17552, Apr. 10, 1997]



Sec. 334.75  Thames River, Naval Submarine Base New London, restricted area.

    (a) The area: The open waters of the Thames River approximately 5 
nautical miles upriver from its mouth along the boundary between Groton 
and Waterford, Connecticut, within an area bounded as follows: From a 
point on the eastern shore at latitude 41[deg]24[min]14.4[sec] N, 
longitude 72[deg]05[min]38.0[sec] W then northerly along the coast to 
latitude 41[deg]24[min]20.0[sec] N, longitude 72[deg]05[min]37.9[sec] W 
then westerly across the river to a point on the western shore at 
latitude 41[deg]24[min]20.0[sec] N, longitude 72[deg]05[min]55.5[sec] W 
then southerly along the coast to a point on the western shore at 
latitude 41[deg]24[min]5.0[sec] N, longitude 72[deg]05[min]55.7[sec] W 
then easterly to the western edge of the dredged channel to a point 
located at latitude 41[deg]24[min]04.1[sec] N, longitude 
72[deg]05[min]51.2[sec] W then southerly along the

[[Page 538]]

western edge of the dredged channel to a point at latitude 
41[deg]24[min]00[sec] N, longitude 72[deg]05[min]52.6[sec] W then 
southerly along the western edge of the dredged channel to a point 
located at latitude 41[deg]23[min]57.1[sec] N, longitude 
72[deg]05[min]52.5[sec] W then southerly to buoy ``11'' located at a 
point at latitude 41[deg]23[min]45.6[sec] N, longitude 
72[deg]05[min]53.7[sec] W then southerly to buoy ``B'' on the 
northeastern shore of Mamacoke Hill to a point at latitude 
41[deg]23[min]33.8[sec] N, longitude 72[deg]05[min]53.7[sec] W then 
southerly along the shore to buoy ``A at latitude 
41[deg]23[min]25.0[sec] N, longitude 72[deg]05[min]45.4[sec] W then 
southeasterly to buoy ``9'' at a point located at latitude 
41[deg]23[min]15.0[sec] N, longitude 72[deg]05[min]35.0[sec] W then 
easterly to a point on the eastern shore at latitude 
41[deg]23[min]15.0[sec] N, longitude 72[deg]05[min]17.9[sec] W then 
northerly along the shore to a point on the eastern shore at latitude 
41[deg]23[min]15.8[sec] N, longitude 72[deg]05[min]17.9[sec] W then 
along the following points:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
41[deg]23[min]15.8[sec] N.................  72[deg]05[min]22.0[sec] W
41[deg]23[min]25.9[sec] N.................  72[deg]05[min]29.9[sec] W
41[deg]23[min]33.8[sec] N.................  72[deg]05[min]34.7[sec] W
41[deg]23[min]37.0[sec] N.................  72[deg]05[min]38.0[sec] W
41[deg]23[min]41.0[sec] N.................  72[deg]05[min]40.3[sec] W
41[deg]23[min]47.2[sec] N.................  72[deg]05[min]42.3[sec] W
41[deg]23[min]53.8[sec] N.................  72[deg]05[min]43.7[sec] W
41[deg]23[min]59.8[sec] N.................  72[deg]05[min]43.0[sec] W
41[deg]24[min]12.4[sec] N.................  72[deg]05[min]43.2[sec] W
------------------------------------------------------------------------


Then to the point of beginning on the eastern shore.

    (b) The regulations. (1) Vessels and other watercraft within the 
designated navigation channel may proceed through the restricted area at 
normal operating speeds without stopping. Vessels and watercraft may 
also utilize the water area within the restricted area located between 
the western edge of the designated channel and the western shore for 
fishing, anchoring and other recreational uses. However, all persons, 
vessels and watercraft, except U.S. military personnel and vessels must 
leave the restricted area when notified by personnel of the New London 
Submarine Base that such use will interfere with submarine maneuvering, 
operations or security.
    (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.

[53 FR 47802, Nov. 28, 1988, as amended at 54 FR 7033, Feb. 16, 1989; 62 
FR 17552, Apr. 10, 1997]



Sec. 334.78  Rhode Island Sound, Atlantic Ocean, approximately 4.0 nautical
miles due south of Lands End in Newport, R. I.; restricted area for

naval practice 
          minefield.

    (a) The area. The open waters of Rhode Island Sound approximately 
4.0 nautical miles due south of Lands End, Newport, Rhode Island, within 
an area bounded as follows: Beginning at latitude 41[deg]20[min]29[sec] 
N., longitude 71[deg]19[min]54[sec] W.; thence 2000 yards easterly to 
latitude 41[deg]20[min]29[sec] N., longitude 71[deg]18[min]34[sec] W.; 
thence 3000 yards southerly to latitude 41[deg]18[min]57[sec] N., 
longitude 71[deg]18[min]34[sec] W.; thence 2000 yards westerly to 
latitude 41[deg]18[min]57[sec] N., longitude 71[deg]19[min]54[sec] W.; 
thence 3000 yards northerly to the point of beginning.

[[Page 539]]

    (b) The regulations. (1) No persons, vessels or other watercraft 
will be allowed to enter the designated area during minefield training.
    (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.

[52 FR 28556, July 31, 1987, as amended at 62 FR 17552, Apr. 10, 1997]



Sec. 334.80  Narragansett Bay, RI; restricted area.

    (a) Beginning at a point on the east shore of Conanicut Island at 
latitude 41[deg]33[min]15[sec]; thence southeasterly to latitude 
41[deg]32[min]44[sec], longitude 71[deg]21[min]17[sec]; thence southerly 
to latitude 41[deg]32[min]09[sec], longitude 71[deg]21[min]17[sec]; 
thence southeasterly to latitude 41[deg]31[min]50[sec], longitude 
71[deg]21[min]10[sec]; thence southeasterly to latitude 
41[deg]31[min]26[sec], longitude 71[deg]20[min]33[sec] thence easterly 
to latitude 41[deg]31[min]27[sec], longitude 71[deg]20[min]06[sec] 
thence northerly to a point on the southwesterly shore of Prudence 
Island at latitude 41[deg]35[min]00[sec], thence northerly along the 
southwesterly shore of Prudence Island to a point at latitude 
41[deg]35[min]43[sec] longitude 71[deg]20[min]15 5[sec]; thence 
northwesterly to latitude 41[deg]37[min]21[sec], longitude 
71[deg]20[min]48[sec]; thence west to latitude 41[deg]37[min]21[sec] 
longitude 71[deg]21[min]48[sec]; and thence south to latitude 
41[deg]33[min]54[sec], longitude 71[deg]21[min]48[sec].
    (b) The Regulations. (1) No person or vessel shall at any time, 
under any circumstances, anchor or fish or tow a drag of any kind in the 
prohibited area because of the extensive cable system located therein.
    (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.

[33 FR 4464, Mar. 13, 1968. Redesignated at 50 FR 42696, Oct. 22, 1985; 
58 FR 37608, July 12, 1993; 62 FR 17552, Apr. 10, 1997]



Sec. 334.81  Narragansett Bay, East Passage, Coddington Cove, Naval Station
Newport, naval restricted area, Newport, Rhode Island.

    (a) The area. All of the navigable waters of Coddington Cove east of 
a line that connects Coddington Point at latitude 
41[deg]31[min]24.0[sec] N, longitude 071[deg]19[min]24.0[sec] W; with 
the outer end of the Coddington Cove Breakwater on the north side of the 
cove at latitude 41[deg]31[min]55.7[sec] N, longitude 
071[deg]19[min]28.2[sec] W.
    (b) The regulation. All persons, swimmers, vessels and other craft, 
except those vessels under the supervision or contract to local military 
or Naval authority, vessels of the United States Coast Guard, and local 
or state law enforcement vessels, are prohibited from entering the 
restricted area without specific permission from the Commanding Officer, 
Naval Station Newport, USN, Newport, Rhode Island or his/her authorized 
representative.
    (c) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the United 
States Navy, Commanding Officer Naval Station Newport, and/or such

[[Page 540]]

agencies or persons as he/she may designate.

[67 FR 65313, Oct. 24, 2002]



Sec. 334.82  Narragansett Bay, East Passage, Coasters Harbor Island, Naval
Station Newport, Newport, Rhode Island, restricted area.

    (a) The area. The waters within a ``C-shaped'' area adjacent to and 
surrounding Coasters Harbor
    Island beginning at Coddington Point at latitude 
41[deg]31[min]24.0[sec] N, longitude 71[deg]19[min]24.0[sec] W; thence 
west southwest to latitude 41[deg]31[min]21.5[sec] N, longitude 
71[deg]19[min]45.0[sec] W; thence south southwest to latitude 
41[deg]31[min]04.2[sec] N, longitude 71[deg]19[min]52.8[sec] W; thence 
due south to latitude 41[deg]30[min]27.3[sec] N, longitude 
71[deg]19[min]52.8[sec] W; thence south southeast to 
41[deg]30[min]13.8[sec] N, longitude 71[deg]19[min]42.0[sec] W; thence 
southeast to latitude 41[deg]30[min]10.2[sec] N, longitude 
71[deg]19[min]32.6[sec] W; thence due east to latitude 
41[deg]30[min]10.2[sec] N, longitude 71[deg]19[min]20.0[sec] W; thence 
northerly along the mainland shoreline to the point of origin.
    (b) The regulation. All persons, swimmers, vessels and other craft, 
except those vessels under the supervision or contract to local military 
or Naval authority, vessels of the United States Coast Guard, and 
Federal, local or State law enforcement vessels, are prohibited from 
entering the restricted areas without permission from the Commanding 
Officer Naval Station Newport, USN, Newport, Rhode Island or his/her 
authorized representative.
    (c) Enforcement. (1) The regulation in this section, promulgated by 
the United States Army Corps of Engineers, shall be enforced by the 
United States Navy, Commanding Officer Naval Station Newport, Newport, 
Rhode Island and/or other persons or agencies as he/she may designate.

[69 FR 35519, June 25, 2004]



Sec. 334.85  New York Harbor, adjacent to the Stapleton Naval Station, Staten
Island, New York; restricted area.

    (a) The area. The waters of New York Harbor beginning at a point on 
shore at latitude 40[deg]38[min]02[sec] N, longitude 
074[deg]04[min]24[sec] W; thence easterly to latitude 
40[deg]38[min]02.5[sec] N, longitude 074[deg]04[min]09[sec] W; thence 
southerly to latitude 40[deg]37[min]53[sec] N, longitude 
074[deg]04[min]07[sec] W; thence east-southeasterly to latitude 
40[deg]37[min]50[sec] N, longitude 074[deg]03[min]50.2[sec] W; thence 
south-southeasterly to latitude 40[deg]37[min]37.5[sec] N, longitude 
074[deg]03[min]46[sec] W; thence southwesterly to the shore line at 
latitude 40[deg]37[min]24.5[sec] N, longitude 074[deg]04[min]18[sec] W; 
thence northerly along the shore line to the point of origin.
    (b) The regulations. (1) The portion of the restricted area 
extending from the shore out to a line 600 feet east of the U.S. 
Pierhead Line is closed to all persons and vessels except those vessels 
owned by, under hire to or performing work for Naval Station New York, 
Staten Island, New York.
    (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) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, Naval Station New York, and such agencies as 
he/she shall designate.

[56 FR 5300, Feb. 8, 1991]



Sec. 334.100  Atlantic Ocean off Cape May, N.J.; Coast Guard Rifle Range.

    (a) The danger zone. The waters of the Atlantic Ocean within an area 
described as follows: Beginning at Cape May West Jetty Light; thence 
180[deg] true, 800 yards; thence 250[deg] true, 1,325 yards; and thence 
335[deg] true to the shore line.
    (b) The regulations. (1) No person or vessel shall enter or remain 
in the danger area between sunrise and sunset daily, except as 
authorized by the enforcing agency.
    (2) The regulations in this section shall be enforced by the 
Commander, Third Coast Guard District, or his authorized representative.

[25 FR 12244, Nov. 30, 1960. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17552, Apr. 10, 1997]

[[Page 541]]



Sec. 334.102  Sandy Hook Bay, Naval Weapons Station EARLE, Piers and
Terminal Channel, restricted area, Middletown, New Jersey.

    (a) The area. All of the navigable waters within the area bounded by 
these coordinates:

Latitude 40[deg]25[min]55.6[sec] N, longitude 074[deg]04[min]31.4[sec] 
W; thence to
Latitude 40[deg]26[min]54.0[sec] N, longitude 074[deg]03[min]53.0[sec] 
W; thence to
Latitude 40[deg]26[min]58.0[sec] N, longitude 074[deg]04[min]03.0[sec] 
W; thence to
Latitude 40[deg]27[min]56.0[sec] N, longitude 074[deg]03[min]24.0[sec] 
W; thence to
Latitude 40[deg]27[min]41.7[sec] N, longitude 074[deg]02[min]45.0[sec] 
W; thence to
Latitude 40[deg]28[min]23.5[sec] N, longitude 074[deg]02[min]16.6[sec]W; 
thence to
Latitude 40[deg]28[min]21.2[sec] N, longitude 074[deg]01[min]56.0[sec] 
W; thence to
Latitude 40[deg]28[min]07.9[sec] N, longitude 074[deg]02[min]18.6[sec] 
W; thence to
Latitude 40[deg]27[min]39.3[sec] N, longitude 074[deg]02[min]38.3[sec] 
W; thence to
Latitude 40[deg]27[min]28.5[sec] N, longitude 074[deg]02[min]10.4[sec] 
W; thence to
Latitude 40[deg]26[min]29.5[sec] N, longitude 074[deg]02[min]51.2[sec] 
W; thence to
Latitude 40[deg]26[min]31.4[sec] N, longitude 074[deg]02[min]55.4[sec] 
W; thence to
Latitude 40[deg]25[min]27.1[sec] N, longitude 074[deg]03[min]39.7[sec]W 
longitude;
and thence along the shoreline to the point of origin (NAD 83).


The Department of the Navy plans to install buoys along these 
coordinates to outline the Restricted Area.

    (b) The regulation. (1) Except as set forth in subparagraph (b)(2), 
no persons, unauthorized vessels or other unauthorized craft may enter 
the restricted area at any time;
    (2) Vessels are authorized to cross the Terminal Channel provided 
that there are no naval vessels then transiting the channel bounded by:

Latitude 40[deg]27[min]41.7[sec] N, longitude 074[deg]02[min]45.0[sec] 
W; thence to
Latitude 40[deg]28[min]23.5[sec] N, longitude 074[deg]02[min]16.6[sec] 
W; thence to
Latitude 40[deg]28[min]21.2[sec] N, longitude 074[deg]01[min]56.0[sec] 
W; thence to
Latitude 40[deg]28[min]07.9[sec] N, longitude 074[deg]02[min]18.6[sec] 
W; thence to
Latitude 40[deg]27[min]39.3[sec] N, longitude 074[deg]02[min]38.3[sec] 
W); and (3) No person may swim in the Restricted Area.

    (c) Enforcement. The regulation in this section, promulgated by the 
U.S. Army Corps of Engineers, shall be enforced by the Commanding 
Officer, Naval Weapons Station Earle, and/or other persons or agencies 
as he/she may designate.

[68 FR 37971, June 26, 2003]



Sec. 334.110  Delaware Bay off Cape Henlopen, Del.; naval restricted area.

    (a) The area. Beginning at a point on the south shore of Delaware 
Bay at longitude 75[deg]06[min]12[sec]; thence to latitude 
38[deg]47[min]25[sec], longitude 75[deg]06[min]20[sec]; thence to 
latitude 38[deg]47[min]48[sec], longitude 75[deg]06[min]00[sec]; thence 
to latitude 38[deg]50[min]43[sec], longitude 75[deg]02[min]11[sec]; 
thence to latitude 38[deg]49[min]16[sec], longitude 
74[deg]59[min]35[sec]; thence to a point on the shore at latitude 
38[deg]46[min]09[sec]; thence northwesterly and southwesterly along the 
shore at Cape Henlopen to the point of beginning.
    (b) The regulations. (1) Anchoring, trawl fishing, crabbing, 
dragging, grappling, and towing with hawser on bottom are prohibited in 
the area and no object attached to a vessel shall be placed on or near 
the bottom.
    (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.

[18 FR 4047, July 10, 1953. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.120  Delaware Bay off Milford Neck; naval aircraft bombing target area.

    (a) The danger zone. A circular area of one nautical mile radius 
having its center in Delaware Bay at latitude 38[deg]58[min]12[sec], 
longitude 75[deg]17[min]30[sec].
    (b) The regulations. (1) Anchoring, trawling, crabbing, fishing and 
dragging in the danger zone are prohibited during daylight hours.
    (2) The regulations in this section shall be enforced by the 
Commandant, Fourth Naval District, and such agencies as he may 
designate.

[20 FR 563, Jan. 26, 1955. Redesignated at 50 FR 42696, Oct. 22, 1985]

[[Page 542]]



Sec. 334.130  Atlantic Ocean off Wallops Island and Chincoteague Inlet, Va.; danger zone.

    (a) The area. An area immediately offshore from Wallops Island 
defined by lines drawn as follows: Beginning at latitude 
37[deg]51[min]30[sec] N., longitude 75[deg]27[min]30[sec] W.; thence to 
latitude 37[deg]51[min]30[sec] N., longitude 75[deg]17[min]12[sec] W.; 
thence to latitude 37[deg]43[min]18[sec] N., longitude 
75[deg]29[min]42[sec] W.; and thence to latitude 37[deg]49[min]18[sec] 
N., longitude 75[deg]29[min]42[sec] W.
    (b) The regulations. (1) Persons and vessels may enter and operate 
in the danger zone at all times when warning signals are not displayed.
    (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[deg]50[min]38[sec], longitude 75[deg]28[min]47[sec] and the 
beacon shall be displayed about 200 feet above mean high water at 
latitude 37[deg]50[min]16[sec], longitude 75[deg]29[min]07[sec]. 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.

[31 FR 13445, Oct. 18, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17552, Apr. 10, 1997]



Sec. 334.140  Chesapeake Bay; U.S. Army Proving Ground Reservation, Aberdeen, Md.

    (a) Restricted area defined. The following indicates the limits of 
the waters of or adjacent to the Aberdeen Proving Ground, Maryland, and 
inside of which boundaries will lie the restricted area known as the 
Aberdeen Proving Ground, Maryland.
    (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[deg]30[min] W. from Bear Point; thence 
approximately 9,275 yards S. 51[deg]04[min] 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

[[Page 543]]

the point of land on the westerly side of Gunpowder River about one mile 
south of Oliver Point; thence northerly along the center line of Reardon 
Inlet to its intersection with the southeasterly line of the right of 
way of the Pennsylvania Railroad; thence northeast along the 
Pennsylvania Railroad following the reservation boundary line to shore 
of Bush River, and along its western shore to Fairview Point; thence 
northeast in a straight line across Bush River to concrete monument No. 
64, located on the eastern shore of Bush River, south of Chelsea; thence 
along the eastern shore of Bush River northerly to the mouth of Sod Run; 
thence by a broken line along the boundary of the reservation to Swan 
Creek; and thence in a straight line to Plum Point. (The above 
description may be traced on Coast and Geodetic Chart No. 1226).
    (b) Authority delegated Commanding Officer. The Commanding Officer, 
Aberdeen Proving Ground, has been delegated the authority by the 
Secretary of the Army to designate from time to time by suitably posted 
bulletins or announcements, the conditions under which the public, 
including food fishermen and crabbers, may enter restricted waters of 
the Aberdeen Proving Ground.
    (c) Penalty. All persons who enter the restricted waters, except as 
authorized in this section, without the authority of the Commanding 
Officer, Aberdeen Proving Ground, Md., are under the terms of the 
information given above, guilty of a misdemeanor and upon conviction 
thereon are punishable by a fine not exceeding $500 or by imprisonment 
not exceeding 6 months.
    (d) Entrance into restricted waters by the public. (1) The following 
water areas are closed to the public at all times:
    (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) Authorized use. Authorized use as used in this section is 
defined as fishing from a vessel, navigation using a vessel to traverse 
a water area or anchoring a vessel in a water area. Any person who 
touches any land, or docks or grounds a vessel, within the boundaries of 
Aberdeen Proving Ground,

[[Page 544]]

Maryland, is not using the area for an authorized use and is in 
violation of this regulation. Further, water skiing in the water area of 
Aberdeen Proving Ground is permitted as an authorized use when the water 
area is open for use by the general public providing that no water skier 
touches any land, either dry land (fast land) or subaqueous land and 
comes no closer then 200 meters from any shoreline. Further, if any 
person is in the water area of Aberdeen Proving Ground, Maryland, 
outside of any vessel (except for the purposes of water skiing as 
outlined above) including, but not limited to, swimming, scuba diving, 
or other purpose, that person is not using the water in an authorized 
manner and is in violation of this regulation.
    (e) Entry onto land and limitation of firing over land. (1) Entry 
onto any land, either dry land (fast land) or subaqueous land, within 
the boundaries of the Aberdeen Proving Ground Reservation as defined in 
paragraph (a)(1) of this section is prohibited at all times. Provided, 
the Commander, Aberdeen Proving Ground, is authorized to grant 
exceptions to this regulation either by written permission or by local 
regulation. Entry onto the land is punishable as in paragraph (c) of 
this section.
    (2) There are no limitations on test firing by Federal testing 
facilities at Aberdeen Proving Ground over land belonging to Aberdeen 
Proving Ground.
    (f) Permits required from the Commanding Officer to set fixed nets 
in restricted waters. (1) Fishermen and crabbers desiring to set fixed 
nets within the restricted waters of Aberdeen Proving Ground Reservation 
are required in every instance to have a written permit. A fixed net for 
the purpose of this paragraph is defined as a pound net, staked gill 
net, hedge fike net, hoop net, eel pot, crab pot, and all other types of 
nets fastened by means of poles, stakes, weights, or anchors. Permits to 
fish and crab within the restricted waters of Aberdeen Proving Ground 
may be obtained by written application to the Commanding Officer, 
Department of the Army, Aberdeen Proving Ground, Attention: Provost 
Marshall Division, Aberdeen Proving Ground, Md. Applicants for permits 
must state the location at which they desire to set fixed nets and state 
the period of time for which they desire the permit to cover. Nets 
placed in the restricted waters are subject to damage by gunfire and 
bombing, and the risk of such damage will be assumed by the holder of 
the permit.
    (2) Holders of permits for setting fixed nets must comply with the 
provisions of this part and also with Sec. 206.50(d) of this chapter.
    (g) Identification signs required at each location of fixed nets. 
Fishermen and crabbers who have been granted permits to fish or crab 
within the restricted waters of Aberdeen Proving Ground Reservation with 
fixed nets must at each location have a stake securely driven at the 
outer end of the line of nets on which is mounted a sign board which 
contains their name and permit number. All stakes set within the 
restricted area established by this regulation will project at least 
three (3) feet above the surface of the water at all ordinary high 
stages of the tide. Nets and other fishing and crabbing structures 
erected will be marked by stakes set at intervals not greater than fifty 
(50) feet. Fishing and crabbing structures erected in Aberdeen Proving 
Ground waters will be plainly marked on both ends, and will be lighted 
with a white light between sunset and sunrise, by and at the expense of 
the owner.
    (h) Removal of pound net poles and/or stakes. At the end of the 
fishing and crabbing season, fishermen and crabbers must remove and haul 
away from the location all pound nets, pots, poles or stakes used in 
their operation. Pound net poles or stakes must not be cast adrift after 
removal.
    (i) Restrictions on fishermen and crabbers. It must be distinctly 
understood that holders of permits to fish or crab are not authorized to 
enter the restricted waters of Aberdeen Proving Ground Reservation 
outside the hours as announced by the Commanding Officer, Aberdeen 
Proving Ground. In addition, the privileges granted in this paragraph 
include no right to land nor to cut or procure pound net poles or stakes 
on the Aberdeen Proving Ground Reservation.

[[Page 545]]

    (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) Compliance with Federal, State and county laws required. The 
taking of fish and crabs in the waters of Aberdeen Proving Ground 
Reservation and the setting of and location of nets, in a manner not in 
compliance with Federal, State, and county laws is prohibited.

(40 Stat. 266; 33 U.S.C. 3)

[13 FR 6915, Nov. 24, 1948, and 32 FR 15673, Nov. 14, 1967, as amended 
at 42 FR 41281, Aug. 16, 1977; 48 FR 54597, Dec. 6, 1983. Redesignated 
at 50 FR 42696, Oct. 22, 1985]



Sec. 334.150  Severn River at Annapolis, Md.; experimental test area,
U.S. Navy Marine Engineering Laboratory.

    (a) The restricted area. The waters of Severn River shoreward of a 
line beginning at the southeasternmost corner of the U.S. Navy Marine 
Engineering Laboratory sea wall and running thence southwesterly 
perpendicular to the main Severn River channel, approximately 560 feet, 
thence northwesterly parallel to and 50 feet shoreward of the edge of 
the channel, 1,035 feet, and thence northeasterly perpendicular to the 
channel, approximately 600 feet, to the shore. Spar buoys will mark the 
corners of the area adjacent to the channel.
    (b) The regulations. (1) No vessel or person other than specifically 
authorized military and naval vessels and persons shall enter or remain 
in the area during its use for experimental purposes. At all other times 
vessels and persons may use the area without restriction.
    (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.

[17 FR 2573, Mar. 25, 1952, as amended at 30 FR 5631, Apr. 21, 1965. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.155  Severn River, Naval Station Annapolis, Small Boat Basin, 
Annapolis, MD; naval restricted area.

    (a) The area. The waters within the Naval Station Annapolis small 
boat basin and adjacent waters of the Severn River enclosed by a line 
beginning at the southeast corner of the U.S. Navy Marine Engineering 
Laboratory; thence to latitude 38[deg]58[min]56.5[sec], longitude 
76[deg]28[min]11.5[sec]; thence to latitude 38[deg]58[min]50.5[sec], 
longitude 76[deg]27[min]52[sec]; thence to the southeast corner of the 
Naval Station's seawall.
    (b) The regulations. No person, vessel or other craft shall enter or 
remain in the restricted area at any time except as authorized by the 
enforcing agency.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Superintendent, U.S. Naval Academy, in Annapolis, Maryland, and 
such agencies as he/she may designate.

[63 FR 68140, Dec. 9, 1998]



Sec. 334.160  Severn River, at U.S. Naval Academy Santee Basin, Annapolis,
Md.; naval restricted area.

    (a) The area. The waters within the U.S. Naval Academy Santee Basin 
and adjacent waters of Severn River inclosed by a line beginning at the 
northeast corner of Dewey Field seawall; thence to latitude 
38[deg]59[min]03[sec], longitude 76[deg]28[min]47.5[sec]; thence to 
latitude 38[deg]58[min]58[sec], longitude 76[deg]28[min]40[sec]; and 
thence to the northwest corner of Farragut Field seawall.
    (b) The regulations. (1) No person in the water, vessel or other 
craft shall enter or remain in the restricted area at any time except as 
authorized by the enforcing agency.
    (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.

[32 FR 10299, July 13, 1967. Redesignated at 50 FR 42696, Oct. 22, 1985]

[[Page 546]]



Sec. 334.170  Chesapeake Bay, in the vicinity of Chesapeake Beach, Md.;
firing range, Naval Research Laboratory.

    (a) The danger zone--(1) Area A. A roughly rectangular area bounded 
on the north by latitude 38[deg]39[min]55[sec]; on the south by latitude 
38[deg]39[min]09[sec]; on the east by longitude 76[deg]31[min]03[sec]; 
and on the west by the shore of Chesapeake Bay.
    (2) Area B. The sector of a circle bounded by radii of 9,600 yards 
bearing 31[deg] (to Bloody Point Bar Light) and 137[deg]30[min] (to 
Choptank River Approach Buoy 2), respectively, from the center at the 
southeast corner of building No. 3; excluding Area A.
    (3) Area C. The segment of a circle inclosed by the arcs of two 
circles having radii of 9,600 yards and 13,200 yards, respectively, and 
bounded by the extended radii marking the north and south limits of Area 
B.
    Note: All bearings referred to true meridian.
    (4) Area D. A roughly rectangular area bounded on the north by an 
east-west line through Chesapeake Beach Light 2 at the entrance channel 
to Fishing Creek; on the south by an east-west line through Plum Point 
Shoal Buoy 1 northeast from Breezy Point; on the east by the established 
fishing structure limit line; and on the west by the shore of Chesapeake 
Bay.
    (b) The regulations. (1) No person or vessel shall enter or remain 
in Area A at any time.
    (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.

[13 FR 6916, Nov. 24, 1948, as amended at 17 FR 4832, May 28, 1952; 48 
FR 54597, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17552, Apr. 10, 1997]



Sec. 334.180  Patuxent River, Md.; restricted areas, U.S. Naval Air Test
Center, Patuxent River, Md.

    (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[deg]30[min] true, 2,000 yards from Patuxent River Light 8; thence to 
a point bearing 130[deg] true, 1,850 yards from Patuxent River Light 8; 
thence to a piont bearing 247[deg]30[min] true, 3,650 yards from Drum 
Point Light 2; thence to point bearing 235[deg] true, 2,060 yards from 
Drum Point Light 2; thence to a point bearing 129[deg] true, 700 yards 
from Drum Point Light 2; thence to a point bearing 137[deg] true, 1,060 
yards from Drum Point Light 2; and thence to a point on the shore west 
of Harper Creek entrance, bearing 158[deg]30[min] true, 1,900 yards from 
Drum Point Light 2.

[[Page 547]]

    (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.

[30 FR 4198, Mar. 31, 1965, as amended at 48 FR 54598, Dec. 6, 1983. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.190  Chesapeake Bay, in vicinity of Bloodsworth Island, MD, U.S. Navy.

    (a) The areas--(1) Prohibited area. All waters within a circle 0.5 
miles in radius with its center at latitude 38[deg]10[min]00[sec], 
longitude 76[deg]06[min]00[sec]; Bloodsworth Island, Pone Island, 
Northeast Island, and Adams Island.
    (2) The danger zone. All waters of Chesapeake Bay and Tangier Sound 
within an area bounded as follows: Beginning at latitude 
38[deg]08[min]15[sec], longitude 76[deg]10[min]00[sec]; thence to 
latitude 38[deg]12[min]00[sec], longitude 76[deg]10[min]00[sec]; thence 
to latitude 38[deg]12[min]00[sec], longitude 76[deg]07[min]00[sec]; 
thence to latitude 38[deg]13[min]00[sec], longitude 
76[deg]06[min]00[sec]; thence to latitude 38[deg]13[min]00[sec], 
longitude 76[deg]04[min]00[sec]; thence to latitude 
38[deg]12[min]00[sec], longitude 76[deg]02[min]00[sec]; thence to 
latitude 38[deg]12[min]00[sec], longitude 76[deg]00[min]00[sec]; thence 
to latitude 38[deg]08[min]15[sec], longitude 76[deg]00[min]00[sec]; 
thence to the point of beginning, excluding the prohibited area 
described in paragraph (a)(1) of this section.
    (b) The regulations. (1) No person, vessel or other craft shall 
approach closer than 75 yards to the beaches, shoreline, or piers of 
Bloodsworth Island, Pone Island, Northeast Island, Adams Island, or any 
Patuxent River Naval Air Station property at any time unless authorized 
to do so by the enforcing agency. No person, vessel or other craft shall 
approach rafts, barges, or platforms closer than 100 yards.
    (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,

[[Page 548]]

Maryland, and such agencies as he/she may designate.

[72 FR 65668, Nov. 23, 2007]



Sec. 334.200  Chesapeake Bay, Point Lookout to Cedar Point; aerial and 
surface firing range and target area, U.S. Naval Air Station, Patuxent

River, Maryland, danger zones.

    (a) Aerial firing range--(1) The danger zone. The waters of 
Chesapeake Bay within an area described as follows: Beginning at the 
easternmost extremity of Cedar Point; thence easterly to the southern 
tip of Barren Island; thence southeasterly to latitude 
38[deg]01[min]15[sec], longitude 76[deg]05[min]33[sec]; thence 
southwesterly to latitude 37[deg]59[min]25[sec], longitude 
76[deg]10[min]54[sec]; thence northwesterly to latitude 
38[deg]02[min]20[sec], longitude 76[deg]17[min]26[sec]; thence northerly 
to Point No Point Light; thence northwesterly to the shore at latitude 
38[deg]15[min]45[sec]; thence northeasterly along the shore to the point 
of beginning. Aerial and surface firing and dropping of nonexplosive 
ordnance will be conducted throughout the year.
    (2) The regulations. (i) Through navigation of surface craft outside 
the target areas will be permitted at all times. Vessels shall proceed 
on their normal course and shall not delay their progress.
    (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: Provided, That 
no permanent or temporary fishing structures or oyster ground markers 
shall be placed on the western side of the Chesapeake Bay between Point 
No Point and Cedar Point without prior written approval of the 
Commanding Officer, U.S. Naval Air Station, Patuxent River, Md.
    (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) Target areas--(1) Prohibited area. A circular area with a radius 
of 1,000 yards having its center at latitude 38[deg]13[min]00[sec], 
longitude 76[deg]19[min]00[sec] identified as Hooper Target.
    (2) The area. A circular area with a radius of 1000 yards having its 
center at latitude 38 degrees 02 minutes 18 seconds longitude 76 degrees 
09 minutes 26 seconds identified as Hannibal Target.
    (3) The regulations. Nonexplosive projectiles and bombs will be 
dropped at frequent intervals in the target areas. Hooper and Hannibal 
target areas shall be closed to navigation at all times, except for 
vessels engaged in operational and maintenance activities as directed by 
the Commanding Officer of the U.S. Naval Air Station, Patuxent River, 
Maryland. No person in the waters, vessel, or other craft shall enter or 
remain in the closed area or climb on targets except on prior written 
approval of the Commanding Officer, U.S. Naval Air Station, Patuxent 
River, Maryland.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer of the Naval Air Station, Patuxent River, 
Maryland and such agencies as he or she may designate.

[31 FR 13648, Oct. 22, 1966, as amended at 48 FR 54598, Dec. 6, 1983. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 64 FR 18581, 
Apr. 15, 1999]



Sec. 334.210  Chesapeake Bay, in vicinity of Tangier Island; naval guided
missiles test operations area.

    (a) The danger zone--(1) Prohibited area. A circle 1,000 yards in 
radius with its center at latitude 37[deg]47[min]54[sec], longitude 
76[deg]03[min]48[sec].
    (2) Restricted area. A circle three nautical miles in radius with 
its center at latitude 37[deg]47[min]54[sec], longitude 
76[deg]03[min]48[sec], excluding the prohibited area.

[[Page 549]]

    (b) The regulations. (1) Persons, vessels or other craft shall not 
enter or remain in the prohibited area at any time unless authorized to 
do so by the enforcing agency.
    (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.

[13 FR 6918, Nov. 24, 1948, as amended at 22 FR 3706, May 25, 1957; 24 
FR 3760, May 6, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17552, Apr. 10, 1997]



Sec. 334.220  Chesapeake Bay, south of Tangier Island, Va.; naval firing range.

    (a) The danger zone. Beginning at latitude 37[deg]46[min]39[sec], 
longitude 75[deg]57[min]43[sec], thence to latitude 
37[deg]43[min]42[sec], longitude 75[deg]55[min]30[sec]; thence to 
latitude 37[deg]27[min]00[sec], longitude 76[deg]02[min]48[sec]; thence 
to latitude 37[deg]27[min]00[sec]; longitude 76[deg]08[min]00[sec]; 
thence to latitude 37[deg]45[min]00[sec], longitude 
76[deg]09[min]48[sec]; thence to latitude 37[deg]45[min]00[sec], 
longitude 76[deg]08[min]51[sec]; and thence along the circumference of a 
circle of five nautical miles radius whose center is at latitude 
37[deg]47[min]54[sec], longitude 76[deg]03[min]48[sec], to the point of 
beginning.
    (b) The regulations. (1) Any vessel propelled by mechanical means or 
by sail at a speed greater than five knots may proceed through the 
danger zone to and from points without, but not from one point to 
another point within, the area, except when especially notified to the 
contrary.
    (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: Provided, The owners thereof obtain written 
permits from the enforcing agency designated in paragraph (b)(5) of this 
section.

[[Page 550]]

    (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.

[13 FR 6918, Nov. 24, 1948, as amended at 22 FR 6965, Dec. 4, 1957. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.230  Potomac River.

    (a) Naval Surface Weapons Center, Dahlgren, Va.--(1) The danger 
zone--(i) Lower zone. The entire portion of the lower Potomac River 
between a line from Point Lookout, Maryland, to Smith Point, Virginia, 
and a line from Buoy 14 (abreast of St. Clements Island) to a point near 
the northeast shore of Hollis Marsh at latitude 38[deg]10[min]00[sec], 
longitude 76[deg]45[min]23.5[sec]. Long range and aerial machine gun 
firing is normally conducted in this zone at infrequent intervals.
    (ii) Middle zone. Beginning at the intersection of the Potomac River 
Bridge with the Virginia shore; thence to Light 33; thence to latitude 
38[deg]19[min]06[sec], longitude 76[deg]57[min]07[sec] which point is 
about 3,300 yards east-southeast of Light 30; thence to Line of Fire 
Buoy O, about 1,150 yards southwesterly of Swan Point; thence to Line of 
Fire Buoy M, about 1,700 yards south of Potomac View; thence to Line of 
Fire Buoy K, about 1,400 yards southwesterly of the lower end of Cobb 
Island; thence to Buoy 14, abreast of St. Clements Island, thence 
southwesterly to a point near the northeast shore of Hollis Marsh at 
latitude 38[deg]10[min]00[sec], longitude 76[deg]45[min]23.5[sec]; 
thence northwesterly to Line of Fire Buoy J, about 3,000 yards off Popes 
Creek, Virginia; thence to Line of Fire Buoy L, about 3,600 yards off 
Church Point; thence to Line of Fire Buoy N, about 900 yards off 
Colonial Beach; thence to Line of Fire Buoy P., about 1,000 yards off 
Bluff Point; thence northwest to latitude 38[deg]17[min]52[sec], 
longitude 77[deg]01[min]00[sec], a point of the Virginia shore on 
property of Naval Surface Weapons Center, a distance of about 3,800 
yards; thence northerly along the shore of the Naval Surface Weapons 
Center to Baber Point, latitude 38[deg]18[min]42[sec], longitude 
77[deg]01[min]45[sec]; and thence north-northwest to latitude 
38[deg]19[min]09[sec], longitude 77[deg]02[min]08[sec], a point on the 
Main Dock at the Naval Surface Weapons Center. Firing is normally 
conducted in this zone daily except Saturdays, Sundays, and national 
holidays.
    (iii) Upper zone. Beginning at Mathias Point, Va.; thence north to 
Light 5; thence in a northeasterly direction to Light 6; thence east-
southeast to Lighted Buoy 2, thence east-southeast to a point on the 
Maryland shore at approximately latitude 38[deg]23[min]35[sec], 
longitude 76[deg]59[min]18[sec]; thence southerly with the Maryland 
shore to a line passing through Light 1 to the Virginia shore, parallel 
to the Potomac River Bridge; thence northerly with the Virginia shore to 
the point of beginning. Aerial bombing and strafing is normally 
conducted in this zone at infrequent intervals.
    (2) The regulations. (i) Firing normally takes place between the 
hours of 8:00 a.m. and 4:00 p.m. daily except Saturdays, Sundays, and 
national holidays, with infrequent night firing between 4:00 p.m. and 
10:30 p.m. During a national emergency, firing will take place between 
the hours of 6:00 a.m. and 10:30 p.m. daily except Sundays.
    (ii) When firing is in progress, no person, or fishing or oystering 
vessels shall operate within the danger zone affected unless so 
authorized by the Naval Surface Weapons Center'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 power at a speed greater 
than five miles per hour may proceed directly through the danger zones 
without restriction except when especially notified to the contrary. 
Unless instructed to the contrary by the patrol boat, small craft 
navigating up or down the Potomac River during firing hours shall 
proceed outside of the northeastern boundary of the Middle Danger Zone. 
All craft desiring to enter the

[[Page 551]]

Middle Danger Zone when proceeding in or out of Upper Machodoc Creek 
during firing hours will be instructed by the patrol boat; for those 
craft which desire to proceed in or out of Upper Machodoc Creek on a 
course between the western shore of the Potomac River and a line from 
the Main Dock of the Naval Surface Weapons Center to Line of Fire Buoy 
P, clearance will be granted to proceed upon request directed to the 
patrol boat.
    (iii) The regulations in this section shall be enforced by the 
Commander, Naval Surface Weapons Center and such agencies as he/she may 
designate. Patrol boats, in the execution of their mission assigned 
herein, shall display a square red flag during daylight hours for 
purposes of identification; at night time, a 32 point red light shall be 
displayed at the mast head. The Naval Surface Weapons Center (Range 
Control) can be contacted by Marine VHF radio (Channel 16) or by 
telephone (703) 663-8791.
    (b) Accotink Bay, Accotink Creek, and Pohick Bay; U.S. Military 
Reservation, Fort Belvoir, Va.--(1) The danger zone. The waters of 
Accotink Bay, Accotink Creek, and Pohick Bay, Virginia, within and 
adjacent to the target ranges of the U.S. Military Reservation, Fort 
Belvoir, as follows: All of Accotink Bay; all of Accotink Creek below 
the bridge which crosses Accotink Creek approximately 400 yards south of 
U.S. Highway No. 1; and that portion of Pohick Bay bordering its north 
shore. The mouth of Accotink Bay and that portion of Pohick Bay within 
the danger zone will be marked by the Post Commander with suitable 
warning buoys.
    (2) The regulations. (i) When firing affecting the area is in 
progress, the Post Commander will post guards at such locations that the 
waters in the danger zone may be observed and arrange signals whereby 
these guards may stop the firing should any person be seen in the danger 
zone. When firing is in progress, the Post Commander will cause to be 
displayed both on the east shore of Accotink Bay at its mouth and near 
the danger zone boundary on Accotink Creek a red streamer which shall be 
visible to a person in a boat near those points.
    (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 the area until convenient to 
the firing schedule to do so.

[13 FR 6916, Nov. 24, 1948, as amended at 13 FR 9557, Dec. 31, 1948; 21 
FR 2817, May 1, 1956; 22 FR 2951, Apr. 26, 1957; 28 FR 349, Jan. 12, 
1963; 48 FR 54597, Dec. 6, 1983. Redesignated at 50 FR 42696, Oct. 22, 
1985, as amended at 62 FR 17552, Apr. 10, 1997]



Sec. 334.240  Potomac River, Mattawoman Creek and Chicamuxen Creek;
U.S. Naval Surface Weapons Center, Indian Head Division, Indian Head, Md.

    (a) The danger zone. Beginning at a point on the easterly shore of 
the Potomac River at latitude 38[deg]36[min]00[sec], longitude 
77[deg]11[min]00[sec]; thence to latitude 38[deg]34[min]30[sec]; 
longitude 77[deg]13[min]00[sec]; thence to latitude 
38[deg]33[min]20[sec], longitude 77[deg]14[min]20[sec]; thence to 
latitude 38[deg]32[min]20[sec], longitude 77[deg]15[min]10[sec]; thence 
to latitude 38[deg]32[min]00[sec], longitude 77[deg]15[min]00[sec]; 
thence to latitude 38[deg]32[min]30[sec], longitude 
77[deg]14[min]00[sec]; thence to latitude 38[deg]32[min]30[sec], 
longitude 77[deg]14[min]00[sec]; thence upstream along the easterly 
shoreline of Chicamuxen Creek to its head thence downstream along the 
westerly shoreline of Chicamuxen Creek to the southernmost point of 
Stump Neck; thence northeasterly along the shoreline of Stump Neck to 
the mouth of Mattawoman Creek; thence along the southeasterly shore of 
Mattawoman Creek to the pilings remaining from the footbridge connecting 
the left bank of the creek to the Naval Surface Warfare Center, Indian 
Head Division; thence along the northwesterly shore of Mattawoman Creek 
from the pilings remaining from the footbridge to the mouth of the

[[Page 552]]

creek; thence in a northeasterly direction along the easterly shore of 
the Potomac River to the point of beginning.
    (b) The regulations. (1) Firings consisting of controlled explosions 
within the danger zone, and controlled shore operations, or accidental 
explosions, hazardous to vessel traffic within the limits of the danger 
zone, may take place at any time of the day or night and on any day of 
the week.
    (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.

[26 FR 9748, Oct. 17, 1961, as amended at 48 FR 54598, Dec. 6, 1983. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17552, 
Apr. 10, 1997]



Sec. 334.250  Gunston Cove, at Whitestone Point, Va.; U.S. Army restricted area.

    (a) The area. The waters within an area beginning at a point on the 
shoreline at longitude 77[deg]08[min]36[sec]; thence to latitude 
38[deg]40[min]22[sec], longitude 77[deg]08[min]39[sec]; thence to 
latitude 38[deg]40[min]14[sec], longitude 77[deg]08[min]22[sec]; thence 
to a point on the shoreline at longitude 77[deg]08[min]18[sec] and 
thence along the shoreline to the point of beginning.
    (b) The regulations. No person, vessel, or other craft shall enter 
or remain in the area at any time except as authorized by the enforcing 
agency.
    (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.

[31 FR 16560, Dec. 28, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.260  York River, Va.; naval restricted areas.

    (a) The areas--(1) Naval mine service-testing area (prohibited). A 
rectangular area surrounding Piers 1 and 2, Naval Weapons Station, and 
extending upstream therefrom, beginning at a point on the shore line at 
latitude 37[deg]15[min]25[sec] N., longitude 76[deg]32[min]32[sec] W.; 
thence to latitude 37[deg]15[min]42[sec] N., longitude 
76[deg]32[min]06[sec] W.; thence to latitude 37[deg]15[min]27[sec] N., 
longitude 76[deg]31[min]48[sec] W.; thence to latitude 
37[deg]15[min]05[sec] N., longitude 76[deg]31[min]27[sec] W.; thence to 
a point on the shore line at latitude 37[deg]14[min]51[sec] N., 
longitude 76[deg]31[min]50[sec] W.; and thence along the shore line to 
the point of beginning.
    (2) Naval mine service-testing area (restricted). A rectangular area 
adjacent to the northeast boundary of the prohibited area described in 
subparagraph (1) of this paragraph, beginning at latitude 
37[deg]16[min]00[sec] N., longitude 76[deg]32[min]29[sec] W.; thence to 
latitude 37[deg]16[min]23[sec] N., longitude 76[deg]32[min]00[sec] W.; 
thence to latitude 37[deg]15[min]27[sec] N., longitude 
76[deg]30[min]54[sec] W.; thence to latitude 37[deg]15[min]05[sec] N., 
longitude 76[deg]31[min]27[sec] W.; thence to latitude 
37[deg]15[min]27[sec] N., longitude 76[deg]31[min]48[sec] W.; thence to 
latitude 37[deg]15[min]42[sec] N., longitude 76[deg]32[min]06[sec] W.; 
thence to latitude 37[deg]15[min]40[sec] N., longitude 
76[deg]32[min]09[sec] W.; and thence to the point of beginning.
    (3) Explosives-Handling Berth (Naval). A circular area of 600 yards 
radius with its center at latitude 37[deg]13[min]56[sec] N., longitude 
76[deg]28[min]48[sec] W.
    (b) The regulations. (1) All persons and all vessels other than 
naval craft are forbidden to enter the prohibited area described in 
paragraph (a)(1) of this section.
    (2) Trawling, dragging, and net-fishing are prohibited, and no 
permanent obstructions may at any time be placed

[[Page 553]]

in the area described in paragraph (a)(2) of this section. Upon official 
notification, any vessel anchored in the area and any person in the area 
will be required to vacate the area during the actual mine-laying 
operation. Persons and vessels entering the area during mine-laying 
operations by aircraft must proceed directly through the area without 
delay, except in case of emergency. Naval authorities are required to 
publish advance notice of mine-laying and/or retrieving operations 
scheduled to be carried on in the area, and during such published 
periods of operation, fishing or other aquatic activities are forbidden 
in the area. No vessel will be denied passage through the area at any 
time during either mine-laying or retreiving operations.
    (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.

(Secs. 1-4, 40 Stat. 892, sec. 1, 38 Stat. 800; 33 U.S.C. 3, 471)

[26 FR 11198, Nov. 28, 1961, as amended at 27 FR 2465, Mar. 14, 1962; 30 
FR 220, Jan. 8, 1965; 35 FR 4552, Mar. 14, 1970. Redesignated at 50 FR 
42696, Oct. 22, 1985, as amended at 58 FR 37608, July 12, 1993]



Sec. 334.270  York River adjacent to Cheatham Annex Depot, Naval Supply 
Center, Williamsburg, Va.; restricted area.

    (a) The area. The waters of York River bounded as follows: Beginning 
at a point on shore at Cheatham Annex Depot at latitude 
37[deg]17[min]14[sec] N., longitude 76[deg]35[min]38[sec] W.; thence to 
a point offshore at latitude 37[deg]17[min]52[sec] N., longitude 
76[deg]35[min]20[sec] W.; thence approximately parallel to the shore to 
a point at latitude 37[deg]17[min]23[sec] N., longitude 
76[deg]34[min]39[sec] W.; thence to the shore at latitude 
37[deg]16[min]58[sec] N., longitude 76[deg]35[min]03[sec] W.; and thence 
along the shore at Cheatham Annex Depot to the point of beginning.
    (b) The regulations. (1) No loitering will be permitted within the 
area. Oystermen may work their own leaseholds or public bottom within 
the area, provided they obtain special permission from the Officer in 
Charge, Cheatham Annex Depot, Naval Supply Center, Williamsburg, 
Virginia.
    (2) The regulations in this section shall be enforced by the Officer 
in Charge, Cheatham Annex Depot, U.S. Naval Supply Center, Williamsburg, 
Virginia.

[22 FR 4814, July 9, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.275  North and Southwest Branch, Back River, Hampton, U.S. Air Force
Base, Langley, Va.; restricted area.

    (a) The area. Beginning at a point on the island at the entrance to 
Tide Mills Creek in the Southwest Branch of the Back River at latitude 
37[deg]03[min]50[sec] N, longitude 076[deg]22[min]00[sec] W, thence 
along the shore of Langley Air Force Base, 35 yards off the ordinary 
mean high water (MHW) mark, to a point in the Northwest Branch of the 
Back River at latitude 37[deg]06[min]40[sec] N, longitude 
076[deg]22[min]55[sec] W.
    (b) The regulations. (1) No persons or vessels, recreational or 
commercial, may enter this restricted area without the permission of the 
Commanding Officer, Langley Air Force Base.
    (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.

[[Page 554]]

    (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) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer of the Langley Air Force Base and such 
agencies as he/she may designate.

[58 FR 47788, Sept. 10, 1993]



Sec. 334.280  James River between the entrance to Skiffes Creek and 
Mulberry Point, Va.; army training and small craft testing area.

    (a) The restricted area. Beginning on the shore at latitude 
37[deg]09[min]54[sec] N., longitude 76[deg]36[min]25[sec] W.; thence 
westerly to latitude 37[deg]09[min]50[sec] N., longitude 
76[deg]37[min]45.5[sec] W.; thence southerly to latitude 
37[deg]09[min]00[sec] N., longitude 76[deg]38[min]05[sec] W.; thence 
southerly to latitude 37[deg]08[min]22[sec] N., longitude 
76[deg]37[min]55[sec] W.; thence due east to the shore at latitude 
37[deg]08[min]22[sec] N., longitude 76[deg]37[min]22[sec] W.; thence 
northerly along the shore to the point of beginning.
    (b) The regulations. (1) No vessels other than Department of the 
Army vessels, and no persons other than persons embarked in such vessels 
shall remain in or enter the restricted area except as provided in 
paragraph (b)(2) of this section.
    (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.

[37 FR 4337, Mar. 2, 1972. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.290  Elizabeth River, Southern Branch, Va., naval restricted areas.

    (a) The areas--(1) St. Helena Annex Area. Beginning at a point at 
St. Helena Annex of the Norfolk Naval Shipyard, on the eastern shore of 
Southern Branch of Elizabeth River, at latitude 36[deg]49[min]43[sec], 
longitude 76[deg]17[min]26.5[sec]; thence in a southwesterly direction 
to a point on the eastern boundary of Norfolk Harbor 40-foot channel at 
latitude 36[deg]49[min]42[sec], longitude 76[deg]17[min]33[sec]; thence 
in a southerly direction along the eastern boundary of Norfolk Harbor 
40-foot channel to latitude 36[deg]49[min]28[sec], longitude 
76[deg]17[min]27[sec]; thence easterly to the shore at latitude 
36[deg]49[min]28[sec], longitude 76[deg]17[min]22[sec]; and thence, 
northerly along the shore to the point of beginning.
    (2) Norfolk Naval Shipyard Area. Beginning at a point on the shore 
at the northeast corner of the Norfolk Naval Shipyard, at latitude 
36[deg]49[min]43.5[sec], longitude 76[deg]17[min]41.5[sec]; thence due 
east approximately 100 feet to the western boundary of Elizabeth River 
channel; thence in a southerly direction along the western boundary of 
the channel to the point where it passes through the draw of the Norfolk 
and Portsmouth Belt Line Railroad Bridge, thence in a southwesterly 
direction along the northerly side of the bridge to the western shore of 
Southern Branch of Elizabeth River; and thence along the shore in a 
northerly direction to the point of beginning.
    (3) Southgate Terminal Area. Beginning at a point at the northeast 
corner

[[Page 555]]

of Southgate Terminal Annex of Norfolk Naval Shipyard, at latitude 
36[deg]48[min]23[sec], longitude 76[deg]17[min]39[sec]; thence east to 
latitude 36[deg]48[min]23[sec], longitude 76[deg]17[min]29[sec]; thence 
southerly along the western boundary of Norfolk Harbor 35-foot channel 
to latitude 36[deg]48[min]04[sec], longitude 76[deg]17[min]33[sec]; 
thence west to latitude 36[deg]48[min]04[sec], longitude 
76[deg]17[min]41[sec]; and thence along the shore in a northerly 
direction to the point of beginning.
    (b) The regulations. (1) No vessels other than Naval vessels and 
other vessels authorized to move to and from piers at the Norfolk Naval 
Shipyard and its two annexes described in paragraph (a) (1) and (3) of 
this section, and no person other than persons embarked in such vessels, 
shall enter the restricted areas.
    (2) This section shall be enforced by the Commander, Norfolk Naval 
Shipyard, Portsmouth, Va., and such agencies as he may designate.

[19 FR 2232, Apr. 17, 1954, as amended at 35 FR 2660, Feb. 6, 1970. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.293  Elizabeth River, Craney Island Refueling Pier Restricted Area,
Portsmouth VA; naval restricted area.

    (a) The area. (1) The waters within an area beginning at a point on 
the shore at latitude 36[deg]53[min]17.4[sec] N, longitude 
76[deg]20[min]21[sec] W; thence easterly to latitude 
36[deg]53[min]16.8[sec] N, longitude 76[deg]20[min]14.4[sec] W: thence 
southwesterly to latitude 36[deg]53[min]00[sec] N, longitude 
76[deg]20[min]18[sec] W; thence southeasterly to latitude 
36[deg]52[min]55.2[sec] N, longitude 76[deg]20[min]16.5[sec] W: thence 
southwesterly to latitude 36[deg]52[min]52.2[sec] N, longitude 
76[deg]20[min]18[sec] W; thence southwesterly to latitude 
36[deg]52[min]49.8[sec] N, longitude 76[deg]20[min]25.8[sec] W: thence 
northwesterly to latitude 36[deg]52[min]58.2[sec] N, longitude 
76[deg]20[min]33.6[sec] W; thence northeasterly to a point on the shore 
at latitude 36[deg]53[min]00[sec] N, longitude 76[deg]20[min]30[sec] W; 
thence northerly along the shoreline to the point of beginning.
    (b) The regulation. No vessel or persons may enter the restricted 
area unless specific authorization is granted by the Commander, Navy 
Region, Mid-Atlantic and/or other persons or agencies as he/she may 
designate.
    (c) Enforcement. The regulation in this section, promulgated by the 
Corps of Engineers, shall be enforced by the Commander, Navy Region, 
Mid-Atlantic, and such agencies or persons as he/she may designate.

[67 FR 6654, Feb. 13, 2002]



Sec. 334.300  Hampton Roads and Willoughby Bay, Norfolk Naval Base,
naval restricted area, Norfolk, Virginia.

    (a) The area. (1) The waters within an area beginning at latitude 
36[deg]55[min]55[sec] N, longitude 76[deg]20[min]02[sec] W; thence 
northwesterly to latitude 36[deg]56[min]00[sec] N, longitude 
76[deg]20[min]08[sec] W; thence northerly along the eastern limit of 
Norfolk Harbor Channel to latitude 36[deg]57[min]52[sec] N, longitude 
76[deg]20[min]00[sec] W; thence easterly to latitude 
36[deg]57[min]52[sec] N, longitude 76[deg]19[min]35[sec] W; thence to 
latitude 36[deg]57[min]47.7[sec] N, 76[deg]18[min]57[sec] W; thence 
southeasterly to latitude 36[deg]57[min]26[sec] N, longitude 
76[deg]18[min]42[sec] W; thence easterly to latitude 
36[deg]57[min]26.2[sec] N, longitude 76[deg]17[min]55.2[sec] W; thence 
southerly to latitude 36[deg]57[min]05[sec] N, longitude 
76[deg]17[min]52[sec] W; thence southeasterly to latitude 
36[deg]56[min]56.2[sec] N, longitude 76[deg]17[min]27[sec] W; thence 
northeasterly to latitude 36[deg]57[min]10[sec] N, latitude 
76[deg]16[min]29[sec] W; thence to the shoreline at latitude 
36[deg]57[min]18.8[sec] N, longitude 76[deg]16[min]22[sec] W at the 
Naval Air Station.
    (2) Beginning at a point on the Naval Station shore at latitude 
36[deg]56[min]37.5[sec] N, longitude 76[deg]19[min]44[sec] W; thence 
westerly and northerly along the breakwater to its extremity at latitude 
36[deg]56[min]41.5[sec] N, longitude 76[deg]19[min]54[sec] W; thence 
westerly to a point on the eastern limit of Norfolk Harbor Channel at 
latitude 36[deg]56[min]41.5[sec] N, longitude 76[deg]20[min]05.5[sec] W; 
thence northerly along the eastern limit of Norfolk Harbor Channel to 
latitude 36[deg]57[min]52[sec] N, longitude 76[deg]20[min]00[sec] W; 
thence easterly to latitude 36[deg]57[min]52[sec] N, longitude 
76[deg]19[min]35[sec] W; thence to latitude 36[deg]57[min]47.7[sec] N., 
longitude 73[deg]18[min]57[sec] W; thence southeasterly to latitude 
36[deg]57[min]26[sec] N, longitude 76[deg]18[min]42[sec] W; thence 
easterly to latitude 36[deg]57[min]26.2[sec] N, longitude 
76[deg]17[min]55.2[sec] W; thence southerly to latitude 
36[deg]57[min]05[sec] N, longitude 76[deg]17[min]52[sec] W; thence 
southeasterly to latitude 36[deg]56[min]56.2[sec] N, longitude 
76[deg]17[min]27[sec] W; thence northeasterly to latitude 
36[deg]57[min]10[sec] N, longitude 76[deg]16[min]29[sec] W; and thence 
to the shoreline at latitude 36[deg]57[min]18.8[sec] N, longitude 
76[deg]16[min]22[sec] W, at the Naval Air Station.

[[Page 556]]

    (b) The regulation. No vessel or persons may enter the restricted 
area unless specific authorization is granted by the Commander, Navy 
Region, Mid-Atlantic and/or other persons or agencies as he/she may 
designate.
    (c) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commander, Navy Region, Mid-Atlantic, and/or such agencies or persons as 
he/she may designate.

[67 FR 10844, Mar. 11, 2002]



Sec. 334.310  Chesapeake Bay, Lynnhaven Roads; navy amphibious training area.

    (a) The restricted area. Beginning at latitude 
36[deg]55[min]47[sec], longitude 76[deg]11[min]04.5[sec]; thence to 
latitude 36[deg]59[min]04[sec], longitude 76[deg]10[min]11[sec]; thence 
to latitude 36[deg]58[min]28.5[sec], longitude 76[deg]07[min]54[sec]; 
thence to latitude 36[deg]55[min]27.5[sec], longitude 
76[deg]08[min]42[sec]; thence westerly along the shore and across the 
mouth of Little Creek to the point of beginning.
    (b) The regulations. (1) No fish-pound stakes or structures shall be 
allowed in the restricted area.
    (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.

[13 FR 6920, Nov. 24, 1948, as amended at 22 FR 5956, July 27, 1957. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, 
Apr. 10, 1997; 62 FR 24034, May 2, 1997]



Sec. 334.320  Chesapeake Bay entrance; naval restricted area.

    (a) The area. Beginning at a point on the south shore of Chesapeake 
Bay at longitude 76[deg]03[min]06[sec]; thence to latitude 
37[deg]01[min]18[sec], longitude 76[deg]02[min]06[sec]; thence to 
latitude 37[deg]00[min]18[sec], longitude 75[deg]55[min]54[sec]; thence 
to latitude 36[deg]58[min]00[sec], longitude 75[deg]48[min]24[sec]; 
thence to latitude 36[deg]51[min]48[sec], longitude 
75[deg]51[min]00[sec]; thence to the shore at longitude 
75[deg]58[min]48[sec], and thence northwesterly and southwesterly along 
the shore at Cape Henry to the point of beginning.
    (b) The regulations. (1) Anchoring, trawling, crabbing, fishing, and 
dragging in the area are prohibited, and no object attached to a vessel 
or otherwise shall be placed on or near the bottom.
    (2) This section shall be enforced by the Commandant, Fifth Naval 
District, Norfolk, Va.

[18 FR 8159, Dec. 12, 1953, as amended at 28 FR 349, Jan. 12, 1963. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.330  Atlantic Ocean and connecting waters in vicinity of Myrtle Island,
Va.; Air Force practice bombing, rocket firing, and gunnery range.

    (a) The danger zone. The waters of the Atlantic Ocean and connecting 
waters within an area described as follows: Beginning at latitude 
37[deg]12[min]18[sec], longitude 75[deg]46[min]00[sec]; thence 
southwesterly to latitude 37[deg]08[min]21[sec], longitude 
75[deg]50[min]00[sec]; thence northwesterly along the arc of a circle 
having a radius of three nautical miles and centered at latitude 
37[deg]11[min]16[sec], longitude 75[deg]49[min]29[sec], to latitude 
37[deg]10[min]14[sec], longitude 75[deg]52[min]57[sec]; thence 
northeasterly to latitude 37[deg]14[min]30[sec], longitude 
75[deg]48[min]32[sec]; thence southeasterly to 37[deg]13[min]38[sec], 
longitude 75[deg]46[min]18[sec]; and thence southeasterly to the point 
of beginning.
    (b) The regulations. (1) No person or vessel shall enter or remain 
in the danger zone except during intervals specified and publicized from 
time to time in local newspapers or by radio announcement.
    (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.

[18 FR 8698, Dec. 24, 1953. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17553, Apr. 10, 1997]



Sec. 334.340  Chesapeake Bay off Plumtree Island, Hampton, Va.; Air Force
precision test area.

    (a) The danger zone. The waters of Chesapeake Bay and connecting 
waters within an area bounded as follows: Beginning at latitude 
37[deg]08[min]12[sec], longitude 76[deg]19[min]30[sec], which is a point 
on the circumference of a circle of 10,000-foot radius with its center 
on Plumtree Point at latitude 37[deg]07[min]30[sec], longitude 
76[deg]17[min]36[sec]; thence clockwise along the circumference of the 
circle to latitude 37[deg]09[min]06[sec], longitude 
76[deg]18[min]00[sec]; thence

[[Page 557]]

southeasterly to latitude 37[deg]08[min]12[sec], longitude 
76[deg]17[min]48[sec]; thence clockwise along the circumference of a 
circle of 4,000-foot radius (with its center at latitude 
37[deg]07[min]30[sec], longitude 76[deg]17[min]36[sec]) to latitude 
37[deg]07[min]48[sec], longitude 76[deg]18[min]24[sec]; thence 
northwesterly to the point of beginning.
    (b) The regulations. (1) The danger zone will be in use not more 
than a total of 4 hours per month, which hours shall be during not more 
than any 2 days per month.
    (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) Disestablishment of danger zone. The danger zone will be 
disestablished not later than December 31, 1967, unless written 
application for its continuance shall have been made to and approved by 
the Secretary of the Army prior to that date.

[28 FR 1106, Feb. 5, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17553, Apr. 10, 1997]



Sec. 334.350  Chesapeake Bay off Fort Monroe, Va.; firing range danger zone.

    (a) The danger zone. All of the water area lying within a section 
extending seaward a distance of 4,600 yards between radial lines bearing 
83[deg] True and 115[deg] True, respectively, from a point on shore at 
latitude 37[deg]01[min]30[sec] N., longitude 76[deg]17[min]54[sec] W.
    (b) The regulations. (1) No weapon having a greater range than the 
30-calibre carbine is to be fired into the firing range danger zone.
    (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.

[35 FR 6575, Apr. 24, 1970. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.360  Chesapeake Bay off Fort Monroe, Virginia; restricted area, 
U.S. Naval Base and Naval Surface Weapon Center.

    (a) The area. Beginning at latitude 37[deg]01[min]03[sec], longitude 
076[deg]17[min]52[sec]; thence to latitude 37[deg]01[min]00[sec], 
longitude 076[deg]16[min]11[sec]; thence to latitude 
36[deg]59[min]43[sec], longitude 076[deg]16[min]11[sec]; thence to 
latitude 36[deg]59[min]18[sec], longitude 076[deg]17[min]52[sec]; thence 
to latitude 37[deg]00[min]05[sec], longitude 076[deg]18[min]18[sec]; 
thence north along the seawall to the point of beginning.
    (b) The regulations. (1) Anchoring, trawling, fishing and dragging 
are prohibited in the restricted area, and no object, either attached to 
a vessel or otherwise, shall be placed on or near the bottom unless 
authorized by the Facility Manager, Naval Surface Warfare Center, 
Dahlgren Division Coastal Systems Station Detachment, Fort Monroe, 
Virginia.
    (2) This section shall be enforced by the Commander, Naval Base, 
Norfolk, Virginia, and such agencies as he may designate.

[13 FR 6919, Nov. 24, 1948, as amended at 15 FR 2085, Apr. 13, 1950; 21 
FR 421, Jan. 20, 1956; 21 FR 1593, Mar. 14, 1956. Redesignated at 50 FR 
42696, Oct. 22, 1985, and further amended at 51 FR 4908, Feb. 10, 1986; 
55 FR 45709, Oct. 31, 1990; 61 FR 34733, July 3, 1996]

[[Page 558]]



Sec. 334.370  Chesapeake Bay, Lynnhaven Roads; danger zones, U.S. Naval
Amphibious Base.

    (a) Underwater demolitions area (prohibited)--(1) The area. A 
portion of the restricted area for Navy amphibious training operations 
described in Sec. 334.310 along the south shore of the Chesapeake Bay, 
bounded as follows: Beginning at a point at the mean high water line, 
latitude 36[deg]55[min]26.5[sec], longitude 76[deg]08[min]43[sec]; 
thence 700 yards to latitude 36[deg]55[min]48[sec], longitude 
76[deg]98[min]38[sec]; thence 500 yards to latitude 
36[deg]55[min]46[sec], longitude 76[deg]08[min]57[sec]; thence 500 yards 
to latitude 36[deg]55[min]37[sec], longitude 76[deg]09[min]02[sec]; 
thence 100 yards to latitude 36[deg]55[min]36[sec], longitude 
76[deg]08[min]57[sec]; thence 200 yards to the mean high water line at 
latitude 36[deg]55[min]39.5[sec], longitude 76[deg]08[min]59[sec]; 
thence 400 yards along the mean high water line to the point of 
beginning. The area will be marked by range poles set on shore of the 
prolongation of the lines forming the eastern and western boundaries.
    (2) The regulations. Persons or vessels, other than those vessels 
owned and operated by the United States, shall not enter the prohibited 
area at any time unless authorized to do so by the enforcing agency.
    (b) Small-arms firing range--(1) The Area. Beginning at a point on 
the shore line at latitude 36[deg]55[min]27[sec], longitude 
76[deg]08[min]38[sec]; thence to latitude 36[deg]55[min]50[sec], 
longitude 76[deg]08[min]37[sec]; thence to latitude 
36[deg]57[min]11[sec], longitude 76[deg]08[min]11[sec]; thence to 
latitude 36[deg]56[min]53[sec], longitude 76[deg]07[min]18[sec]; thence 
to latitude 36[deg]55[min]39[sec], longitude 76[deg]07[min]46[sec]; 
thence to latitude 36[deg]55[min]22[sec], longitude 
76[deg]08[min]17[sec]; thence along the shore line to the point of 
beginning.
    (2) The regulations. (i) 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.
    (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.

[19 FR 1246, Mar. 5, 1954, as amended at 28 FR 225, Jan. 9, 1963. 
Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 57 FR 40613, 
Sept. 4, 1992; 62 FR 17553, Apr. 10, 1997]



Sec. 334.380  Atlantic Ocean south of entrance to Chesapeake Bay off Dam 
Neck, Virginia; naval firing range.

    (a) The danger zone. All of the water within a sector extending 
seaward a distance of 7,500 yards between radial lines bearing 35[deg] 
true and 92[deg] true, respectively, from a point on the shore at 
latitude 36 47[min]33[sec] N, longitude 75 58[min]23[sec] W.
    (b) The regulations. (1) Vessels shall proceed through the area with 
caution and shall remain therein no longer than necessary for purpose of 
transit.
    (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.

[58 FR 53428, Oct. 15, 1993]

[[Page 559]]



Sec. 334.390  Atlantic Ocean south of entrance to Chesapeake Bay; firing range.

    (a) The danger zone. A section extending seaward for a distance of 
12,000 yards between two radial lines bearing 030[deg] True and 083[deg] 
True, respectively, from a point on shore at latitude 
36[deg]46[min]48[sec] N, longitude 75[deg]57[min]24[sec] W; and an 
adjacent sector extending seaward for a distance of 15 nautical miles 
between two radial lines bearing 083[deg] True and 150[deg] True, 
respectively, from the same shore position.
    (b) The regulations. (1) Vessels shall proceed through the area with 
caution and shall remain therein no longer than necessary for purposes 
of transit.
    (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.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

[13 FR 6919, Nov. 24, 1948, as amended at 29 FR 5679, Apr. 29, 1964; 38 
FR 16223, June 21, 1973. Redesignated at 50 FR 42696, Oct. 22, 1985, and 
amended at 58 FR 53428, Oct. 15, 1993; 60 FR 18543, Apr. 12, 1995]



Sec. 334.400  Atlantic Ocean south of entrance to Chesapeake Bay off Camp 
Pendleton, Virginia; naval restricted area.

    (a) The area. Beginning at a point on the shore at Camp Pendleton at 
latitude 36[deg]48[min]19[sec] N, longitude 75[deg]57[min]49[sec] W; 
thence easterly 200 yards to latitude 36[deg]48[min]20[sec] N, longitude 
75[deg]57[min]42[sec] W; thence northerly 400 yards to latitude 
36[deg]48[min]32[sec] N, longitude 75[deg]57[min]45[sec] W; thence 
westerly 200 yards to latitude 36[deg]48[min]31[sec] N, longitude 
75[deg]57[min]53[sec] W; and thence southerly 400 yards along the shore 
to the point of beginning.
    (b) The regulations. (1) Persons or vessels, other than those 
vessels owned and operated by the United States shall not enter the area 
except by permission of the Commanding Officer, U.S. Naval Amphibious 
Base, Little Creek, Norfolk, Virginia.
    (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.

[22 FR 8957, Nov. 6, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985, 
amended at 58 FR 37608, July 12, 1993; 62 FR 17553, Apr. 10, 1997]



Sec. 334.410  Albemarle Sound, Pamlico Sound, and adjacent waters, NC;
danger zones for naval aircraft operations.

    (a) Target areas--(1) North Landing River (Currituck Sound). The 
waters of North Landing River within a radius of 1,000 yards from a 
target located at latitude 36[deg]31[min]00[sec], longitude 
76[deg]01[min]40[sec].
    (2) Northern part of Currituck Sound. Beginning at a point bearing 
65[deg]30[min], 1,025 yards, from Currituck Sound Light 69; thence 
86[deg], 6,000 yards; thence 193[deg], 4,425 yards; thence 
267[deg]30[min], 2,775 yards; and thence to the point of beginning. The 
target is located at latitude 36[deg]27[min]16[sec], longitude 
75[deg]56[min]30[sec].
    Note: All bearings in this section are referred to true meridian.
    (b) Target and bombing area along south shore of Albemarle Sound. 
Beginning at latitude 36[deg]00[min]43[sec], longitude 
76[deg]19[min]20[sec]; thence to latitude 36[deg]02[min]40[sec], 
longitude 76[deg]04[min]26[sec], thence to latitude 
36[deg]00[min]12[sec], longitude 76[deg]04[min]26[sec]; thence to 
latitude 35[deg]59[min]35[sec], longitude 76[deg]19[min]20[sec], and 
thence to the point of beginning. This area is divided into three 
subareas

[[Page 560]]

A, B, and C as follows: Area A, beginning at latitude 
36[deg]00[min]43[sec], longitude 76[deg]19[min]20[sec]; thence to 
latitude 36[deg]01[min]20[sec], longitude 76[deg]14[min]30[sec]; thence 
to latitude 35[deg]59[min]45[sec], longitude 76[deg]14[min]30[sec]; 
thence to latitude 35[deg]59[min]35[sec], longitude 
76[deg]19[min]20[sec], and thence to the point of beginning. Area B, 
beginning at latitude 36[deg]01[min]20[sec], longitude 
76[deg]14[min]30[sec]; thence to latitude 36[deg]02[min]18[sec], 
longitude 76[deg]07[min]15[sec]; thence to latitude 
36[deg]00[min]05[sec], longitude 76[deg]07[min]15[sec]; thence to 
latitude 35[deg]59[min]45[sec], longitude 76[deg]14[min]30[sec]; and 
thence to the point of beginning. Area C, beginning at latitude 
36[deg]02[min]18[sec], longitude 76[deg]07[min]15[sec]; thence to 
latitude 36[deg]02[min]40[sec], longitude 76[deg]04[min]26[sec]; thence 
to latitude 36[deg]00[min]12[sec], longitude 76[deg]04[min]26[sec]; 
thence to latitude 36[deg]00[min]05[sec], longitude 
76[deg]07[min]15[sec]; and thence to the point of beginning.
    (c) Naval Aviation Ordnance test area in Pamlico Sound in vicinity 
of Long Shoal. A circular area with a radius of one and one-half miles 
having its center at latitude 35[deg]32[min]18[sec], longitude 
75[deg]40[min]39[sec].
    (d) The regulations--(1) Target areas. The area described in 
paragraph (a)(1) of this section will be used as a dive bombing target 
by naval aircraft. In peacetime, munitions will be limited to miniature 
bombs which contain only small explosive charges for producing smoke 
puffs to mark points of impact. All operations will be conducted during 
daylight hours, and the area will be open to navigation at night. No 
persons or vessels shall enter this area during the hours of daylight 
without special permission from the enforcing agency. The area will be 
patrolled and vessels will be warned not to enter. ``Buzzing'' by plane 
will warn vessels that they are in a danger zone, and upon being so 
warned vessels which have inadvertently entered the area shall 
immediately leave the area.
    (2) Target and bombing area. The area described in paragraph (b) of 
this section will be used as a target and bombing area for both day and 
night operations. Dummy ammunition, waterfilled or smoke bombs and inert 
rockets will be used, except during wartime when live ammunition, bombs 
and rockets may be used. The area will be open to navigation except for 
periods when ordnance exercises are being conducted by naval aircraft. 
In area B described in paragraph (b) of the section the placing of nets, 
traps, buoys, pots, fishponds, stakes, or other equipment which may 
interfere with target vessels operating in the area shall not be 
permitted. The area will be patrolled and persons and vessels shall 
clear the area under patrol upon being warned by the surface patrol 
craft or when ``buzzed'' by patrolling aircraft. As a further means of 
warning vessels of naval aircraft operations in the area described in 
paragraph (b) of this section, a cluster of flashing red lights at night 
and a large red flag by day will be displayed from the range observation 
tower located in the approximate center of the shore side of this area.
    (3) Naval Aviation Ordnance test area. The area described in 
paragraph (c) of this section shall be closed to persons and navigation 
except for such military personnel and vessels as may be directed by the 
enforcing agency to enter on assigned duties.
    (4) Enforcing agency. The regulations in this section shall be 
enforced by the Commander, Naval Air Force, U.S. Atlantic Fleet, and 
such agencies as he/she shall designate.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1: Chap. XIX, 40 Stat. 892; 33 U.S.C. 
3)

[16 FR 3131, Apr. 10, 1951, as amended at 16 FR 7460, July 31, 1951; 19 
FR 479, Jan. 28, 1954; 31 FR 12436, Sept. 20, 1966; 33 FR 3218, Feb. 21, 
1968; 40 FR 3993, Jan. 27, 1975. Redesignated at 50 FR 42696, Oct. 22, 
1985, and amended at 53 FR 47953, Nov. 29, 1988; 61 FR 7215, Feb. 27, 
1996; 62 FR 17553, Apr. 10, 1997]



Sec. 334.412  Albemarle Sound, Pamlico Sound, Harvey Point and adjacent
waters, NC; restricted area.

    (a) The area. Beginning on the north shore of Albemarle Sound and 
the easternmost tip of Harvey Point; thence southeasterly to Day Beacon 
number 3; thence southeasterly to latitude 36[deg]03[min]06[sec], 
longitude 76[deg]16[min]43[sec]; thence southwesterly to latitude 
36[deg]02[min]18[sec], longitude 76[deg]19[min]30[sec]; thence 
northwesterly to latitude 36[deg]04[min]18[sec], longitude 
76[deg]20[min]20[sec]; thence 23[deg]15[min] True to the shore; and 
thence northeasterly along the shore to the point of beginning.
    (b) The regulations. The restricted area described in this section 
is the inactive Harvey Point target range which was disestablished as a 
danger

[[Page 561]]

zone. The area will be open to public access for recreational and 
commercial uses, except that dredging, clamming, crabbing, seining, and 
anchoring of all vessels and any other activity which could result in 
disturbing or penetrating the bottom is prohibited.
    (c) Enforcing agency. The regulations in this section shall be 
enforced by the Commander, Naval Air Force, U.S. Atlantic Fleet, and 
such agencies as he/she shall designate.

[61 FR 7215, Feb. 27, 1996; 61 FR 26107, May 24, 1996]



Sec. 334.420  Pamlico Sound and adjacent waters, N.C.; danger zones for
Marine Corps operations.

    (a) Bombing and rocket firing area in Pamlico Sound in vicinity of 
Brant Island--(1) The area. The waters within a circular area with a 
radius of 3.0 statute miles having its center on the southern side of 
Brant Island at latitude 35[deg]12[min]30[sec], longitude 
76[deg]26[min]30[sec].
    (2) The regulations. The area shall be closed to navigation and 
personnel at all times except for vessels engaged in operational and 
maintenance work as directed by the enforcing agency. Prior to bombing 
or firing operations the area will be ``buzzed'' by plane. Upon being so 
warned vessels working in the area shall leave the area immediately.
    (b) Bombing, rocket firing, and strafing areas in Pamlico Sound and 
Neuse River--(1) The areas. (i) The waters within a circular area with a 
radius of 1.8 statute miles having its center at latitude 
35[deg]02[min]12[sec], longitude 76[deg]28[min]00[sec].
    (ii) The waters within a circular area with a radius of 0.5 statute 
mile having its center at latitude 35[deg]04[min]12[sec], longitude 
76[deg]28[min]24[sec].
    (iii) The waters within a circular area with a radius of 0.5 statute 
mile having its center at latitude 35[deg]01[min]42[sec], longitude 
76[deg]25[min]48[sec].
    (iv) The waters within a circular area with a radius of 0.5 statute 
mile having its center at latitude 34[deg]58[min]48[sec], longitude 
76[deg]26[min]12[sec].
    (2) The regulations. (i) The area described in paragraph (b)(1) of 
this section will be used as bombing, rocket firing, and strafing areas. 
Live and dummy ammunition will be used. The area shall be closed to 
navigation and all persons at all times 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 operations in the area. Vessels or personnel which 
have inadvertently entered the danger zone shall leave the area 
immediately upon being so warned.
    (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.
    (c) Enforcing agency. The regulations of this section shall be 
enforced by the Commander, Marine Corps Air Bases, East, Cherry Point, 
North Carolina, or his authorized representatives.

[26 FR 9673, Oct. 13, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 61 FR 43970, Aug. 27, 1996]



Sec. 334.430  Neuse River and tributaries at Marine Corps Air Station
Cherry Point, North Carolina; restricted area and danger zone.

    (a) The restricted area. That portion of Neuse River within 500 feet 
of the shore along the reservation of the Marine Corps Air Station, 
Cherry Point, North Carolina, extending from the mouth of Hancock Creek 
to a point approximately 6,800 feet west of the mouth of Slocum Creek, 
and all waters of Hancock and Slocum Creeks and their tributaries within 
the boundaries of the reservation.
    (b) The danger zone. The waters within an area beginning at latitude 
34.923425[deg] N, longitude -76.853222[deg] W; thence northeasterly 
across Hancock

[[Page 562]]

Creek to latitude 34.925258[deg] N, longitude -76.849864[deg] W; 
continuing northeasterly to latitude 34.933382[deg] N, longitude -
76.835081[deg] W; thence northwesterly to the Neuse River shoreline at 
latitude 34.936986[deg] N, longitude -76.841197[deg] W, continuing 
northwesterly to latitude 34.943275[deg] N, longitude -76.852169[deg] W; 
thence southwesterly along the shorelines to latitude 34.935111[deg] N, 
longitude -76.859078[deg] W; thence southeasterly along Hancock Creek 
shoreline to the point of origin.
    (c) The regulations. (1) Except in cases of extreme emergency, all 
persons or vessels, other than those operated by the United States Navy 
or United States Coast Guard, are prohibited from entering the 
restricted area without prior permission of the enforcing agency.
    (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.

[73 FR 41265, July 18, 2008]



Sec. 334.440  New River, N.C., and vicinity; Marine Corps firing ranges.

    (a) Atlantic Ocean east of New River Inlet. The waters of the 
Atlantic Ocean within a sector bounded on the north by a line bearing 
105[deg] from latitude 34[deg]37[min]25[sec], longitude 
77[deg]10[min]35[sec]; on the east and south by the arc of a circle 
having a radius of 25,000 yards centered at latitude 
34[deg]34[min]15[sec], longitude 77[deg]16[min]10[sec]; on the west by a 
line bearing 205[deg] from latitude 34[deg]32[min]37[sec], longitude 
77[deg]18[min]34[sec], and on the northwest by the shore.
    Note: All bearings in this section are referred to true meridian.
    (b) New River. The firing ranges include all waters to the high 
waterline within eight sections described as follows:
    (1) Trap Bay Sector. Bounded on the south by a line running from 
Cedar Point 280[deg] to New River Light 70, thence 254[deg] to Hatch 
Point; and on the northwest by a line running from Wilkins Bluff 
232[deg] to Hall Point.
    (2) Courthouse Bay Sector. Bounded on the southeast by the northwest 
boundary of the Traps Bay Sector and on the west by Sneads Ferry Bridge.
    (3) Stone Bay Sector. Bounded on the east by Sneads Ferry Bridge and 
on the north by a line running from a point on the east side of New 
River opposite the head of Sneads Creek 291[deg]30[min] to the south 
side of the mouth of Stone Creek.
    (4) Stone Creek Sector. The northwest portion of Stone Bay, bounded 
on the south by the north boundary of the Stone Bay Sector; and on the 
east by longitude 77[deg]26[min].
    (5) Grey Point Sector. Bounded on the south by the north boundary of 
the Stone Bay Sector; on the west by the east boundary of the Stone 
Creek Sector; and on the northeast by a line running from Town Point 
113[deg] to the south side of the mouth of French Creek.
    (6) Farnell Bay Sector. Bounded on the south by the northeast 
boundary of the Grey Point Sector, including French Creek up to 
longitude 77[deg]20[min]; and on the north by a line running from Hadnot 
Point 285[deg]30[min] to Holmes Point.
    (7) Morgan Bay Sector. Bounded on the south by the north boundary of 
the Farnell Bay Sector, including Wallace Creek up to longitude 
77[deg]22[min]; and on the northwest by a line running from Paradise 
Point 243[deg]30[min] to Ragged Point.
    (8) Jacksonville Sector. Bounded on the southeast by the northwest 
boundary of the Morgan Bay Sector, including Southwest Creek up to the 
point where it narrows to 200 feet in width, and Northeast Creek up to 
longitude 77[deg]23[min]30[sec]; and on the north by an east-

[[Page 563]]

west line passing through New River Day Beacon 41.
    (c) The regulations. (1) No person shall enter or remain in the 
water in any closed section after notice of firing therein has been 
given. Sailing vessels and any watercraft having a speed of less than 5 
knots shall keep clear of any closed sector at all times after notice of 
firing therein has been given. Vessels propelled by mechanical power at 
a speed greater than 5 knots may enter the sectors without restriction 
except when the firing signals are being displayed. When these signals 
are displayed, vessels shall clear the closed sectors immediately and no 
vessels shall enter such sectors until the signals indicate that firing 
has ceased.
    (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) Target and bombing area in Atlantic Ocean in vicinity of Bear 
Inlet. (1) The water within an area described as follows: Beginning at 
latitude 34[deg]37[min]32[sec], longitude 77[deg]12[min]03[sec]; thence 
to latitude 34[deg]36[min]58[sec], longitude 77[deg]11[min]25[sec]; 
thence to latitude 34[deg]37[min]44[sec], longitude 
77[deg]10[min]35[sec]; thence to 34[deg]32[min]27[sec], longitude 
77[deg]06[min]30[sec]; thence to latitude 34[deg]28[min]55[sec], 
longitude 77[deg]15[min]05[sec]; thence to latitude 
34[deg]34[min]50[sec], longitude 77[deg]15[min]10[sec]; thence to the 
point of beginning.
    (2) The regulations. Vessels may proceed along established waterways 
except during military training periods. Warning of military training 
periods will be given through Notices to Mariners and by displaying one 
hour prior to commencement a red danger streamer during daylight hours 
or a red light at night, from a flag pole 40 feet in height located at 
the U.S. Coast Guard Life Boat Station, Bogue Inlet, Swansboro, North 
Carolina, and from observation tower 40 feet in height located at the 
northern end of Onslow (Hurst) Beach. Prior to bombing and firing 
operations, the area will be searched by plane. Watercraft in the area 
will be warned by aircraft ``buzzing'' of the impending target practice. 
Upon being so warned, all persons and vessels shall leave the area as 
quickly as possible by the most direct route.

[[Page 564]]

    (e) Inland waters in the Browns Inlet area between Bear Creek and 
Onslow Beach Bridge over the Atlantic Intracoastal Waterway--(1) The 
area. Navigable waters between Bear Creek and Onslow Beach Bridge to 
include all inlets, streams, bays, and water therein contained, bounded 
on the north by Bear Creek, on the east and south by the Atlantic Ocean, 
to the meridian 77[deg]16[min]20[sec]; thence by this meridian to 
latitude 34[deg]34[min]31[sec]; and thence by a line bearing 44[deg] 
from this point until the line intersects Bear Creek.
    (2) The regulations. (i) No person shall enter or remain in the 
waters of this area due the possibility of unexploded projectiles.
    (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) Enforcing agency. The regulations of this section shall be 
enforced by the Commanding General, Marine Corps Base, Camp Lejeune, 
North Carolina, or his authorized representatives.

[26 FR 9673, Oct. 13, 1961, as amended at 48 FR 41160, Sept. 14, 1983. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17553, 
Apr. 10, 1997; 66 FR 15799, Mar. 21, 2001]



Sec. 334.450  Cape Fear River and tributaries at Sunny Point Army Terminal,
Brunswick County, N.C.; restricted area.

    (a) The area. That portion of Cape Fear River due west of the main 
ship channel extending from U.S. Coast Guard buoy No. 31A at the north 
approach channel to Sunny Point Army Terminal to U.S. Coast Guard buoy 
No. 23A at the south approach channel to Sunny Point Army Terminal and 
all waters of its tributaries therein.
    (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 may designate.

[22 FR 9432, Nov. 26, 1957. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17553, Apr. 10, 1997]



Sec. 334.460  Cooper River and tributaries at Charleston, SC.

    (a) The areas:
    (1) That portion of the Cooper River beginning on the west shore at 
latitude 32[deg]52[min]37[sec], longitude 79[deg]58[min]06[sec], thence 
to latitude 32[deg]52[min]37[sec], longitude 79[deg]58[min]03[sec], 
thence to latitude 32[deg]52[min]27[sec], longitude 
79[deg]68[min]01[sec], thence to latitude 32[deg]52[min]06[sec], 
longitude 79[deg]57[min]54[sec] at the west channel edge, thence to 
latitude 32[deg]51[min]48.5[sec], longitude 79[deg]57[min]41.5[sec], 
thence to latitude 32[deg]51[min]33[sec], longitude 
79[deg]57[min]27[sec], thence to latitude 32[deg]51[min]19[sec], 
longitude 79[deg]57[min]05[sec], thence to latitude 
32[deg]51[min]01[sec], longitude 79[deg]56[min]07[sec], thence to 
latitude 32[deg]50[min]50[sec], longitude 79[deg]56[min]02[sec], thence 
to latitude 32[deg]50[min]48[sec], longitude 79[deg]56[min]07[sec] on 
the west shore, thence north along the shoreline including the reach of 
Noisett Creek to

[[Page 565]]

the eastern boundary of the Navy Base to the beginning point at the west 
shore at latitude 32[deg]52[min]37[sec], longitude 
79[deg]58[min]06[sec].
    (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[deg]49[min]50[sec], longitude 79[deg]56[min]10[sec], 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[deg]56[min]10[sec], thence to the beginning point at latitude 
32[deg]49[min]50[sec], longitude 79[deg]56[min]10[sec].
    (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[deg]50[min]00[sec], longitude 79[deg]56[min]10.5[sec], thence to 
latitude 32[deg]50[min]00[sec], longitude 79[deg]55[min]55[sec], thence 
to latitude 32[deg]49[min]54[sec], longitude 79[deg]55[min]55[sec], to 
latitude 32[deg]49[min]50[sec], longitude 79[deg]56[min]10[sec], thence 
north along the shore to the beginning point at the west shore of the 
Cooper River at latitude 32[deg]50[min]00[sec], longitude 
79[deg]56[min]10.5[sec].
    (5) That portion of the Cooper River beginning on the west channel 
edge at latitude 32[deg]52[min]06[sec], longitude 79[deg]57[min]54[sec], 
thence to the east shore at latitude 32[deg]52[min]13[sec], longitude 
79[deg]57[min]30[sec], thence along the eastern shore to latitude 
32[deg]51[min]30[sec], longitude 79[deg]56[min]15.5[sec], thence to 
latitude 32[deg]51[min]01[sec], longitude 79[deg]55[min]50[sec], thence 
to latitude 32[deg]50[min]52[sec], longitude 79[deg]56[min]03.5[sec], 
thence to latitude 32[deg]51[min]01[sec], longitude 
79[deg]56[min]07[sec], thence to latitude 32[deg]51[min]19[sec], 
longitude 79[deg]57[min]05[sec], thence to latitude 
32[deg]51[min]33[sec], longitude 79[deg]57[min]27[sec], thence to 
latitude 32[deg]51[min]48.5[sec], longitude 79[deg]57[min]41.5[sec], 
thence to the beginning point at the west channel edge at latitude 
32[deg]52[min]06[sec], longitude 79[deg]57[min]54[sec].
    (6) That portion of the Cooper River beginning on the west shore at 
latitude 32[deg]50[min]48[sec], longitude 79[deg]56[min]07[sec], thence 
to latitude 32[deg]50[min]50[sec], longitude 79[deg]56[min]02[sec], 
thence to latitude 32[deg]50[min]32[sec], longitude 
79[deg]55[min]55[sec], thence to latitude 32[deg]50[min]00[sec], 
longitude 79[deg]55[min]55[sec], thence to latitude 
32[deg]50[min]00[sec], longitude 79[deg]56[min]10.5[sec] on the west 
shore, thence along the shoreline to the beginning point on the west 
shore at latitude 32[deg]50[min]48[sec], longitude 
79[deg]56[min]07[sec].
    (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[deg]54[min]32[sec], longitude 79[deg]57[min]04[sec]; thence 
proceeding along the western shoreline of Goose Creek for approximately 
6.9 miles to its intersection with the Seaboard Coastline Railroad at 
latitude 32[deg]55[min]34[sec], latitude 79[deg]59[min]30[sec]; thence 
in a northwesterly direction along the Seaboard Coastline Railroad to 
latitude 32[deg]55[min]37[sec], longitude 79[deg]59[min]32[sec]; thence 
proceeding along the eastern shoreline of Goose Creek in a southeasterly 
direction to latitude 32[deg]54[min]33[sec] by 79[deg]56[min]59[sec] 
thence back to 32[deg]54[min]32[sec], longitude 79[deg]57[min]04[sec].
    (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[min] center of radius, latitude 
32[deg]55[min]45[sec], longitude 79[deg]45[min]23[sec].
    (ii) Radius=3790[min] center of radius, latitude 
32[min]55[min]00[sec], longitude 79[deg]55[min]41[sec].
    (iii) Radius=8255[min] center of radius, latitude 
32[deg]55[min]41[sec], longitude 79[deg]56[min]15[sec].
    (iv) Radius=8255[min] center of radius, latitude 
32[min]56[min]09[sec], longitude 79[deg]56[min]19[sec].
    (9) That portion of the Cooper River beginning on the western 
shoreline at latitude 32[deg]54[min]37[sec], longitude 
79[deg]57[min]01[sec]; thence proceeding along the western shoreline in 
a northerly direction for approximately 4.8 miles to latitude 
32[deg]57[min]32[sec], longitude 79[deg]55[min]27[sec]; thence in a 
southerly direction for approximately 100 yards to latitude 
32[deg]57[min]29[sec], longitude

[[Page 566]]

79[deg]55[min]23[sec], thence in a southwesterly direction, paralleling 
the shoreline to latitude 32[deg]56[min]48[sec], longitude 
79[deg]55[min]48[sec]; thence in an easterly direction for approximately 
50 yards to latitude 32[deg]56[min]49[sec], longitude 
79[deg]55[min]46[sec], thence in a southerly direction, paralleling the 
shoreline, to latitude 32[deg]56[min]40[sec], longitude 
79[deg]55[min]40[sec]; thence in a westerly direction for approximately 
50 yards to latitude 32[deg]56[min]39[sec], longitude 
79[deg]55[min]42[sec]; thence in a southwesterly direction, paralleling 
the shoreline, to latitude 32[deg]56[min]15[sec], longitude 
79[deg]56[min]07[sec]; thence in a southwesterly direction to latitude 
32[deg]56[min]05[sec], longitude 79[deg]56[min]17[sec]; thence in a 
westerly direction, for approximately 50 yards to latitude 
32[deg]56[min]05[sec], longitude 79[deg]56[min]19[sec]; thence in a 
southerly direction, paralleling the shoreline to latitude 
32[deg]55[min]45[sec], longitude 79[deg]56[min]19[sec]; thence in a 
southwesterly direction to latitude 32[deg]55[min]42[sec], longitude 
79[deg]56[min]13[sec]; thence in a southeasterly direction, parallel the 
shoreline, to latitude 32[deg]55[min]18[sec], longitude 
79[deg]55[min]55[sec]; thence in a southwesterly direction to latitude 
32[deg]55[min]16[sec], longitude 79[deg]56[min]00[sec]; thence in a 
southwesterly direction paralleling the shoreline to latitude 
32[deg]54[min]35[sec]; longitude 79[deg]56[min]57[sec], thence back to 
latitude 32[deg]54[min]37[sec], and longitude 79[deg]57[min]01[sec].
    (10) That portion of the Cooper River beginning at a point near the 
center of the Cooper River at latitude 32[deg]55[min]03[sec], longitude 
79[deg]55[min]42[sec]; thence proceeding in an easterly direction to 
latitude, 32[deg]55[min]03[sec]; longitude 79[deg]55[min]35[sec]; thence 
in a southerly direction to latitude 32[deg]54[min]52[sec], longitude 
79[deg]55[min]33[sec]; thence in a westerly direction to latitude 
32[deg]54[min]53[sec], longitude 79[deg]55[min]42[sec]; thence in a 
northerly direction to latitude 32[deg]55[min]03[sec], longitude 
79[deg]55[min]42[sec].
    (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[deg]58[min]30[sec], longitude 79[deg]56[min]33[sec]; 
thence proceeding along the southern shoreline to the terminus of Foster 
Creek; thence back down its northern shoreline of Foster Creek to 
latitude 32[deg]58[min]34[sec], longitude 79[deg]56[min]34[sec]; thence 
back to latitude 32[deg]58[min]30[sec], longitude 79[deg]56[min]33[sec].
    (12) Danger zone. That portion of Foster Creek beginning at the 
point of the southern shoreline of an unnamed tributary of Foster Creek 
at its intersection with Foster Creek at latitude 32[deg]59[min]16[sec] 
N, longitude 79[deg]57[min]23[sec] W; thence back proceeding along the 
eastern shoreline to the terminus of the tributary at latitude 
32[deg]59[min]49[sec] N, longitude 79[deg]57[min]29[sec] W; thence back 
down the western shoreline of the unnamed tributary to latitude 
32[deg]59[min]15[sec] N, longitude 79[deg]57[min]26[sec] W. The waters 
and associated marshes in this danger zone area are subject to impact by 
rounds and ricochets originating from a small arms range when firing is 
in progress.
    (13) Danger zone. Those portions of unnamed tributaries and 
associated marshes of Back River and Foster Creek that are generally 
described as lying south of the main shoreline and extending southward 
to the northern shoreline of Big Island (U.S. Naval Reservation). 
Specifically, the area beginning at a point on the main shoreline which 
is the northern shore of an unnamed tributary of Back River at latitude 
32[deg]59[min]19[sec] N, longitude 79[deg]56[min]52[sec] W, 
southwesterly to a point on or near the northern shoreline of Big Island 
at latitude 32[deg]59[min]11[sec] N, longitude 79[deg]56[min]59[sec] W; 
thence northwesterly to a point on the main shoreline, which is the 
northern shore of an unnamed tributary of Foster Creek, at latitude 
32[deg]59[min]16[sec] N, longitude 79[deg]57[min]11[sec] W; thence 
easterly along the main shoreline, which is the northern shore of the 
unnamed tributaries of Foster Creek and Back River, back to the point of 
beginning at latitude 32[deg]59[min]19[sec] N longitude 
79[deg]56[min]52[sec] W. The waters and associated marshes in this 
danger zone area are subject to impact by rounds and ricochets 
originating from a small arms range when firing is in progress.
    (b) The regulations: (1) Unauthorized personnel, vessels and other 
watercraft shall not enter the restricted areas described in paragraphs 
(a)(1), (a)(2), and (a)(4) of this section at any time.
    (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

[[Page 567]]

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.

[55 FR 3591, Feb. 2, 1990, as amended at 59 FR 2916, Jan. 19, 1994; 61 
FR 64997, Dec. 10, 1996; 62 FR 17553, Apr. 10, 1997; 68 FR 57624, Oct. 
6, 2003]



Sec. 334.470  Cooper River and Charleston Harbor, S.C.; restricted areas.

    (a) The restricted areas. (1) Area No. 1 is that portion of the 
Cooper River beginning near the westerly shore north of Shipyard Creek 
at ``a'' Latitude 32[deg]50[min]14[sec], Longitude 
79[deg]56[min]11[sec]; thence to ``b'' Latitude 32[deg]50[min]14[sec], 
Longitude 79[deg]55[min]37[sec]; thence to ``c'' Latitude 
32[deg]49[min]41[sec], Longitude 79[deg]55[min]37[sec]; thence to ``d'' 
Latitude 32[deg]49[min]41[sec], Longitude 79[deg]55[min]52[sec]; thence 
to ``e'' Latitude 32[deg]49[min]47[sec], Longitude 
79[deg]56[min]09[sec]; and thence returning to ``a'' Latitude 
32[deg]50[min]14[sec], Longitude 79[deg]56[min]11[sec].
    (2) Area No. 2 is that portion of the Cooper River beginning at a 
point west of Shutes Folly Island at ``a'' Latitude 
32[deg]46[min]27[sec], Longitude 79[deg]55[min]31[sec]; thence to ``b'' 
Latitude 32[deg]46[min]39[sec], Longitude 79[deg]55[min]11[sec]; thence 
to ``c'' Latitude 32[deg]46[min]39[sec], Longitude 
79[deg]54[min]51[sec]; thence to ``d'' Latitude 32[deg]46[min]28[sec], 
Longitude 79[deg]54[min]47[sec]; thence to ``e'' Latitude 
32[deg]46[min]17[sec], Longitude 79[deg]54[min]51[sec]; thence to ``f'' 
Latitude 32[deg]46[min]17[sec], Longitude 79[deg]55[min]11[sec]; and 
thence returning to ``a'' Latitude 32[deg]46[min]27[sec], Longitude 
79[deg]55[min]31[sec].
    (b) The regulations. (1) There shall be no introduction of magnetic 
material or magneto-electric field sources with the area.
    (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

[[Page 568]]

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.

[42 FR 38177, July 27, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17553, Apr. 10, 1997]



Sec. 334.475  Brickyard Creek and tributaries and the Broad River at Beaufort, SC.

    (a) The areas: (1) 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[deg], longitude 80.687770[deg], thence 
continuing in a northerly direction along the western channel edge of 
the AIWW to latitude 32.458580[deg], longitude 80.689181[deg], thence to 
latitude 32.460413[deg], longitude 80.689228[deg], thence to latitude 
32.461459[deg], longitude 80.689418[deg], thence to latitude 
32.464015[deg], longitude 80.690294[deg], thence to latitude 
32.470255[deg], longitude 80.690965[deg], thence to latitude 
32.471309[deg], longitude 80.691196[deg], thence to latitude 
32.475084[deg], longitude 80.692455[deg], thence to latitude 
32.478161[deg], longitude 80.691546[deg], thence to latitude 
32.479191[deg], longitude 80.691486[deg], thence to latitude 
32.481817[deg], longitude 80.691939[deg], thence to latitude 
32.493001[deg], longitude 80.689835[deg], thence to latitude 
32.494422[deg], longitude 80.688296[deg], thence to latitude 
32.49727[deg], longitude 80.69172[deg] on the east shore of the Marine 
Corps Air Station (MCAS), at its intersection with the Station's 
property boundary line, thence heading south along the eastern shoreline 
of the MCAS to a point along the northern shoreline of Mulligan Creek at 
latitude 32.48993[deg], longitude 80.69836[deg], thence southwesterly 
across Mulligan Creek to the shoreline of the MCAS, latitude 
32.48771[deg], longitude 80.70424[deg], thence continuing along the 
eastern shoreline to its intersection with Albergottie Creek, latitude 
32.45360[deg], longitude 80.70128, thence continuing along the southern 
shoreline of the MCAS to the intersection of Salt Creek with U.S. 
Highway 21, latitude 32.45047[deg], longitude 80.73153[deg], thence back 
down the southern creek edge of Salt and Albergottie Creeks, thence back 
to the starting point at the confluence of Albergottie Creek and the 
AIWW, latitude 32.457226[deg], longitude 80.687770[deg]. Note: Situated 
within the boundaries of the area described in paragraph (a)(1) of this 
section are the areas described in paragraphs (a)(2), (a)(3), (a)(4), 
(a)(5) and the danger zone described in paragraph (a)(10) of this 
section. Since additional regulations apply to these sections, they are 
excluded from the area described in paragraph (a)(1) given that they are 
more strictly regulated.
    (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[deg], longitude 80.69836[deg], 
thence southwesterly across Mulligan Creek to the shoreline of the MCAS, 
latitude 32.48771[deg], longitude 80.70424[deg], 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[deg], longitude 80.69836[deg].
    (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[deg], longitude 
80.690208[deg], thence continuing in a northerly direction along the 
western channel edge of the AIWW to latitude 32.467999[deg], longitude 
80.690749[deg], thence turning in a westerly direction and continuing to 
latitude 32.467834[deg], longitude 80.700080[deg], on the eastern shore 
of the MCAS, thence heading in a

[[Page 569]]

southward direction along the shoreline to latitude 32.463692[deg], 
longitude 80.698440[deg], thence turning in a westerly direction and 
returning back to the starting point on the west edge of the AIWW 
channel, latitude 32.463732[deg], longitude 80.690208[deg].
    (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[deg], longitude 80.708263[deg], 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[deg], longitude 
80.715653[deg], thence turning in an easterly direction and returning 
back to the starting point at latitude 32.452376[deg], longitude 
80.708263[deg].
    (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[deg], longitude 80.724473[deg], 
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[deg], longitude 80.724473[deg].
    (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[deg], longitude 80.687770[deg], thence continuing in a 
northerly direction along the western channel edge of the AIWW to 
latitude 32.458580[deg], longitude 80.689181[deg], thence to latitude 
32.460413[deg], longitude 80.689228[deg], thence to latitude 
32.461459[deg], longitude 80.689418[deg], thence to latitude 
32.464015[deg], longitude 80.690294[deg], thence to latitude 
32.470255[deg], longitude 80.690965[deg], thence to latitude 
32.471309[deg], longitude 80.691196[deg], thence to latitude 
32.475084[deg], longitude 80.692455[deg], thence to latitude 
32.478161[deg], longitude 80.691546[deg], thence to latitude 
32.479191[deg], longitude 80.691486[deg], thence to latitude 
32.481817[deg], longitude 80.691939[deg], thence to latitude 
32.493001[deg], longitude 80.689835[deg], thence to latitude 
32.494422[deg], longitude 80.688296[deg], 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[deg], longitude 
80.68699[deg], 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[deg], longitude 
80.68668[deg], thence back across the AIWW navigational channel to the 
point of beginning, latitude 32.457226[deg], longitude 80.687770[deg].
    (7) That portion of Mulligan Creek, beginning at its northern mouth 
and confluence with McCalleys Creek, latitude 32.50763[deg], longitude 
80.69337[deg], thence proceeding in a westerly direction along the 
northern shoreline of Mulligan Creek to its intersection with Perryclear 
Drive bridge crossing, latitude 32.50534[deg], longitude 80.69960[deg], 
thence back down the southern shoreline to its starting point at 
McCalleys Creek, latitude 32.50763[deg], longitude 80.69337[deg].
    (8) That portion of Mulligan Creek, beginning at the Perryclear 
Drive bridge crossing, latitude 32.50534[deg], longitude 80.69960[deg], 
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[deg], longitude 80.70658[deg], thence back down the southern 
shoreline to its starting point at Perryclear Drive bridge crossing, 
latitude 32.50534[deg], longitude 80.69960[deg].
    (9) (Laurel Bay Military Family Housing Area, Broad River). That 
section of the Broad River, beginning on the western shoreline of Laurel 
Bay Military Family Housing Area boundary line, at latitude 
32.449295[deg], longitude 80.803205[deg], thence proceeding in a 
northerly direction along the shoreline to the housing area northern 
boundary line at latitude 32.471172[deg], longitude 80.809795[deg], 
thence proceeding a distance

[[Page 570]]

of 500 feet into the Broad River, latitude 32.471185[deg], longitude 
80.811440[deg], thence proceeding in a southerly direction and 
maintaining a distance of 500 feet from the shoreline to latitude 
32.449222[deg], longitude 80.804825[deg], thence back towards the 
shoreline to the point of beginning at latitude 32.449295[deg], 
longitude 80.803205[deg].
    (10) (Danger zone). That portion of Mulligan Creek located adjacent 
to the MCAS firing range and the restricted area described in paragraph 
(a)(2) of this section, beginning at a point on the western shoreline of 
Mulligan Creek at latitude 32.48771[deg], longitude 80.70424[deg], 
thence northeasterly across Mulligan Creek to the opposite shoreline at 
latitude 32.48993[deg], longitude 80.69836[deg], thence continuing in a 
southeasterly direction to an upland island bordering the northern 
shoreline of Mulligan Creek at latitude 32.48579[deg], longitude 
80.69706[deg], thence turning in a southwesterly direction and crossing 
Mulligan Creek to a point on the eastern shoreline of the MCAS at 
latitude 32.48533[deg], longitude 80.70240[deg], thence continuing along 
the eastern shoreline of the MCAS to its starting point at latitude 
32.48771[deg], longitude 80.70424[deg].
    (b) The regulation: (1) Unauthorized personnel, vessels and other 
watercraft shall not enter the restricted areas described in paragraphs 
(a)(2), (a)(3), (a)(4), (a)(5) and (a)(8) of this section at any time.
    (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) Enforcement: The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commanding Officer, MCAS Beaufort, or persons or agencies as he/she may 
authorize including any Federal Agency, State, Local or County Law 
Enforcement agency, or Private Security Firm in the employment of the 
facility, so long as the entity undertaking to enforce this Restricted 
Area has the legal authority to do so under the appropriate Federal, 
State or local laws.

[70 FR 43780, July 29, 2005]



Sec. 334.480  Archers Creek, Ribbon Creek and Broad River, S.C.; U.S. Marine
Corps Recruit Depot rifle and pistol ranges, Parris Island.

    (a) During periods when the rifle and pistol ranges on Parris Island 
are in use, the following areas will be restricted to navigation:
    (1) At the rifle range. Archers Creek between Broad River and 
Beaufort River and Ribbon Creek from Broad Creek entrance. The area is 
inclosed by the following points:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
32[deg]21[min]40[sec].....................  80[deg]44[min]52[sec]
32[deg]21[min]51[sec].....................  80[deg]44[min]38[sec]
32[deg]21[min]54[sec].....................  80[deg]44[min]41[sec]
32[deg]22[min]01[sec].....................  80[deg]44[min]21[sec]
32[deg]22[min]08[sec].....................  80[deg]44[min]15[sec]
32[deg]22[min]15[sec].....................  80[deg]44[min]07[sec]
32[deg]22[min]17[sec].....................  80[deg]44[min]05[sec]
32[deg]22[min]20[sec].....................  80[deg]43[min]52[sec]

[[Page 571]]

 
32[deg]22[min]17[sec].....................  80[deg]43[min]48[sec]
32[deg]22[min]17[sec].....................  80[deg]43[min]47[sec]
32[deg]21[min]44[sec].....................  80[deg]43[min]28[sec]
32[deg]21[min]30[sec].....................  80[deg]43[min]13[sec]
32[deg]20[min]55[sec].....................  80[deg]42[min]23[sec]
32[deg]20[min]21[sec].....................  80[deg]42[min]24[sec]
32[deg]20[min]06[sec].....................  80[deg]42[min]43[sec]
32[deg]20[min]12[sec].....................  80[deg]43[min]01[sec]
32[deg]20[min]18[sec].....................  80[deg]43[min]22[sec]
32[deg]20[min]28[sec].....................  80[deg]43[min]33[sec]
32[deg]20[min]30[sec].....................  80[deg]43[min]37[sec]
32[deg]20[min]35[sec].....................  80[deg]43[min]41[sec]
------------------------------------------------------------------------


and thence to point of beginning:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
32[deg]21[min]40[sec].....................  80[deg]44[min]52[sec]
------------------------------------------------------------------------

    (2) At the pistol range. An area in Broad River inclosed by the 
following points:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
32[deg]20[min]09[sec].....................  80[deg]42[min]57[sec]
32[deg]19[min]27[sec].....................  80[deg]42[min]27[sec]
32[deg]18[min]57[sec].....................  80[deg]43[min]24[sec]
32[deg]19[min]39[sec].....................  80[deg]43[min]54[sec]
32[deg]20[min]00[sec].....................  80[deg]43[min]36[sec]
32[deg]20[min]00[sec].....................  80[deg]43[min]15[sec]
------------------------------------------------------------------------


The area will be adequately marked by red flags for the convenience and 
protection of the general public.
    (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) At the rifle range. Warning signs indicating the periods when 
the rifle range is in use will be posted by the entrances to Archers 
Creek and Ribbon Creek. Also the warning signs will be placed at the 
corners of the rifle range impact area.
    (2) At the pistol range. Warning flag shall be flown from top of a 
lookout tower with a sentry lookout during actual firing. Also a patrol 
boat shall be accessible for clearing the area and warning all 
approaching vessels of the danger zone area and the schedule of firing. 
During storms or similar emergencies this area shall be opened to 
vessels to reach safety without undue delay for the preservation of life 
and property.
    (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.

[29 FR 6682, May 22, 1964, as amended at 36 FR 22238, Nov. 23, 1971. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, 
Apr. 10, 1997]



Sec. 334.490  Atlantic Ocean off Georgia Coast; air-to-air and air-to-water
gunnery and bombing ranges for fighter and bombardment aircraft, U.S. Air Force.

    (a) The danger zones--(1) For fighter aircraft. An area 
approximately 30 miles offshore between Wassaw Sound and Brunswick, 
Georgia, described as follows: Beginning at latitude 
31[deg]55[min]30[sec], longitude 80[deg]24[min]00[sec]; thence 90[deg] 
true to longitude 80[deg]16[min]00[sec]; thence southwesterly to 
latitude 31[deg]10[min]00[sec], longitude 80[deg]43[min]00[sec]; thence 
270[deg] to longitude 80[deg]51[min]00[sec]; and then northeasterly to 
the point of beginning.
    (2) For bombardment aircraft. An area approximately 70 miles off 
shore between Savannah Beach and Brunswick, Georgia, described as 
follows: Beginning at latitude 32[deg]00[min]00[sec], longitude 
79[deg]43[min]00[sec]; thence 90[deg] true to longitude 
79[deg]07[min]00[sec]; thence southwesterly to latitude 
31[deg]10[min]00[sec], longitude 79[deg]24[min]00[sec]; thence 270[deg] 
true to longitude 80[deg]00[min]00[sec]; and thence northeasterly to the 
point of beginning.
    (b) The regulations. (1) The danger zones shall be open to 
navigation except when aerial gunnery or bombing practice is being 
conducted.
    (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,'' (i.e., by flying low over the person or watercraft.) Any 
person or watercraft shall, upon being so warned, immediately leave the 
area designated and

[[Page 572]]

shall remain outside the area until practice has ceased.
    (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.

[16 FR 818, Jan. 30, 1951, as amended at 16 FR 2397, Mar. 14, 1951. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, 
Apr. 10, 1997]



Sec. 334.500  St. Johns River, Atlantic Ocean, Sherman Creek; restricted
areas and danger zone, Naval Station Mayport, Florida.

    (a) The areas. (1) The St. Johns River restricted area and the 
Atlantic Ocean restricted area described in paragraphs (a)(2) and (a)(3) 
of this section, respectively, are contiguous but each area is described 
separately for clarification.
    (2) St. Johns River restricted area. This restricted area shall 
encompass all navigable waters of the United States, as defined at 33 
CFR 329, within the area bounded by a line connecting the following 
coordinates: Commencing from the shoreline at latitude 
30[deg]23[min]52.97[sec] N, longitude 081[deg]25[min]36.51[sec] W; 
thence to latitude 30[deg]23[min]56.71[sec] N, longitude 
081[deg]25[min]36.51[sec] W; then the line meanders irregularly, follow 
the shoreline at a distance of 380 feet seaward from the mean high water 
line to a point at latitude 30[deg]23[min]54.20[sec] N, longitude 
081[deg]24[min]14.11[sec] W, thence proceed directly to latitude 
30[deg]23[min]46.33[sec] N, longitude 081[deg]24[min]03.73[sec] W, then 
the line meanders irregularly, follow the shoreline at a distance of 380 
feet seaward from the mean high water line to a point at latitude 
30[deg]23[min]53.08[sec] N, longitude 081[deg]23[min]34.00[sec] W, 
thence follow the arc of a circle with a radius of 466 feet, centered at 
latitude 30[deg]23[min]48.52[sec] N, longitude 081[deg]23[min]33.30[sec] 
W, to a point on the jetty at latitude 30[deg]23[min]50.06[sec] N, 
longitude 081[deg]23[min]28.26[sec] W.
    (3) Atlantic Ocean restricted area. From the last point identified 
in paragraph (a)(2) of this section, latitude 30[deg]23[min]50.06[sec] 
N, longitude 081[deg]23[min]28.26[sec] W, proceed to a point at latitude 
30[deg]23[min]49.12[sec] N, longitude 81[deg]23[min]28.10[sec] W, then 
the line meanders irregularly, follow the shoreline at a distance of 380 
feet seaward from the mean high water line to a point at latitude 
30[deg]22[min]54.37[sec] N, longitude 081[deg]23[min]44.09[sec] W, 
thence proceed directly to shore to terminate at latitude 
30[deg]22[min]54.46[sec] N, longitude 081[deg]23[min]48.44[sec] W.
    (4) Sherman Creek restricted area. This restricted area shall 
encompass all navigable waters of the United States, as defined at 33 
CFR part 329, to include Sherman Creek, its tributaries and associated 
tidal marshes located within the NAVSTA Mayport area boundaries 
described in this section. The restricted area is completely encircled 
by roadways and is bordered on the south by Wonderwood Expressway, on 
the west by SR A1A, on the north by Perimeter Road, and on the east by 
Mayport Road.
    (5) Danger zone. The danger zone shall encompass all navigable 
waters of the United States, as defined at 33 CFR part 329, within the 
area bounded by a line connecting the following coordinates: Commencing 
from the shoreline at latitude 30[deg]24[min]00.31[sec] N, longitude 
081[deg]25[min]06.02[sec] W; thence to latitude 30[deg]24[min]11.16[sec] 
N, longitude 081[deg]25[min]03.90[sec] W; thence to latitude 
30[deg]24[min]00.62[sec] N, longitude 081[deg]24[min]10.13[sec] W; 
thence to a point on the shoreline riprap at latitude 
30[deg]23[min]41.26[sec] N, longitude 081[deg]24[min]08.82[sec] W.
    (b) The regulations--(1) St. Johns River restricted area. All 
persons, vessels, or other craft are prohibited from entering, 
transiting, drifting, dredging, or anchoring within the area described 
in paragraph (a)(2) of this section without the permission of the 
Commanding Officer, NAVSTA Mayport or his/her authorized representative. 
This restriction will be in place 24 hours a day, seven days a week. 
Warning signs notifying individuals of the restricted area boundary and 
prohibiting entry into the area will be posted at 500-foot intervals 
along the property boundary.
    (2) Atlantic Ocean restricted area. All persons, vessels, or other 
craft are prohibited from entering, transiting, drifting, dredging, or 
anchoring within the area described in paragraph (a)(3) of this section 
without the permission of the Commanding Officer, NAVSTA Mayport or his/
her authorized representative. This restriction will be in place 24 
hours a day, seven days a week. Warning signs notifying individuals of 
the restricted area boundary and prohibiting entry into the area will

[[Page 573]]

be posted at 500-foot intervals along the property boundary.
    (3) Sherman Creek restricted area. All persons, vessels, or other 
craft are prohibited from entering, transiting, drifting, dredging, or 
anchoring within the area described in paragraph (a)(4) of this section 
without the permission of the Commanding Officer, NAVSTA Mayport or his/
her authorized representative. This restriction will be in place 24 
hours a day, seven days a week. Warning signs notifying individuals of 
the restricted area boundary and prohibiting entry into the area will be 
posted at 500-foot intervals along the property boundary where 
practicable (e.g., not in the wetlands). In addition, a floating Small 
Craft Intrusion Barrier will be placed across Sherman Creek just east of 
the A1A bridge and another will be placed across tributaries to Sherman 
Creek just north of the Wonderwood Expressway.
    (4) Danger zone. During periods of munitions movement at wharves 
Bravo and Charlie, no person or vessel shall be allowed to remain within 
the 1,250-foot Explosive Safety Quantity-Distance arcs generated by the 
activity. NAVSTA Mayport will not announce or publish notification prior 
to enforcing this regulation due to the unacceptable security threat 
posed by advance public notice of military munitions movements.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, NAVSTA Mayport and/or such persons or 
agencies as he/she may designate. Military vessels will patrol the areas 
identified in this section 24 hours a day, 7 days a week. Any person or 
vessel encroaching within the areas identified in this section will be 
asked to immediately leave the area. Failure to do so will result in the 
forceful removal of the person or vessel from the area in question.

[75 FR 19885, Apr. 16, 2010]



Sec. 334.510  U.S. Navy Fuel Depot Pier, St. Johns River, Jacksonville,
Fla.; restricted area.

    (a) The area is described as:
    (1) A line running at 238.5[deg] 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[deg].
    (2) The easterly waterward coordinate being:

30[deg]23[min]58.0[sec] N 81[deg]37[min]15.0[sec] W

    (3) The westerly waterward coordinate being:

30[deg]23[min]53.0[sec] N 81[deg]37[min]24.4[sec] W

    (b) The regulations. (1) The use of waters as previously described 
by private and/or commercial floating craft or persons is prohibited 
with the exception of vessels or persons that have been specifically 
authorized to do so by the Officer in Charge of the Navy Fuel Depot.
    (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.

[44 FR 12192, Mar. 6, 1979, as amended at 45 FR 27755, Apr. 24, 1980. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, 
Apr. 10, 1997]



Sec. 334.515  Blount Island Command and Marine Corps Support Facility-Blount
Island; Jacksonville, Florida restricted areas.

    (a) The areas. (1) The restricted areas shall encompass all 
navigable waters of the United States, as defined at 33 CFR 329, 
contiguous to the area identified as Blount Island Command and Marine 
Corps Support Facility-Blount Island (MCSF-BI). The three areas are 
contiguous but each area is described separately below for 
clarification.
    (2) Area 1. Commencing from the shoreline at the northwest portion 
of the facility, at latitude 30[deg]24[min]46.10[sec] N, longitude 
81[deg]32[min]19.01[sec] W, thence proceed 200 yards in a northwesterly 
direction to latitude 30[deg]24[min]49.84[sec] N, longitude 
81[deg]32[min]23.12[sec] W. From this point the line meanders 
irregularly, following the shoreline at a distance of 200 yards from the 
mean high water line to a point at latitude 30[deg]23[min]36.75[sec] N, 
longitude 81[deg]30[min]26.42[sec] W, thence southwesterly to a point at 
latitude 30[deg]23[min]34.44[sec] N, longitude 81[deg]30[min]28.80[sec] 
W, thence west southwesterly to a point at latitude 
30[deg]23[min]33.68[sec] N, longitude 81[deg]30[min]32.61[sec] W.
    (3) Area 2. This includes all waters within the area generally 
identified as

[[Page 574]]

the U.S. Marine Corps Slipway but which is also known as the Back River 
area and the waters out to a distance of 100 yards from the entranceway. 
From the last point identified in paragraph (a)(2) of this section, 
latitude 30[deg]23[min]33.68[sec] N, longitude 81[deg]30[min]32.61[sec] 
W, proceed west southwesterly to a point at latitude 
30[deg]23[min]30.93[sec] N, longitude 81[deg]30[min]57.14[sec] W.
    (4) Area 3. From the last point identified in paragraph (a)(3) of 
this section, latitude 30[deg]23[min]30.93[sec] N, longitude 
81[deg]30[min]57.14[sec] W, the line meanders irregularly in a westerly 
direction, following the shoreline at a distance of 100 yards from the 
mean high water line to a point at latitude 30[deg]23[min]26.34[sec] N, 
longitude 81[deg]31[min]49.73[sec] W, thence proceed north to terminate 
at a point on the shoreline at latitude 30[deg]23[min]29.34[sec] N, 
longitude 81[deg]31[min]49.79[sec] W.
    (b) The regulations. (1) With the exception of local, State and 
federal law enforcement entities, all persons, vessels, and other craft 
are prohibited from entering, transiting, anchoring, or drifting within 
the areas described in paragraph (a) of this section for any reason 
without the permission of the Commanding Officer, Marine Corps Support 
Facility-Blount Island, Jacksonville, Florida, or his/her authorized 
representative.
    (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) Enforcement. (1) The regulations in this section shall be 
enforced by the Commanding Officer, Marine Corps Support Facility-Blount 
Island, Jacksonville, Florida, and/or such persons or agencies as he/she 
may designate.
    (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.

[73 FR 54073, Sept. 18, 2008]



Sec. 334.520  Lake George, Fla.; naval bombing area.

    (a) The danger zone. An area in the eastern part of Lake George 
described as follows: Beginning at latitude 29[deg]13[min]16[sec], 
longitude 81[deg]34[min]28[sec]; thence along a line parallel to the 
navigation channel to latitude 29[deg]20[min]05[sec], longitude 
81[deg]36[min]15[sec]; thence along a line about three-fifths mile 
southerly from the Putnam-Volusia County line to latitude 
29[deg]20[min]19[sec], longitude 81[deg]35[min]12[sec]; thence to 
latitude 29[deg]18[min]36[sec], longitude 81[deg]33[min]53[sec]; thence 
to latitude 29[deg]13[min]22[sec], longitude 81[deg]32[min]38[sec]; and 
thence to the point of beginning. The area will be marked by appropriate 
warnings signs at the five corners and at the midpoint of the longer 
side.
    (b) The regulations. (1) Bombing operations will be confined, as 
nearly as practicable, to the north-south center line of the danger 
zone, keeping well clear of the navigation channel.
    (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,

[[Page 575]]

Naval Air Station, Jacksonville, Florida, and such agencies as he may 
designate.

[16 FR 10992, Oct. 30, 1951. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17554, Apr. 10, 1997]



Sec. 334.525  Atlantic Ocean off John F. Kennedy Space Center, FL;
restricted area.

    (a) The area. The restricted area shall encompass all navigable 
waters of the United States, as defined at 33 CFR part 329, contiguous 
to the area offshore of the John F. Kennedy Space Center (KSC), Florida. 
The area is bounded by a line connecting the following coordinates: 
Commencing from the shoreline at the southwest portion of the area, at 
latitude 28[deg]35.008[min] N, longitude 80[deg]34.448[min] W, thence 
directly to latitude 28[deg]35.716[min] N, longitude 80[deg]32.938[min] 
W, thence follow the mean high water line northerly at a distance of 1.5 
nautical miles to a point at latitude 28[deg]43.566[min] N, longitude 
80[deg]39.094[min] W, thence proceed westerly to terminate at a point on 
the shoreline at latitude 28[deg]43.566[min] N, longitude 
80[deg]41.189[min] W.
    (b) The regulation. (1) The area described in paragraph (a) of this 
section will be closed when it is deemed necessary by the Director, KSC 
or his/her designee during launch operations or to address any perceived 
threat to the facilities. With the exception of local, State, and 
Federal law enforcement entities, all persons, vessels, and other craft 
are prohibited from entering, transiting, anchoring, or drifting within 
the restricted area when it is closed, unless they have the permission 
of the Director, KSC or his/her designee.
    (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) Enforcement. The regulations in this section shall be enforced 
by the Director, KSC and/or such persons or agencies as he/she may 
designate.

[75 FR 34643, June 18, 2010]

    Effective Date Note: At 75 FR 34643, June 18, 2010, Sec. 334.525 
was added, effective July 19, 2010.



Sec. 334.530  Canaveral Harbor adjacent to the Navy pier at Port Canaveral,
Fla.; restricted area.

    (a) The area. The waters of Canaveral Harbor within a line 
circumscribing the water approaches to the Navy pier along the 
northeasterly edge of the Canaveral Harbor turning basin at a distance 
of 200 feet from all portions of the pier including the dolphins 200 
feet off the northwest end and 75 feet off the southeast end of the 
pier.
    (b) The regulations. (1) All unauthorized vessels and personnel are 
prohibited from the area during specified periods.
    (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.

[25 FR 12244, Nov. 30, 1960. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 61 FR 34733, July 3, 1996]



Sec. 334.540  Banana River at the Eastern Range, 45th Space Wing, Cape
Canaveral Air Force Station, FL; restricted area.

    (a) The area. The restricted area shall encompass all navigable 
waters of the United States, as defined at 33 CFR part 329, within the 
Banana River contiguous to the area offshore of Cape Canaveral Air Force 
Station, Florida. The area is bounded by a line connecting the following 
coordinates: Commencing from the shoreline at the southeast portion of 
the area, at approximately latitude 28[deg]25.17[min] N, longitude 
80[deg]36.24[min] W, thence directly to latitude 28[deg]25.18[min] N, 
longitude 80[deg]36.65[min] W, thence directly

[[Page 576]]

to latitude 28[deg]25.25[min] N, longitude 80[deg]36.66[min] W, thence 
directly to latitude 28[deg]25.22[min] N, longitude 80[deg]38.36[min] W, 
thence directly to latitude 28[deg]26.23[min] N, longitude 
80[deg]38.25[min] W, thence directly to latitude 28[deg]26.23[min] N, 
longitude 80[deg]38.47[min] W, thence to reach the south side of the 
Kennedy Space Center NASA Causeway East Roadway at approximately 
latitude 28[deg]30.74[min] N, longitude 80[deg]36.63[min] W.
    (b) The regulation. (1) The area described in paragraph (a) of this 
section will be closed when it is deemed necessary by the Commander, 
45th Space Wing or his/her designee to address any perceived threat to 
the local area. With the exception of local, State, and Federal law 
enforcement entities, all persons, vessels, and other craft are 
prohibited from entering, transiting, anchoring, or drifting within the 
restricted area when it is closed without the permission of the 
Commander, 45th Space Wing or his/her designee.
    (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) Enforcement. The regulations in this section shall be enforced 
by the Commander, 45th Space Wing, Patrick Air Force Base, Florida and/
or such persons or agencies as he/she may designate.

[74 FR 36401, July 23, 2009]



Sec. 334.560  Banana River at Patrick Air Force Base, Fla.; restricted area.

    (a) The area. The waters within an area beginning at a point located 
at latitude 28[deg]16[min]19[sec] N., longitude 80[deg]36[min]28[sec] 
W.; proceed west to latitude 28[deg]16[min]19[sec] N., longitude 
80[deg]36[min]35[sec] W.; thence, southwesterly to latitude 
28[deg]14[min]34[sec] N., longitude 80[deg]37[min]08[sec] W.; thence, 
southerly to latitude 28[deg]12[min]44[sec] N., longitude 
80[deg]37[min]18[sec] W.; thence, east to latitude 28[deg]12[min]44[sec] 
N., longitude 80[deg]37[min]11[sec] W. This encompasses an area reaching 
from the northern extent described to the southern extent described and 
extending from the mean high water line waterward a minimum distance of 
approximately 600 feet.
    (b) The regulations. (1) All unauthorized persons and watercraft 
shall stay clear of the area at all times.
    (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.

[29 FR 3702, Mar. 25, 1964. Redesignated at 50 FR 42696, Oct. 22, 1985, 
and amended at 58 FR 37609, July 12, 1993; 62 FR 17554, Apr. 10, 1997; 
70 FR 67371, Nov. 7, 2005]



Sec. 334.570  Banana River near Orsino, Fla.; restricted area.

    (a) The area. That part of Banana River N of the NASA Banana River 
Causeway near Orsino and extending above the head of said river to the N 
and westerly to Kennedy Parkway North.
    (b) The regulations. (1) All unauthorized craft and personnel shall 
stay clear of the area at all times.
    (2) The regulations in this section shall be enforced by the 
Director, John F. Kennedy Space Center, NASA, Cocoa Beach, Fla.

[30 FR 8831, July 14, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.580  Atlantic Ocean near Port Everglades, Fla.

    (a) The area. Beginning at a point located at latitude 
26[deg]05[min]30[sec] N.--longitude 80[deg]03[min]30[sec] W.; proceed 
west to latitude 26[deg]05[min]30[sec] N.--longitude 
80[deg]06[min]30[sec] W.; Thence, southerly to latitude 
26[deg]03[min]00[sec] N.--longitude 80[deg]06[min]42[sec] W.; Thence, 
east to latitude 26[deg]03[min]00[sec] N.--longitude 
80[deg]05[min]44[sec] W.; Thence, south to latitude 
26[deg]01[min]36[sec] N.--longitude 80[deg]05[min]44[sec] W.; Thence, 
east to latitude 26[deg]01[min]36[sec] N.--longitude 
80[deg]03[min]30[sec] W.; Thence, north to the point of beginning.
    (b) The regulations. (1) Anchoring, trawling, dredging, or attaching 
any object to the submerged sea bottom shall be prohibited in the above 
described area.
    (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.

[51 FR 1370, Jan. 13, 1986, as amended at 70 FR 67371, Nov. 7, 2005]

[[Page 577]]



Sec. 334.590  Atlantic Ocean off Cape Canaveral, Fla.; Air Force missile
testing area, Patrick Air Force Base, Fla.

    (a) The danger zone. An area in the Atlantic Ocean immediately 
offshore from Cape Canaveral defined by a line 3 nautical miles from 
shore, said area terminating in the north at a line on a bearing of 
70[deg] from a point on shore at approximate latitude 28[deg]35[min] 
north and in the south at a line on a bearing of 115[deg] from a point 
on the shore at approximate latitude 28[deg]25[min] north.
    (b) The regulations. (1) All unauthorized persons and vessels are 
prohibited from operating within the danger zone during firing periods 
to be specified by the Commander, Air Force Missile Test Center, Patrick 
Air Force Base.
    (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.

[22 FR 4814, July 9, 1957, as amended at 23 FR 3716, May 29, 1958; 27 FR 
4778, May 19, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17554, Apr. 10, 1997]



Sec. 334.595  Atlantic Ocean off Cape Canaveral; 45th Space Wing, Cape 
Canaveral Air Force Station, FL; restricted area.

    (a) The area. The restricted area shall encompass all navigable 
waters of the United States, as defined at 33 CFR part 329, contiguous 
to the area offshore of Cape Canaveral Air Force Station, Florida. The 
area is bounded by a line connecting the following coordinates: 
Commencing from the shoreline at the northwest portion of the area, at 
latitude 28[deg]35.008[min] N, longitude 80[deg]34.448[min] W, thence 
directly to latitude 28[deg]35.716[min] N, longitude 80[deg]32.938[min] 
W, thence following the mean high water line at a distance of 1.5 
nautical miles offshore proceed southerly to a point at latitude 
28[deg]24.187[min] N, longitude 80[deg]33.443[min] W, thence proceeding 
westerly to terminate at a point on the shoreline at latitude 
28[deg]24.69[min] N, longitude 80[deg]35.05[min] W.
    (b) The regulation. (1) The area described in paragraph (a) of this 
section will be closed when it is deemed necessary by the Commander, 
45th Space Wing or his/her designee to address any perceived threat to 
the local area. With the exception of local, State, and Federal law 
enforcement entities, all persons, vessels, and other craft are 
prohibited from entering, transiting, anchoring, or drifting within the 
restricted area when it is closed without the permission of the 
Commander, 45th Space Wing or his/her designee.
    (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[deg]35.0[min] N, longitude 
80[deg]34.8[min] W and from a 90-foot pole near the shoreline at 
approximately latitude 28[deg]25.3[min] N, longitude 80[deg]35.0[min] 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) Enforcement. The regulations in this section shall be enforced 
by the Commander, 45th Space Wing, Patrick Air Force Base, Florida and/
or such persons or agencies as he/she may designate.

[74 FR 36401, July 23, 2009; 74 FR 58849, Nov. 16, 2009]

[[Page 578]]



Sec. 334.600  TRIDENT Basin adjacent to Canaveral Harbor at Cape Canaveral
Air Force Station, Brevard County, Fla.; danger zone.

    (a) The danger zone. From the west side of the access channel at 
latitude 28[deg]24[min]37[sec], longitude 80[deg]35[min]35[sec] to the 
east side of the access channel at latitude 28[deg]24[min]37[sec], 
longitude 80[deg]35[min]26[sec] and the entire basin.
    (b) Regulations. (1) No unauthorized person or vessel shall enter 
the area. The area will be used for loading and unloading explosives. 
The entrance to the basin will be marked by suitable boundary signs.
    (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.

[41 FR 17898, Apr. 29, 1976. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17554, Apr. 10, 1997]



Sec. 334.610  Key West Harbor, at U.S. Naval Base, Key West, Fla.
; naval restricted areas and danger zone.

    (a) The areas. (1) All waters within 100 yards of the south 
shoreline of the Harry S. Truman Annex, beginning at a point on the 
shore at Latitude 24[deg]32[min]45.3[sec] N., Longitude 
81[deg]47[min]51[sec] W.; thence to a point 100 yards due south of the 
south end of Whitehead Street of Latitude 24[deg]32[min]42.3[sec] N., 
Longitude 81[deg]47[min]51[sec] W.; thence extending westerly, 
paralleling the southerly shoreline of the Harry S. Truman Annex, to 
Latitude 24[deg]32[min]37.6[sec] N., Longitude 81[deg]48[min]32[sec] W., 
thence northerly to the shore at Latitude 24[deg]32[min]41[sec] N., 
Longitude 81[deg]48[min]31[sec] W. (Area 1).
    (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[deg]33[min]00[sec] N., Longitude 81[deg]48[min]41.7[sec] W.; thence 
to a point 100 yards due west at Latitude 24[deg]33[min]00[sec] N., 
Longitude 81[deg]48[min]45[sec] 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[deg]33[min]23[sec] N., 
Longitude 81[deg]48[min]37[sec] W.; thence southeasterly to the shore 
(sea wall) at Latitude 24[deg]33[min]19.3[sec] N., Longitude 
81[deg]48[min]28.7[sec] 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[deg]33[min]47.6[sec] N., Longitude 81[deg]47[min]55.6[sec] 
W.; thence westerly to Latitude 24[deg]33[min]48[sec] N., Longitude 
81[deg]48[min]00.9[sec] W.; thence due south to Latitude 
24[deg]33[min]45.8[sec] N., Longitude 81[deg]48[min]00.9[sec] W.; thence 
westerly to Latitude 24[deg]33[min]47[sec] N., Longitude 
81[deg]48[min]12[sec] W.; thence northerly to Latitude 
24[deg]34[min]06.2[sec] N., Longitude 81[deg]48[min]10[sec] W.; thence 
easterly to a point joining the restricted area around Fleming Key at 
Latitude 24[deg]34[min]03.3[sec] N., Longitude 81[deg]47[min]55[sec] W. 
(Area 3).
    (4) Beginning at the last point designated in area 3 at Latitude 
24[deg]34.0550[min] N., Longitude 81[deg]47.9166[min] W.; proceed in a 
northwesterly direction to a point at Latitude 24[deg]34.2725[min] N., 
Longitude 81[deg]48.1304[min] W.; thence proceed in a northeasterly 
direction to a point at Latitude 24[deg]34.3562[min] N., Longitude 
81[deg]48.0192[min] W.; thence proceed in a northwesterly direction to a 
point at Latitude 24[deg]34.4506[min] N., Longitude 81[deg]48.1444[min] 
W.; thence proceed in a northwesterly direction to a point at Latitude 
24[deg]34.5619[min] N., Longitude 81[deg]48.1873[min] W.; thence proceed 
in a northeasterly direction to a point at Latitude 24[deg]34.9084[min] 
N., Longitude 81[deg]48.0945[min] W.; thence proceed in a northeasterly 
direction to a point at Latitude 24[deg]34.9809[min] N., Longitude 
81[deg]47.9400[min] W.; proceed in a general northerly direction 
maintaining a distance of 100 yards from the shoreline of Fleming Key, 
continue around Fleming Key to a point easterly of the southeast corner 
of Fleming Key at Latitude 24[deg]34.0133[min] N., Longitude 
81[deg]47.6250[min] W.; thence easterly to Latitude 24[deg]33.9600[min] 
N., Longitude 81[deg]47.3333[min] W.; thence southerly to a point on the 
shore at Latitude 24[deg]33.9117[min] N., Longitude 81[deg]47.3450[min] 
W. The Department of the Navy plans to install buoys along that portion 
of the restricted area boundary which marks the outer edge of the 
explosive hazard safety distance requirements.
    (5) All waters contiguous to the southwesterly shoreline of Boca 
Chica Key beginning at a point on the southwest shoreline at Latitude 
24[deg]33[min]24[sec] N.,

[[Page 579]]

Longitude 81[deg]42[min]30[sec] W.; proceed due south 100 yards to 
Latitude 24[deg]33[min]20.4[sec] N., Longitude 81[deg]42[min]30[sec] W.; 
thence, maintaining a distance of 100 yards from the shoreline, proceed 
westerly and northerly to Latitude 24[deg]34[min]03[sec] N., Longitude 
81[deg]42[min]47[sec] W.; thence due north to a point at the easterly 
end of the U.S. Highway 1 (Boca Chica Channel) bridge at Latitude 
24[deg]34[min]39[sec] N., Longitude 81[deg]42[min]47[sec] W. (Area 
5).
    (6) Danger zone. All waters within an area along the northeast side 
of the Naval Air Station on Boca Chica Key defined by a line beginning 
at latitude 24[deg]35.472[min] N., longitude 81[deg]41.824[min] W.; 
thence proceed in a northerly direction to a point at latitude 
24[deg]36.289[min] N., longitude 81[deg]41.437[min] W.; thence proceed 
westerly to a point at latitude 24[deg]36.392[min] N., longitude 
81[deg]41.970[min] W.; thence to a point on shore at latitude 
24[deg]35.698[min] N., longitude 81[deg]41.981[min] W.
    (b) The Regulations: (1) Entering or crossing Restricted Areas 
1 and 4 and the Danger Zone (Area 6) 
described in paragraph (a) of this section, by any person or vessel, is 
prohibited.
    (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[deg]33[min]21.3[sec] N, Longitude 81[deg]48[min]32.7[sec] 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.

[54 FR 7033, Feb. 16, 1989, as amended at 59 FR 48802, Sept. 23, 1994; 
62 FR 17554, Apr. 10, 1997; 70 FR 67371, Nov. 7, 2005; 72 FR 44973, Aug. 
10, 2007]



Sec. 334.620  Straits of Florida and Florida Bay in vicinity of Key West,
Fla.; operational training area, aerial gunnery range, and bombing and strafing 

          target areas, Naval Air Station, Key West, Fla.

    (a) The danger zones--(1) Operational training area. Waters of the 
Straits of Florida and Gulf of Mexico southwest, west and northwest of 
Key West bounded as follows: Beginning at latitude 
25[deg]45[min]00[sec], longitude 82[deg]07[min]00[sec]; thence southeast 
to latitude 24[deg]49[min]00[sec], longitude 81[deg]55[min]00[sec]; 
thence southwest to latitude 24[deg]37[min]30[sec], longitude 
82[deg]00[min]30[sec]; thence westerly to latitude 
24[deg]37[min]30[sec], longitude 82[deg]06[min]00[sec]; thence southerly 
to latitude 24[deg]28[min]30[sec], longitude 82[deg]06[min]00[sec]; 
thence southerly to latitude 24[deg]25[min]00[sec], longitude 
82[deg]06[min]30[sec]; thence easterly to latitude 
24[deg]25[min]00[sec], longitude 81[deg]57[min]00[sec]; thence 
southwesterly to latitude 23[deg]30[min]00[sec], longitude 
82[deg]19[min]00[sec]; thence westerly to latitude 
23[deg]30[min]00[sec], longitude

[[Page 580]]

82[deg]46[min]00[sec]; thence northwesterly to latitude 
23[deg]52[min]30[sec], longitude 83[deg]11[min]00[sec]; thence northerly 
to latitude 24[deg]25[min]00[sec], longitude 83[deg]11[min]00[sec]; 
thence easterly to latitude 24[deg]25[min]00[sec], longitude 
83[deg]08[min]00[sec]; thence clockwise along the arc of a circle with a 
radius of 92 miles centered at latitude 24[deg]35[min]00[sec], longitude 
81[deg]41[min]15[sec] to latitude 25[deg]45[min]05[sec], longitude 
82[deg]23[min]30[sec]; thence east to point of beginning.
    (2) Bombing and strafing target areas. (i) A circular area 
immediately west of Marquesas Keys with a radius of two nautical miles 
having its center at latitude 24[deg]33.4[min] and longitude 
82[deg]10.9[min], not to include land area and area within Marquesas 
Keys. The target located within this area, a grounded LSIL will be used 
for bombing and aircraft rocket exercises.
    (ii) A circular area located directly west of Marquesas Keys with a 
radius of three statute miles having its center at latitude 
24[deg]35.6[min] and longitude 82[deg]11.6[min], 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[deg]34[min]30[sec] and longitude 82[deg]14[min]00[sec].
    (b) The regulations. (1) In advance of scheduled air or surface 
operations which, in the opinion of the enforcing agency, may be 
dangerous to watercraft, appropriate warnings will be issued to 
navigation interests through official government and civilian channels 
or in such other manner as the District Engineer, Corps of Engineers, 
Jacksonville, Florida, may direct. Such warnings will specify the 
location, type, time, and duration of operations, and give such other 
pertinent information as may be required in the interests of safety.
    (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 dangerous to watercraft 
will not be conducted without first ascertaining that the zone of 
operations is clear. Any vessel in the zone of operations will be warned 
to leave and upon being so warned the vessel shall leave immediately.
    (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.

[26 FR 11197, Nov. 28, 1961, as amended at 27 FR 2508, Mar. 16, 1962; 31 
FR 13129, Oct. 11, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.630  Tampa Bay south of MacDill Air Force Base, Fla.; small-arms
firing range and aircraft jettison, U.S. Air Force, MacDill Air Force Base.

    (a) The danger zone. Shoreward of a line beginning at latitude 
27[deg]49[min]27.38[sec], longitude 82[deg]29[min]35.83[sec]; thence to 
latitude 27[deg]49[min]20.14[sec], longitude 82[deg]29[min]42.78[sec]; 
thence to latitude 27[deg]48[min]44.82[sec], longitude 
82[deg]31[min]10.0[sec]; thence to latitude 27[deg]49[min]09.35[sec], 
longitude 82[deg]32[min]24.56[sec]; thence to latitude 
27[deg]49[min]38.62[sec], longitude 82[deg]33[min]02.44[sec]; and thence 
to a point on the shore line of MacDill Air Force Base at latitude 
27[deg]50[min]28.57[sec], longitude 82[deg]32[min]15.0[sec]. The area 
will be marked by suitable boundary signs or buoys.
    (b) The regulations. (1) All persons, vessels and other watercraft 
are prohibited from entering the danger zone at all times.

[[Page 581]]

    (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.

[13 FR 9559, Dec. 31, 1948. Redesignated at 14 FR 4904, August 9, 1949, 
and amended at 30 FR 884, Jan. 28, 1965. Redesignated at 50 FR 42696, 
Oct. 22, 1985, as amended at 62 FR 17554, Apr. 10, 1997]



Sec. 334.635  Hillsborough Bay and waters contiguous to MacDill Air 
Force Base, Fla.; restricted area.

    (a) The area. The restricted area shall encompass all navigable 
waters of the United States, as defined at 33 CFR 329, within the 
following boundaries. Commencing from the shoreline at the northeast 
portion of the base at latitude 27[deg]51[min]52.901[sec] N., longitude 
82[deg]29[min]18.329[sec] W., thence directly to latitude 
27[deg]52[min]00.672[sec] N., longitude 82[deg]28[min]51.196[sec] W., 
thence directly to latitude 27[deg]51[min]28.859[sec] N., longitude 
82[deg]28[min]10.412[sec] W., thence directly to latitude 
27[deg]51[min]01.067[sec] N., longitude 82[deg]27[min]45.355[sec] W., 
thence directly to latitude 27[deg]50[min]43.248[sec] N., longitude 
82[deg]27[min]36.491[sec] W., thence directly to latitude 
27[deg]50[min]19.817[sec] N., longitude 82[deg]27[min]35.466[sec] W., 
thence directly to latitude 27[deg]49[min]38.865[sec] N., longitude 
82[deg]27[min]43.642[sec] W., thence directly to latitude 
27[deg]49[min]20.204[sec] N., longitude 82[deg]27[min]47.517[sec] W., 
thence directly to latitude 27[deg]49[min]06.112[sec] N., longitude 
82[deg]27[min]52.750[sec] W., thence directly to latitude 
27[deg]48[min]52.791[sec] N., longitude 82[deg]28[min]05.943[sec] W., 
thence directly to latitude 27[deg]48[min]45.406[sec] N., longitude 
82[deg]28[min]32.309[sec] W., thence directly to latitude 
27[deg]48[min]52.162[sec] N., longitude 82[deg]29[min]26.672[sec] W., 
thence directly to latitude 27[deg]49[min]03.600[sec] N., longitude 
82[deg]30[min]23.629[sec] W., thence directly to latitude 
27[deg]48[min]44.820[sec] N., longitude 82[deg]31[min]10.000[sec] W., 
thence directly to latitude 27[deg]49[min]09.350[sec] N., longitude 
82[deg]32[min]24.556[sec] W., thence directly to latitude 
27[deg]49[min]38.620[sec] N., longitude 82[deg]33[min]02.444[sec] W., 
thence directly to latitude 27[deg]49[min]56.963[sec] N., longitude 
82[deg]32[min]45.023[sec] W., thence directly to latitude 
27[deg]50[min]05.447[sec] N., longitude 82[deg]32[min]48.734[sec] W., 
thence directly to latitude 27[deg]50[min]33.715[sec] N., longitude 
82[deg]32[min]45.220[sec] W., thence directly to a point on the western 
shore of the base at latitude 27[deg]50[min]42.836[sec] N., longitude 
82[deg]32[min]10.972[sec] W. The restricted area will encompass an 
existing Danger Zone (Sec. 334.630).
    (b) The regulations. (1) All persons, vessels, and other craft are 
prohibited from entering, transiting, anchoring, or drifting within the 
area described in paragraph (a) of this section for any reason without 
the permission of the Commander, MacDill Air Force Base, Florida, or 
his/her authorized representative.
    (2) The restriction noted in paragraph (b)(1) of this section is in 
effect 24 hours a day, 7 days a week.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Commander, MacDill Air Force Base, Florida, and/or such persons 
or agencies as he/she may designate.

[70 FR 67371, Nov. 7, 1005]



Sec. 334.640  Gulf of Mexico south of Apalachee Bay, Fla.; Air Force 
rocket firing range.

    (a) The danger zone. An area about 45 statute miles wide and 60 
statute miles long, approximately parallel to and about 30 miles off the 
west coast of Florida, south of Apalachee Bay. The area is bounded as 
follows: Beginning at latitude 29[deg]42[min]30[sec], longitude 
84[deg]40[min]00[sec]; thence east along latitude 29[deg]42[min]30[sec] 
to longitude 84[deg]00[min]00[sec]; thence southeast to latitude 
28[deg]56[min]00[sec], longitude 83[deg]31[min]00[sec]; thence southwest 
to latitude 28[deg]37[min]00[sec], longitude 84[deg]11[min]00[sec]; 
thence northwest to latitude 29[deg]17[min]30[sec], longitude 
84[deg]40[min]00[sec]; thence northwest to latitude 
29[deg]32[min]00[sec], longitude 85[deg]00[min]00[sec]; thence northeast 
along a line three miles off the meanderings of the shore to the point 
of beginning.
    (b) The regulations. (1) The fact that aerial rocket firing will be 
conducted over the danger zone will be advertised to the public through 
the usual media for the dissemination of information. Inasmuch as such 
firing is likely to be conducted during the day or night throughout the 
year without regard to

[[Page 582]]

season, such advertising of firing will be repeated at intervals not 
exceeding three months and at more frequent intervals when in the 
opinion of the enforcing agency, repetition is necessary in the interest 
of public safety.
    (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.

[21 FR 2944, May 3, 1956, as amended at 22 FR 3755, May 29, 1957. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17554, 
Apr. 10, 1997]



Sec. 334.650  Gulf of Mexico, south of St. George Island, Fla.
; test firing range.

    (a) The danger zone. A fan-shaped area bounded as follows:

------------------------------------------------------------------------
                                       Latitude            Longitude
------------------------------------------------------------------------
NW corner--.....................  29[deg]35[min]15[s  85[deg]03[min]12[s
                                   ec].                ec]
SW corner--.....................  29[deg]31[min]18[s  85[deg]07[min]31[s
                                   ec].                ec]
SE corner--.....................  29[deg]30[min]18[s  84[deg]59[min]18[s
                                   ec].                ec]
NE corner--.....................  29[deg]35[min]09[s  85[deg]01[min]53[s
                                   ec].                ec]
------------------------------------------------------------------------


The seaward end of the area is an arc with a 10,500 meter radius with 
its center located on the south shore line of St. George Island 1,500 
feet east of Cape St. George Light.
    (b) The regulations. (1) The area shall be used from sunrise to 
sunset daily Mondays through Fridays for test firing helicopter 
armament.
    (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 communications to the Safety Office at range 
control to insure cease fire if an aircraft or surface vessel is 
observed approaching the area.
    (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.

[33 FR 4464, Mar. 13, 1968, as amended at 36 FR 15528, Aug. 17, 1971. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.660  Gulf of Mexico and Apalachicola Bay south of Apalachicola,
Fla., Drone Recovery Area, Tyndall Air Force Base, Fla.

    (a) The restricted area. A rectangular area excluding St. George 
Island with the eastern boundary of the area west of the channel through 
St. George Island within the following co-ordinates: Beginning at a 
point designated as the northeast corner latitude 29[deg]38[min]20[sec] 
N, longitude 84[deg]58[min]30[sec] W; thence southeast to latitude 
29[deg]35[min]23[sec] N, longitude 84[deg]56[min]54[sec] W; thence 
southwest to latitude 29[deg]34[min]15[sec] N, longitude 
85[deg]00[min]35[sec] W; thence northwest to latitude 
29[deg]37[min]10[sec] N, longitude 85[deg]02[min]00[sec] W; thence 
northeast to point of beginning.
    (b) The regulations. (1) The area will be used twice daily and 
during usage will be restricted to navigation for a period of one hour. 
It may be used freely at all other times.
    (2) Patrol boats and aircraft will warn all persons and navigation 
out of the area before each testing period.

[[Page 583]]

    (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.

[23 FR 5507, July 19, 1958, as amended at 23 FR 6555, Aug. 23, 1958. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, 
Apr. 10, 1997]



Sec. 334.670  Gulf of Mexico south and west of Apalachicola, San Blas,
and St. Joseph bays; air-to-air firing practice range, Tyndall Air

Force Base, Fla.

    (a) The danger zone. Beginning at latitude 29[deg]40[min]00[sec], 
longitude 85[deg]21[min]30[sec], in the vicinity of Cape San Blas; 
thence southeasterly to latitude 29[deg]23[min]00[sec], longitude 
84[deg]39[min]00[sec]; thence southwesterly to latitude 
28[deg]39[min]00[sec], longitude 84[deg]49[min]00[sec]; thence 
northwesterly to latitude 29[deg]43[min]00[sec], longitude 
85[deg]53[min]00[sec]; thence northeasterly to latitude 
29[deg]56[min]30[sec], longitude 85[deg]38[min]30[sec]; and thence 
southeasterly to the point of beginning.
    (b) The regulations. (1) Air-to-air firing practice will ordinarily 
take place in the area during the hours of daylight, seven days per 
week. 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 practice operations will 
cause the cessation or postponement of fire until the vessel has cleared 
that part of the area within range of the weapons being used. The vessel 
shall proceed on its normal course and not delay its progress.
    (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.

[16 FR 7460, July 31, 1951, as amended at 22 FR 3755, May 29, 1957. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, 
Apr. 10, 1997; 62 FR 24034, May 2, 1997]



Sec. 334.680  Gulf of Mexico, southeast of St. Andrew Bay East Entrance,
small-arms firing range, Tyndall Air Force Base, Fla.

    (a) The danger zones--(1) Area No. 1. The waters of the Gulf of 
Mexico, southeast of St. Andrew Bay East Entrance within a rectangular 
area beginning at a point on shore at latitude 30[deg]04[min]32[sec], 
longitude 85[deg]37[min]07[sec]; thence to latitude 
30[deg]03[min]03[sec], longitude 85[deg]38[min]42[sec]; thence to 
latitude 30[deg]02[min]14[sec], longitude 85[deg]37[min]15[sec]; thence 
to a point on shore at latitude 30[deg]04[min]13[sec], longitude 
85[deg]36[min]47[sec]; thence along the shoreline to the point of 
beginning.
    (2) Area No. 2. The waters of the Gulf of Mexico and St. Andrew 
Sound within an area described as follows, but excluding Crooked Island: 
Beginning at a point on shore at latitude 30[deg]02[min]56[sec], 
longitude 85[deg]34[min]35[sec]; thence to latitude 
30[deg]02[min]18[sec], longitude 85[deg]36[min]18[sec]; thence to 
latitude 30[deg]01[min]24[sec], longitude 85[deg]35[min]40[sec]; thence 
to latitude 30[deg]00[min]45[sec], longitude 85[deg]34[min]41[sec]; 
thence to a point on shore at latitude 30[deg]02[min]10[sec], longitude 
85[deg]33[min]42[sec]; thence along the shore line to the point of 
beginning.
    (b) The regulations. (1) No person, vessel or other watercraft shall 
enter or remain in the areas during periods of firing. Area No. 1 will 
be used for firing practice between 6:30 a.m. and 5:00 p.m., as 
scheduled, Monday through Friday, with possibly some sporadic firings on 
Saturdays and Sundays. A 10[min] x 18[min] red flag will be displayed on 
a pole at the shoreline whenever firing is in progress.
    (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[min] x 18[min] 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

[[Page 584]]

Officer, Tyndall Air Force Base, Florida, and such agencies as he may 
designate.

(Sec. 7, 40 Stat. 266, Chap. XIX, 40 Stat. 892; (33 U.S.C. 1, 3))

[28 FR 3394, Apr. 6, 1963, as amended at 30 FR 16267, Dec. 30, 1965; 39 
FR 44752, Dec. 27, 1974. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17555, Apr. 10, 1997]



Sec. 334.690  [Reserved]



Sec. 334.700  Choctawhatchee Bay, aerial gunnery ranges, Air Proving Ground
Center, Air Research and Development Command, Eglin Air Force Base, Fla.

    (a) The danger zones--(1) Aerial gunnery range in west part of 
Choctawhatchee Bay. The waters of Choctawhatchee Bay within an area 
described as follows: Beginning at a point on the west shore at latitude 
30[deg]28[min]30[sec], longitude 86[deg]30[min]00[sec]; thence 
southeasterly to latitude 30[deg]25[min]30[sec], longitude 
86[deg]21[min]30[sec]; thence southwesterly to a point on the south 
shore at latitude 30[deg]23[min]30[sec], longitude 
86[deg]23[min]00[sec]; thence northwesterly to a point on the south 
shore at latitude 30[deg]24[min]00[sec], longitude 
86[deg]25[min]00[sec]; and thence northwesterly to the point of 
beginning; excluding that part of the area included within the aerial 
gunnery range along the north shore of Choctawhatchee Bay (described in 
paragraph (a)(2) of this section).
    (2) Aerial gunnery range along north shore of Choctawhatchee Bay. 
The waters of Choctawhatchee Bay within an area described as follows: 
Beginning at a point in the waters of Choctawhatchee Bay at latitude 
30[deg]26[min]00[sec], longitude 86[deg]25[min]30[sec]; thence north to 
the shore at longitude 86[deg]25[min]30[sec]; thence southeasterly and 
northeasterly along the shore to longitude 86[deg]15[min]00[sec]; thence 
south to latitude 30[deg]26[min]29[sec], longitude 
86[deg]15[min]00[sec]; thence southwesterly to latitude 
30[deg]26[min]12[sec], longitude 86[deg]20[min]35[sec]; thence north to 
latitude 30[deg]26[min]57[sec], longitude 86[deg]20[min]35[sec]; thence 
southwesterly to the point of beginning.
    (b) The regulations--(1) Aerial gunnery ranges. (i) The aerial 
gunnery range in the west part of Choctawhatchee Bay (described in 
paragraph (a)(1) of this section) may be used by persons and watercraft 
except during periods when firing is conducted. During these periods, 
firing will be controlled by observation posts, and persons and 
watercraft will be warned by patrol boats. During periods of firing, 
traverse of this area shall not be denied to regular cargo-carrying or 
passenger-carrying vessels or tows proceeding on established routes. In 
case any such vessel is within the area, the officer in charge of 
gunnery operations will cause the cessation or postponement of fire 
until the vessel has cleared that part of the area within the range of 
the weapons being used. The vessel shall proceed on its normal course 
and shall not delay its progress.
    (ii) No person, vessel or other craft shall enter or remain within 
the aerial gunnery range along the north shore of Choctawhatchee Bay 
(described in paragraph (a)(2) of this section) at any time.
    (2) Enforcing Agency. The regulations in this section shall be 
enforced by the Commander, Air Proving Ground Center, Eglin AFB, and 
such agencies as he may designate.

[26 FR 11197, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17555, Apr. 10, 1997]



Sec. 334.710  The Narrows and Gulf of Mexico adjacent to Santa Rosa Island,
Air Force Proving Ground Command, Eglin Air Force Base, Fla.

    (a) The restricted area. The waters of The Narrows and the Gulf of 
Mexico easterly of the periphery of a circular area 5 nautical miles in 
radius, centered at latitude 30[deg]23[min]10.074[sec], longitude 
86[deg]48[min]25.433[sec] (USC&GS Station Tuck 3), within the segment of 
a circle, 3 nautical miles in radius, centered at latitude 
30[deg]24[min]00[sec], longitude 86[deg]41[min]47[sec].
    (b) The regulations. (1) The area will be used intermittently during 
daylight hours. During periods of use the entry into the area will be 
prohibited to all persons and navigation.
    (2) The regulations in this section shall be enforced by the 
Commander, Air Force Proving Ground Command,

[[Page 585]]

Eglin Air Force Base, Florida, and such agencies as he may designate.

[23 FR 8061, Oct. 18, 1958. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17555, Apr. 10, 1997]



Sec. 334.720  Gulf of Mexico, south from Choctawhatchee Bay; guided
missiles test operations area, Headquarters Air Proving Ground Command,

U.S. Air Force,  Eglin Air Force Base, Fla.

    (a) The danger zone. The waters of the Gulf of Mexico south from 
Choctawhatchee Bay within an area described as follows: Beginning at a 
point five nautical miles southeasterly from USC&GS Station Tuck 3, at 
latitude 30[deg]23[min]10.074[sec], longitude 86[deg]48[min]25.433[sec], 
three nautical miles offshore of Santa Rosa Island; thence easterly 
three nautical miles offshore and parallel to shore, to a point south of 
Apalachicola Bay, Florida, latitude 29[deg]32[min]00[sec], longitude 
85[deg]00[min]00[sec]; thence southeasterly to latitude 
29[deg]17[min]30[sec], longitude 84[deg]40[min]00[sec]; thence 
southwesterly to latitude 28[deg]40[min]00[sec], longitude 
84[deg]49[min]00[sec]; thence southeasterly to latitude 
28[deg]10[min]00[sec], longitude 84[deg]30[min]00[sec]; thence 270[deg] 
true to longitude 86[deg]48[min]00[sec]; thence due north along 
longitude 86[deg]48[min]00[sec] to the intersection of the line with a 
circle of five nautical miles radius centered on USC&GS Station Tuck 3, 
at latitude 30[deg]23[min]10.074[sec], longitude 
86[deg]48[min]25.433[sec], thence northeasterly along the arc of the 
circle to the point of beginning.
    (b) The regulations. (1) The area will be used intermittently during 
daylight hours for a week or 10 days at a time. Firing will take place 
once or twice a day for periods ordinarily of not more than one hour. 
Advance notice of such firings will be published in local newspapers and 
in such other manner as the District Engineer, Corps of Engineers, 
Mobile, Alabama, may direct.
    (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 Command, Eglin Field, 
Florida, and such agencies as he may designate.

[16 FR 2723, Mar. 29, 1951, as amended at 22 FR 8982, Nov. 8, 1957. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, 
Apr. 10, 1997]



Sec. 334.730  Waters of Santa Rosa Sound and Gulf of Mexico adjacent 
to Santa Rosa Island, Air Force Proving Ground Command,

Eglin Air Force Base, Fla.

    (a) The danger zones--(1) Prohibited area. Waters of Santa Rosa 
Sound and Gulf of Mexico within a circle one nautical mile in radius, 
centered at latitude 30[deg]23[min]10.074[sec], longitude 
86[deg]48[min]25.433[sec] (USC&GS Station Tuck 3). The portion of the 
area in Santa Rosa Sound includes the Gulf Intracoastal Waterway between 
miles 209.6 and 211.4 from Harvey Lock, Louisiana.
    (2) Restricted area. The waters of Santa Rosa Sound and Gulf of 
Mexico surrounding the prohibited area described in paragraph (a)(1) of 
this section, within a circle five nautical miles in radius centered at 
latitude 30[deg]23[min]10.074[sec], longitude 86[deg]48[min]25.433[sec] 
(USC&GS Station Tuck 3). The portion of the area in Santa Rosa Sound 
includes the Gulf Intracoastal Waterway between miles 334.6 and 216.4 
from Harvey Lock, Louisiana.
    (b) The regulations. (1) Experimental test operations will be 
conducted by the U.S. Air Force within the prohibited area on an 
intermittent basis.

[[Page 586]]

Such test operations shall not exceed one hour, and shall not occur more 
than twice weekly.
    (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.

[22 FR 609, Jan. 30, 1957, as amended at 23 FR 8061, Oct. 18, 1958; 23 
FR 9031, Nov. 20, 1958. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17555, Apr. 10, 1997; 62 FR 24034, May 2, 1997]



Sec. 334.740  Weekley Bayou, an arm of Boggy Bayou, Fla., at Eglin Air
Force Base; restricted area.

    (a) The area. All waters of Weekley Bayou west of a line drawn 
between latitude 30[deg]28[min]57[sec], longitude 86[deg]29[min]03[sec], 
and latitude 30[deg]28[min]58[sec], longitude 86[deg]29[min]06[sec], 
said line crossing the Bayou approximately 225 yards above its mouth.
    (b) The regulations. (1) No person or vessel shall enter the area 
without the permission of the Commander, Eglin Air Force Base, Florida, 
or his authorized representative.
    (2) The regulations in this section shall be enforced by the 
Commander, Eglin Air Force Base, Florida, or such agencies as he may 
designate.

[25 FR 8379, Sept. 1, 1960. Redesignated at 30 FR 6161, May 1, 1965. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, 
Apr. 10, 1997]



Sec. 334.750  Ben's Lake, a tributary of Choctawhatchee Bay, Fla., at Eglin 
Air Force Base; restricted area.

    (a) The area. All waters of Ben's Lake including the channel 
connecting it with Choctawhatchee Bay.
    (b) The regulations. (1) No person or vessel shall enter the area or 
navigate therein, without the permission of the Commander, Eglin Air 
Force Base, Florida, or his authorized representative.
    (2) These regulations shall be enforced by the Commander, Eglin Air 
Force Base, Florida, or such agencies as he may designate.

[28 FR 1541, Feb. 19, 1963, as amended at 30 FR 6161, May 1, 1965. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17555, 
Apr. 10, 1997; 62 FR 24034, May 2, 1997]



Sec. 334.760  Naval Support Activity Panama City and Alligator Bayou, a 
tributary of St. Andrew Bay, Fla.; naval restricted area.

    (a) The area. The waters within an area beginning at a point located 
along the shore at the southern end of the facility designated by 
latitude 30[deg]09[min]45.6[sec] N., longitude 85[deg]44[min]20.6[sec] 
W.; thence proceed 100 feet waterward of the mean high water line 
directly to a point at latitude 30[deg]09[min]46.8[sec] N., longitude 
85[deg]44[min]20.6[sec] W. From this position the line meanders 
irregularly, following the shoreline at a minimum distance of 100 feet 
from the mean high water line to a point at latitude 
30[deg]10[min]16.7[sec] N., longitude 85[deg]45[min]01.2[sec] W. located 
east of the south side of the entrance to Alligator Bayou; thence 
directly across the entrance to a point at latitude 
30[deg]10[min]23.4[sec] N., longitude 85[deg]45[min]05.7[sec] W. located 
east of the north side of the entrance to Alligator Bayou; thence 
continuing the northerly meandering, following the shoreline at a 
minimum distance of 100 feet from the mean high water line to a point at 
latitude 30[deg]11[min]11.3[sec] N., longitude 85[deg]45[min]02.8[sec] 
W.; thence directly to the shoreline to a point at latitude 
30[deg]11[min]12.3[sec] N., longitude 85[deg]45[min]03.2[sec] W. This 
encompasses an area reaching from the southern extent described to the 
northern extent described and extending from the mean high water line 
waterward a minimum distance of approximately 100 feet.

[[Page 587]]

    (b) The regulations. (1) No vessel, person, or other craft shall 
enter, transit, anchor, drift or otherwise navigate within the area 
described in paragraph (a) of this section for any reason without 
written permission from the Officer in Charge, Naval Support Activity 
Panama City, Panama City Beach, Florida, or his/her authorized 
representative.
    (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.

[70 FR 67372, Nov. 7, 2005]



Sec. 334.761  Naval Support Activity Panama City; St. Andrews Bay;
restricted areas.

    (a) The areas--(1) Area AP-1. The area is bounded by a line 
connecting the following coordinates (listed by latitude, then 
longitude): Northwest point--30[deg]10[min]00[sec] N, 
085[deg]44[min]37[sec] W; Northeast point--30[deg]10[min]00[sec] N, 
085[deg]43[min]17[sec] W; Southeast point--30[deg]09[min]51[sec] N, 
085[deg]43[min]17[sec] W; Southwest point--30[deg]09[min]50[sec] N, 
085[deg]44[min]32[sec] W; following mean high waterline to 
30[deg]09[min]57.5[sec] N, 085[deg]44[min]37[sec] W; then northerly to 
point of origin.
    (2) Area BA-1. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): Northwest 
point--30[deg]11[min]14[sec] N, 085[deg]44[min]59[sec] W; Northeast 
point--30[deg]11[min]13[sec] N, 085[deg]44[min]32[sec] W; Southeast 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]32[sec] W; Southwest 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]59[sec] W, then northerly 
to point of origin.
    (3) Area BA-2. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): Northwest 
point--30[deg]11[min]13[sec] N, 085[deg]44[min]32[sec] W; Northeast 
point--30[deg]11[min]07[sec] N, 085[deg]44[min]01[sec] W; Southeast 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]00[sec] W; Southwest 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]32[sec] W, then northerly 
to point of origin.
    (4) Area BA-3. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): Northwest 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]59[sec] W; Northeast 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]09[sec] W; Southeast 
point--30[deg]10[min]00[sec] N, 085[deg]44[min]09[sec] W; Southwest 
point--30[deg]10[min]01[sec] N, 085[deg]44[min]41[sec] W, then northerly 
to point of origin.
    (5) Area BA-4. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): Northwest 
point--30[deg]10[min]32[sec] N, 085[deg]44[min]09[sec] W; Northeast 
point--30[deg]10[min]32[sec] N, 085[deg]42[min]35[sec] W; Southeast 
point--30[deg]10[min]00[sec] N, 085[deg]42[min]35[sec] W; Southwest 
point--30[deg]10[min]00[sec] N, 085[deg]44[min]09[sec] W, then northerly 
to point of origin.
    (6) Area BA-5. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): North 
point--30[deg]08[min]41[sec] N, e 085[deg]41[min]25[sec] W; East point--
30[deg]08[min]08[sec] N, 085[deg]40[min]48[sec] W; South point--
30[deg]07[min]00[sec] N, 085[deg]42[min]29[sec] W; West point--
30[deg]07[min]31[sec] N, 085[deg]43[min]09[sec] W, then northerly to 
point of origin.
    (b) The restrictions. (1) For the purposes of this section, 
``military security zones'' are specific portion/s within any of the 
restricted areas identified in this section that are defined by the 
safety vessels accompanying each training exercise. The mission of the 
safety vessels is to maximize safety conditions for both military and 
civilian personnel during exercises conducted within the restricted area 
by intercepting any waterbased activity occurring within the active 
military security zone/s and offering navigational advice to ensure the 
activity remains clear of the exercise.
    (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) Area AP-1. All persons, vessels, and other craft are prohibited 
from entering, transiting, anchoring, or drifting within the military 
security zone/s established in the restricted area during training 
events.
    (4) Areas BA-1 through BA-5. All persons, vessels, and other craft 
are prohibited from entering, transiting, anchoring, or drifting within 
the military security zone/s established in the restricted area during 
training events.

[[Page 588]]

    (c) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, Naval Support Activity, Panama City Florida, 
and such agencies as he/she may designate.

[73 FR 52927, Sept. 12, 2008, as amended at 74 FR 11481, Mar. 18, 2009]



Sec. 334.762  Naval Support Activity Panama City; North Bay and West Bay;
restricted areas.

    (a) The areas--(1) Area NB-1. The area is bounded by a line directly 
connecting the following coordinates (listed by latitude, then 
longitude): Northwest point--30[deg]12[min]16[sec] N, 
085[deg]44[min]14[sec] W; Northeast point--30[deg]12[min]16[sec] N, 
085[deg]43[min]01[sec] W; Southeast point--30[deg]11[min]16[sec] N, 
085[deg]44[min]14[sec] W; Southwest point--30[deg]11[min]17[sec] N, 
085[deg]44[min]49[sec] W, then northerly to point of origin.
    (2) Area NB-2. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): Northwest 
point--30[deg]14[min]00[sec] N, 085[deg]44[min]14[sec] W; Northeast 
point--30[deg]14[min]00[sec] N, 085[deg]41[min]51[sec] W; Southeast 
point--30[deg]12[min]16[sec] N, 085[deg]43[min]01[sec] W; Southwest 
point--30[deg]12[min]16[sec] N, 085[deg]44[min]14[sec] W, then northerly 
to point of origin.
    (3) Area NB-3. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): North 
point--30[deg]17[min]02[sec] N, 085[deg]45[min]34[sec] W; East point--
30[deg]14[min]56[sec] N, 085[deg]43[min]45[sec] W; South point--
30[deg]14[min]01[sec] N, 085[deg]44[min]59[sec] W; West point--
30[deg]16[min]10[sec] N, 085[deg]46[min]52[sec] W, then northerly to 
point of origin.
    (b) The restrictions. (1) For the purposes of this section, 
``military security zones'' are specific portion/s within any of the 
restricted areas identified in this section that are defined by the 
safety vessels accompanying each training exercise. The mission of the 
safety vessels is to maximize safety conditions for both military and 
civilian personnel during exercises conducted within the restricted area 
by intercepting any waterbased activity occurring within the active 
military security zone/s and offering navigational advice to ensure the 
activity remains clear of the exercise.
    (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) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, Naval Support Activity, Panama City Florida, 
and such agencies as he/she may designate.

[73 FR 52927, Sept. 12, 2008]



Sec. 334.763  Naval Support Activity Panama City; Gulf of Mexico;
restricted area.

    (a) The area. The area is bounded by a line directly connecting the 
following coordinates (listed by latitude, then longitude): North 
point--30[deg]10[min]29[sec] N, 085[deg]48[min]20[sec] W; East point--
30[deg]07[min]58[sec] N, 085[deg]44[min]44[sec] W; South point--
30[deg]05[min]24[sec] N, 085[deg]47[min]29[sec] W; West point--
30[deg]07[min]55[sec] N, 085[deg]51[min]05[sec] W, then northerly to 
point of origin.
    (b) The restrictions. (1) For the purposes of this section, 
``military security zones'' are specific portion/s within any of the 
restricted areas identified in this section that are defined by the 
safety vessels accompanying each training exercise. The mission of the 
safety vessels is to maximize safety conditions for both military and 
civilian personnel during exercises conducted within the restricted area 
by intercepting any waterbased activity occurring within the active 
military security zone/s and offering navigational advice to ensure the 
activity remains clear of the exercise.
    (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) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, Naval Support Activity, Panama City Florida, 
and such agencies as he/she may designate.

[73 FR 52928, Sept. 12, 2008]

[[Page 589]]



Sec. 334.770  Gulf of Mexico and St. Andrew Sound, south of East Bay, Fla.
, Tyndall Drone Launch Corridor, Tyndall Air Force Base, Fla.; restricted area.

    (a) The area. The waters of the Gulf of Mexico and St. Andrew Sound 
within an area described as follows, including Crooked Island: Beginning 
at a point on shore at latitude 30[deg]01[min]30[sec], longitude 
85[deg]32[min]30[sec], thence to latitude 30[deg]00[min]58[sec], 
longitude 85[deg]33[min]38[sec], thence to latitude 
29[deg]56[min]38[sec], longitude 85[deg]33[min]38[sec], thence to 
latitude 29[deg]55[min]15[sec], longitude 85[deg]31[min]21[sec], thence 
to a point on shore at latitude 30[deg]00[min]58[sec], longitude 
85[deg]31[min]21[sec], thence northwest to the point of beginning. This 
area will be referred to as the ``Tyndall Drone Launch Corridor.''
    (b) The regulations. (1) Military usage of areas is Monday through 
Friday between the hours of 7 a.m. and 5 p.m.
    (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.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

[40 FR 8949, Mar. 4, 1975; 40 FR 10988, Mar. 10, 1975. Redesignated at 
50 FR 42696, Oct. 22, 1985]



Sec. 334.775  Naval Air Station Pensacola, Pensacola Bay, Pensacola 
and Gulf Breeze, Fla.; naval restricted area.

    (a) The areas. (1) Bounded by a line drawn in the direction of 
180[deg] T from the position latitude 30[deg]20[min]44[sec] N., 
longitude 87[deg]17[min]18[sec] W. (near the Naval Air Station, due 
south of the Officer[min]s Club) to position latitude 
30[deg]20[min]09[sec] N., longitude 87[deg]17[min]18[sec] W. thence 
94[deg] T to position latitude 30[deg]20[min]07[sec] N., longitude 
87[deg]16[min]41[sec] W., thence 49[deg] T to position latitude 
30[deg]20[min]37[sec] N., longitude 87[deg]16[min]01[sec] W. (southwest 
end of Lexington finger pier), thence along the shoreline to point of 
origin.
    (2) The waters within an area enclosed by the following points: 
Beginning at latitude 30[deg]21.58[min] N., longitude 87[deg]12.49[min] 
W.; thence to latitude 30[deg]20.25[min] N., longitude 87[deg]11.00[min] 
W.; thence to latitude 30[deg]20.28[min] N., longitude 87[deg]14.27[min] 
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) The restrictions. (1) The area described in paragraph (a)(1) of 
this section will normally be in use Monday through Wednesday between 8 
a.m. and 4 p.m. and one evening from 4 p.m. until 8 p.m., every other 
week.
    (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

[[Page 590]]

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.

[70 FR 67372, Nov. 7, 2005]



Sec. 334.778  Pensacola Bay and waters contiguous to the Naval Air Station,
Pensacola, FL; restricted area.

    (a) The area: Beginning at a point on the northerly shoreline of 
Grande (Big Lagoon at Point 1, Latitude 30[deg]19[min]42[sec] N., 
Longitude 87[deg]21[min]06[sec] W., proceed southeasterly to Point 2, 
Latitude 30[deg]19[min]27[sec] N., Longitude 87[deg]21[min]03[sec] W.; 
thence, northeasterly, paralleling the shoreline at a minimum distance 
of 500 feet offshore, to Point 3, Latitude 30[deg]19[min]48[sec] N., 
Longitude 87[deg]19[min]35[sec] W.; thence, maintaining a minimum 
distance of 500 feet offshore or along the northerly edge of the Gulf 
Intracoastal Waterway Channel (whichever is less), continue to Point 4, 
Latitude 30[deg]20[min]00[sec] N., Longitude 87[deg]19[min]03[sec] W.; 
thence, maintaining a minimum distance of 500 feet offshore for the 
remainder of the area to: PT 5, Latitude 30[deg]20[min]31[sec] N., 
Longitude 87[deg]16[min]01[sec] W; Thence to PT 6, Latitude 
30[deg]21[min]11[sec] N., Longitude 87[deg]15[min]29[sec] W; Thence to 
PT 7, Latitude 30[deg]22[min]26[sec] N., Longitude 87[deg]15[min]43[sec] 
W; Thence to PT 8, Latitude 30[deg]22[min]39[sec] N., Longitude 
87[deg]16[min]08[sec] W; Thence to PT 9, Latitude 30[deg]22[min]17[sec] 
N., Longitude 87[deg]16[min]09[sec] W; Thence to PT 10, Latitude 
30[deg]22[min]18[sec] N., Longitude 87[deg]16[min]35[sec] W; Thence to 
PT 11, Latitude 30[deg]22[min]09[sec] N., Longitude 
87[deg]17[min]10[sec] W; Thence to PT 12, Latitude 30[deg]22[min]15[sec] 
N., Longitude 87[deg]17[min]19[sec] W; Thence to PT 13, Latitude 
30[deg]22[min]07[sec] N., Longitude 87[deg]17[min]48[sec] W; Thence to 
PT 14, Latitude 30[deg]22[min]25[sec] N., Longitude 
87[deg]17[min]53[sec] W; Thence to PT 15, Latitude 30[deg]22[min]13[sec] 
N., Longitude 87[deg]18[min]54[sec] W; Thence to PT 16, Latitude 
30[deg]21[min]57[sec] N., Longitude 87[deg]19[min]22[sec] W; Thence to 
PT 17, Latitude 30[deg]21[min]57[sec] N., Longitude 
87[deg]19[min]37[sec] W; Thence to PT 18, Latitude 30[deg]21[min]49[sec] 
N., Longitude 87[deg]19[min]49[sec] W; (a point on the southerly 
shoreline of Bayou Grande).
    (b) The regulations. (1) 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 transiting, anchoring, or 
drifting within the above described area, or within 500 feet of any 
quay, pier, wharf, or levee along the Naval Air Station Pensacola 
shoreline abutting, nor may such vessels or crafts or persons approach 
within 500 feet of any United States owned or operated vessel 
transiting, anchored, or moored within the waters described in paragraph 
(a) of this section. The Commanding Officer, Naval Air Station 
Pensacola, or his/her designee, or the Commanding Officer of a vessel of 
the United States operating within the said area, may grant special 
permission to a person, vessel, or craft to enter upon the waters 
subject to the restrictions aforementioned.
    (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

[[Page 591]]

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.

[53 FR 27682, July 22, 1988, as amended at 62 FR 17555, Apr. 10, 1997; 
70 FR 67372, Nov. 7, 2005]



Sec. 334.780  Pensacola Bay, Fla.; seaplane restricted area.

    (a) The area. Beginning at latitude 30[deg]22[min]28[sec], longitude 
87[deg]16[min]00[sec]; thence to latitude 30[deg]21[min]02[sec], 
longitude 87[deg]14[min]20[sec]; thence to latitude 
30[deg]20[min]02[sec], longitude 87[deg]15[min]16[sec]; thence to 
latitude 30[deg]20[min]11[sec]; longitude 87[deg]17[min]58[sec]; and 
thence to 272[deg] true to the shore.
    (b) The regulations. (1) The area is established as a Naval Air 
Station small boat operations and training area.
    (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.

[13 FR 9561, Dec. 31, 1948, as amended at 25 FR 2666, Mar. 30, 1960; 28 
FR 349, Jan. 12, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17555, Apr. 10, 1997; 70 FR 67372, Nov. 7, 2005]



Sec. 334.782  SUPSHIP Bath Maine Detachment Mobile at AUSTAL, USA, Mobile,
AL; restricted area.

    (a) The area. The restricted area would encompass all navigable 
waters of the United States, as defined at 33 CFR part 329, contiguous 
to the area identified as AUSTAL, USA and the mean high water level 
within a rectangular shaped area on the east side of the Mobile River 
beginning at latitude 30[deg]41[min]36.46[sec], longitude--
88[deg]2[min]2.70[sec]; thence westerly to latitude 
30[deg]41[min]35.85[sec], longitude--88[deg]2[sec]; 5.12[sec]; thence 
southerly to latitude 30[deg]41[min]26.67[sec], longitude--
88[deg]2[min]3.62[sec]; thence easterly to latitude 
30[deg]41[min]26.98[sec], longitude--88[deg]2[min]1.81[sec] ; thence 
northerly along the easterly shoreline to the point of origin.
    (b) The regulations. (1) All persons, swimmers, vessels and other 
craft, except those vessels under the supervision or contract to local 
military or Naval authority, vessels of the United States Coast Guard, 
and local or state law enforcement vessels, are prohibited from entering 
the restricted area without permission from the Supervisor of 
Shipbuilding, Conversion and Repair, USN, Bath, Maine or his/her 
authorized representative.
    (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) Enforcement. The regulation in this section shall be enforced by 
the Supervisor of Shipbuilding, Conversion and Repair, USN, Bath, Maine, 
and/or such agencies or persons as he/she may designate.

[74 FR 48152, Sept. 22, 2009]

[[Page 592]]



Sec. 334.783  Arlington Channel, U.S. Coast Guard Base Mobile, Mobile,
Alabama, Coast Guard restricted area.

    (a) The area. The waters of Arlington Channel west of a line from 
latitude 30[deg]-39[min]--09[min][min]N, longitude 088[deg]-03[min]-
24[min][min] W to latitude 30[deg]-38[min]-54[deg][deg] N., longitude 
088[min]-03[deg]-17[min][min] W.
    (b) The regulations. The restricted area is open to U.S. Government 
vessels and transiting vessels only. U.S. Government vessels include 
U.S. Coast Guard vessels, Department of Defense vessels, state and local 
law enforcement and emergency services vessels and vessels under 
contract with the U.S. Government. Vessels transiting the restricted 
area shall proceed across the area by the most direct route and without 
unnecessary delay. Fishing, trawling, net-fishing and other aquatic 
activities are prohibited in the restricted area without prior approval 
from the Commanding Officer, U.S. Coast Guard Group Mobile or his 
designated representative.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, U.S. Coast Guard Group Mobile or his 
designated representative.

[69 FR 45259, July 29, 2004]



Sec. 334.790  Sabine River at Orange, Tex.; restricted area in vicinity
of the Naval and Marine Corps Reserve Center.

    (a) The area. The berthing area of the Naval and Marine Corps 
Reserve Center and the waters adjacent thereto from the mean high tide 
shoreline to a line drawn parallel to, and 100 feet channelward from 
lines connecting the pier head of Pier 10 and from a line drawn parallel 
to, and 200 feet upstream from, Pier 10 to a line drawn parallel to, and 
100 feet downstream from Pier 10.
    (b) The regulations. (1) No person, vessel or other craft, except 
personnel and vessels of the U.S. Government or those duly authorized by 
the Commanding Officer, Naval and Marine Corps Reserve Center, Orange, 
Texas, shall enter, navigate, anchor or moor in the restricted area.
    (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.

[44 FR 42968, July 23, 1979. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.800  Corpus Christi Bay, Tex.; seaplane restricted area, 
U.S. Naval Air Station, Corpus Christi.

    (a) The area. The waters of Corpus Christi Bay within the area 
described as follows: Beginning at a point on the south shore of Corpus 
Christi Bay at the ``North Gate'' of the U.S. Naval Air Station at 
longitude 97[deg]17[min]15.0[sec] W.; thence through points at:

------------------------------------------------------------------------
              North latitude                       West longitude
------------------------------------------------------------------------
27[deg]42[min]34.9[sec]...................  97[deg]17[min]09.6[sec]
27[deg]41[min]46.8[sec]...................  97[deg]14[min]23.8[sec]
27[deg]41[min]15.1[sec]...................  97[deg]14[min]35.4[sec]
27[deg]41[min]27.0[sec]...................  97[deg]15[min]16.7[sec]
27[deg]40[min]41.6[sec]...................  97[deg]15[min]33.3[sec]
------------------------------------------------------------------------


thence to a point on shore at latitude 27[deg]40[min]44.9[sec] N.; 
thence along the shore to the point of beginning.
    (b) The regulations. (1) No person, vessel or watercraft shall enter 
or remain in the area at any time, day or night, except with express 
written approval of the enforcing agency or as a result of force 
majeure.
    (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.

[43 FR 30054, July 13, 1978. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.802  Ingleside Naval Station, Ingleside, Texas; restricted area.

    (a) The area. The waters of Corpus Christi Bay beginning at a point 
at latitude 27[deg]49[min]15.0[sec] N, longitude 97[deg]12[min]6.0[sec] 
W, thence southerly to latitude 27[deg]49[min]7.3[sec] N, longitude 
97[deg]12[min]5.4[sec] W, thence south-southwesterly to latitude 
27[deg]49[min]01[sec] N, longitude 97[deg]12[min]39.4[sec] W, thence 
west-northwesterly to latitude 27[deg]49[min]02.4[sec] N, longitude 
97[deg]12[min]48.3[sec] W, thence north-northeasterly to latitude 
27[deg]49[min]16.5[sec] N, longitude 97[deg]12[min]41.5[sec], thence 
easterly to latitude 27[deg]49[min]17.0[sec] N, longitude 
97[deg]12[min]27.5[sec] W, thence easterly along the shoreline to the 
point of beginning.

[[Page 593]]

    (b) The regulations. Mooring, anchoring, fishing, recreational 
boating or any activity involving persons in the water shall not be 
allowed within the restricted area. Commercial vessels at anchor will be 
permitted to swing into the restricted area while at anchor and during 
tide changes.
    (c) Enforcement. The regulations in this section shall be enforced 
by the Commanding Officer, Naval Station, Ingleside and such agencies as 
he/she shall designate.

[57 FR 46303, Oct. 8, 1992; 58 FR 6718, Feb. 2, 1993, as amended at 62 
FR 17556, Apr. 10, 1997]



Sec. 334.810  Holston River at Holston Ordnance Works, Kingsport, Tenn.
; restricted area.

    (a) The area. That portion of Holston River within the boundaries of 
the Government reservation.
    (b) The regulations. (1) Except in cases of extreme emergency, all 
vessels other than those owned or controlled by the U.S. Government and 
any activity involving persons in the water, are prohibited from 
entering the area without prior permission of the enforcing agency.
    (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.

[20 FR 7075, Sept. 30, 1955. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.820  Lake Michigan; naval restricted area, U.S. Naval Training
Center, Great Lakes, Ill.

    (a) The area. An area extending in a north and south direction from 
the Great Lakes, Illinois, south breakwater to an east-west line 
projecting eastward from the shore termination of the north fence of the 
U.S. Naval Training Center, Great Lakes, Illinois, and extending into 
Lake Michigan for a distance of one mile from the shoreline.
    (b) The regulations. No person or vessel of any kind, except those 
engaged in naval operations, shall enter, navigate, anchor, or moor in 
the restricted area without first obtaining permission to do so from the 
Commander, U.S. Naval Training Center, Great Lakes, Illinois, or his 
authorized representative.

[28 FR 319, Jan. 11, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.830  Lake Michigan; small-arms range adjacent to U.S. Naval
Training Center, Great Lakes, Ill.

    (a) The danger zone. An area bounded on the north by latitude 
42[deg]20[min]30[sec]; on the east by longitude 87[deg]47[min]30[sec]; 
on the south by latitude 42[deg]18[min]45[sec]; and on the west by the 
shoreline.
    (b) The regulations. (1) When firing affecting the danger zone is in 
progress, the enforcing agency will post guards at such locations that 
the waters in the danger zone may be observed and arrange signals 
whereby these guards may stop the firing should any person or vessel be 
seen in the waters of the danger zone. When firing is in progress, the 
enforcing agency will cause red flags to be displayed on shore near the 
rifle butts, which may be readily discernible to a person in a vessel 
within the danger zone.
    (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.

[13 FR 9560, Dec. 31, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, 
and amended at 28 FR 319, Jan. 11, 1963; 45 FR 13072, Feb. 28, 1980. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, 
Apr. 10, 1997]

[[Page 594]]



Sec. 334.840  Waters of Lake Michigan south of Northerly Island at
entrance to Burnham Park Yacht Harbor, Chicago, Ill.; danger zone

adjacent to airport on  Northerly Island.

    (a) Danger zone--(1) Zone A. Beginning at a point 250 feet west of 
the center line of the runway at the south end of the air strip on 
Northerly Island; thence 183[deg], 500 feet; thence 90[deg], 600 feet; 
and thence northerly to a point 250 feet east of the center line of the 
runway at the south end of said air strip. During the navigation season, 
the southeast and southwest corners of Zone A will be marked with spar 
buoys colored and lettered as prescribed by the U.S. Coast Guard.
    (2) Zone B. Beginning at the southwest corner of Zone A; thence 
183[deg], 500 feet; thence 90[deg], 700 feet; thence northerly to the 
southeast corner of Zone A; and thence 270[deg] to the point of 
beginning. During the navigation season, the southeast and southwest 
corners of Zone B will be marked with spar buoys colored and lettered as 
prescribed by the U.S. Coast Guard.
    (b) Regulations. (1) During daylight hours (from one-half hour 
before sunrise to one-half hour after sunset), and when the airport on 
Northerly Island is in operation, no vessel or other watercraft any part 
of which extends more than 15 feet above the water surface shall enter 
or remain in Zone A, and no vessel or other watercraft any part of which 
extends 30 feet or more above the water surface shall enter or remain in 
Zone 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 Zone A. These balls shall not be displayed when the 
airport is not in operation.

[12 FR 6665, Oct. 9, 1947. Redesignated at 14 FR 4904, Aug. 9, 1949, and 
amended at 15 FR 5022, Aug. 4, 1950; 36 FR 5911, Mar. 31, 1971. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.845  Wisconsin Air National Guard, Volk Field military exercise
area located in Lake Michigan offshore from Manitowoc and Sheboygan

Counties; danger  zone.

    (a) The area. (1) The waters within an area beginning at a point at 
latitude 43[deg]19[min]00[sec] N., longitude 87[deg]41[min]00[sec] W.; 
to latitude 44[deg]05[min]30[sec] N., longitude 87[deg]29[min]45[sec] 
W.; to latitude 44[deg]02[min]00[sec] N., longitude 
87[deg]02[min]30[sec] W.; to latitude 43[deg]15[min]30[sec] N., 
longitude 87[deg]14[min]00[sec] W.; thence to the point of beginning, as 
shown on NOAA Chart 14901 (1999) and existing aeronautical charts.
    (b) The regulation. (1) During specific, infrequent periods when 
Military exercises will be conducted, as promulgated in the Local Notice 
to mariners published by the United States Coast Guard (USCG), all 
vessels entering the danger zone are advised to proceed across the area 
by the most direct route and without unnecessary delay.
    (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) Normal use. At all other times, nothing in this regulation shall 
prohibit any lawful uses of this area.
    (d) Enforcement. The regulation in this section shall be enforced by 
the Commanding Officer, VOLK Field, WI, and/or persons or agencies as 
he/she may designate.

[69 FR 45591, July 30, 2004]



Sec. 334.850  Lake Erie, west end, north of Erie Ordnance Depot, Lacarne, Ohio.

    (a) The danger zone: Consists of the waters of Lake Erie within:
    (1) Danger Area I. The sector of a circle with a radius of 6,500 
yards centered at latitude 41[deg]32[min]30[sec] N., longitude 
33[deg]01[min]00[sec] W., and intersecting the southwest boundary of 
Area II at latitude 41[deg]35[min]00[sec] N., longitude 
83[deg]03[min]22[sec] W., and the southeast boundary of Area II at 
latitude 41[deg]34[min]20[sec] N., longitude 82[deg]57[min]10[sec] W.
    (2) Danger Area II (Includes Area I). The area bounded as follows: 
Beginning at latitude 41[deg]32[min]30[sec] N., longitude 
83[deg]01[min]00[sec] W.; thence to latitude 41[deg]35[min]00[sec] N., 
longitude 83[deg]03[min]22[sec] W.; thence to latitude 
41[deg]36[min]00[sec] N., longitude 83[deg]03[min]24[sec] W.; thence to 
latitude 41[deg]41[min]30[sec] N., longitude 83[deg]07[min]30[sec] W.; 
thence to latitude 41[deg]41[min]30[sec] N., longitude 
83[deg]00[min]00[sec] W.;

[[Page 595]]

thence to latitude 41[deg]35[min]40[sec] N., longitude 
82[deg]54[min]50[sec] W.; and thence to the point of beginning.
    (b) Types of firing--(1) Danger Area I. Small arms impact area.
    (2) Danger Area II. Ground-based artillery, antiaircraft artillery 
and automatic weapons impact area.
    (c) Authorized dates and hours of firing:
    (1) Danger Area I. 6 a.m. to 6 p.m., e.s.t./e.d.t., daily; actual 
firing dates and hours within the authorized period to be announced in 
advance in special firing notices.
    (2) Danger Area II. 8 a.m. to 5 p.m., e.s.t./e.d.t., daily except on 
Saturdays, Sundays, and holidays; actual firing dates and hours 
scheduled within authorized period to be announced in advance in special 
firing notices.
    (d) Restrictions. (1) No person or vessel shall enter or remain in a 
danger zone during a scheduled firing period announced in a special 
firing notice unless specific permission is granted in each instance by 
a representative of the enforcing officer.
    (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) Enforcing agencies. The regulations in this section shall be 
enforced for the respective danger areas by the following commanders and 
such agencies as each may designate for his assigned areas. He will be 
responsible for proving the prescribed control, signals, and special 
firing notices.
    (1) Danger Area I. Adjutant General, State of Ohio.
    (2) Danger Area II. Adjutant General, State of Ohio.
    (f) Control and signals--(1) Danger Area I. When firing into Area I, 
red flags will be flown from the safety tower at Camp Perry, and from 
flag poles in the butts of the ranges being used.
    (2) Danger Area II. During all types of firing into Area II, red 
flags will be displayed, one from the safety tower at Camp Perry and one 
from the safety tower at the Erie Proof Front. During firing into Area 
II, patrol boats will police and maintain surveillance of the area, and 
will be in constant radio communication with the shore station 
controlling the firing.
    (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) Fishing permits. Fishermen desiring to set fixed nets within the 
danger zone are required in every instance to have written permits. 
Permits for placing nets within Areas I and II may be obtained by 
written application to the Adjutant General, State of Ohio. Applicants 
for permits must state the location at which they desire to set fixed 
nets and the period of time which they desire the permit to cover.
    (h) Injurious chemicals. No phosphorus or other poisonous chemicals 
injurious to wild fowl or fish will be discharged into the waters of the 
areas.
    (i) The regulations in this section shall be reviewed annually by 
the Department of the Army to determine

[[Page 596]]

whether further limitations of the danger zone shall be considered.

[35 FR 17178, Nov. 7, 1970, as amended at 37 FR 20026, Sept. 23, 1972. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, 
Apr. 10, 1997]



Sec. 334.855  Salt River, Rolling Fork River, Otter Creek; U.S. Army Garrison,
Fort Knox Military Reservation; Fort Knox, Kentucky; danger zone.

    (a) The area. Salt River from Point A (latitude 
37[deg]59[min]31.72[sec] N; longitude 85[deg]55[min]32.98[sec] W) 
located approximately 1.2 miles southeast of West Point, Kentucky; 
southward to its confluence with the Rolling Fork River. Salt River from 
Point B (latitude 37[deg]57[min]51.32[sec] N; longitude 
85[deg]45[min]37.14[sec] W) located approximately 2.8 miles southwest of 
Shepherdsville, Kentucky; southward to its confluence with the Rolling 
Fork River. Rolling Fork River from Point C (latitude 
37[deg]49[min]59.27[sec] N; longitude 85[deg]45[min]37.74[sec] W) 
located approximately 1.6 miles southwest of Lebanon Junction, Kentucky 
northward to its confluence with the Salt River. Otter Creek from Point 
D (latitude 37[deg]51[min]31.77[sec] N; longitude 
86[deg]00[min]03.79[sec] W) located approximately 3.4 miles north of 
Vine Grove, Kentucky to Point E (latitude 37[deg]55[min]21.95[sec] N; 
longitude 86[deg]01[min]47.38[sec] W) located approximately 2.3 miles 
southwest of Muldraugh.
    (b) The regulation. All persons, swimmers, vessels and other craft, 
except those vessels under the supervision or contract to local military 
or Army authority, vessels of the United States Coast Guard, and 
federal, local or state law enforcement vessels, are prohibited from 
entering the danger zones without permission from the Commanding 
General, U.S. Army Garrison, Fort Knox Military Reservation, Fort Knox, 
Kentucky or his/her authorized representative.
    (c) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commanding General, U.S. Army Garrison, Fort Knox Military Reservation, 
Fort Knox, Kentucky and/or other persons or agencies as he/she may 
designate.

[70 FR 15228, Mar. 25, 2005]



Sec. 334.860  San Diego Bay, Calif., Naval Amphibious Base; restricted area.

    (a) The Area. The water of the Pacific Ocean in Middle San Diego Bay 
in an area extending from the northern and eastern boundary of the Naval 
Amphibious Base about 0.1 nautical miles and 0.6 nautical miles from the 
southern shoreline and basically outlined as follows:

------------------------------------------------------------------------
      Station                Latitude                  Longitude
------------------------------------------------------------------------
1                   32[deg]40[min]33.0[sec] N  117[deg]10[min]02.4[sec]
                                                W
2                   32[deg]40[min]34.7[sec] N  117[deg]09[min]54.0[sec]
                                                W
3                   32[deg]40[min]46.0[sec] N  117[deg]09[min]44.2[sec]
                                                W
4                   32[deg]41[min]00.0[sec] N  117[deg]09[min]24.6[sec]
                                                W
5                   32[deg]40[min]20.0[sec] N  117[deg]08[min]36.7[sec]
                                                W
6                   32[deg]40[min]00.0[sec] N  117[deg]09[min]00.0[sec]
                                                W
7                   32[deg]39[min]18.0[sec] N  117[deg]08[min]45.0[sec]
                                                W
8                   32[deg]39[min]16.0[sec] N  117[deg]08[min]48.5[sec]
                                                W
------------------------------------------------------------------------

    (b) The regulations. (1) Swimming, fishing, waterskiing, mooring or 
anchoring shall not be allowed within the restricted area.
    (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.

[49 FR 49453, Dec. 20, 1984. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.865  Naval Air Station North Island, San Diego, California,
restricted area.

    (a) The area. The waters within an area beginning at 
32[deg]42[min]55.0[sec] N, 117[deg]11[min]30.5[sec] W; thence running 
easterly

[[Page 597]]

to 32[deg]42[min]57.0[sec] N, 117[deg]11[min]22.5[sec] W; thence running 
easterly to 32[deg]42[min]56.0[sec] N, 117[deg]11[min]19.0[sec] W; 
thence running southeasterly to 32[deg]42[min]49.0[sec] N, 
117[deg]11[min]08.5[sec] W; thence running southeasterly to 
32[deg]42[min]44.5[sec] N, 117[deg]11[min]06.5[sec] W; thence running 
southerly to 32[deg]42[min]40.0[sec] N, 117[deg]11[min]06.5[sec] W.
    (b) The regulation. (1) The restricted area shall not be open to 
swimming, fishing, water-skiing, mooring or anchorage.
    (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) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commander, Navy Region Southwest, and such agencies or persons as he/she 
may designate.

[68 FR 37972, June 26, 2003]



Sec. 334.866  Pacific Ocean at Naval Base Coronado, in the City of Coronado,
San Diego County, California; naval danger zone.

    (a) The area. A fan-shaped area extending westerly into the waters 
of the Pacific Ocean from a point on the beach of Naval Base Coronado, 
Coronado, California beginning at latitude 32[deg]41[min]13[sec] N, 
longitude 117[deg]12[min]45[sec] W; thence easterly, along the mean high 
water mark, to latitude 32[deg]41[min]14[sec] N, longitude 
117[deg]12[min]32[sec] W; thence southerly to latitude 
32[deg]40[min]31[sec] N, longitude 117[deg]12[min]12[sec] W; thence 
westerly to latitude 32[deg]40[min]25[sec] N, longitude 
117[deg]12[min]43[sec] W; thence northerly, landward, to the point of 
origin.
    (b) The regulations. (1) Range live firing on the Naval Base 
Coronado, Coronado, California small arms range may occur at any time. 
Information on live firing schedules and coordination for community 
concerns can be obtained by calling the Naval Base Coronado Small Arms 
Range Safety Officer at 619-545-8413 during normal working hours. 
Assistance is also available via the Naval Base Coronado Hotline at 619-
545-7190 or the Naval Base Coronado operator at 619-545-1011. If the 
phone numbers are changed, they will be updated on the Naval Base 
Coronado Web site http://www.cnic.navy.mil/Coronado.
    (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[deg]41[min]21.5[sec] N, longitude 117[deg]12[min]42.8[sec] 
W, the middle flag pole is located at latitude 32[deg]41[min]21.7[sec] 
N, longitude 117[deg]12[min]40.9[sec] W, and the east flag pole is 
located at latitude 32[deg]41[min]22.4[sec] N, longitude 
117[deg]12[min]38.7[sec] 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.

[[Page 598]]

    (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, http://www.cnic.navy.mil/Coronado, 
which will be accessible to the public, mariners, and recreationists. 
The Navy will maintain the Web site on a year round basis and update 
information as needed for public safety.
    (c) Enforcement. The regulation in this section will be enforced by 
the Commanding Officer, Naval Base Coronado, and such agencies and 
persons as he/she may designate.

[75 FR 26102, May 11, 2010]



Sec. 334.870  San Diego Harbor, Calif.; restricted area.

    (a) Restricted area at Bravo Pier, Naval Air Station--(1) The area. 
The water of the Pacific Ocean in North San Diego Bay in an area 
extending from the western boundary of North Island about 0.2 nautical 
miles bayward and basically outlined as follows:

------------------------------------------------------------------------
      Station                Latitude                  Longitude
------------------------------------------------------------------------
1                   32[deg]41[min]51.3[sec] N  117[deg]13[min]34.0[sec]
                                                W
2                   32[deg]41[min]51.3[sec] N  117[deg]13[min]46.6[sec]
                                                W
3                   32[deg]41[min]43.3[sec] N  117[deg]13[min]50.0[sec]
                                                W
4                   32[deg]41[min]35.8[sec] N  117[deg]13[min]48.0[sec]
                                                W
5                   32[deg]41[min]35.8[sec] N  117[deg]13[min]35.0[sec]
                                                W
------------------------------------------------------------------------

    (2) The regulations. (i) The restricted area shall not be open to 
swimming, fishing, mooring or anchorage.
    (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) Restricted area at U.S. Naval Degaussing Station--(1) The area. 
That portion of San Diego Bay near Point Loma, inclosed by lines 
connecting the following points, which are rectangular coordinates and 
are referred to U.S. Coast and Geodetic Survey station ``Old Town'' as 
their origin:

``a'' S. 18,738.80, W. 16,299.50.
``b'' S. 18,817.60, W. 15,791.30.
``c'' S. 19,376.09, W. 14,270.73.
``d'' S. 20,023.15, W. 14,462.94.
``e'' S. 21,080.24, W. 14,333.14.
``f'' S. 22,074.40, W. 16,371.48.

    (2) The regulations. (i) There shall be no introduction of external 
magnetic field sources within the area.
    (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) Restricted area between Ballast Point and Zuniga Point--(1) The 
area.

[[Page 599]]

An area in San Diego Bay between Ballast Point and Zuniga Point inclosed 
by lines connecting the following stations:

------------------------------------------------------------------------
      Station                Latitude                  Longitude
------------------------------------------------------------------------
A                   32[deg]41[min]17[sec]....  117[deg]13[min]58[sec]
B                   32[deg]41[min]19[sec]....  117[deg]13[min]36.5[sec]
C                   32[deg]41[min]01[sec]....  117[deg]13[min]34[sec]
D                   32[deg]40[min]59[sec]....  117[deg]13[min]55[sec]
E                   32[deg]41[min]03[sec]....  117[deg]13[min]56[sec]
A                   32[deg]41[min]17[sec]....  117[deg]13[min]58[sec]
------------------------------------------------------------------------

    (2) The regulations. (i) No vessel shall anchor within the 
restricted area at any time.
    (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) Restricted area at the Naval Supply Center Pier--(1) The area. 
The waters of San Diego Bay extending approximately 100 feet out from 
the north, west and south sides of the Naval Supply Center Pier enclosed 
by lines connecting the following stations:

------------------------------------------------------------------------
      Station                Latitude                  Longitude
------------------------------------------------------------------------
A                   32[deg]42[min]50[sec] N..  117[deg]10[min]25[sec] W
B                   32[deg]42[min]50[sec] N..  117[deg]10[min]38[sec] W
C                   32[deg]42[min]54[sec] N..  117[deg]10[min]38[sec] W
D                   32[deg]42[min]54[sec] N..  117[deg]10[min]25[sec] W
------------------------------------------------------------------------

    (2) The regulations. (i) 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 the U.S. Navy, U.S. Coast Guard, other authorized 
military components, or other vessels authorized by Commander Naval 
Base, San Diego or his designee.
    (ii) Loitering, dredging, dragging, seining, fishing and similar 
activities within the restricted area are prohibited.
    (e) Enforcement. The regulations in this section shall be enforced 
by the Commander, Naval Base, San Diego, California, and such agencies 
as he/she may designate.

[17 FR 5951, July 2, 1952, as amended at 29 FR 9710, July 18, 1964; 35 
FR 16370, Oct. 20, 1970; 49 FR 33646, Aug. 24, 1984. Redesignated at 50 
FR 42696, Oct. 22, 1985, as amended at 55 FR 27102, June 29, 1990; 55 FR 
31689, Aug. 3, 1990]



Sec. 334.880  San Diego Harbor, Calif.; naval restricted area adjacent
to Point Loma.

    (a) The area. That portion of San Diego Bay southerly of Ballast 
Point, exclusive of the southwesterly portion of the restricted area 
described in Sec. 334.612(b) located westerly of the entrance channel, 
bounded on the west by the shoreline at Point Loma, on the east by the 
entrance channel west project line, and on the south by latitude 
32[deg]40[min].
    (b) The regulations. (1) The area is reserved for anchorage of 
vessels of the U.S. Government and authorized harbor pilot and patrol 
boats. All other craft may navigate and operate through the area, and 
temporary mooring of vessels (not to exceed 24 hours) is permissible.
    (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.

[30 FR 4756, Apr. 14, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.890  Pacific Ocean off Point Loma, Calif.; naval restricted area.

    (a) The area. The waters of the Pacific Ocean within an area 
extending southerly from Point Loma, California, described as follows: 
Beginning at latitude 32[deg]39[min]54[sec], longitude 
117[deg]13[min]18[sec]; thence southeasterly to latitude 
32[deg]34[min]31[sec], longitude 117[deg]09[min]41[sec]; thence 270[deg] 
true to longitude 117[deg]16[min]40[sec]; thence due north to latitude 
32[deg]39[min]54[sec]; and thence 90[deg] true to the point of 
beginning.
    (b) The regulations. (1) No vessel shall anchor within the 
restricted area at any time without specific permission of the enforcing 
agency.

[[Page 600]]

    (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.

[17 FR 4346, May 13, 1952. Redesignated at 30 FR 4756, Apr. 14, 1965. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.900  Pacific Ocean, U.S. Marine Corps Base, Camp Pendleton, Calif.
; restricted area.

    (a) The area. Beginning at the shoreline north of the boat basin, 
latitude 33[deg]13[min]10[sec], longitude 117[deg]24[min]19[sec]; thence 
westward to latitude 33[deg]12[min]48[sec], longitude 
117[deg]24[min]56[sec]; thence southward to latitude 
33[deg]12[min]32[sec], longitude 117[deg]24[min]44[sec]; thence eastward 
to latitude 33[deg]12[min]47[sec], longitude 117[deg]24[min]17[sec] (a 
point on the breakwater); thence northeastward along breakwater to 
latitude 33[deg]12[min]58[sec], longitude 117[deg]24[min]09[sec]; thence 
northward along shoreline to point of beginning.
    (b) The regulations. (1) No vessels shall anchor within the 
restricted area at any time.
    (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 Pendleton, California, 
and such agencies as he may designate.

[24 FR 1214, Feb. 17, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.905  Pacific Ocean, offshore of Camp Pendleton, California;
Fallbrook restricted area.

    (a) The area. The waters of the Gulf of Santa Catalina, offshore of 
Camp Pendleton in the Pacific Ocean, San Diego County, California. The 
center of the restricted area is located at 33[deg]18.6[min] N. 
latitude, 117[deg]32.0[min] W. longitude, with a radius of 9,000 feet.
    (b) The regulations. (1) 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 the U.S. Coast Guard, local, State or Federal law 
enforcement agencies.
    (2) Loitering, dredging, dragging, anchoring, seining, fishing, and 
similar activities within the restricted area during vertical 
replenishment operations use is prohibited.
    (c) Enforcement. The regulations in this section shall be enforced 
by the U.S. Coast Guard, local, State, or Federal law enforcement 
agencies.

[58 FR 53427, Oct. 15, 1993]



Sec. 334.910  Pacific Ocean, Camp Pendleton Boat Basin, U.S. Marine Corps 
Base, Camp Pendleton, Calif.; restricted area.

    (a) The area. All of the waters of Camp Pendleton Boat Basin 
entrance channel lying northerly of a line between a light on the north 
Camp Pendleton jetty at latitude 33[deg]12[min]22[sec], longitude 
117[deg]24[min]07[sec], and a light on the north Oceanside Harbor groin 
at latitude 33[deg]12[min]29[sec], longitude 117[deg]23[min]55[sec].
    (b) The regulations. (1) The area is reserved exclusively for use by 
vessels owned or operated by the Federal Government. Permission to enter 
the area must be obtained from the enforcing agency.
    (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.

[28 FR 13784, Dec. 19, 1963. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.920  Pacific Ocean off the east coast of San Clemente Island,
Calif.; naval restricted area.

    (a) The area. The waters of the Pacific Ocean within an area 
extending easterly from the east coast of San Clemente Island, 
California, described as follows: The northerly boundary to be a 
continuation, to seaward of the existing southerly boundary of the 
restricted anchorage area, as described in 110.218 of this chapter, to 
latitude 33[deg]00.3[min] N., longitude 118[deg]31.1[min] W.; thence to 
latitude 32[deg]58.6[min] N., longitude 118[deg]30.0[min] W.; thence to 
latitude 32[deg]57.9[min] N., longitude 118[deg]31.3[min] W on the 
shoreline; thence northerly along the shoreline to the point of 
beginning.

[[Page 601]]

    (b) The regulations. (1) No person or vessels, other than Naval 
Ordnance Test Station craft, and those cleared for entry by the Naval 
Ordnance Test Station, shall enter the area at any time except in an 
emergency, proceeding with extreme caution.
    (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.

[23 FR 2098, Mar. 29, 1958, as amended at 48 FR 6708, Feb. 15, 1983; 48 
FR 8273, Feb. 28, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.921  Pacific Ocean at San Clemente Island, Calif.; naval
restricted area.

    (a) The area. All waters between the northern and southern 
boundaries of the area known as West Cove seaward approximately four 
miles. The northern boundary is defined by the coordinates:

33[deg]00[min]52[sec] N. 118[deg]36[min]18[sec] W.
32[deg]59[min]30[sec] N. 118[deg]37[min]30[sec] W.
32[deg]59[min]20[sec] N. 118[deg]38[min]38[sec] W.


The southern boundary is defined by the coordinates:

33[deg]00[min]40[sec] N. 118[deg]35[min]27[sec] W.
32[deg]58[min]30[sec] N. 118[deg]36[min]40[sec] W.
32[deg]57[min]45[sec] N. 118[deg]38[min]38[sec] W.

    (b) The regulation. (1) The use of this area for anchorage is 
prohibited to all craft at all times.
    (2) The regulations in this section shall be enforced by the 
Commander, Naval Base, San Diego, and such agencies as he/she shall 
designate.

[50 FR 50297, Dec. 10, 1985]



Sec. 334.930  Anaheim Bay Harbor, Calif.; Naval Weapons Station, Seal Beach.

    (a) The restricted area. The water of Anaheim Bay Harbor between the 
east and west jetties at the United States Naval Weapons Station, Seal 
Beach, California, and the contiguous tidal channel and basin as far 
east as the Anaheim Bay bridge.
    (b) The regulation. (1) The authority of the Naval Weapons Station 
Commanding Officer in this area extends to restricting and disallowing 
the navigating or anchorage of craft during such times as the Commanding 
Officer determines that considerations of national security or safety 
warrant such action(s).
    (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,

[[Page 602]]

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.

[53 FR 6942, Mar. 3, 1988, as amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.938  Federal Correctional Institution, Terminal Island, San Pedro
Bay, California; restricted area.

    (a) The area. The waters of San Pedro Bay on the east side of 
Reservation Point extending 150 feet (50 yards), from the Federal 
Correctional Institution fence along the shore to the following 
stations:

------------------------------------------------------------------------
      Station                Latitude                  Longitude
------------------------------------------------------------------------
1                   33[deg]43[min]45.5[sec] N  118[deg]16[min]2.0[sec] W
2                   33[deg]43[min]37.0[sec] N  118[deg]15[min]58.0[sec]
                                                W
3                   33[deg]43[min]27.5[sec] N  118[deg]15[min]54.5[sec]
                                                W
------------------------------------------------------------------------


The stations will be marked by three special purpose buoys (white with 
an orange diamond in the center).
    (b) The regulations. No person or vessel of any kind shall enter, 
navigate, anchor or moor within the restricted area without first 
obtaining the permission of the Warden, Federal Correctional 
Institution, Terminal Island. The regulations in this section shall be 
enforced by the U.S. Coast Guard, the Warden of the Federal Correctional 
Institution, Terminal Island, and such agencies and he/she may 
designate.

[57 FR 58098, Dec. 8, 1992; 58 FR 42237, Aug. 9, 1993, as amended at 62 
FR 17556, Apr. 10, 1997]



Sec. 334.940  Pacific Ocean in vicinity of San Pedro, Calif.; practice
firing range for U.S. Army Reserve, National Guard, and Coast Guard units.

    (a) The danger zone. (1) [Reserved]
    (2) Zone B. An area extending southwest and northwest from Point 
Vicente, described as follows: Beginning at Point Vicente Light, 
latitude 33[deg]44[min]30[sec], longitude 118[deg]24[min]36[sec]; thence 
southwesterly to latitude 33[deg]43[min]42[sec], longitude 
118[deg]25[min]24[sec]; thence northwesterly to latitude 
33[deg]46[min]30[sec], longitude 118[deg]27[min]06[sec]; thence 
southeasterly to the shore, latitude 33[deg]44[min]54[sec], longitude 
118[deg]24[min]42[sec]; and thence southerly along the shore to the 
point of beginning.
    (b) The regulations. (1) Intermittent firing may take place in the 
danger zone on any day from sunrise to sunset.
    (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.

[19 FR 3795, June 22, 1954, as amended at 27 FR 2465, Mar. 15, 1962. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17556, 
Apr. 10, 1997]



Sec. 334.950  Pacific Ocean at San Clemente Island, California; Navy 
shore bombardment areas.

    (a) The danger zones. (1) 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 072.5 degrees true, 5.375 
nautical miles; thence 313 degrees true to Pyramid Head Light.
    (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

[[Page 603]]

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) The regulations. (1) All persons and all vessels shall promptly 
vacate the areas when ordered to do so by the Navy or the Coast Guard. 
Persons and vessels shall not enter the areas during periods scheduled 
for firing. These areas are used for various surface and air gunnery and 
aerial bombing exercises by the United States Navy, Coast Guard and 
Marine Corps. Hazardous conditions exist during shore bombardment by 
naval ships in the area seaward of that described in paragraphs (a)(1) 
and (a)(2) of this section between the firing vessel and the shore. The 
area described in paragraph (a)(3) of this section is hazardous due to 
the possibility of rounds landing in the waters east of San Clemente 
Island.
    (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.

[55 FR 30907, July 30, 1990, as amended at 62 FR 17556, Apr. 10, 1997]



Sec. 334.960  Pacific Ocean, San Clemente Island, Calif.; naval danger
zone off West Cove.

    (a) The danger zone. The waters of the Pacific Ocean in an area 
about one-half mile off the west coast of San Clemente Island basically 
outlined as follows:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
33[deg]00[min]40[sec].....................  118[deg]35[min]45[sec]
32[deg]57[min]40[sec].....................  118[deg]34[min]25[sec]
32[deg]57[min]10[sec].....................  118[deg]35[min]40[sec]
33[deg]00[min]10[sec].....................  118[deg]37[min]00[sec]
33[deg]00[min]40[sec].....................  118[deg]35[min]45[sec]
------------------------------------------------------------------------

    (b) The regulations. (1) Intermittent firing may take place in the 
danger zone on any day from 8:00 a.m. until 1:00 p.m.
    (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.

[[Page 604]]

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.

[27 FR 6829, July 19, 1962. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17557, Apr. 10, 1997; 62 FR 24034, May 2, 1997]



Sec. 334.961  Pacific Ocean, San Clemente Island, California, naval 
danger zone off the northwest shore.

    (a) The danger zone: The waters of the Pacific Ocean adjacent to San 
Clemente Island, California, bounded by the following coordinates and 
San Clemente Island:

Point A--33[deg]01[min]38[sec] N 118[deg]36[min]20[sec] W
Point B--33[deg]01[min]11[sec] N 118[deg]37[min]25[sec] W
Point C--33[deg]00[min]11[sec] N 118[deg]37[min]00[sec] W
Point D--33[deg]00[min]05[sec] N 118[deg]38[min]53[sec] W
Point E--33[deg]02[min]55[sec] N 118[deg]39[min]05[sec] W
Point F--33[deg]04[min]25[sec] N 118[deg]37[min]41[sec] W
Point G--33[deg]02[min]02.5[sec] N 118[deg]35[min]53[sec] W

    (b) The regulations: (1) No person shall enter this area during 
closure periods unless authorized to do so by the enforcing agency. No 
vessel or other craft, except vessels of the U.S. Government or vessels 
duly authorized by the enforcing agency shall enter this area during 
closure periods.
    (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.

[55 FR 41522, Oct. 12, 1990, as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.980  Pacific Ocean; around San Nicolas Island, Calif., naval
restricted area.

    (a) The area. The waters of the Pacific Ocean around San Nicolas 
Island, Calif., extending about 3 miles seaward from the shoreline, 
described as follows:

------------------------------------------------------------------------
                              Latitude                  Longitude
------------------------------------------------------------------------
Point A               33[deg]10[min]10[sec]...  119[deg]24[min]20[sec]
Point C               33[deg]10[min]10[sec]...  119[deg]31[min]10[sec]
Point D               33[deg]12[min]00[sec]...  119[deg]35[min]30[sec]
Point E               33[deg]14[min]20[sec]...  119[deg]37[min]40[sec]
Point F               33[deg]16[min]40[sec]...  119[deg]38[min]10[sec]
Point G               33[deg]19[min]10[sec]...  119[deg]37[min]10[sec]
Point I               33[deg]20[min]10[sec]...  119[deg]31[min]10[sec]
Point K               33[deg]17[min]40[sec]...  119[deg]24[min]50[sec]
Point L               33[deg]13[min]50[sec]...  119[deg]21[min]50[sec]
------------------------------------------------------------------------

    (b) Sections of area. (1) ALPHA section is the northerly section of 
the area, and is described as follows:

------------------------------------------------------------------------
                              Latitude                  Longitude
------------------------------------------------------------------------
Point G               33[deg]19[min]10[sec]...  119[deg]37[min]10[sec]
Point I               33[deg]20[min]10[sec]...  119[deg]31[min]10[sec]
Point J               33[deg]18[min]18[sec]...  119[deg]26[min]29[sec]
Point O               33[deg]15[min]43[sec]...  119[deg]28[min]40[sec]
------------------------------------------------------------------------
Thence northwesterly along shoreline to Point N
------------------------------------------------------------------------
Point N               33[deg]16[min]30[sec]...  119[deg]30[min]40[sec]
Point G               33[deg]19[min]10[sec]...  119[deg]37[min]10[sec]
------------------------------------------------------------------------

    (2) BRAVO section is the westerly section of the area, and is 
described as follows:

------------------------------------------------------------------------
                              Latitude                  Longitude
------------------------------------------------------------------------
Point N               33[deg]16[min]30[sec]...  119[deg]30[min]40[sec]
------------------------------------------------------------------------
Thence westerly, southerly and easterly along the shoreline to Point M
------------------------------------------------------------------------
Point M               33[deg]13[min]10[sec]...  119[deg]29[min]40[sec]
Point B               33[deg]10[min]10[sec]...  119[deg]29[min]40[sec]
Point C               33[deg]10[min]10[sec]...  119[deg]31[min]10[sec]
Point D               33[deg]12[min]00[sec]...  119[deg]35[min]30[sec]
Point E               33[deg]14[min]20[sec]...  119[deg]37[min]40[sec]
Point F               33[deg]16[min]40[sec]...  119[deg]38[min]10[sec]
Point G               33[deg]19[min]10[sec]...  119[deg]37[min]10[sec]
Point N               33[deg]16[min]30[sec]...  119[deg]30[min]40[sec]
------------------------------------------------------------------------

    (3) CHARLIE section is the easterly section of the area, and is 
described as follows:

------------------------------------------------------------------------
                              Latitude                  Longitude
------------------------------------------------------------------------
Point J               33[deg]18[min]18[sec]...  119[deg]26[min]29[sec]
Point O               33[deg]15[min]43[sec]...  119[deg]28[min]40[sec]
------------------------------------------------------------------------
Thence easterly, southerly and westerly along the shoreline to Point M
------------------------------------------------------------------------
Point M               33[deg]13[min]10[sec]...  119[deg]29[min]40[sec]
Point B               33[deg]10[min]10[sec]...  119[deg]29[min]40[sec]
Point A               33[deg]10[min]10[sec]...  119[deg]24[min]20[sec]
Point L               33[deg]13[min]50[sec]...  119[deg]21[min]50[sec]
Point K               33[deg]17[min]40[sec]...  119[deg]24[min]50[sec]
Point J               33[deg]18[min]18[sec]...  119[deg]26[min]29[sec]
------------------------------------------------------------------------

    (c) Markers. Range markers, as delineated below, are installed at 
Points M, N, and O for navigational purposes to indicate the boundaries 
between sections ALPHA, BRAVO, and CHARLIE.

[[Page 605]]

    (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[deg]29[min]40[sec] 
W. and near the southerly shoreline at latitude 33[deg]13[min]10[sec] 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[deg]16[min]30[sec] N. and longitude 119[deg]30[min]40[sec] 
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[deg]15[min]43[sec] N. and longitude 119[deg]28[min]40[sec] 
W. The northernmost marker is 20 feet below the other.
    (d) The regulations. (1) No seaplanes, other than those approved for 
entry by the Commander, Pacific Missile Range (COMPMR) may enter any 
section of the area.
    (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.

[30 FR 2260, Feb. 19, 1965. Redesignated at 50 FR 42696, Oct. 22, 1985, 
and amended at 58 FR 21226, Apr. 19, 1993]



Sec. 334.990  Long Beach Harbor, Calif.; naval restricted area.

    (a) The area. All the waters between the Navy mole and Terminal 
Island to the westward of longitude 118[deg]13[min]10[sec].
    (b) The regulations. (1) The area is reserved exclusively for use by 
naval vessels. Permission for any person or vessel to enter the area 
must be obtained from the enforcing agency.
    (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.

[19 FR 891, Feb. 17, 1954, as amended at 27 FR 12368, Dec. 13, 1962. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17557, 
Apr. 10, 1997]



Sec. 334.1010  San Francisco Bay in vicinity of Hunters Point; naval
restricted area.

    (a) The area. Bounded by the shore of the San Francisco Naval 
Shipyard and the following lines: Beginning at a point on the northerly 
shore of the Shipyard bearing 292[deg]40[min], 950 yards, from Hunters 
Point Light; thence 35[deg]27[min], 730 yards to the U.S. Pierhead Line; 
thence 142[deg]55[min], 1,300 yards, along the Pierhead Line; thence 
180[deg], 2,450 yards, to the San Francisco-San Mateo County Line; 
thence 270[deg], 430 yards, along the County Line; thence 
305[deg]27[min], 1,313 yards, to and along the southwesterly side of 
South Basin; and thence due north, 413 yards, to the southwesterly shore 
of the Shipyard.


[[Page 606]]


    Note: All bearings in this section are referred to true meridian.

    (b) The regulations. No person may enter the area and no vessel or 
other craft, except vessels of the U.S. Government or vessels duly 
authorized by the Commander, San Francisco Naval Shipyard, shall 
navigate, anchor or moor in this area.

[26 FR 11201, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985; 
51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.1020  San Francisco Bay and Oakland Inner Harbor; restricted 
areas in vicinity of Naval Air Station, Alameda.

    (a) The areas. (1) The waters of San Francisco Bay bounded by the 
shore of Naval Air Station, Alameda, and a line beginning at a point on 
the north side of Oakland Inner Harbor Entrance Channel at 
approximately: 37[deg]47[min]57[sec] N, 122[deg]19[min]43[sec] W; WSW to 
37[deg]47[min]53[sec] N, 122[deg]19[min]57[sec] W; SE to 
37[deg]47[min]46[sec] N, 122[deg]20[min]00[sec] W; SE to 
37[deg]47[min]41[sec] N, 122[deg]19[min]52[sec] W; S to 
37[deg]46[min]49[sec] N, 122[deg]19[min]52[sec] W; E to 
37[deg]46[min]49[sec] N, 122[deg]19[min]28[sec] W; SE to 
37[deg]46[min]46[sec] N, 122[deg]19[min]21[sec] W; E to 
37[deg]46[min]45[sec] N, 122[deg]19[min]05[sec] W; SE to 
37[deg]46[min]38[sec] N, 122[deg]18[min]59[sec] W; SSW to 
37[deg]46[min]18[sec] N, 122[deg]19[min]05[sec] W; SE to 
37[deg]46[min]00[sec] N, 122[deg]18[min]28[sec] W; E to 
37[deg]46[min]00[sec] N, 122[deg]18[min]22[sec] W; N to 
37[deg]46[min]03[sec] N, 122[deg]18[min]22[sec] W; E to 
37[deg]46[min]00[sec] N, 122[deg]17[min]28[sec] W; NE to 
37[deg]46[min]03[sec] N, 122[deg]17[min]26[sec] W; where it joins the 
Naval Air Station, Alameda, Breakwater.
    (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) The regulations. (1) No person shall enter this area and no 
vessel or other craft, except vessels of the U.S. Government or vessels 
duly authorized by the Commanding Officer, U.S. Naval Air Station, 
Alameda, California, shall navigate, anchor or moor in the area 
described in paragraph (a)(1) of this section.
    (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.

[26 FR 11201, Nov. 28, 1961, as amended at 27 FR 10484, Oct. 27, 1962. 
Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 51 FR 25198, 
July 11, 1986; 55 FR 3056, Jan. 30, 1990; 62 FR 17557, Apr. 10, 1997]



Sec. 334.1030  Oakland Inner Harbor adjacent to Alameda Facility, 
Naval Supply Center, Oakland; restricted area.

    (a) The area. Within 100 feet of the Alameda Facility wharf.
    (b) The regulations. No persons and no vessels or other craft, 
except vessels of the United States Government or vessels duly 
authorized by the Commanding Officer, Naval Supply Center, Oakland, 
shall enter this area.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. 
Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, 
as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.1040  Oakland Harbor in vicinity of Naval Supply Center, Oakland;
restricted area and navigation.

    (a) The area. Bounded by the shore of the Naval Supply Center and 
the following lines: Beginning at a point on the north shore located at 
about latitude 37[deg]48[min]26[sec], longitude 122[deg]19[min]34[sec]; 
thence 225[deg]12[min], 290 yards; and thence 173[deg]10[min], 620 yards 
to a point on the south shore at about latitude 37[deg]48[min]02[sec], 
longitude 122[deg]19[min]39[sec].
    (b) The regulations. (1) No persons and no vessels or other craft, 
except vessels of the U.S. Government or vessels duly authorized by the 
Commanding Officer, Naval Supply Center, Oakland, shall enter this area.
    (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.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. 
Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, 
as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.1050  Oakland Outer Harbor adjacent to the Military Ocean Terminal,
Bay Area, Pier No. 8 (Port of Oakland Berth No. 10); restricted area.

    (a) The area. Within 100 feet of the pier.

[[Page 607]]

    (b) The regulations. No persons and no vessels or other craft, 
except vessels of the U.S. Government or vessels duly authorized by the 
Commander, Oakland Army Base, shall enter this area.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. 
Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, 
as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.1060  Oakland Outer Harbor adjacent to the Oakland Army Base;
restricted area.

    (a) The area. Within 100 feet of the wharves, piers or shore.
    (b) The regulations. No persons and no vessels or other craft, 
except vessels of the U.S. Government or vessels duly authorized by the 
Commander, Oakland Army Base, shall enter this area.

[26 FR 11201, Nov. 28, 1961, as amended at 31 FR 6590, May 3, 1966. 
Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, 
as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.1065  U.S. Coast Guard Station, San Francisco Bay, Yerba Buena
Island, San Francisco Bay, California; restricted area.

    (a) The area. San Francisco Bay on the east side of Yerba Buena 
Island: From a point along the southeastern shore of Yerba Buena Island 
at latitude 37[deg]48[min]27[sec] North, longitude 
122[deg]21[min]44[sec] West; east to latitude 37[deg]48[min]27[sec] 
North, longitude 122[deg]21[min]35[sec] West; north to latitude 
37[deg]48[min]49[sec] North, longitude 122[deg]21[min]35[sec] West, a 
point on the northeastern side of Yerba Buena Island.
    (b) The regulation. (1) All persons and vessels are prohibited from 
entering the waters within the Restricted Area for any reason without 
prior written permission from the Commanding Officer of the Coast Guard 
Group San Francisco on Yerba Buena Island.
    (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) Enforcement. The regulation in this section shall be enforced by 
the Commanding Officer of the Coast Guard Group San Francisco on Yerba 
Buena Island, and such agencies and persons as he/she shall designate.

[69 FR 20547, Apr. 16, 2004]



Sec. 334.1070  San Francisco Bay between Treasure Island and Yerba Buena 
Island; naval restricted area.

    (a) The area. All the water of the cove bounded by the south shore 
of Treasure Island, the north shore of Yerba Buena Island, and the 
connecting causeway, west of a line extending from the southeast corner 
of the most southerly of the four finger piers along the east side of 
Treasure Island, at about latitude 37[deg]49[min]11[sec], longitude 
122[deg]21[min]40[sec], approximately 153[deg]20[min] to the 
northeasterly point of Yerba Buena Island, at about latitude 
37[deg]48[min]55[sec], longitude 122[deg]21[min]30[sec].
    (b) The regulations. No person and no vessel or other craft, except 
vessels owned and operated by the U.S. Government or vessels duly 
authorized by the Commanding Officer, Naval Station, Treasure Island, 
shall enter the restricted area.

[26 FR 11201, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985; 
51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]



Sec. 334.1080  San Francisco Bay adjacent to northeast corner of Treasure
Island; naval restricted area.

    (a) The area. Beginning at the intersection of Pier 21 and the 
bulkhead line, thence northwesterly along the bulkhead to the 
northernmost point of Treasure Island; thence 288[deg] true, 290 yards; 
thence 26[deg] true, 475 yards; thence 115[deg] 30[min] true, 520 yards; 
thence 152[deg] true, 500 yards to Pier 21; thence along the pier to the 
point of beginning.
    (b) The regulations. No person shall enter the restricted area. No 
vessels, except those engaged in naval operations, shall lie, anchor, 
moor or unnecessarily delay in the area. Vessels may pass through the 
area in the process of ordinary navigation except as directed by patrol 
boats. The regulations in this paragraph shall be enforced by the 
Commandant, Twelfth Naval District, and such agencies as he may 
designate.

[26 FR 11201, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985; 
51 FR 25198, July 11, 1986, as amended at 62 FR 17557, Apr. 10, 1997]

[[Page 608]]



Sec. 334.1090  San Francisco Bay in vicinity of the NSC Fuel Department,
Point Molate restricted area.

    (a) The area. Bounded by the easterly shore of upper San Francisco 
Bay and the following lines: Beginning at a point on shore bearing 
17[deg] 800 yards, from ``Tree'' at Molate Point thence 270[deg], 870 
yards; thence 189[deg] 1,100 yards; and thence 123[deg] to the shore.
    (b) The regulations. Persons and vessels not operating under 
supervision of the local military or naval authority or public vessels 
of the United States, shall not enter this area except by specific 
permission of the Commanding Officer, Naval Supply Center.

[26 FR 11201, Nov. 28, 1961, as amended at 42 FR 17120, Mar. 31, 1977. 
Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, 
as amended at 62 FR 17558, Apr. 10, 1997]



Sec. 334.1100  San Pablo Bay, Carquinez Strait, and Mare Island Strait in
vicinity of U.S. Naval Shipyard, Mare Island; restricted area.

    (a) The area. The waters of San Pablo Bay, Carquinez Strait, and 
Mare Island Strait, within 100 yards of the shore of that part of the 
Navy Yard, Mare Island, south of the causeway between the City of 
Vallejo and Mare Island and extending continuously therefrom 
southeasterly, southwesterly, and northwesterly around the Navy Yard to 
its northwesterly limit on the waters of San Pablo Bay, and the waters 
within 50 yards of any part of the berthing piers at the Navy Yard.
    (b) The regulations. No persons shall enter this area and no vessels 
or other craft, except vessels of the U.S. Government or vessels duly 
authorized by the Commander, Mare Island Naval Shipyard, Vallejo, 
California, shall navigate, anchor or moor in this area.

[26 FR 11201, Nov. 28, 1961, as amended at 27 FR 10484, Oct. 27, 1962. 
Redesignated at 50 FR 42696, Oct. 22, 1985; 51 FR 25198, July 11, 1986, 
as amended at 62 FR 17558, Apr. 10, 1997]



Sec. 334.1110  Suisun Bay at Naval Weapons Station, Concord; restricted area.

    (a) The area. Beginning at a point on the shore and on the easterly 
side of the mouth of a small slough (known as Hastings Slough) bearing 
189[deg], 2,412 yards from Tripon at Preston Point on Roe Island; thence 
340[deg]30[min], 400 yards, to the shore line of the westerly of the two 
Seal Islands; thence 60[deg]30[min], 940 yards; thence 75[deg], 1,650 
yards; thence 102[deg], 1,850 yards; thence 99[deg], 1,880 yards; thence 
180[deg], 435 yards, to the shore line; thence following the high water 
shore line in a general westerly direction to the point of beginning.
    (b) The regulations. (1) No person, vessel, watercraft, conveyance 
or device shall enter or cause to enter or remain in this area. No 
person shall refuse or fail to remove any person or property in his 
custody or under his control from this area upon the request of the 
Commanding Officer of the Naval Weapons Station Concord or his/her 
authorized representative.
    (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.

[26 FR 11201, Nov. 28, 1961, as amended at 42 FR 17120, Mar. 31, 1977. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 61 FR 43970, 
Aug. 27, 1996]



Sec. 334.1120  Pacific Ocean in the vicinity of Point Mugu, Calif.
; naval small arms firing range.

    (a) The danger zone. A triangular area extending westerly into the 
waters of the Pacific Ocean from a point on the beach north of Point 
Mugu, California, described as follows: Beginning at latitude 
34[deg]05[min]32[sec], longitude 119[deg]03[min]57[sec]; thence 
southwesterly approximately 4,000 yards to latitude 
34[deg]04[min]22[sec], longitude 119[deg]05[min]55[sec]; thence 
northwesterly approximately 1,500 yards to latitude 
34[deg]05[min]01[sec], longitude 119[deg]06[min]17[sec]; thence 
northeasterly to the point of beginning.
    (b) The regulations. (1) Range firing will normally take place 
between 6 a.m. and 6 p.m., Thursday through Monday, and between 6 a.m. 
and 11:30 p.m., Tuesday and Wednesday of each week. Within the above 
periods, firing will be conducted as determined by the Commanding 
Officer, U.S. Naval Construction Battalion Center, Port Hueneme, Calif.
    (2) Except as otherwise provided in this section, the danger zone 
will be open to fishing and general navigation.

[[Page 609]]

    (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[deg]05[min]32[sec], longitude 
119[deg]03[min]57[sec], 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 displayed unless authorized 
to do so by the range officer in the control tower.
    (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.

[28 FR 4785, May 14, 1963; 29 FR 1318, Jan. 25, 1964, as amended at 32 
FR 5834, Apr. 12, 1967. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17558, Apr. 10, 1997]



Sec. 334.1125  Pacific Ocean Naval Air Weapons Station, Point Mugu, Small 
Arms Range, Ventura County, California; danger zone.

    (a) The area. A triangular area extending southerly into the waters 
of the Pacific Ocean from a point on the beach north of Point Mugu, 
California, as follows:

------------------------------------------------------------------------
       Station                Latitude                 Longitude
------------------------------------------------------------------------
1...................  34[deg]05[min]48[sec] N  119[deg]07[min]03[sec] W.
2...................  34[deg]03[min]20[sec] N  119[deg]08[min]16[sec] W.
3...................  34[deg]03[min]11[sec] N  119[deg]07[min]39[sec] W.
4...................  34[deg]05[min]42[sec] N  119[deg]06[min]59[sec] W.
5...................  34[deg]05[min]41[sec] N  119[deg]06[min]51[sec] W.
6...................  34[deg]05[min]45[sec] N  119[deg]06[min]52[sec] W.
------------------------------------------------------------------------

    (b) The regulations. (1) Range firing will normally take place 
between 7 a.m. and 5 p.m. Monday through Friday.
    (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[deg]05[min]53[sec] N., 
119[deg]06[min]59[sec] 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.

[62 FR 40278, July 28, 1997]



Sec. 334.1126  Naval Base Ventura County, Point Mugu, California;
restricted area.

    (a) The area. The restricted area at Naval Base Ventura County Point 
Mugu incorporates its shoreline and connects the following points: 
latitude 34[deg]7[min]9.9[sec], longitude 119[deg]9[min]35.6[sec] (up-
coast

[[Page 610]]

shoreline point); latitude 34[deg]7[min]0.0[sec], longitude 
119[deg]9[min]46.7[sec] latitude 34[deg]6[min]44.9[sec], longitude 
119[deg]9[min]22.5[sec]; latitude 34[deg]6[min]30.2[sec], longitude 
119[deg]8[min]59.0[sec]; latitude 34[deg]6[min]20.5[sec], longitude 
119[deg]8[min]46.7[sec]; latitude 34[deg]6[min]8.4[sec], longitude 
119[deg]8[min]25.2[sec]; latitude 34[deg]5[min]53.7[sec]; longitude 
119[deg]7[min]59.5[sec]; latitude 34[deg]5[min]45.9[sec], longitude 
119[deg]7[min]41.5[sec]; latitude 34[deg]5[min]40.1[sec], longitude 
119[deg]7[min]21.0[sec]; latitude 34[deg]5[min]33.6[sec], longitude 
119[deg]6[min]58.1[sec]; latitude 34[deg]5[min]31.2[sec], longitude 
119[deg]6[min]37.9[sec]; latitude 34[deg]5[min]31.0[sec], longitude 
119[deg]6[min]22.2[sec]; latitude 34[deg]5[min]32.9[sec], longitude 
119[deg]6[min]14.4[sec]; latitude; 34[deg]5[min]44.7[sec], longitude 
119[deg]5[min]54.0[sec]; latitude 34[deg]5[min]45.2[sec], longitude 
119[deg]5[min]43.5[sec]; latitude 34[deg]5[min]41.0[sec], longitude 
119[deg]5[min]21.2[sec]; latitude 34[deg]5[min]42.2[sec], longitude 
119[deg]5[min]13.3[sec]; latitude 34[deg]5[min]27.8[sec], longitude 
119[deg]4[min]49.5[sec]; latitude 34[deg]5[min]17.9[sec], longitude 
119[deg]4[min]27.9[sec]; latitude 34[deg]5[min]5.7[sec], longitude 
119[deg]3[min]59.90[sec]; latitude; 34[deg]5[min]17.9[sec], longitude 
119[deg]3[min]55.4[sec] (down-coast shoreline point).
    (b) The regulation. No vessels may enter the restricted area unless 
permission is obtained in advance from the Commanding Officer of Naval 
Base Ventura County. Contact Naval Base Ventura County Security at (805) 
989-7907.
    (c) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commanding Officer of Naval Base Ventura County, and such agencies or 
persons as he/she may designate.

[69 FR 20546, Apr. 16, 2004]



Sec. 334.1127  Naval Base Ventura County, Port Hueneme, California;
restricted area.

    (a) The area. The waters within Port Hueneme Harbor, beginning at 
the seaward ends of the two Port Hueneme Harbor entrance jetties, with 
the northwestern entrance jetty end occurring at latitude 
34[deg]8[min]37.0[sec] N., longitude 119[deg]12[min]58.8[sec] W. and the 
southeastern entrance jetty occurring at latitude 34[deg]8[min]34.8[sec] 
N, longitude 119[deg]12[min]43.2[sec] W., and extending northeasterly to 
the shoreline.
    (b) The regulation. No vessels or persons may enter the restricted 
area unless permission is obtained in advance from the Commanding 
Officer of Naval Base Ventura County. Commercial vessels that are 
required to make Advanced Notifications of Arrival shall continue to do 
so. All vessels must obtain clearance from ``Control 1'' over marine 
radio channel 06 VHF-FM prior to crossing the COLREGS (Collision 
Regulations) demarcation line. Vessels without marine radio capability 
must obtain clearance in advance by contacting ``Control 1'' via 
telephone at (805) 982-3938 prior to crossing the COLREGS demarcation 
line. The COLREGS demarcation line is defined as a line approximately 
1,500 feet in length connecting the seaward limits or ends of the two 
Port Hueneme Harbor entrance jetties, with the northwestern jetty end 
occurring at latitude 34[deg]8[min]37.0[sec] N., longitude 
119[deg]12[min]58.8[sec] W., and the southeastern entrance jetty 
occurring at latitude 34[deg]8[min]34.8[sec] N., longitude 
119[deg]12[min]43.2[sec] W. (NAD83).
    (c) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commanding Officer of Naval Base Ventura County, and such agencies or 
persons as he/she may designate.

[69 FR 20545, Apr. 16, 2004]



Sec. 334.1130  Pacific Ocean, Western Space and Missile Center (WSMC),
Vandenberg AFB, Calif.; danger zones.

    (a) The Area. (1) The waters of the Pacific Ocean in an area 
extending seaward from the shoreline a distance of about three nautical 
miles and basically outlined as follows:

------------------------------------------------------------------------
       Station                Latitude                  Longitude
------------------------------------------------------------------------
Point Sal             34[deg]54[min]08[sec]...  120[deg]40[min]15[sec]
1                     34[deg]54[min]08[sec]...  120[deg]44[min]00[sec]
2                     34[deg]52[min]48[sec]...  120[deg]44[min]00[sec]
3                     34[deg]50[min]00[sec]...  120[deg]40[min]30[sec]
4                     34[deg]44[min]50[sec]...  120[deg]42[min]15[sec]
5                     34[deg]41[min]50[sec]...  120[deg]40[min]12[sec]
6                     34[deg]35[min]12[sec]...  120[deg]42[min]45[sec]
7                     34[deg]33[min]00[sec]...  120[deg]41[min]05[sec]
8                     34[deg]30[min]40[sec]...  120[deg]37[min]29[sec]
9                     34[deg]24[min]18[sec]...  120[deg]30[min]00[sec]
10                    34[deg]23[min]34[sec]...  120[deg]27[min]05[sec]
11                    34[deg]24[min]21[sec]...  120[deg]24[min]40[sec]
12                    34[deg]27[min]20[sec]...  120[deg]24[min]40[sec]
Point Sal             34[deg]54[min]08[sec]...  120[deg]40[min]15[sec]
------------------------------------------------------------------------

    (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

[[Page 611]]

permit, may be conducted without requiring complete evacuation of the 
entire area. These zones are described as follows:
    (i) Zone 1. An area extending seaward about three nautical miles 
from the shoreline beginning at Point Sal, latitude 
34[deg]54[min]08[sec], longitude 120[deg]40[min]15[sec]; thence due west 
to latitude 34[deg]54[min]08[sec], longitude 120[deg]44[min]00[sec]; 
thence to latitude 34[deg]52[min]48[sec], longitude 
120[deg]44[min]00[sec]; thence to latitude 34[deg]50[min]00[sec], 
longitude 120[deg]40[min]30[sec]; thence due east to the shoreline at 
latitude 34[deg]50[min]00[sec], longitude 120[deg]36[min]30[sec].
    (ii) Zone 2. An area extending seaward about three nautical miles 
from the shoreline beginning at latitude 34[deg]50[min]00[sec], 
longitude 120[deg]36[min]30[sec]; thence due west to latitude 
34[deg]50[min]00[sec], longitude 120[deg]40[min]30[sec], thence to 
latitude 34[deg]45[min]28[sec], longitude 120[deg]42[min]05[sec]; thence 
due east to the shoreline at Purisima Point, latitude 
34[deg]45[min]28[sec], longitude 120[deg]38[min]15[sec].
    (iii) Zone 3. An area extending seaward about three nautical miles 
from the shoreline beginning at Purisima Point latitude 
34[deg]45[min]28[sec], longitude 120[deg]38[min]15[sec]; thence due west 
to latitude 34[deg]45[min]28[sec], longitude 120[deg]42[min]05[sec]; 
thence to latitude 34[deg]44[min]50[sec], longitude 
120[deg]42[min]15[sec]; thence to latitude 34[deg]41[min]50[sec], 
longitude 120[deg]40[min]12[sec]; thence due east to the shoreline at 
the mouth of the Santa Ynez River, latitude 34[deg]41[min]50[sec], 
longitude 120[deg]36[min]20[sec].
    (iv) Zone 4. An area extending seaward about three nautical miles 
from the shoreline beginning at the mouth of the Santa Ynez River 
latitude 34[deg]41[min]50[sec], longitude 120[deg]36[min]20[sec]; thence 
due west to latitude 34[deg]41[min]50[sec], longitude 
120[deg]40[min]12[sec]; thence to latitude 34[deg]35[min]12[sec]; 
longitude 120[deg]42[min]45[sec]; thence latitude 34[deg]34[min]32[sec], 
longitude 120[deg]42[min]15[sec], thence due east to the shoreline at 
Point Arguello, latitude 34[deg]34[min]32[sec], longitude 
120[deg]39[min]03[sec].
    (v) Zone 5. An area extending seaward about three nautical miles 
from the shoreline beginning at Point Arguello, latitude 
34[deg]34[min]32[sec], longitude 120[deg]39[min]03[sec]; thence due west 
to latitude 34[deg]34[min]32[sec], longitude 120[deg]42[min]15[sec]; 
thence to latitude 34[deg]33[min]00[sec], longitude 
120[deg]41[min]05[sec]; thence to latitude 34[deg]30[min]40[sec], 
longitude 120[deg]37[min]29[sec]; thence due north to the shoreline at 
latitude 34[deg]33[min]15[sec], longitude 120[deg]37[min]29[sec].
    (vi) Zone 6. An area extending seaward about three nautical miles 
from the shoreline beginning at latitude 34[deg]33[min]15[sec], 
longitude 120[deg]37[min]29[sec]; thence due south to latitude 
34[deg]30[min]40[sec], longitude 120[deg]37[min]29[sec]; thence due east 
to the shoreline at latitude 34[deg]30[min]40[sec], longitude 
120[deg]30[min]10[sec].
    (vii) Zone 7. An area extending seaward about three nautical miles 
from the shoreline beginning at latitude 34[deg]30[min]40[sec], 
longitude 120[deg]30[min]10[sec]; thence due west to latitude 
34[deg]30[min]40[sec], longitude 120[deg]37[min]29[sec]; thence to 
latitude 34[deg]26[min]56[sec], longitude 120[deg]33[min]06[sec]; thence 
due east to the shoreline at Point Conception, latitude 
34[deg]26[min]56[sec], longitude 120[deg]28[min]10[sec].
    (viii) Zone 8. An area extending seaward about three nautical miles 
from the shoreline beginning at Point Conception, latitude 
34[deg]26[min]56[sec], longitude 120[deg]28[min]10[sec]; thence due west 
to latitude 34[deg]26[min]56[sec], longitude 120[deg]33[min]06[sec]; 
thence to latitude 34[deg]24[min]18[sec], longitude 
120[deg]30[min]00[sec]; thence to latitude 34[deg]23[min]34[sec], 
longitude 120[deg]27[min]05[sec]; thence shoreward to Point Conception, 
latitude 34[deg]26[min]56[sec], longitude 120[deg]28[min]10[sec].
    (ix) Zone 9. An area extending seaward about three nautical miles 
from the shoreline beginning at Point Conception, latitude 
34[deg]26[min]56[sec], longitude 120[deg]28[min]10[sec]; thence seaward 
to latitude 34[deg]23[min]34[sec], longitude 120[deg]27[min]05[sec]; 
thence to latitude 34[deg]24[min]21[sec], longitude 
120[deg]24[min]40[sec]; thence due north to the shoreline at latitude 
34[deg]27[min]20[sec], longitude 120[deg]24[min]40[sec].
    (b) The regulations. (1) Except as prescribed in this section or in 
other regulations, the danger zone will be open to fishing, location of 
fixed or movable oil drilling platforms and general navigation without 
restrictions.
    (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

[[Page 612]]

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 vessels shall leave the specified zone or zones 
immediately by the shortest route.
    (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.

(33 U.S.C. 1, 3)

[48 FR 19025, Apr. 27, 1983. Redesignated at 50 FR 42696, Oct. 22, 1985, 
and amended at 54 FR 31142, July 26, 1989; 62 FR 17558, Apr. 10, 1997]



Sec. 334.1140  Pacific Ocean at San Miguel Island, Calif.; naval danger zone.

    (a) The area. The waters around San Miguel Island, extending about 3 
miles seaward from the shoreline within the following points:

------------------------------------------------------------------------
                              Latitude (N)            Longitude (W)
------------------------------------------------------------------------
Point A                 34[deg]01[min]32[sec]..  120[deg]23[min]17[sec]
Point B                 33[deg]58[min]48[sec]..  120[deg]23[min]17[sec]
Point C                 33[deg]58[min]48[sec]..  120[deg]15[min]00[sec]
Point D                 34[deg]02[min]50[sec]..  120[deg]15[min]00[sec]
Point E                 34[deg]05[min]45[sec]..  120[deg]17[min]25[sec]
Point F                 34[deg]07[min]00[sec]..  120[deg]20[min]05[sec]
Point G                 34[deg]09[min]18[sec]..  120[deg]23[min]17[sec]
Point H                 34[deg]03[min]09[sec]..  120[deg]23[min]17[sec]
------------------------------------------------------------------------

    (b) Markers. Range markers, as delineated below, are installed at 
points A and H for navigational purposes for both surface vessels and 
aircraft:
    (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[deg]23[min]17[sec] 
W. and near the southerly shoreline at latitude 34[deg]01[min]32[sec] 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[deg]23[min]17[sec] 
W. and near the northwesterly shoreline at latitude 
34[deg]03[min]09[sec] N. The northernmost marker is 20 feet below the 
other.

[[Page 613]]

    (c) The regulations. (1) Except as prescribed in this section or in 
other regulations, the danger zone will be open to fishing and general 
navigation. Bomb drops between designated hours are expected to be 
intermittent, and when safe to do so, commercial fishing boats and other 
small craft will be granted permission to proceed through the danger 
zone. All vessels permitted to enter the zone during a scheduled bomb 
drop period, other than those owned or operated by the U.S. Government, 
shall proceed across the zone by the most direct route and clear the 
area as soon as possible. When bomb drops are not scheduled, the zone 
may be occupied without restriction.
    (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 time, 1200 local time and/or 1 hour prior to bomb drop 
operations. Status of the zone and/or permission to enter, may be 
requested by calling ``Plead Control'' on marine channel 16 or by 
calling the Pacific Missile Test Center (PMTC) on telephone number (805) 
982-8280 or 982-8841.
    (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.

(Sec. 7, 40 Stat. 266, Chap. XIX, 40 Stat. 892; 33 U.S.C. 1, 3)

[31 FR 816, Jan. 21, 1966, as amended at 47 FR 4990, Feb. 3, 1982. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, 
Apr. 10, 1997]



Sec. 334.1150  Monterey Bay, Calif.

    (a) Firing range, Fort Ord, Calif.--(1) The danger zone. (i) A 
rectangular area in Monterey Bay, the southerly limit of which is an 
extension seaward of the southerly line of the Fort Ord Military 
Reservation boundary and bears 307[deg] true, 8,000 yards from a point 
on the shore at latitude 36[deg]37[min]47[sec], longitude 
121[deg]50[min]28[sec], and the northerly limit of which is a line 
bearing 307[deg] true, 8,000 yards, from a point on the shore at 
latitude 36[deg]41[min]57[sec], longitude 121[deg]48[min]30[sec], 
opposite Marina, Monterey County, California. The seaward boundary is a 
straight line joining the outer ends of the southerly and the northerly 
boundaries at the 8,000 yard range and is approximately parallel to the 
shore.
    (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) The regulations. (i) The 5,000 yard short range is prohibited to 
all persons, vessels and craft, except those authorized by the enforcing 
agency, each week, between dawn and midnight from Monday through Friday 
and between dawn and dusk on Saturday and Sunday.
    (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.

[[Page 614]]

    (a) Notice published in Monterey County and Santa Cruz County daily 
newspapers, at least two days in advance of the date of said use.
    (b) Display of red flags at Indian Head Beach and near the Point 
Pinos Lighthouse.
    (c) Radio Broadcast.
    (d) Notice to individual craft by a visit of a U.S. vessel.
    (e) Telephone advice to such fishermen's organizations as may 
request, in writing, that such advice be given.
    (iii) The regulations in this paragraph will be enforced by the 
Commanding General, Fort Ord, California.
    (b) Navy mining operations area--(1) The danger zone. Shoreward of a 
line beginning at the stack at about latitude 36[deg]58[min]06[sec], 
longitude 121[deg]54[min]06[sec]; thence 230[deg] true, 6.0 miles; 
thence 140[deg] true, 7.5 miles; thence 50[deg] true to the shore.
    (2) The regulations. The danger zone will be used for training in 
various phases of mine warfare operations. During the period from August 
1 to February 15, inclusive, each year, no operations will be carried on 
which will involve placing any obstructions in the water nor will any 
operations be carried on at night. During the period from February 16 to 
July 31, inclusive, each year, operations may be carried on which will 
involve laying exercise mines and other moored or bottom obstructions. 
In each case when moored or bottom obstructions are laid a notice to 
mariners will be issued giving notice of their approximate location 
within the danger zone and all persons and vessels shall keep clear.

[13 FR 8301, Dec. 24, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, 
and amended at 17 FR 4665, May 22, 1952; 19 FR 96, Jan. 7, 1954. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, 
Apr. 10, 1997]



Sec. 334.1160  San Pablo Bay, Calif.; target practice area, Mare Island
Naval Shipyard, Vallejo.

    (a) The danger zone. A sector in San Pablo Bay adjacent to the 
westerly shore of Mare Island with a radius of 4,700 yards, centered at 
a point bearing 316[deg] true, 3,605 yards, from Mare Island Strait 
Light 1, with limiting true bearings from that center of 266[deg]30[min] 
and 222[deg].
    (b) The regulations. The Commander, Mare Island Naval Shipyard, 
Vallejo, California, will conduct target practice in the area at 
intervals of which the public will be duly notified. At such times all 
persons and vessels shall stay clear.

[13 FR 8302, Dec. 24, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, 
and amended at 27 FR 10484, Oct. 27, 1962; 37 FR 9995, May 18, 1972. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, 
Apr. 10, 1997]



Sec. 334.1170  San Pablo Bay, Calif.; gunnery range, Naval Inshore 
Operations Training Center, Mare Island, Vallejo.

    (a) The Danger Zone. A sector in San Pablo Bay delineated by lines 
joining the following points:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
38[deg]02[min]08[sec].....................  122[deg]25[min]17[sec]
38[deg]02[min]21[sec].....................  122[deg]22[min]55[sec]
38[deg]05[min]48[sec].....................  122[deg]19[min]34[sec]
38[deg]07[min]46[sec].....................  122[deg]23[min]23[sec]
------------------------------------------------------------------------

    Note: 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) The regulations. The Commanding Officer, Coastal River Division 
Eleven, Department of the Navy, Mare Island, Vallejo, California, will 
conduct gunnery practice in the area during the period April 1 through 
September 30, between the hours of 10 a.m. and 3 p.m. on the first 
Wednesday of each month and the third full weekend (Saturday and Sunday) 
of June. No persons or vessels shall enter or remain in the danger zone 
during the above stated periods except those persons and vessels 
connected with the gunnery practice operations. All firing will be from 
the southerly portion of the danger zone in a northerly direction, and 
only during good visibility. The public will be notified prior to each 
firing by a Notice to Mariners issued by the U.S. Coast Guard and the 
area will be patrolled by boat and searched by radar to insure a clear 
range. A safety officer will always be aboard the firing boat to 
guarantee that all safety precautions are

[[Page 615]]

observed. The regulations in this section will be enforced by the 
Commandant, 12th Naval District and such agencies as he may designate.

[31 FR 13992, Nov. 2, 1966, as amended at 34 FR 5723, Mar. 27, 1969; 35 
FR 9279, June 13, 1970; 42 FR 40196, Aug. 9, 1977. Redesignated at 50 FR 
42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]



Sec. 334.1180  Strait of Juan de Fuca, Wash.; air-to-surface weapon 
range, restricted area.

    (a) The restricted area. A circular area immediately west of Smith 
Island with a radius of 1.25 nautical miles having its center at 
latitude 48[deg]19[min]11[sec] North and longitude 
122[deg]54[min]12[sec] West. In the center of the area will be located a 
lighted and radar reflective buoy to serve as a navigational aid to 
mariners. The area will be used for air-to-surface target practice using 
non-explosive training devices.
    (b) The regulations. (1) No person, vessel or other watercraft shall 
enter or remain within the designated restricted area between 0700 and 
1200 hours daily, local time except as authorized by the enforcing 
agency and as follows: The area will be open to commercial gill net 
fishing during scheduled fishing periods from June 15 to October 15 
annually. The October 15 closure date will be extended by the enforcing 
agency if determined as advantageous to the commercial gill net fishing 
by the Washington State Department of Fisheries.
    (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[min] 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.

(Sec. 7, 40 Stat. 266, Chap. XIX)

[39 FR 44753, Dec. 27, 1974; 40 FR 6502, Feb. 12, 1975. Redesignated at 
50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17558, Apr. 10, 1997]



Sec. 334.1190  Hood Canal and Dabob Bay, Wash.; naval non-explosive 
torpedo testing area.

    (a) Hood Canal in vicinity of Bangor--(1) The area. All waters of 
Hood Canal between latitude 47[deg]46[min]00[sec] and latitude 
47[deg]42[min]00[sec], exclusive of navigation lanes one-fourth nautical 
mile wide along the west shore and along the east shore south from the 
town of Bangor (latitude 47[deg]43[min]28[sec]).
    (2) The regulations. (i) The area will be used intermittently by the 
Navy for non-explosive torpedo ranging. Launching will be conducted only 
between 8:00 a.m., and sunset on days other than Saturdays, Sundays, and 
holidays. At no time will the navigation lanes generally paralleling the 
shore be closed to navigation.
    (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) Dabob Bay in the vicinity of Quilcene--(1) The area. All waters 
of Dabob Bay beginning at latitude 47[deg]39[min]27[sec], longitude 
122[deg]52[min]22[sec]; thence northeasterly to latitude 
47[deg]40[min]19[sec], longitude 122[deg]50[min]10[sec]; thence 
northeasterly to a point on the mean high water line at Takutsko Pt.; 
thence northerly along the mean high water line to latitude 
47[deg]48[min]00[sec]; thence west on latitude

[[Page 616]]

47[deg]48[min]00[sec] to the mean high water line on the Bolton 
Peninsula; thence southwesterly along the mean high water line of the 
Bolton Peninsula to a point on longitude 122[deg]51[min]06[sec]; thence 
south on longitude 122[deg]51[min]06[sec] to the mean high water line at 
Whitney Pt.; thence along the mean water line to a point on longitude 
122[deg]51[min]15[sec]; thence southwesterly to the point of beginning.
    (2) The regulations. (i) Propeller-driven or other noise-generating 
craft shall not work their screws or otherwise generate other than 
incidental noise in the area during periods of actual testing, which 
will be indicated by flashing red beacons at strategic locations, and 
all craft shall keep well clear of vessels engaged in such testing.
    (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.

[26 FR 6515, July 20, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1200  Strait of Juan de Fuca, eastern end; off the westerly
shore of Whidbey Island; naval restricted areas.

    (a) Area No. 1. Bounded by a line commencing at latitude 
48[deg]20[min]57[sec] N., longitude 122[deg]40[min]39[sec] W.; thence to 
latitude 48[deg]20[min]40[sec] N., longitude 122[deg]42[min]59[sec] W.; 
thence to latitude 48[deg]21[min]19[sec] N., longitude 
122[deg]43[min]02[sec] W.; thence to latitude 48[deg]21[min]13[sec] N., 
longitude 122[deg]40[min]26[sec] W.; and thence along the shore line to 
the point of beginning.
    (b) Area No. 2. Bounded by a line commencing at latitude 
48[deg]21[min]53[sec] N., longitude 122[deg]40[min]00[sec] W.; thence to 
latitude 48[deg]23[min]12[sec] N., longitude 122[deg]41[min]17[sec] W.; 
thence to latitude 48[deg]23[min]29[sec] N., longitude 
122[deg]40[min]22[sec] W.; thence to latitude 48[deg]22[min]21[sec] N., 
longitude 122[deg]39[min]50[sec] W.; and thence along the shore line to 
the point of beginning.
    (c) The regulations. (1) Persons and vessels shall not enter these 
areas except at their own risk.
    (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.

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
334.1200, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 334.1210  Admiralty Inlet, entrance; naval restricted area.

    (a) Admiralty Inlet, entrance; naval restricted area--(1) The area. 
Beginning at Point Wilson Light thence southwesterly along the coast 
line to latitude 48[deg]07[min] N.; thence northwesterly to a point at 
latitude 48[deg]15[min] N. longitude 123[deg]00[min] W.; thence due east 
to Whidbey Island; thence southerly along the coast line to latitude 
48[deg]12.5[min] N.; thence southerly to the point of beginning.
    (2) The regulations. (i) Use of any equipment such as anchors, 
fishing gear, grapnels, etc., which may foul underwater installations 
within the restricted area, is prohibited. Dumping of any non-buoyant 
objects in this area is prohibited.
    (ii) The regulations in this paragraph shall be enforced by the 
Commander, Naval Base, Seattle, and such agencies as he/she may 
designate.

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
334.1210, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.

[[Page 617]]



Sec. 334.1215  Port Gardner, Everett Naval Base, naval restricted
area, Everett, Washington.

    (a) The area. The waters of Port Gardner and East Waterway 
surrounding Naval Station Everett beginning at Point 1, a point near the 
northwest corner of Naval Station Everett at latitude 
47[deg]59[min]40[sec] North, longitude 122[deg]13[min]23.5[sec] West and 
thence to latitude 47[deg]59[min]40[sec] North, longitude 
122[deg]13[min]30[sec] West (Point 2); thence to latitude 
47[deg]59[min]20[sec] North, longitude 122[deg]13[min]33[sec] West 
(Point 3); thence to latitude 47[deg]59[min]13[sec] North, longitude 
122[deg]13[min]38[sec] West (Point 4); thence to latitude 
47[deg]59[min]05.5[sec] North, longitude 122[deg]13[min]48.5[sec] West 
(Point 5); thence to latitude 47[deg]58[min]51[sec] North, longitude 
122[deg]14[min]04[sec] West (Point 6); thence to latitude 
47[deg]58[min]45.5[sec] North, longitude 122[deg]13[min]53[sec] West 
(Point 7); thence to latitude 47[deg]58[min]45.5[sec] North, longitude 
122[deg]13[min]44[sec] West (Point 8); thence to latitude 
47[deg]58[min]48[sec] North, longitude 122[deg]13[min]40[sec] West 
(Point 9); thence to latitude 47[deg]58[min]59[sec] North, longitude 
122[deg]13[min]30[sec] West (Point 10); thence to latitude 
47[deg]59[min]14[sec] North, longitude 122[deg]13[min]18[sec] West 
(Point 11); thence to latitude 47[deg]59[min]13[sec] North, longitude 
122[deg]13[min]12[sec] West (Point 12); thence to latitude 
47[deg]59[min]20[sec] North, longitude 122[deg]13[min]08[sec] West 
(Point 13); thence to latitude 47[deg]59[min]20[sec] North, longitude 
122[deg]13[min]02.5[sec] West (Point 14), a point upon the Naval 
Station's shore in the northeast corner of East Waterway.
    (b) The regulation. (1) All persons and vessels are prohibited from 
entering the waters within the restricted area for any reason without 
prior written permission from the Commanding Officer of the Naval 
Station Everett.
    (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) Enforcement. The regulation in this section, promulgated by the 
United States Army Corps of Engineers, shall be enforced by the 
Commanding Officer, Naval Station Everett and such agencies and persons 
as he/she shall designate.

[67 FR 36525, May 24, 2002]



Sec. 334.1220  Hood Canal, Bangor; naval restricted areas.

    (a) Hood Canal, Bangor; Naval restricted areas--(1) Area No. 1. That 
area bounded by a line commencing on the east shore of Hood Canal at 
latitude 47 deg.46[min]18[sec] N, longitude 122 deg.42[min]18[sec] W; 
thence latitude 47 deg.46[min]32[sec] N, longitude 122 
deg.42[min]20[sec] W; thence to latitude 47 deg.46[min]38[sec] N, 
longitude 122 deg.42[min]52[sec] W; thence to latitude 47 
deg.44[min]15[sec] N, longitude 122 deg.44[min]50[sec] W; thence to 
latitude 47 deg.43[min]53[sec] N, longitude 122 deg.44[min]58[sec] W; 
thence to latitude 47 deg.43[min]17'' N, longitude 122 
deg.44[min]49[sec] W.
    (2) Area No. 2. Waters of Hood Canal within a circle of 1,000 yards 
diameter centered on a point located at latitude 47 deg.46[min]26[sec] 
N, longitude 122 deg.42[min]49[sec] W.
    (3) The regulations--(i) Area No. 1. No person or vessel shall enter 
this area without permission from the Commander, Naval Submarine Base 
Bangor, or his/her authorized representative.
    (ii) Area No. 2. (A) The area will be used intermittently by the 
Navy for magnetic silencing operations.
    (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) Enforcement. The regulations in this subsection shall be 
enforced by the Commander, Naval Submarine Base Bangor, or his/her 
authorized representative.

[69 FR 272, Jan. 5, 2004]



Sec. 334.1230  Port Orchard; naval restricted area.

    (a) Port Orchard; naval restricted area--(1) The area. Shoreward of 
a line

[[Page 618]]

beginning at a point on the west shoreline of Port Orchard bearing 
90[deg] from stack (at latitude 47[deg]42[min]01[sec], longitude 
122[deg]36[min]54[sec]); thence 90[deg], approximately 190 yards, to a 
point 350 yards from stack; thence 165[deg], 6,000 yards, to a point 
bearing 179[deg], 1,280 yards, from Battle Point Light; thence westerly 
to the shoreline at latitude 47[deg]39[min]08[sec] (approximate location 
of the Brownsville Pier).
    (2) The regulations. (i) No vessel shall, at any time, anchor or tow 
a drag of any kind in this area.
    (ii) The regulations in this paragraph shall be enforced by the 
Commander, Naval base, Seattle, and such agencies as he/she may 
designate.

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
334.1230, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 334.1240  Sinclair Inlet; naval restricted areas.

    (a) Sinclair Inlet: naval restricted areas--(1) Area No. 1. All the 
waters of Sinclair Inlet westerly of a line drawn from the Bremerton 
Ferry Landing at latitude 47[deg]33[min]48[sec] North, longitude 
122[deg]37[min]23[sec] West on the north shore of Sinclair Inlet; and 
latitude 47[deg]32[min]52[sec] North, longitude 122[deg]36[min]58[sec] 
West, on the south shore of Sinclair Inlet.
    (2) Area No. 2. That area of Sinclair Inlet to the north and west of 
an area bounded by a line commencing at latitude 47[deg]33[min]40[sec] 
North, longitude 122[deg]37[min]32[sec] West (Point A); thence south to 
latitude 47[deg]33[min]36[sec] North, longitude 122[deg]37[min]30[sec] 
West (Point B); thence southwest to latitude 47[deg]33[min]23[sec] 
North, longitude 122[deg]37[min]45[sec] West (Point C); thence southwest 
to latitude 47[deg]33[min]19[sec] North, longitude 
122[deg]38[min]12[sec] West (Point D); thence southwest to latitude 
47[deg]33[min]10[sec] North, longitude 122[deg]38[min]19[sec] West 
(Point E); thence southwest to latitude 47[deg]33[min]07[sec] North, 
longitude 122[deg]38[min]29[sec] West (Point F); thence southwest to 
latitude 47[deg]33[min]04[sec] North, longitude 122[deg]39[min]07[sec] 
West (Point G); thence west to the north shore of Sinclair Inlet at 
latitude 47[deg]33[min]04.11[sec] North, longitude 
122[deg]39[min]41.92[sec] West (Point H).
    (3) The regulations. (i) Area No. 1. No vessel of more than, or 
equal to, 100 gross tons shall enter the area or navigate therein 
without permission from the enforcing agency, except Washington State 
Ferries on established routes.
    (ii) Area No. 2. This area is for the exclusive use of the United 
States Navy. No person, vessel, craft, article or thing, except those 
under supervision of military or naval authority shall enter this area 
without permission from the enforcing agency.
    (b) Enforcement. The regulation in this section shall be enforced by 
the Commander, Navy Region Northwest, and such agencies and persons as 
he/she shall designate.

[73 FR 78635, Dec. 23, 2008]



Sec. 334.1244  Puget Sound, Manchester Fuel Depot, Manchester, Washington;
naval restricted area.

    (a) The area. The waters of Puget Sound surrounding the Manchester 
Fuel Depot Point A, a point along the northern shoreline of the 
Manchester Fuel Depot at latitude 47[deg]33[min]55[sec] North, longitude 
122[deg]31[min]55[sec], West; thence to latitude 47[deg]33[min]37[sec] 
North, longitude 122[deg]31[min]50[sec], West (Point B); thence to 
latitude 47[deg]33[min]32[sec] North, longitude 122[deg]32[min]06[sec], 
West (Point C); thence to latitude 47[deg]33[min]45.9[sec] North, 
longitude 122[deg]32[min]16.04[sec], West (Point D), a point in Puget 
Sound on the southern shoreline of the Manchester Fuel Depot.
    (b) The regulations. No person, vessel, craft, article or thing 
except those under the supervision of the military or naval authority 
shall enter the area without the permission of the enforcing agency or 
his/her designees. The restriction shall apply during periods when a 
ship is loading and/or pier operations preclude safe entry. The 
restricted periods will be identified by the use of quick-flashing 
beacon lights, which are mounted on poles at the end of the main fuel 
pier on the south side of Orchard Point at the entrance of Rich Passage. 
Entry into the area is prohibited when the quick-flashing beacons are in 
a flashing mode.
    (c) Enforcement. The regulation in this section shall be enforced by 
the Commander, Navy Region Northwest,

[[Page 619]]

and such agencies and persons as he/she shall designate.

[73 FR 78636, Dec. 23, 2008]



Sec. 334.1250  Carr Inlet, naval restricted areas.

    (a) Carr Inlet, naval restricted areas--(1) The area. The Waters of 
Carr Inlet bounded on the southeast by a line running from Gibson Point 
on Fox Island to Hyde Point on McNeil Island, on the northwest by a line 
running from Green Point (at latitude 47[deg]16[min]54[sec] N, longitude 
122[deg]41[min]33[sec] W) to Penrose Point; plus that portion of Pitt 
Passage extending from Carr Inlet to Pitt Island, and that portion of 
Hale Passage extending from Carr Inlet southeasterly to a line drawn 
perpendicular to the channel 500 yards northwesterly of the Fox Island 
Bridge.
    (2) The regulations. (i) The area shall be used as an acoustic range 
for research studies and special noise trials. No explosive shall be 
used.
    (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[deg]38[min]21[sec] 
(314[deg]38[min]21[sec]) 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) Buoy Testing Area. No vessel shall, at anytime, anchor or tow 
a drag of any kind within 1,000 yards of the buoy testing area.
    (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:
    (a) As used in this section, the words ``operate, power vessel, and 
non-power vessel'' are defined as follows:
    (1) ``Operate'': To be physically present in the designated area.
    (2) ``Power vessel'': A vessel propelled principally by a mechanical 
propulsion system (i.e., gasoline, diesel, steam or electric drive to a 
propeller, pump jet, paddle wheel or other device), and being propelled 
by that means.
    (3) ``Non-power vessel'': A vessel not equipped with a mechanical 
propulsion system, such as a rowboat, canoe, or sailboat propelled by 
oars, paddles, or sails, respectively.
    (b) Power vessels shall not operate within the area, except that 
traffic in either direction between Hale Passage and upper Carr Inlet, 
within 200 yards of the low water mark off Green Point, will be cleared 
by signal for approximately 15 minutes total time within this area at 
the termination of individual ranging runs, while the vessel being 
ranged takes position for the next run. Clearance to traverse the area 
around Green Point will be indicated by extinguishing the red flashing 
beacon lights and displaying the green flashing beacon lights on all 
signal towers.
    (c) Non-powered marine craft shall not operate within one mile of 
the course line bearing 134[deg]38[min]21[sec] (314[deg]38[min]21[sec]) 
true, and within two miles to the southeast and two miles to the 
northwest of the hydrophone buoys situated in Carr Inlet opposite 
Ketner's Point; provided, however, non-powered craft may operate within 
four hundred yards of the low water mark on the northeast

[[Page 620]]

side of McNeil Island, within two hundred yards of the low water mark at 
Green Point, and within two hundred yards of the low water mark on the 
southwest shore of Fox Island.
    (d) Towboats shall have free access and egress to designated tow 
havens within Carr Inlet, as follows: The Navy will establish and 
maintain suitable mooring buoys for the use of tugs and their tows at 
the following points: (1) approximately 1,500 yards northwest of Gibson 
Point Light and approximately 400 yards offshore from the low water mark 
on the Fox Island shore; (2) approximately 1,500 yards northwest of Hyde 
Point, and approximately 400 yards offshore from the low water mark on 
McNeil Island shore; and (3) approximately 1,500 yards east of Wyckoff 
Shoal. Towboats will signal by radio (Marine Band Channel 14, 13, 12, or 
6) or telephone as far in advance as possible of the time they enter the 
tow haven, such signals to be directed to ``Carr Inlet Range Control'' 
at the range instrument laboratory building located on Fox Island. The 
Navy shall promptly suspend operations when necessary to permit the 
access and egress of such tow traffic, and Carr Inlet Range Control 
shall signal the tows when the area is clear.
    (e) Through commercial traffic, including tows, to points within 
Carr Inlet, and through Carr Inlet, Pitt Passage, and Hale Passage to 
adjacent waters will be permitted free access and egress, as follows: 
Such traffic will signal by radio (Marine Band Channel 14, 13, 12, or 6) 
or telephone as far in advance as possible of the time they enter the 
area, such signals to be directed to ``Carr Inlet Range Control'' at the 
range instrument laboratory located on Fox Island. The Navy shall 
promptly suspend operations when necessary to permit the passage of such 
traffic, and Carr Inlet Range Control shall signal when the area is 
clear for passage.
    (f) The Warden of the McNeil Island penitentiary and his authorized 
representatives shall be permitted to operate within the area at any 
time, as may be necessary, for the patrol and search of escaped 
convicts.
    (g) Red or green signal flags will be displayed on the signal towers 
in case of failure of the red or green beacon lights. The display or the 
signal flags at the top of the flag masts will have the same 
significance as the beacon lights.
    (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]

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
334.1250, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 334.1260  Dabob Bay, Whitney Point; naval restricted area.

    (a) Dabob Bay, Whitney Point, naval restricted area--(1) The area. 
Beginning at the high water line along the westerly shore of Dabob Bay, 
100 yards northerly of the Naval control building located at 
approximately N. latitude 47[deg]45[min]36[sec] and W. longitude 
122[deg]51[min]00[sec], thence S. 89[deg]59[min] E. 2000 yards, thence 
to S. 00[deg]01[min] W. 200 yards, thence N. 89[deg]59[min] W. 
approximately 2000 yards to the high water line 100 yards southerly of 
the control building.
    (2) The regulations. (i) No vessel shall, at any time, anchor or tow 
a drag of any kind in this area.
    (ii) The regulations in this paragraph shall be enforced by the 
Commander, Naval Base, Seattle, or his/her authorized representative.
    (b) [Reserved]

[26 FR 11203, Nov. 28, 1961. Redesignated at 50 FR 42696, Oct. 22, 1985]

    Editorial Note: For Federal Register citations affecting Sec. 
334.1260, see the List of CFR Sections Affected, which appears in the 
Finding Aids section of the printed volume and on GPO Access.



Sec. 334.1270  Port Townsend, Indian Island, Walan Point; naval
restricted area.

    (a) The area. The waters of Port Townsend Bay bounded by a line 
commencing on the north shore of Walan Point at latitude 
48[deg]04[min]42[sec] North, longitude 122[deg]44[min]30[sec] West 
(Point A); thence to latitude 48[deg]04[min]50[sec] North, longitude 
122[deg]44[min]38[sec] West (Point B); thence to latitude 
48[deg]04[min]52[sec] North, longitude 122[deg]44[min]57[sec]

[[Page 621]]

West (Point C); thence to latitude 48[deg]04[min]44[sec] North, 
longitude 122[deg]45[min]12[sec] West (Point D); thence to latitude 
48[deg]04[min]26[sec] North, longitude 122[deg]45[min]21[sec] West 
(Point E); thence to latitude 48[deg]04[min]10[sec] North, longitude 
122[deg]45[min]15[sec] West (Point F); thence to latitude 
48[deg]04[min]07[sec] North, longitude 122[deg]44[min]49[sec] West 
(Point G); thence to a point on the Walan Point shoreline at latitude 
48[deg]04[min]16[sec] North, longitude 122[deg]44[min]37[sec] West 
(Point H).
    (b) The regulations. This area is for the exclusive use of the U.S. 
Navy. No person, vessel, craft, article or thing shall enter the area 
without permission from the enforcing agency. The restriction shall 
apply during periods when ship loading and/or pier operations preclude 
safe entry. The periods will be identified by flying a red flag from the 
ship and/or pier.
    (c) Enforcement. The regulation in this section shall be enforced by 
Commander, Navy Region Northwest and such agencies and persons as he/she 
shall designate.

[73 FR 78634, Dec. 23, 2008]



Sec. 334.1275  West Arm Behm Canal, Ketchikan, Alaska, restricted areas.

    (a) The area--Area No. 1. The waters of Behm Canal bounded by a 
circle 2,000 yards in diameter, centered on 55[deg]36[min] N latitude, 
131[deg]49.2[min] W longitude.
    Area No. 2. The waters of Behm Canal bounded by a circle 2,000 yards 
in diameter, centered at 55[deg]34[min] N latitude, 131[deg]48[min] W 
longitude.
    Area No. 3. The waters of Behm Canal excluding those areas 
designated as areas Nos. 1 and 2 above, bounded by an irregular polygon 
beginning at the shoreline on Back Island near 55[deg]32.63[min] N 
latitude, 131[deg]45.18[min] W longitude, then bearing about 350[deg] T 
to 55[deg]38.06[min] N latitude, 131[deg]46.75[min] W longitude then 
bearing about 300[deg] T to 55[deg]38.52[min] N latitude, 
131[deg]48.15[min] W longitude, then bearing about 203[deg] T to 
55[deg]33.59[min] N latitude, 131[deg]51.54[min] W longitude, then 
bearing about 112[deg] T to the intersection of the shoreline at Back 
Island near 55[deg]32.53[min] N latitude, 131[deg]45.77[min] W 
longitude, then northeast along the shoreline to the point of beginning.
    Area No. 4. The waters of Clover Passage bounded by an irregular 
polygon beginning at the shoreline on Back Island near 55 32.63[min] N 
latitude, 131[deg]45.18[min] W longitude, then bearing 150[deg] T. to 
the intersection of the shoreline on Revillagegedo Island near 
55[deg]30.64[min] N latitude, 131[deg]43.64[min] W longitude, then 
southwest along the shoreline to near 55[deg]30.51[min] N latitude, 
131[deg]43.88[min]W longitude, then bearing 330[deg] T to the 
intersection of the shoreline on Back Island near 55[deg]32.16[min] N. 
latitude, 131[deg]45.20[min] W longitude, and from there northeast along 
the shoreline to the point of beginning.
    Area No. 5. The waters of Behm Canal bounded to the north by a line 
starting from Point Francis on the Cleveland Peninsula to Escape Point 
on Revillagegedo Island then south along the shoreline to Indian Point, 
then south to the Grant Island Light at 55[deg]33.3[min] N latitude, 
131[deg]43.62[min] W longitude then bearing 218[deg] T. to the south end 
of Back Island and continuing to the intersection of the shoreline on 
Betton Island at about 55[deg]31.55[min] N latitude, 131[deg]45.98[min] 
W longitude, then north along the shoreline of Betton Island to the 
western side below Betton Head at about 55[deg]30.83[min] N latitude, 
131[deg]50[min] W longitude, then bearing 283[deg] T. across Behm Canal 
to the intersection of shoreline near the point which forms the 
southeast entrance of Bond Bay at about 55[deg]31.60[min] N latitude, 
131[deg]56.58[min] W longitude, then northeast to Helm Point on the 
Cleveland Peninsula, then northeast along the shoreline to the point of 
beginning at Point Francis.
    (b) The regulations--(1) Area No. 1. Vessels are allowed to transit 
the area at any time. No vessel may anchor within the restricted area or 
tow a drag of any kind, deploy a net or dump any material within the 
area.
    (2) Area No. 2. Vessels are allowed to transit the area at any time. 
No vessel may anchor within the restricted area or tow a drag of any 
kind, deploy a net or dump any material within the area. Vessels are 
also prohibited from mooring or tying up to, loitering alongside or in 
the immediate vicinity of naval equipment and barges in the restricted 
area.
    (3) Area No. 3. Vessels are allowed to transit the area at any time. 
Due to the presence of underwater cables and instrumentation, anchoring 
is prohibited and the towing of a drag or any object within 100 feet of 
the bottom is

[[Page 622]]

also prohibited. Anchoring is allowed within 100 yards of the shore of 
Back Island except within 100 yards of each side of the area where 
electrical and other cables are brought ashore. The termination location 
of the cables on the land is marked with a warning sign that is visible 
from the water.
    (4) Area No. 4. Due to the presence of communication and power 
cables crossing from Revillagegedo Island to Back Island no anchoring or 
towing of a drag is allowed. Anchoring is allowed within 100 yards of 
the shore of Back Island except within 100 yards of each side of the 
area where the cables are brought ashore. The termination location of 
the cables on the land is marked with a warning sign that is visible 
from the water.
    (5) Area No. 5. (i) The area will be open unless the Navy is 
actually conducting operations. To ensure safe and timely passage 
through the restricted area vessel operators are required to notify the 
Range Operations Officer of their expected time of arrival, speed and 
intentions. For vessels not equipped with radio equipment, the Navy 
shall signal with flashing beacon lights whether passage is prohibited 
and when it is safe to pass through the area. A flashing green beacon 
indicates that vessels may proceed through the area. A flashing red 
beacon means that the area is closed to all vessels and to await a green 
clear signal. Each closure of the area by the Navy will normally not 
exceed 20 minutes.
    (ii) Small craft may operate within 500 yards of the shoreline at 
speeds no greater than 5 knots in accordance with the restrictions in 
effect in area No. 3.
    (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) Enforcement. The regulations in this section shall be enforced 
by the Commander, David Taylor Research Center and such agencies he/she 
may designate.

[55 FR 2586, Jan. 25, 1990, as amended at 55 FR 10237, Mar. 20, 1990; 58 
FR 6718, Feb. 2, 1993]



Sec. 334.1280  Bristol Bay, Alaska; air-to-air weapon range, Alaskan 
Air Command, U.S. Air Force.

    (a) The danger zone. An area in Bristol Bay beginning at latitude 
58[deg]24[min] N., longitude 159[deg]10[min] W.; thence to latitude 
57[deg]58[min] N., longitude 158[deg]30[min] W.; thence to latitude 
57[deg]07[min] N., longitude 160[deg]20[min] W.; thence to latitude 
58[deg]02[min] N., longitude 161[deg]40[min] W.; and thence to the point 
of beginning.
    (b) The regulations. (1) Intermittent firing will be conducted over 
two to three day periods about 2 hours a day between the hours of 10:00 
a.m. and 4:00 p.m. during the months of May through August.
    (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

[[Page 623]]

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.

[29 FR 5947, May 6, 1964, as amended at 36 FR 6422, Apr. 3, 1971. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1290  In Bering Sea, Shemya Island Area, Alaska; meteorological
rocket launching facility, Alaskan Air Command, U.S. Air Force.

    (a) The danger zone. An arc of a circle with a 45-nautical-mile 
radius of the launch point centered at latitude 52[deg]43[min]30[sec] 
N., longitude 174[deg]06[min]05[sec] E extending clockwise from 110[deg] 
true bearing to 200[deg] true bearing.
    (b) The regulation. (1) Rockets will normally be launched one each 
day Monday through Friday between 9 a.m. and 3 p.m. Rocket hardware will 
discharge into the sea 22.5 to 37.5 nautical miles off the launchsite. 
The instrument package with parachute will impact about 1\1/2\ hours 
later at an undetermined area, depending on weather conditions.
    (2) All mariners entering the area will do so at their own risk and 
are cautioned to take evasive action as necessary.
    (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.

(40 Stat. 266 (33 U.S.C. 1))

[36 FR 19079, Sept. 28, 1971, as amended at 42 FR 46520, Sept. 16, 1977. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1300  Blying Sound area, Gulf of Alaska, Alaska; air-to-air
gunnery practice area, Alaskan Air Command, U.S. Air Force.

    (a) The danger zone. A rhomboidal area beginning at latitude 
59[deg]51[min]30[sec] N., longitude 148[deg]42[min]00[sec] W.; thence to 
latitude 59[deg]22[min]30[sec] N., longitude 147[deg]00[min]00[sec] W.; 
thence to latitude 58[deg]52[min]00[sec] N., longitude 
148[deg]03[min]00[sec] W.; thence to latitude 59[deg]20[min]00[sec] N., 
longitude 149[deg]45[min]00[sec] W., and thence to point of beginning.
    (b) The regulations. (1) 20-mm. cannon will be fired at towed 
targets in the air. One firing mission will be conducted every 2 weeks 
during daylight hours only and weather permitting.
    (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.

(Sec. 7, 40 Stat. 266; 33 U.S.C. 1)

[37 FR 527, Jan. 13, 1972. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1310  Lutak Inlet, Alaska; restricted areas.

    (a) The areas--(1) Army POL dock restricted area. (i) The waters of 
Lutak Inlet bounded as follows: Beginning at the water's edge 900 feet 
northwest of the centerline of the landward end of the POL dock; thence 
800 feet, 51[deg] true; thence 1,400 feet, 113[deg] true; thence 450 
feet, 211[deg] true to the water's edge at a point approximately 720 
feet from the most southwest corner of the seaward end of the POL dock; 
thence along the water's edge to the point of beginning.
    (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.

[[Page 624]]

    (2) Dry Cargo dock mooring area. (i) The waters within 60 feet off 
the face of the dock.
    (b) The regulations. (1) No person, vessel or other watercraft shall 
enter or remain in the Army POL dock restricted area when tankers are 
engaged in discharging oil at the dock.
    (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.

[33 FR 7723, May 25, 1968. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17559, Apr. 10, 1997]



Sec. 334.1320  Kuluk Bay, Adak, Alaska; naval restricted area.

    (a) The area. The northwest portion of Kuluk Bay bounded as follows: 
Beginning on shore at latitude 51[deg]55[min]00[sec] N, longitude 
176[deg]33[min]09[sec] W; thence due east to latitude 
51[deg]55[min]00[sec] N, longitude 176[deg]33[min]09[sec] W; thence due 
south to latitude 51[deg]51[min]55[sec] N longitude 
176[deg]31[min]09[sec] W; thence due west to the shore at latitude 
51[deg]51[min]00[sec] N, longitude 176[deg]37[min]43[sec] W; thence 
along the shoreline to the point of beginning.
    (b) The regulations. (1) Except in great emergency, no vessel shall 
anchor in the restricted area described above.
    (2) The 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) 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.

[58 FR 26046, Apr. 29, 1993]



Sec. 334.1325  United States Army Restricted Area, Kuluk Bay, Adak, Alaska.

    (a) The area. The area within a radius 1,000 yards around the Sea 
Base Radar mooring site in all directions from latitude 
51[deg]53[min]05.4[sec] N, longitude 176[deg]33[min]47.4[sec] W (NAD 
83).
    (b) The regulation. (1) No vessel, person, or other craft shall 
enter or remain in the restricted area except as may be authorized by 
the enforcing agency.
    (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[deg]53[min]05.4[sec] N, longitude 176[deg]33[min]47.4[sec] 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.

[72 FR 65669, Nov. 23, 2007]



Sec. 334.1330  Bering Strait, Alaska; naval restricted area off Cape 
Prince of Wales.

    (a) The area. An area 2,000 feet wide extending from a point on Cape 
Prince of Wales marked by a triangular cable marker located 
approximately midway between the village of Wales and Cape Prince of 
Wales Light to a point four statute miles due west of the cable marker 
with the axis of the area passing through the two points.
    (b) The regulations. (1) No vessel shall anchor in the restricted 
area described in paragraph (a) of this section.
    (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.

[18 FR 8117, Dec. 10, 1953, as amended at 33 FR 5875, Apr. 17, 1968; 42 
FR 58519, Nov. 10, 1977. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1340  Pacific Ocean, Hawaii; danger zones.

    (a) Danger zones--(1) Aerial bombing and strafing target surrounding 
Kaula Rock, Hawaii. The waters within a circular area with a radius of 
three (3)

[[Page 625]]

miles having its center on Kaula Rock at latitude 21[deg]39[min]30[sec], 
longitude 160[deg]32[min]30[sec].
    (2) Submerged unexploded ordnance danger zone, Kahoolawe Island, 
Hawaii. The waters adjacent to Kahoolawe Island within the area 
encompassed by the following coordinates beginning at latitude 
20[deg]37[min]30[sec], longitude 156[deg]32[min]48[sec]; thence to 
latitude 20[deg]34[min]48[sec], longitude 156[deg]30[min]24[sec]; thence 
to latitude 20[deg]28[min]54[sec], longitude 156[deg]30[min]30[sec]; 
thence to latitude 20[deg]28[min]06[sec], longitude 
156[deg]41[min]48[sec]; thence to latitude 20[deg]30[min]30[sec], 
longitude 156[deg]44[min]12[sec]; thence to latitude 
20[deg]33[min]12[sec], longitude 156[deg]44[min]30[sec]; thence to 
latitude 20[deg]37[min]30[sec], longitude 156[deg]36[min]24[sec]; thence 
to the beginning coordinates.
    (b) The regulations. No person, vessel or other craft shall enter or 
remain in any of the areas at any time except as authorized by the 
enforcing agency.
    (c) Enforcing agency. The regulations in this section shall be 
enforced by Commander, Naval Base, Pearl Harbor, Hawaii 96860-5020, and 
such agencies as he/she may designated.

[20 FR 4129, June 11, 1955, as amended at 25 FR 4749, May 28, 1960; 31 
FR 14255, Nov. 4, 1966; 45 FR 57126, Aug. 27, 1980. Redesignated at 50 
FR 42696, Oct. 22, 1985, and amended at 58 FR 53427, Oct. 15, 1993; 61 
FR 34733, July 3, 1996; 62 FR 17559, Apr. 10, 1997]



Sec. 334.1350  Pacific Ocean, Island of Oahu, Hawaii; danger zone.

    (a) The danger zone. Beginning at point of origin at Kaena Point 
Light in latitude 21[deg]34[min]42[sec] N., longitude 
158[deg]16[min]54[sec] W.; thence on a bearing of 282[deg]30[min] True 
to latitude 21[deg]38[min] N., longitude 158[deg]33[min] W.; thence 
along the arc of a circle centered at Kaena Point Light to latitude 
21[deg]42[min]30[sec] N., longitude 158[deg]03[min] W.; thence on a 
bearing of 228[deg] true to latitude 21[deg]35[min]33[sec] N., longitude 
158[deg]11[min]30[sec] W.; thence to point of origin.
    (b) The regulations. (1) The area will be closed to the public and 
all shipping on specific dates to be designated for actual firing and no 
person, vessel or other craft shall enter or remain in the area during 
the times designated for firing except as may be authorized by the 
enforcing agency. Notification to maritime interests of specific dates 
of firing will be disseminated through the U.S. Coast Guard media of the 
Local Notice to Mariners and the NOTAMS published by the Corps of 
Engineers. On dates not specified for firing, the area will be open to 
normal maritime traffic.
    (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.

[24 FR 5999, July 28, 1959. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17559, Apr. 10, 1997]



Sec. 334.1360  Pacific Ocean at Barber's Point, Island of Oahu, Hawaii; 
danger zone.

    (a) The danger zone. The waters within a rectangular area beginning 
at a point in latitude 21[deg]17[min]56[sec] N., longitude 
158[deg]05[min]21[sec] W., thence to latitude 21[deg]17[min]30[sec] N., 
longitude 158[deg]05[min]21[sec] W.; thence to latitude 
21[deg]17[min]58[sec] N., longitude 158[deg]02[min]49[sec] W., thence to 
latitude 21[deg]18[min]24[sec] N., longitude 158[deg]02[min]49[sec] W.; 
thence along the shoreline at the highwater mark along the southerly 
boundary of Naval Air Station, Barber's Point, to the point of 
beginning.
    (b) The regulations. (1) The area is closed to all surface craft, 
swimmers, divers and fishermen except to craft and personnel authorized 
by the enforcing agency.
    (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.

[31 FR 8129, June 9, 1966, as amended at 45 FR 57126, Aug. 27, 1980. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1370  Pacific Ocean at Keahi Point, Island of Oahu, Hawaii;
danger zone.

    (a) The danger zone. The waters within an area beginning at a point 
in latitude 21[deg]18[min]21.4[sec] N., longitude 
157[deg]59[min]14.2[sec] W.; thence to latitude 21[deg]18[min]11[sec] 
N., longitude 158[deg]00[min]17.5[sec] W.; thence to latitude 
21[deg]17[min]11.8[sec] N., longitude 158[deg]00[min]06.5[sec] W.; and 
thence to latitude 21[deg]17[min]22.5[sec] N., longitude 
157[deg]59[min]03.1[sec] W.
    (b) The regulations. (1) The area is closed to all surface craft, 
swimmers, divers, and fishermen except to craft and personnel authorized 
by the enforcing agency.
    (2) The regulations in this section shall be enforced by the 
Commanding

[[Page 626]]

Officer, Explosive Ordnance Disposal Training and Evaluation Unit One, 
Barbers Point, Hawaii 96862-5600.

[31 FR 12437, Sept. 20, 1966, as amended at 45 FR 57126, Aug. 27, 1980. 
Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 58 FR 53427, 
Oct. 15, 1993]



Sec. 334.1380  Marine Corps Base Hawaii (MCBH), Kaneohe Bay, Island of
Oahu, Hawaii--Ulupau Crater Weapons Training Range; danger zone.

    (a) The danger zone. The area within a sector extending seaward a 
distance of 3.8 nautical miles between radial lines bearing 357.1[deg] 
true and 124.9[deg] true, respectively, from a starting point on Mokapu 
Peninsula at latitude 21[deg]27[min]11.84[sec] N, longitude 
157[deg]43[min]53.83[sec] W, and overlapping the existing 500-yard wide 
prohibited area. The danger zone is defined as a pie-shaped area bounded 
by the landward starting point on Mokapu Peninsula and the three seaward 
points forming an arc with a 3.8 nautical-mile radius at its center 
(Point B) with a radial line bearing 56.9[deg] true. The three seaward 
points have the following coordinates:

Point A: Latitude 21[deg]30[min]59.66[sec] N, Longitude 
157[deg]44[min]05.97[sec] W
Point B: Latitude 21[deg]29[min]16.58[sec] N, Longitude 
157[deg]40[min]30.19[sec] W
Point C: Latitude 21[deg]25[min]01.79[sec] N, Longitude 
157[deg]40[min]33.70[sec] W

    (b) The regulations. (1) Weapons firing at the Ulupau Crater Weapons 
Training Range may occur at any time between 6 a.m. and 11 p.m., Monday 
through Sunday. Specific dates and hours for weapons firing, along with 
information regarding onshore warning signals, will be promulgated by 
the U.S. Coast Guard's Local Notice to Mariners. Information on weapons 
firing schedules may also be obtained by calling the MCBH Range Manager, 
AC/S G-3 (telephone number 808-257-8816/17).
    (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) The enforcing agency. The regulations shall be enforced by the 
Commanding Officer, MCB Hawaii, Kaneohe Bay and such agencies as he/she 
may designate.

[74 FR 58848, Nov. 16, 2009]



Sec. 334.1390  Pacific Ocean at Barking Sands, Island of Kauai, Hawaii;
missile range facility.

    (a) The danger zone. The waters within an area beginning at latitude 
22[deg]03[min]15[sec] N., longitude 159[deg]47[min]15[sec] W.; thence 
southerly along the shoreline to latitude 22[deg]02[min]45[sec] N., 
longitude 159[deg]47[min]18[sec] W.; thence westerly to latitude 
22[deg]02[min]30[sec] N., longitude 159[deg]51[min]30[sec] W.; thence 
northeasterly to latitude 22[deg]06[min]30[sec] N., longitude 
159[deg]49[min]30[sec] W.; and thence southeasterly to point of 
beginning.
    (b) Markers. (1) Range markers at the control point at latitude 
22[deg]03[min]17.4[sec] N., longitude 159[deg]47[min]12.2[sec] W., are 
separated

[[Page 627]]

300 feet (one pole 95.5 feet northwest and the other pole 334.5 feet 
southeast of this point) along a line bearing 327[deg]10[min] True.
    (2) Range markers at the control point at latitude 
22[deg]02[min]44.5[sec] N., longitude 159[deg]47[min]16.4[sec] 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[deg]20[min] 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) The regulations. Entry into the area by any person, boat, vessel 
or other craft is prohibited at all times. Special permission for 
transit through the area by the most direct route may be obtainable on 
an individual basis, by prior arrangement with the Commanding Officer, 
Pacific Missile Range Facility, Hawaiian Area, Barking Sands, Kauai, 
Hawaii.

[34 FR 7575, May 10, 1969. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1400  Pacific Ocean, at Barbers Point, Island of Oahu, Hawaii;
restricted area.

    (a) The area. That portion of the Pacific Ocean lying offshore of 
Oahu between Ewa Beach and Barbers Point, basically outlined as follows:

------------------------------------------------------------------------
        Station                  Latitude                Longitude
------------------------------------------------------------------------
A (shoreline)            21[deg]18[min]06[sec]..  158[deg]04[min]24[sec]
B                        21[deg]17[min]00[sec]..  158[deg]03[min]30[sec]
C                        21[deg]15[min]00[sec]..  158[deg]03[min]18[sec]
D                        21[deg]15[min]36[sec]..  158[deg]01[min]06[sec]
E (shoreline)            21[deg]18[min]30[sec]..  158[deg]02[min]00[sec]
------------------------------------------------------------------------

    (b) The regulations. (1) Vessels shall not anchor within the area at 
any time.
    (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.

(Sec. 3012, 70A Stat. 157; 10 U.S.C. 3012)

[36 FR 14186, July 31, 1971, as amended at 45 FR 57126, Aug. 27, 1980. 
Redesignated at 50 FR 42696, Oct. 22, 1985, and amended at 58 FR 53427, 
Oct. 15, 1993]



Sec. 334.1410  Pacific Ocean, at Makapuu Point, Waimanalo, Island of Oahu,
Hawaii, Makai Undersea Test Range.

    (a) The restricted area. The waters within an area beginning at a 
point in latitude 21[deg]18[min]50[sec] N., longitude 
157[deg]39[min]07[sec] W.; thence to latitude 21[deg]20[min]33[sec] N., 
longitude 157[deg]38[min]00[sec] W.; thence to latitude 
21[deg]22[min]02[sec] N., longitude 157[deg]39[min]07[sec] W.; and 
thence to latitude 21[deg]19[min]35[sec] N., longitude 
157[deg]40[min]46[sec] W.
    (b) The regulations. (1) During critical testing phases of surface 
and submerged units, the operating officials of the Makai Test Range 
will mark in a conspicuous manner the location of the equipment which 
might be subject to damage from navigation and fishing activities or 
might represent a hazard to persons or property in the vicinity. During 
the display of signals in the restricted area, all persons and surface 
craft will remain away from the area until such time as the signals are 
withdrawn. At all other times the area is open to unrestricted fishing, 
boating and general navigation.
    (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.

[34 FR 7964, May 21, 1969. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17559, Apr. 10, 1997; 62 FR 24034, May 2, 1997]

[[Page 628]]



Sec. 334.1420  Pacific Ocean off Orote Point, Apra Harbor, Island of Guam,
Marianas Islands; small arms firing range.

    (a) The danger zone. The waters within an area delineated by a line 
joining the following positions:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
13[deg]26[min]03.9[sec]...................  144[deg]37[min]38.3[sec]
13[deg]25[min]26.0[sec]...................  144[deg]36[min]14.2[sec]
13[deg]24[min]51.2[sec]...................  144[deg]36[min]31.9[sec]
13[deg]25[min]28.7[sec]...................  144[deg]37[min]59.1[sec]
13[deg]25[min]43.2[sec]...................  144[deg]38[min]09.5[sec]
------------------------------------------------------------------------

    (b) The regulations. (1) The danger zone shall be closed to the 
public and shipping on specific dates to be designated for actual firing 
and no person, vessel or other craft shall enter or remain in the danger 
zone designated for firing except as may be authorized by the enforcing 
agency. Notification to maritime interests of specific dates of firing 
will be disseminated by the enforcing agency. On dates not specified for 
firing, the danger zone shall be open to normal maritime traffic.
    (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.

[28 FR 5377, May 30 1963. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17559, Apr. 10, 1997]



Sec. 334.1430  Apra Inner Harbor, Island of Guam; restricted area.

    (a) The restricted area. The waters within Apra Inner Harbor and 
adjacent waters of Apra Outer Harbor inclosed by a line beginning at the 
northeast corner of a pier at latitude 13[deg]26[min]32.1[sec] N., 
longitude 144[deg]39[min]02.8[sec] E.; thence to the northern tip of a 
small island at latitude 13[deg]26[min]40.2[sec] N., longitude 
144[deg]39[min]28.1[sec] E., and thence to the northwest corner of the 
point of land at latitude 13[deg]26[min]28.1[sec] N., longitude 
144[deg]39[min]52.5[sec] E.
    (b) The regulations. (1) All swimmers and all vessels and craft 
except public vessels of the United States are prohibited from entering 
this area without prior permission of the enforcing agency.
    (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.

[37 FR 8525, Apr. 28, 1972, as amended at 37 FR 11058, June 2, 1972. 
Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1440  Pacific Ocean at Kwajalein Atoll, Marshall Islands;
missile testing area.

    (a) The warning area. The waters within a circular area with a 
radius of 200 nautical miles having its center at latitude 
8[deg]43[min]00[sec] N., longitude 167[deg]43[min]00[sec] E. 
Intermittent hazardous missile operations will be conducted within the 
area 24 hours daily, on a permanent basis.
    (b) Advisory instructions. (1) Kwajalein Test Site will coordinate 
safe passage of surface shipping through the area.
    (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.

[31 FR 9850, July 21, 1966. Redesignated at 50 FR 42696, Oct. 22, 1985]



Sec. 334.1450  Atlantic Ocean off north coast of Puerto Rico; practice
firing areas, U.S. Army Forces Antilles.

    (a) The danger zones--(1) Westerly small-arms range. The waters 
within the sector of a circle bounded by radii of 10,000 yards bearing 
279[deg] and 315[deg] respectively, from latitude 18[deg]28[min]31[sec], 
longitude 66[deg]25[min]37[sec], and the included arc.
    Note: All bearings in this section are referred to true meridian.
    (2) Camp Tortuguero artillery range. The waters within the quadrant 
of a circle bounded by radii of 20,000 yards bearing 315[deg] and 
45[deg], respectively, from latitude 18[deg]28[min]31[sec], longitude 
66[deg]25[min]37[sec], and the included arc.
    (3) Easterly small-arms range. The waters within the sector of a 
circle bounded by radii of 7,210 yards bearing 45[deg] and 70[deg], 
respectively, from a point on the southeast boundary of the artillery 
range 2,790 yards from its southerly end, and the included arc.

[[Page 629]]

    Note: 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) The regulations. (1) The danger zones shall be open to 
navigation at all times except when practice firing is being conducted. 
When practice firing is being conducted, no person, vessel or other 
craft except those engaged in towing targets or patrolling the area 
shall enter or remain within the danger zones: Provided, that any vessel 
propelled by mechanical power at a speed greater than five knots may 
proceed through the Camp Totuguero artillery range at any time to and 
from points beyond, but not from one point to another in the danger zone 
between latitudes 18[deg]31[min] and 18[deg]32[min], at its regular rate 
of speed without stopping or altering its course, except when notified 
to the contrary.
    (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.

[14 FR 4552, July 21, 1949. Redesignated at 14 FR 5593, Sept. 13, 1949, 
and amended at 15 FR 6758, Oct. 6, 1950. Redesignated at 50 FR 42696, 
Oct. 22, 1985, as amended at 62 FR 17559, Apr. 10, 1997; 62 FR 24034, 
May 2, 1997]



Sec. 334.1460  Atlantic Ocean and Vieques Sound, in vicinity of Culebra 
Island; bombing and gunnery target area.

    (a) The danger zone. From Punta Resaca on the north coast of Culebra 
at latitude 18[deg]20[min]12[sec], longitude 65[deg]17[min]29[sec] to 
latitude 18[deg]25[min]07[sec], longitude 65[deg]12[min]07[sec]; thence 
to latitude 18[deg]26[min]31[sec], longitude 65[deg]16[min]45[sec]; 
thence to latitude 18[deg]23[min]00[sec], longitude 
65[deg]24[min]30[sec]; thence to the charted position of nun buoy ``2'' 
at latitude 18[deg]20[min]19[sec], longitude 65[deg]24[min]51[sec]; 
thence to latitude 18[deg]18[min]47[sec], longitude 
65[deg]24[min]35[sec]; thence to latitude 18[deg]15[min]30[sec], 
longitude 65[deg]21[min]30[sec]; thence to a point on the southeast 
coast of Cayo de Luis Pena at latitude 18[deg]17[min]51[sec], longitude 
65[deg]19[min]41[sec]; and thence to Punta Tamarindo on the west coast 
of Culebra at latitude 18[deg]19[min]12[sec] longitude 
65[deg]19[min]22[sec].
    (b) The regulations. (1) The danger zone is subject to use as a 
target area for bombing and gunnery practice. It will be open to 
navigation at all times except when firing is being conducted. At such 
times, no person or surface vessels, except those patrolling the area, 
shall enter or remain within the danger area. Prior to conducting each 
firing or dropping of ordnance the danger area will be patrolled to 
insure that no watercraft are within the danger area. Any watercraft in 
the vicinity will be warned that practice firing is about to take place 
and advised to vacate the area.
    (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.

(Sec. 7, 40 Stat. 266, (33 U.S.C. 1))

[13 FR 9530, Dec. 31, 1948. Redesignated at 14 FR 4904, Aug. 9, 1949, 
and amended at 28 FR 349, Jan. 12, 1963; 39 FR 27133, July 25, 1974; 44 
FR 69298, Dec. 3, 1979. Redesignated at 50 FR 42696, Oct. 22, 1985, as 
amended at 62 FR 17559, Apr. 10, 1997]

[[Page 630]]



Sec. 334.1470  Caribbean Sea and Vieques Sound, in vicinity of Eastern
Vieques; bombing and gunnery target area.

    (a) The danger zone. From Punta Conejo on the south coast of Vieques 
at latitude 18[deg]06[min]30[sec], longitude 65[deg]22[min]33[sec]; 
thence to latitude 18[deg]03[min]00[sec], longitude 
65[deg]21[min]00[sec]; thence to latitude 18[deg]03[min]00[sec], 
longitude 65[deg]15[min]30[sec]; thence to latitude 
18[deg]11[min]30[sec], longitude 65[deg]14[min]30[sec]; thence to 
latitude 18[deg]12[min]00[sec], longitude 65[deg]20[min]00[sec]; and 
thence to Cabellos Colorados on the north coast of Vieques at latitude 
18[deg]09[min]49[sec], longitude 65[deg]23[min]27[sec].
    (b) Regulations. (1) It will be open to navigation at all times 
except when firing is being conducted. At such times, no persons or 
surface vessels, except those patrolling the area, shall enter or remain 
within the danger area. Prior to conducting each firing or dropping of 
ordnance the danger area will be patrolled to insure that no watercraft 
are within the danger area. Any watercraft in the vicinity will be 
warned that practice firing is about to take place and advised to vacate 
the area.
    (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.

(Sec. 7, 40 Stat. 266, (33 U.S.C. 1))

[39 FR 27133, July 25, 1974, as amended at 46 FR 29935, June 4, 1981. 
Redesignated at 50 FR 42696, Oct. 22, 1985, as amended at 62 FR 17559, 
Apr. 10, 1997]



Sec. 334.1480  Vieques Passage and Atlantic Ocean, off east coast of Puerto 
Rico and coast of Vieques Island; naval restricted areas.

    (a) The restricted areas. (1) A strip, 1,500 yards wide, off the 
naval reservation shoreline along the east coast of Puerto Rico 
extending from Point Figuera south to Point Puerca, and thence west to 
Point Cascajo and the mouth of the Daguada River.
    (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) The regulations. No person or vessel shall enter or remain 
within the restricted areas at any time unless on official business. 
Fishing vessels are permitted to anchor in Playa Blanca, passing through 
the restricted area described in paragraph (a)(1) of this section, to 
and from anchorage on as near a north-south course as sailing conditions 
permit. Under no conditions will swimming, diving, snorkeling, other 
water related activities or fishing, be permitted in the restricted 
area.

[13 FR 9564, Dec. 31, 1948. Redesignated at 50 FR 42696, Oct. 22, 1985, 
as amended at 62 FR 17559, Apr. 10, 1997]



Sec. 334.1490  Caribbean Sea, at St. Croix, V.I.; restricted areas.

    (a) The areas--(1) Area ``A''. A triangular area bounded by the 
following coordinates:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
17[deg]44[min]42[sec] N...................  64[deg]54[min]18[sec] W.
17[deg]43[min]06[sec] N...................  64[deg]54[min]18[sec] W.
17[deg]44[min]30[sec] N...................  64[deg]53[min]30[sec] W.
------------------------------------------------------------------------

    (2) Area ``B''. A rectangular area bounded by the following 
coordinates:

------------------------------------------------------------------------
                 Latitude                             Longitude
------------------------------------------------------------------------
17[deg]41[min]42[sec] N...................  64[deg]54[min]00[sec] W.
17[deg]41[min]42[sec] N...................  64[deg]54[min]18[sec] W.
17[deg]41[min]18[sec] N...................  64[deg]54[min]00[sec] W.
17[deg]41[min]18[sec] N...................  64[deg]54[min]18[sec] W.
------------------------------------------------------------------------

    (b) The regulations. (1) Anchoring in the restricted areas is 
prohibited with the exception of U.S. Government owned vessels and 
private vessels that have been specifically authorized to do so by the 
Commanding Officer, Atlantic Fleet Range Support Facility.
    (2) The regulations in this paragraph shall be enforced by the 
Commanding Officer, Atlantic Fleet Range Support

[[Page 631]]

Facility, Roosevelt Roads, P.R., and such agencies as he may designate.

[34 FR 19030, Nov. 29, 1969. Redesignated at 50 FR 42696, Oct. 22, 1985]



 PART 335_OPERATION AND MAINTENANCE OF ARMY CORPS OF ENGINEERS CIVIL
 WORKS PROJECTS INVOLVING THE DISCHARGE OF DREDGED OR FILL MATERIAL 
 
 INTO WATERS OF THE U.S. OR OCEAN WATERS--Table of Contents



Sec.
335.1 Purpose.
335.2 Authority.
335.3 Applicability.
335.4 Policy.
335.5 Applicable laws.
335.6 Related laws and Executive Orders.
335.7 Definitions.

    Authority: 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 53 FR 14911, Apr. 26, 1988, unless otherwise noted.



Sec. 335.1  Purpose.

    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.



Sec. 335.2  Authority.

    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.



Sec. 335.3  Applicability.

    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.



Sec. 335.4  Policy.

    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.



Sec. 335.5  Applicable laws.

    (a) The Clean Water Act (33 U.S.C. 1251 et seq.) (also known as the 
Federal

[[Page 632]]

Water Pollution Control Act Amendments of 1972, 1977, and 1987).
    (b) The Marine Protection, Research, and Sanctuaries Act of 1972 (33 
U.S.C. 1401 et seq.) (commonly referred to as the Ocean Dumping Act 
(ODA)).



Sec. 335.6  Related laws and Executive Orders.

    (a) The National Historic Preservation Act of 1966 (16 U.S.C. 470a 
et seq.), as amended.
    (b) The Reservoir Salvage Act of 1960 (16 U.S.C. 469), as amended.
    (c) The Endangered Species Act (16 U.S.C. 1531 et seq.), as amended.
    (d) The Estuary Protection Act (16 U.S.C. 1221).
    (e) The Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.), 
as amended.
    (f) The National Environmental Policy Act (42 U.S.C. 4341 et seq.), 
as amended.
    (g) The Wild and Scenic Rivers Act (16 U.S.C. 1271 et seq.) as 
amended.
    (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, Protection and Enhancement of the 
Cultural Environment, May 13, 1971, (36 FR 8921, May 15, 1971).
    (k) Executive Order 11988, Floodplain Management, May 24, 1977, (42 
FR 26951, May 25, 1977).
    (l) Executive Order 11990, Protection of Wetlands, May 24, 1977, (42 
FR 26961, May 25, 1977).
    (m) Executive Order 12372, Intergovernmental Review of Federal 
Programs, July 14, 1982, (47 FR 3959, July 16, 1982).
    (n) Executive Order 12114, Environmental Effects Abroad of Major 
Federal Actions, January 4, 1979.



Sec. 335.7  Definitions.

    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.
    Beach nourishment means the discharge of dredged or fill material 
for the purpose of replenishing an eroded beach or placing sediments in 
the littoral transport process.
    Emergency means a situation which would result in an unacceptable 
hazard to life or navigation, a significant loss of property, or an 
immediate and unforeseen significant economic hardship if corrective 
action is not taken within a time period less than the normal time 
needed under standard procedures.
    Federal standard means the dredged material disposal alternative or 
alternatives identified by the Corps which represent the least costly 
alternatives consistent with sound engineering practices and meeting the 
environmental standards established by the 404(b)(1) evaluation process 
or ocean dumping criteria.
    Navigable waters of the U.S. means those waters of the U.S. that are 
subject to the ebb and flow of the tide shoreward to the mean high water 
mark, and/or are presently used, have been used in the past, or may be 
susceptible to use with or without reasonable improvement to transport 
interstate or foreign commerce. A more complete definition is provided 
in 33 CFR part 329. For the purpose of this regulation, the term also 
includes the confines of Federal navigation approach channels extending 
into ocean waters beyond the territorial sea which are used for 
interstate or foreign commerce.
    Practicable means available and capable of being done after taking 
into consideration cost, existing technology, and logistics in light of 
overall project purposes.
    Statement of Findings (SOF) means a comprehensive summary compliance 
document signed by the district engineer after completion of appropriate 
environmental documentation and public involvement.
    Territorial sea means the belt of the seas measured from the line of 
ordinary low water along that portion of the coast which is in direct 
contact with the open sea and the line marking the seaward limit of 
inland waters, extending seaward a distance of three miles as described 
in the convention on the territorial sea and contiguous zone, 15 U.S.T. 
1606.

[[Page 633]]



PART 336_FACTORS TO BE CONSIDERED IN THE EVALUATION OF ARMY CORPS OF 
ENGINEERS DREDGING PROJECTS INVOLVING THE DISCHARGE OF DREDGED MATERIAL

INTO WATERS OF THE U.S. AND OCEAN WATERS--Table of Contents



Sec.
336.0 General.
336.1 Discharges of dredged or fill material into waters of the U.S.
336.2 Transportation of dredged material for the purpose of disposal 
          into ocean waters.

    Authority: 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 53 FR 14912, Apr. 26, 1988, unless otherwise noted.



Sec. 336.0  General.

    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, the 
discharge will be evaluated under section 404 of the CWA.
    (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.



Sec. 336.1  Discharges of dredged or fill material into waters of the U.S.

    (a) Applicable laws. Section 404 of the CWA governs the discharge of 
dredged or fill material into waters of the U.S. Although the Corps does 
not process and issue permits for its own activities, the Corps 
authorizes its own discharges of dredged or fill material by applying 
all applicable substantive legal requirements, including public notice, 
opportunity for public hearing, and application of the section 404(b)(1) 
guidelines.
    (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) Procedures. If changes in a previously approved disposal plan 
for a Corps navigation project warrant re-evaluation under the CWA, the 
following procedures should be followed by district enginers prior to 
discharging dredged material into waters of the U.S. except where 
emergency action as described in Sec. 337.7 of this chapter is 
required.
    (1) A public notice providing opportunity for a public hearing 
should be issued at the earliest practicable time. The public 
notification procedures of Sec. 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 Sec. 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).

[[Page 634]]

    (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 Sec. 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, or supplement is required, the procedures 
of 33 CFR part 230 will be followed.
    (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) State water quality certification: Section 401 of the CWA 
requires the Corps to seek state water quality certification for dredged 
material disposal into waters of the U.S. The state certification 
request must be processed to a conclusion by the state within a 
reasonable period of time. Otherwise, the certification requirements of 
section 401 are deemed waived. The district engineer will request water 
quality certification from the state at the earliest practicable time 
using the following procedures:
    (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

[[Page 635]]

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 the date of the initial request. Waiver of water quality 
certification can be conclusively presumed after six months from the 
date of the initial request.
    (iv) The procedures of Sec. 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) State coastal zone consistency: Section 307 of the CZMA requires 
that activities subject to the CZMA which a Federal agency conducts or 
supports be consistent with the Federally approved state management 
program to the maximum extent practicable. The state is provided a 
reasonable period of time as defined in Sec. 336.1(b)(9)(iv) to take 
final action on Federal consistency determinations; otherwise state 
concurrence can be presumed. The district engineer will provide the 
state a consistency determination at the earliest practicable time using 
the following procedures:
    (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

[[Page 636]]

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 Sec. 337.2.
    (c) Evaluation factors. The following factors will be used, as 
appropriate, to evaluate the discharge of dredged material into waters 
of the U.S. Other relevant factors may also be evaluated, as needed.
    (1) Navigation and Federal standard. The maintenance of a reliable 
Federal navigation system is essential to the economic well-being and 
national defense of the country. The district engineer will give full 
consideration to the impact of the failure to maintain navigation 
channels on the national and, as appropriate, regional economy. It is 
the Corps' policy to regulate the discharge of dredged material from its 
projects to assure that dredged material disposal occurs in the least 
costly, environmentally acceptable manner, consistent with engineering 
requirements established for the project. The environmental assessment 
or environmental impact statement, in conjunction with the section 
404(b)(1) guidelines and public notice coordination process, can be used 
as a guide in formulating environmentally acceptable alternatives. The 
least costly alternative, consistent with sound engineering practices 
and selected through the 404(b)(1) guidelines or ocean disposal 
criteria, will be designated the Federal standard for the proposed 
project.
    (2) Water quality. The 404(b)(1) guidelines at 40 CFR part 230 and 
ocean dumping criteria at 40 CFR part 220 implement the environmental 
protection provisions of the CWA and ODA, respectively. These guidelines 
and criteria provide general regulatory guidance and objectives, but not 
a specific technical framework for evaluating or managing contaminated 
sediment that must be dredged. Through the section 404(b)(1) evaluation 
process (or ocean disposal criteria for the territorial sea), the 
district engineer will evaluate the water quality impacts of the 
proposed project. The evaluation will include consideration of state 
water quality standards. If the district engineer determines the dredged 
material to be contaminated, he will follow the guidance provided in the 
most current published version of the technical manual for contaminant 
testing and controls. This manual is currently cited as: Francingues, 
N.R., Jr., et al. 1985. ``Management Strategy for Disposal of Dredged 
Material: Contaminant Testing and Controls,'' Miscellaneous Paper D-85-
1, U.S. Army Waterways Experiment Station, Vicksburg, Mississippi. The 
procedures of Sec. 336.1(b)(8) will be followed for state water quality 
certification requests.
    (3) Coastal zone consistency. As appropriate, the district engineer 
will determine whether the proposed project is consistent with the state 
coastal zone management program to the maximum extent practicable. The 
procedures of Sec. 336.1(b)(9) will be followed for coastal zone 
consistency determinations.
    (4) Wetlands. Most wetland areas constitute a productive and 
valuable public resource, the unnecessary alteration or destruction of 
which should be discouraged as contrary to the public interest. The 
district engineer will, therefore, follow the guidance in 33 CFR 
320.4(b) and EO 11990, dated May 24, 1977, when evaluating Corps 
operations and maintenance activities in wetlands.
    (5) Endangered species. All Corps operations and maintenance 
activities will be reviewed for the potential impact on threatened or 
endangered species, pursuant to the Endangered Species Act of 1973. If 
the district engineer determines that the proposed activity will not 
affect listed species or their critical habitat, a statement to this 
effect should be included in the public notice. If the proposed activity 
may affect listed species or their critical habitat, appropriate 
discussions will be initiated with the U.S. Fish and Wildlife Service or 
National Marine Fisheries Service, and a statement to this effect should 
be included in the public notice. (See 50 CFR part 402).
    (6) Historic resources. Archeological, historical, or architectural 
resource surveys may be required to locate and identify previously 
unrecorded historic properties in navigation channels and

[[Page 637]]

at dredged or fill material disposal sites. If properties that may be 
historic are known or found to exist within the navigation channel or 
proposed disposal area, field testing and analysis may sometimes be 
necessary in order to evaluate the properties against the criteria of 
the National Register of Historic Places. Such testing should be limited 
to the amount and kind needed to determine eligibility for the National 
Register; more detailed and extensive work on a property may be 
prescribed later, as the outcome of review under section 106 of the 
National Historic Preservation Act. Historic properties are not normally 
found in previously constructed navigation channels or previously used 
disposal areas. Therefore, surveys to identify historic properties 
should not be conducted for maintenance dredging and disposal activities 
proposed within the boundaries of previously constructed navigation 
channels or previously used disposal areas unless there is good reason 
to believe that historic properties exist there.
    (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 Council on Historic Preservation, in accordance with 
applicable regulations of the Advisory Council on Historic Preservation.
    (7) Scenic and recreational values. (i) Maintenance dredging and 
disposal activities may involve areas which possess recognized scenic, 
recreational, or similar values. Full evaluation requires that due 
consideration be given to the effect which dredging and disposal of the 
dredged or fill material may have on the enhancement, preservation, or 
development of such values. Recognition of these values is often 
reflected by state, regional, or local land use classification or by 
similar Federal controls or policies. Operations and maintenance 
activities should, insofar as possible, be consistent with and avoid 
adverse effects on the values or purposes for which such resources have 
been recognized or set aside, and for which those classifications, 
controls, or policies were established. Special consideration must be 
given to rivers named in section 3 of the Wild and Scenic Rivers Act and 
those proposed for inclusion as provided by section 4 and 5 of the Act, 
or by later legislation.
    (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) Fish and wildlife. (i) In those cases where the Fish and 
Wildlife Coordination Act (FWCA) applies, district engineers will 
consult, through the public notification process, with the Regional 
Directors of the U.S. Fish and Wildlife Service and the National Marine 
Fisheries Service and the head of the agency responsible for fish and 
wildlife for the state in which the work is to be performed, with a view 
to the conservation of fish and wildlife resources by considering ways 
to prevent their direct and indirect loss and damage due to the proposed 
operation and maintenance activity. The district engineer will give full 
consideration to these views on fish and wildlife conservation in 
evaluating the activity. The proposed operations may be modified in 
order to lessen the damage to such resources. The district engineer 
should include such justifiable means and measures for fish and wildlife 
resources that are found to be appropriate. Corps funding of Fish and 
Wildlife Service activities under the Transfer of Funds Agreement 
between the Fish and Wildlife Service and the Corps is not applicable 
for Corps operation and maintenance projects.
    (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

[[Page 638]]

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) Marine sanctuaries. Operations and maintenance activities 
involving the discharge of dredged or fill material in a marine 
sanctuary established by the Secretary of Commerce under authority of 
section 302 of the ODA should be evaluated for the impact on the marine 
sanctuary. In such a case, certification should be obtained from the 
Secretary of Commerce that the proposed project is consistent with the 
purposes of Title III of the ODA and can be carried out within the 
regulations promulgated by the Secretary of Commerce to control 
activities within the marine sanctuary.
    (10) Other state requirements. District engineers will make all 
reasonable efforts to comply with state water quality standards and 
Federally approved coastal zone programs using the procedures of 
Sec. Sec. 336.1(b) (8), (9), and 337.2. District engineers should not 
seek state permits or licenses unless authorized to do so by a clear, 
explicit, and unambiguous Congressional waiver of Federal sovereign 
immunity, giving the state authority to impose that requirement on 
Federal activities (e.g., CWA sections 401 and 404(t), and CZMA section 
307 (c)(1) and (c)(2)).
    (11) Additional factors. In addition to the factors described in 
paragraphs (c)(1) through (9) of this section, the following factors 
should also be considered.
    (i) The evaluation of Corps operations and maintenance activities 
involving the discharge of dredged or fill material into waters of the 
U.S. is a continuing process and should proceed concurrently with the 
processing of state water quality certification and, if required, the 
provision of a coastal zone consistency determination to the state. If a 
local agency having jurisdiction over or concern with the particular 
activity comments on the project through the public notice coordination, 
due consideration should be given to those official views as a 
reflection of local factors.
    (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.



Sec. 336.2  Transportation of dredged material for the purpose of disposal
into ocean waters.

    (a) Applicable law. Section 103(a) of the ODA provides that the 
Corps of Engineers may issue permits, after notice and opportunity for 
public hearing, for the transportation of dredged material for disposal 
into ocean waters.
    (b) Procedures. The following procedures will be followed by 
district engineers for dredged material disposal into ocean waters 
except where emergency action as described in Sec. 337.7 of this 
chapter is required.
    (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 Sec. 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) State permits and licenses. The terms and legislative history of 
the ODA leave some doubt regarding whether a state has legal authority 
to exert control over ocean dumping activities of the Corps in the 
territorial sea covered under the Act (see section 106(d)). 
Notwithstanding this legal question, the Corps will voluntarily as a 
matter of comity apply for state section 401 water quality certification 
and determine consistency with a Federally-approved coastal zone 
management plan for Corps ocean disposal of dredged material within the 
three-mile extent of the territorial sea. Moreover, the Corps will 
attempt to comply with any reasonable requirement imposed by a state in 
the course of the 401 certification process or the CZMA consistency 
determination process. Nevertheless, the Corps reserves its legal rights 
regarding any case where a state unreasonably denies or conditions a 401

[[Page 639]]

water quality certification for proposed Corps ocean disposal of dredged 
material within the limits of the territorial sea, or asserts that such 
disposal would not be consistent with an approved state CZMA plan. If 
such a circumstance arises, the district engineer shall so notify the 
division engineer who then decides on consultation with CECW-D, CECW-Z, 
and CECC-E for purposes of determining the Corps of Engineers' 
appropriate response and course of action.
    (d) Evaluation factors. (1) In addition to the appropriate 
evaluation factors of Sec. 336.1(c), activities involving the 
transportation of dredged material for the purpose of disposal in ocean 
waters will be evaluated by the Corps to determine whether the proposed 
disposal will unreasonably degrade or endanger human health, welfare, or 
amenities, or the marine environment, ecological systems or economic 
potentialities. In making this evaluation, the district engineer, in 
addition to considering the criteria developed by EPA on the effects of 
the dumping, will also consider navigation, economic and industrial 
development, and foreign and domestic commerce, as well as the 
availability of alternatives to ocean disposal, in determining the need 
for ocean disposal of dredged material. Where ocean disposal is 
determined to be appropriate, the district engineer will, to the extent 
feasible, specify disposal sites which have been designated by the 
Administrator pursuant to section 102(c) of the ODA.
    (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 of EPA may make an independent evaluation of dredged 
material disposal activities regulated under section 103 of the ODA 
related to the effects of dumping. The EPA regulations provide that the 
regional administrator make said evaluation within 15 days after receipt 
of all requested information. The regional administrator may request 
from the district engineer an additional 15-day period for a total of to 
30 days. The EPA regulations provide that the regional administrator 
notify the district engineer of non-compliance with the environmental 
impact criteria or with any restriction relating to critical areas on 
the use of an EPA recommended disposal site designated pursuant to 
section 102(c) of the ODA. In cases where the regional administrator has 
notified the district engineer in writing that the proposed disposal 
will not comply with the criteria related to the effects of dumping or 
related to critical area restriction, no dredged material disposal may 
occur unless and until the provisions of 40 CFR 225.3 are followed and 
the Administrator grants a waiver of the criteria pursuant to section 
103(d) of the ODA.
    (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.

[[Page 640]]

    (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 Sec. 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.



PART 337_PRACTICE AND PROCEDURE--Table of Contents



Sec.
337.0 Purpose.
337.1 Public notice.
337.2 State requirements.
337.3 Transfer of the section 404 program to the States.
337.4 Memoranda of Agreement (MOA).
337.5 General authorizations.
337.6 Statement of Findings (SOF).
337.7 Emergency actions.
337.8 Reports to higher echelons.
337.9 Identification and use of disposal areas.
337.10 Supervision of Federal projects.

    Authority: 33 U.S.C. 1344; 33 U.S.C. 1413.

    Source: 53 FR 14916, Apr. 26, 1988, unless otherwise noted.



Sec. 337.0  Purpose.

    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.



Sec. 337.1  Public notice.

    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 Sec. 337.4.
    (a) With the possible exception of emergency actions as discussed in 
Sec. 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

[[Page 641]]

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 Sec. 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:


[[Page 642]]


    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 
comments as a result of the public notice normally should not extend 
beyond the stated comment period; however, at his discretion, the 
district engineer may provide an extension.
    (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.



Sec. 337.2  State requirements.

    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

[[Page 643]]

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 Sec. 337.8 of this section will be forwarded to CECW-D, 
Office of the Chief of Engineers, Washington, DC 20314-1000 for 
resolution.



Sec. 337.3  Transfer of the section 404 program to the states.

    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.



Sec. 337.4  Memoranda of Agreement (MOA).

    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.



Sec. 337.5  General authorizations.

    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

[[Page 644]]

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 Sec. Sec. 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.



Sec. 337.6  Statement of Findings (SOF).

    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 comprehensive summary and record of compliance and 
should be prepared in the following format except that the procedures of 
33 CFR 325.2 should be followed for related activities of local 
interests.
    (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.



Sec. 337.7  Emergency actions.

    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 Sec. 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

[[Page 645]]

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.



Sec. 337.8  Reports to higher echelons.

    (a) Certain activities involving the discharge of dredged or fill 
material require action by the division engineer or Chief of Engineers. 
Such reports should be prepared in the format described in paragraph (b) 
of this section. Reports may be necessary in the following situations:
    (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) Reports. The report of the district engineer on a project 
requiring action by higher authority should be in letter form and 
contain the following information:
    (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 Sec. 336.1(b)(9) of this chapter.

[[Page 646]]



Sec. 337.9  Identification and use of disposal areas.

    (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.



Sec. 337.10  Supervision of Federal projects.

    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.



PART 338_OTHER CORPS ACTIVITIES INVOLVING THE DISCHARGE OF DREDGED 
MATERIAL OR FILL INTO WATERS OF THE U.S.--Table of Contents



Sec.
338.1 Purpose.
338.2 Activities involving the discharge of dredged or fill material 
          into waters of the U.S.

    Authority: 33 U.S.C. 1344.



Sec. 338.1  Purpose.

    (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, i.e., beach 
nourishment, within banks disposal for erosion control, etc.
    (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

[[Page 647]]

changes have not been adequately addressed in existing environmental 
documentation, the procedures of this part should be followed.

[53 FR 14920, Apr. 26, 1988]



Sec. 338.2  Activities involving the discharge of dredged or fill material
into waters of the U.S.

    (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 Sec. 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 Sec. 
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 Sec. 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 Sec. 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 Sec. 337.6.

[53 FR 14920, Apr. 26, 1988]



PART 384_INTERGOVERNMENTAL REVIEW OF DEPARTMENT OF THE ARMY CORPS OF 
ENGINEERS PROGRAMS AND ACTIVITIES--Table of Contents



Sec.
384.1 What is the purpose of these regulations?
384.2 What definitions apply to these regulations?
384.3 What programs and activities of the Corps of Engineers are subject 
          to these regulations?
384.4 [Reserved]
384.5 What is the Corps of Engineers' obligation with respect to federal 
          interagency coordination?
384.6 What procedures apply to the selection of programs and activities 
          under these regulations?
384.7 How does the Corps of Engineers communicate with state and local 
          officials concerning its programs and activities?
384.8 How does the Corps of Engineers provide states an opportunity to 
          comment on proposed federal financial assistance and direct 
          federal development?
384.9 How does the Corps of Engineers receive and respond to comments?
384.10 How does the Corps of Engineers make efforts to accommodate 
          intergovernmental concerns?
384.11 What are the Corps of Engineers obligations in interstate 
          situations?
384.12 [Reserved]
384.13 May the Corps of Engineers waive any provision of these 
          regulations?

    Authority: 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).

    Source: 48 FR 29153, June 24, 1983, unless otherwise noted.



Sec. 384.1  What is the purpose of these regulations?

    (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,

[[Page 648]]

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.



Sec. 384.2  What definitions apply to these regulations?

    Order means Executive Order 12372, issued July 14, 1982, and amended 
April 8, 1983 and titled ``Intergovernmental Review of Federal 
Programs.''
    Responsible Corps official means a District Engineer, Division 
Engineer, or the Chief of Engineers, or a designated representative, who 
is considering a decision or recommendation on a proposed Federal action 
and is responsible for coordinating such action with the state process 
under the provisions of this regulation.
    State means any of the 50 states, the District of Columbia, the 
Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana 
Islands, Guam, American Samoa, the U.S. Virgin Islands, or the Trust 
Territory of the Pacific Islands.



Sec. 384.3  What programs and activities of the Corps of Engineers are
subject to these regulations?

    The Chief of Engineers publishes in the Federal Register a list of 
the Corps of Engineers Civil Works programs and activities that are 
subject to these regulations.



Sec. 384.4  [Reserved]



Sec. 384.5  What is the Corps of Engineers' obligation with respect to 
Federal interagency coordination?

    Responsible Corps officials, to the extent practicable, consult with 
and seek advice from all other substantially affected Federal 
departments and agencies in an effort to assure full coordination 
between such agencies and the Corps of Engineers regarding programs and 
activities covered under these regulations.



Sec. 384.6  What procedures apply to the selection of programs and 
activities under these regulations?

    (a) A state may select any program or activity published in the 
Federal Register in accordance with Sec. 384.3 of this part for 
intergovernmental review under these regulations. Each state, before 
selecting programs and activities shall consult with local elected 
officials.
    (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.



Sec. 384.7  How does the Corps of Engineers communicate with state and 
local officials concerning its programs and activities?

    (a) For those programs and activities covered by a state process 
under Sec. 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.

[[Page 649]]


This notice may be made by publication in the Federal Register or other 
appropriate means, which the District Engineer in his discretion deems 
appropriate.



Sec. 384.8  How does the Corps of Engineers provide states an opportunity
to comment on proposed Federal financial assistance and direct

Federal development?

    (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.



Sec. 384.9  How does the Corps of Engineers receive and respond to comments?

    (a) The responsible Corps official follows the procedures in Sec. 
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 Sec. 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 and entities may submit comments to the responsible Corps 
official.
    (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 Sec. 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 Sec. 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.



Sec. 384.10  How does the Corps of Engineers make efforts to accommodate 
intergovernmental concerns?

    (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.

[[Page 650]]



Sec. 384.11  What are the Corps of Engineers obligations in interstate
situations?

    (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 Sec. 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 Sec. 
384.10 if a state process provides a state process recommendation to 
such official through a single point of contact.



Sec. 384.12  [Reserved]



Sec. 384.13  May the Corps of Engineers waive any provision of 
these regulations?

    (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.



PART 385_PROGRAMMATIC REGULATIONS FOR THE COMPREHENSIVE EVERGLADES
RESTORATION PLAN--Table of Contents



                      Subpart A_General Provisions

Sec.
385.1 Purpose of the programmatic regulations.
385.2 Applicability of the programmatic regulations.
385.3 Definitions.
385.4 Limitation on applicability of programmatic regulations.
385.5 Guidance memoranda.
385.6 Review of programmatic regulations.
385.7 Concurrency statements.

              Subpart B_Program Goals and Responsibilities

385.8 Goals and purposes of the Comprehensive Everglades Restoration 
          Plan.
385.9 Implementation principles.
385.10 Implementation responsibilities, consultation, and coordination.

                 Subpart C_CERP Implementation Processes

385.11 Implementation process for projects.
385.12 Pilot projects.
385.13 Projects implemented under additional program authority.
385.14 Incorporation of NEPA and related considerations into the 
          implementation process.
385.15 Consistency with requirements of the State of Florida.
385.16 Design agreements.
385.17 Project Delivery Team.
385.18 Public outreach.
385.19 Environmental and economic equity.
385.20 Restoration Coordination and Verification (RECOVER).
385.21 Quality control.
385.22 Independent scientific review and external peer review.
385.23 Dispute resolution.
385.24 Project Management Plans.
385.25 Program Management Plans.
385.26 Project Implementation Reports.
385.27 Project Cooperation Agreements.
385.28 Operating Manuals.
385.29 Other project documents.

          Subpart D_Incorporating New Information into the Plan

385.30 Master Implementation Sequencing Plan.
385.31 Adaptive management program.
385.32 Comprehensive Plan Modification Report.
385.33 Revisions to models and analytical tools.
385.34 Changes to the Plan.

     Subpart E_Ensuring Protection of the Natural System and Water 
     Availability Consistent With the Goals and Purposes of the Plan

385.35 Achievement of the benefits of the Plan.

[[Page 651]]

385.36 Elimination or transfer of existing legal sources of water.
385.37 Flood protection.
385.38 Interim goals.
385.39 Evaluating progress towards other water-related needs of the 
          region provided for in the Plan.
385.40 Reports to Congress.

Appendix A to Part 385--Illustrations to Part 385

    Authority: 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.

    Source: 68 FR 64220, Nov. 12, 2003, unless otherwise noted.



                      Subpart A_General Provisions



Sec. 385.1  Purpose of the programmatic regulations.

    (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 also describe the relationship among the various entities 
responsible for implementation of the Plan.
    (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) Tools. (i) The specific planning tool established by section 
601(h) is the Project Implementation Report.
    (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) Processes. The regulations of this part establish the processes 
for developing these tools. Consistent with section 601(h), these 
regulations have been developed, after notice and opportunity for public 
content, 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, the Florida 
Department of Environmental Protection, and other Federal, State, and 
local agencies.
    (3) Enforcement mechanism. The specific enforcement mechanism 
established by Section 601(h) is the ``Comprehensive Everglades 
Restoration Plan Assurance of Project Benefits Agreement,'' dated 
January 9, 2002, between the President and the Governor, under which the 
State shall ensure, by regulation or other appropriate means, that water 
made available by each project in the Plan shall not be permitted for a 
consumptive use or otherwise made unavailable by the State until such 
time as sufficient reservations of water for the restoration of the

[[Page 652]]

natural system are made under State law in accordance with the project 
implementation report and consistent with the Plan.
    (4) Public information. The Secretary of the Army shall ensure that 
the public understands the linkage between the processes, tools, and 
enforcement mechanism and can monitor the effectiveness of this 
integrated framework in assuring that the goals and purposes of the Plan 
are achieved, as provided for in the regulations of this part, by:
    (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.



Sec. 385.2  Applicability of the programmatic regulations.

    (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.



Sec. 385.3  Definitions.

    For the purposes of this part, the following terms are defined:
    Adaptive management means the continuous process of seeking a better 
understanding of the natural system and human environment in the South 
Florida ecosystem, and seeking continuous refinements in and 
improvements to the Plan to respond to 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 in order to ensure that the goals and purposes of 
the Plan are fulfilled.
    Alternative plan means a plan that consists of a system of 
structural and/or nonstructural measures, strategies, or programs 
formulated to achieve, fully or partially, the goals and purposes of the 
Plan, as further defined in section 1.6.1 of the Water Resources 
Council's ``Economic and Environmental Guidelines for Water and Related 
Land

[[Page 653]]

Resources Implementation Studies,'' dated March 10, 1983.
    Assessment means the process whereby the actual performance of 
implemented projects is measured and interpreted based on analyses of 
information obtained from research, monitoring, modeling, or other 
relevant sources.
    Central and Southern Florida (C&SF) Project means the project for 
Central and Southern Florida authorized under the heading ``CENTRAL AND 
SOUTHERN FLORIDA'' in section 203 of the Flood Control Act of 1948 (62 
Stat. 1176) and any modification authorized by any other provision of 
law, including section 601 of WRDA 2000.
    Component means features of the Plan that include, but are not 
limited to, storage reservoirs, aquifer storage and recovery facilities, 
stormwater treatment areas, water reuse facilities, canals, levees, 
pumps, water control structures, and seepage management facilities; the 
removal of canals, levees, pumps, and water control structures; and 
operational changes.
    Comprehensive Everglades Restoration Plan (CERP) means the plan 
contained in the ``Final Integrated Feasibility Report and Programmatic 
Environmental Impact Statement,'' dated April 1, 1999, as modified by 
section 601 of WRDA 2000, and any subsequent modification authorized in 
law.
    Comprehensive Plan Modification Report means the report prepared for 
approval by Congress of major changes to the Plan that are necessary to 
ensure that the goals and purposes of the Plan are achieved. The 
Comprehensive Plan Modification Report describes the formulation and 
evaluation of alternatives, recommended modifications to the Plan, and 
other economic, environmental, and engineering information, and includes 
the appropriate NEPA document.
    Concurrence means the issuance of a written statement of concurrence 
or the failure to provide such a written statement within a time frame 
prescribed by law or this part.
    Consultation means a process to ensure meaningful and timely input 
in the development of program and project activities, reports, manuals, 
plans, and other documents from Federal, State, and local agencies, the 
Miccosukee Tribe of Indians of Florida, and the Seminole Tribe of 
Florida.
    Coordination means the formal exchange of information and views, by 
letter, report, or other prescribed means, between the Corps of 
Engineers and the non-Federal sponsor and another agency or tribe, 
including but not limited to, the exchange of information and views 
regarding the development of Project Implementation Reports, Operating 
Manuals, and Comprehensive Plan Modification Reports. Coordination 
activities are required by and in accordance with purposes and 
procedures established by Federal policy (public law, executive order, 
agency regulation, memorandum of agreement, and other documents that 
memorialize policy of the Corps of Engineers).
    Cost-effective means the least costly way of attaining a given level 
of output or performance, consistent with the goals and purposes of the 
Plan and applicable laws.
    Design Agreement means the agreement between the Corps of Engineers 
and a non-Federal sponsor concerning cost sharing for activities related 
to planning, engineering, design, and other activities needed to 
implement the Plan.
    Dispute means any disagreement between the agencies or tribes 
associated with implementation of the Plan that cannot be resolved by 
the members of a Project Delivery Team or RECOVER and that is elevated 
to decision makers at the respective agencies or tribes.
    District Engineer means the District Engineer of the Corps of 
Engineers, Jacksonville District.
    Division Engineer means the Division Engineer of the Corps of 
Engineers, South Atlantic Division.
    Drought contingency plan means the plan required by Sec. 
222.5(i)(5) of this chapter and described in implementing Engineer 
Regulation ER 1110-2-1941 ``Drought Contingency Plans,'' and means a 
plan contained within an Operating Manual that describes procedures for 
dealing with drought situations that affect management decisions for 
operating projects.
    Environmental and economic equity means the fair treatment of all 
persons

[[Page 654]]

regardless of race, color, creed, national origin, or economic status, 
including environmental justice, and the provision of economic 
opportunities for small business concerns controlled by socially and 
economically disadvantaged individuals, including individuals with 
limited English proficiency, in the implementation of the Plan.
    Environmental justice means identifying and addressing, 
disproportionately high and adverse human health or environmental 
effects of a Federal agency's programs, policies, and activities on 
minority and low-income populations, in accordance with applicable laws, 
regulations, and Executive Orders.
    Evaluation means the process whereby the performance of plans and 
designs relative to desired objectives is forecast through predictive 
modeling and other tools.
    Expected performance level means the projected level of benefits to 
the natural system and human environment described in the Plan.
    External peer review means a process to review and validate the 
scientific and technical processes and information developed for 
implementation of the Plan that is independent of the agencies involved 
in the implementation of the Plan.
    Goals and purposes of the Plan means 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.
    Governor means the Governor of the State of Florida.
    Guidance memorandum means the specific procedure, process, or other 
guidance specified in Sec. 385.5(b) that is developed and approved by 
the Secretary of the Army with the concurrence of the Secretary of the 
Interior and the Governor.
    Improved or new flood protection benefits means increased or new 
levels of service for flood protection that are identified in a Project 
Implementation Report and approved as a purpose of the project.
    Independent scientific review means the process established pursuant 
to section 601(j) of WRDA 2000 to review the Plan's progress toward 
achieving the natural system restoration goals of the Plan.
    Individual feature of the Plan means a component or group of 
components of the Plan related to and limited to one specific project of 
the Plan.
    Interim goal is a means by which restoration success of the Plan may 
be evaluated throughout the implementation process. Interim goals 
provide a means of tracking restoration performance, as well as a basis 
for reporting on the progress made at specified intervals of time 
towards restoration of the South Florida ecosystem, and for periodically 
evaluating the accuracy of predictions of system responses to the 
effects of the Plan.
    Interim target is a means by which the success of the Plan in 
providing for other water-related needs of the region, including water 
supply and flood protection, may be evaluated throughout the 
implementation process. Interim targets provide a means of tracking Plan 
performance, as well as a basis for reporting on progress made at 
specified intervals of time towards providing for other water-related 
needs of the region, and for periodically evaluating the accuracy of 
predictions of system responses to the effects of the Plan.
    Justified has the same meaning as in section 601(f)(2) of WRDA 2000 
which states that the Secretary of the Army, in carrying out any 
activity to restore, preserve, or protect the South Florida ecosystem, 
may determine that an activity is justified by the environmental 
benefits derived by the South Florida ecosystem and no further economic 
justification for the activity is required, if the Secretary determines 
that the activity is cost-effective.
    Levels of service for flood protection means the expected 
performance of the Central and Southern Project and other water 
management systems in the South Florida ecosystem, consistent with 
applicable law, for a specific area or region.
    Master Implementation Sequencing Plan means the document that 
describes the sequencing and scheduling for the projects of the Plan.
    Mediation means a non-binding dispute resolution process designed to 
assist the disputing parties to resolve a

[[Page 655]]

disagreement. In mediation, the parties mutually select a neutral and 
impartial third party to facilitate the negotiations.
    Monitoring means the systematic process of collecting data designed 
to show the status, trends, and relationships of elements of the natural 
system and human environment at specific locations and times.
    Natural system means all land and water managed by the Federal 
government or the State within the South Florida ecosystem including, 
but not limited to, water conservation areas; sovereign submerged land; 
Everglades National Park; Biscayne National Park; Big Cypress National 
Preserve; other Federal or State (including a political subdivision of a 
State) land that is designated and managed for conservation purposes; 
the contiguous near-shore coastal water of South Florida; and, any 
tribal land that is designated and managed for conservation purposes, as 
approved by the tribe.
    Next-added increment means the evaluation of an alternative as the 
next project to be added to a system of projects already implemented. 
For the purposes of this part, this means analyzing an alternative as 
the next project to be added to a system of projects that includes only 
those projects that have been approved according to general provision of 
law or specific authorization of Congress and are likely to have been 
implemented by the time the project being evaluated is completed.
    Non-Federal sponsor means a legally constituted public body that has 
full authority and capability to perform the terms of the Project 
Cooperation Agreement and the ability to pay damages, if necessary, in 
the event of failure to perform, pursuant to section 221 of the Flood 
Control Act of 1970, as amended (42 U.S.C. 1962d-5b).
    Operating Manuals means the set of documents that describe how the 
projects of the Plan and the Central and Southern Florida Project are to 
be operated to ensure that the goals and purposes of the Plan are 
achieved. Operating Manuals include the System Operating Manual and 
Project Operating Manuals. Operating Manuals contain water control 
plans, regulation schedules, and operating criteria for project and/or 
system regulations as well as additional information necessary to 
operate projects to ensure that the goals and purposes of the Plan are 
achieved.
    Optimize means to follow a reasonable and practical process for 
developing a plan that returns the greatest excess of benefits, both 
monetary and non-monetary, over costs.
    Outreach means activities undertaken to inform the public about the 
Plan and activities associated with implementation of the Plan, and to 
involve the public in the decision-making process for implementing the 
Plan.
    Performance measure means an element or component of the natural 
system or human environment that is expected to be influenced by the 
Plan that has been selected to be evaluated or monitored as 
representative of a class of responses to implementation of the Plan and 
compared with a level of output that is expected and desired during or 
following the implementation of the Plan.
    Periodic CERP update means the evaluation of the Plan that is 
conducted periodically with new or updated modeling that includes the 
latest available scientific, technical, and planning information.
    Pilot project means a project undertaken to address uncertainties 
associated with certain components of the Plan such as aquifer storage 
and recovery, in-ground reservoir technology, seepage management, and 
wastewater reuse. The purpose of pilot projects is to develop 
information necessary to better determine the technical feasibility of 
these components prior to development of a Project Implementation 
Report.
    Pilot Project Design Report means the report that contains the 
technical information necessary to implement a pilot project.
    Pilot Project Technical Data Report means the report that documents 
the findings and conclusions from the implementation and testing phases 
of a pilot project.
    Plan means the Comprehensive Everglades Restoration Plan contained 
in the ``Final Integrated Feasibility Report and Programmatic 
Environmental

[[Page 656]]

Impact Statement,'' dated April 1, 1999, as modified by section 601 of 
WRDA 2000, and any subsequent modification authorized in law.
    Plans and specifications means the information required to bid and 
construct the recommended project described in the Project 
Implementation Report.
    Pre-CERP baseline means the hydrologic conditions in the South 
Florida ecosystem on the date of enactment of WRDA 2000, as modeled by 
using a multi-year period of record based on assumptions such as land 
use, population, water demand, water quality, and assumed operations of 
the Central and Southern Florida Project.
    Program-level activity means those tasks, activities, or products 
that support more than one project or that are system-wide in scope.
    Program Management Plan means the document that describes the 
activities, tasks, and responsibilities that will be used to produce and 
deliver the products that comprise a program-level activity.
    Project means a component or group of components of the Plan that 
are implemented together to provide functional benefits towards 
achieving the goals and purposes of the Plan.
    Project Cooperation Agreement (PCA) means the legal agreement 
between the Department of the Army and a non-Federal sponsor that is 
executed prior to project construction. The Project Cooperation 
Agreement describes the financial, legal, and other responsibilities for 
construction, operation, maintenance, repair, rehabilitation, and 
replacement of a project.
    Project Delivery Team means the inter-agency, interdisciplinary team 
led by the Corps of Engineers and the non-Federal sponsor that develops 
the technical products necessary to implement a project.
    Project Implementation Report (PIR) means the report prepared by the 
Corps of Engineers and the non-Federal sponsor pursuant to section 
601(h)(4)(A) of WRDA 2000 and described in section 10.3 of the ``Final 
Integrated Feasibility Report and Programmatic Environmental Impact 
Statement,'' dated April 1, 1999.
    Project Management Plan means the document that describes the 
activities, tasks, and responsibilities that will be used to produce and 
deliver the products necessary to implement a project.
    Project Operating Manual means the manual that describes the 
operating criteria for a project or group of projects of the Plan. The 
Project Operating Manual is considered a supplement to the System 
Operating Manual and presents more detailed information on the operation 
of a specific project or group of projects.
    Public means any individuals, organizations, or non-Federal unit of 
government that might be affected by or interested in the implementation 
of the Plan. The public includes regional, State, and local government 
entities and officials, public and private organizations, including 
community-based organizations, Native American (Indian) tribes, and 
individuals.
    Quality control plan means the plan prepared in accordance with 
applicable regulations and policies of the Corps of Engineers that 
describes the procedures that will be employed to insure compliance with 
all technical and policy requirements of the Corps of Engineers and the 
non-Federal sponsor.
    Reservation of water for the natural system means the actions taken 
by the South Florida Water Management District or the Florida Department 
of Environmental Protection, pursuant to Florida law, to legally reserve 
water from allocation for consumptive use for the protection of fish and 
wildlife.
    Restoration means the recovery and protection of the South Florida 
ecosystem so that it once again achieves and sustains 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.
    Restoration Coordination and Verification (RECOVER) means the 
interagency and interdisciplinary scientific and technical team 
described in the ``Final Integrated Feasibility Report and Programmatic 
Environmental

[[Page 657]]

Impact Statement,'' dated April 1, 1999 and established by the Corps of 
Engineers and the South Florida Water Management District to: ensure 
that a system-wide perspective is maintained; ensure the highest quality 
scientific and technical information is applied throughout the 
implementation process; and to assess, evaluate, and integrate the 
projects of the Plan with the overall goal of ensuring that the goals 
and purposes of the Plan are achieved.
    South Florida ecosystem means the area consisting of the land and 
water within the boundary of the South Florida Water Management District 
in effect on July 1, 1999, including but not limited to, the Everglades, 
the Florida Keys, and the contiguous near-shore coastal water of South 
Florida.
    South Florida Ecosystem Restoration Task Force (Task Force) means 
the task force established pursuant to section 528(f) of WRDA 1996 (110 
Stat. 3770).
    South Florida Water Management District (SFWMD) means the public 
body constituted by the State of Florida pursuant to Chapter 373.069 of 
the Florida Statutes.
    State means the State of Florida.
    System Operating Manual means the Operating Manual that provides an 
integrated system-wide framework for operating all of the implemented 
projects of the Plan and the Central and Southern Florida Project.
    System-wide means pertaining to the Central and Southern Florida 
Project or the South Florida ecosystem, as a whole.
    Technical review means the process that confirms that the 
engineering, economic, environmental, and other aspects of project 
formulation and design are in accord with appropriate Federal, State, 
and Corps of Engineers established standards and criteria, regulations, 
laws, codes, principles, and professional procedures that are necessary 
to ensure a quality product. Technical review also confirms the 
constructability and effectiveness of the product and the use of clearly 
justified and valid assumptions and methodologies.
    Technical Review Team means the team established by the Corps of 
Engineers and the non-Federal sponsor to ensure quality control of 
documents and products produced by the Project Delivery Team through 
periodic technical reviews of the technical aspects of projects.
    Water budget means an account of all water inflows, outflows, and 
changes in storage over a period of time.
    Water dedicated and managed for the natural system means the water 
to be reserved or allocated for the natural system under State law as 
identified in a Project Implementation Report.
    Water made available means the water expected to be generated 
pursuant to the implementation of a project of the Plan in accordance 
with the Project Implementation Report for that project.
    Without CERP condition means the conditions predicted (forecast) in 
the South Florida ecosystem without implementation of any of the 
projects of the Plan.
    WRDA 1996 means the Water Resources Development Act of 1996, Public 
Law 104-303, which was enacted on October 12, 1996.
    WRDA 2000 means the Water Resources Development Act of 2000, Public 
Law 106-541, which was enacted on December 11, 2000.



Sec. 385.4  Limitation on applicability of programmatic regulations.

    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.''



Sec. 385.5  Guidance memoranda.

    (a) General. (1) Technical guidance for internal management of Corps 
of Engineers personnel during Plan implementation will be normally 
issued in the form of Engineer Regulations, Circulars, Manuals, or 
Pamphlets, or other appropriate form of guidance.

[[Page 658]]

    (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 
(Sec. 385.26(a));
    (ii) Instructions for formulation and evaluation of alternatives 
developed for Project Implementation Reports, their cost effectiveness 
and impacts (Sec. 385.26(b));
    (iii) General content of operating manuals (Sec. 385.28(a));
    (iv) General directions for the conduct of the assessment activities 
of RECOVER (Sec. 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 (Sec. 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 (Sec. 
385.36(b)).
    (b) Special processes for development of six program-wide guidance 
memoranda. 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 
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, 
the Florida Department of Environmental Protection, and other Federal, 
State, and local agencies, develop the six guidance memoranda described 
in paragraph (a) of this section for approval by the Secretary of the 
Army. The Corps of Engineers and the South Florida Water Management 
District shall also consult with the South Florida Ecosystem Restoration 
Task Force in the development of these guidance memoranda. The following 
procedures shall apply to the specific guidance memoranda described in 
paragraph (a) of this section:
    (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 Federal Register.
    (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.

[[Page 659]]

    (c) Revisions to six Program-wide guidance memoranda. The Secretary 
of the Army may, whenever the Secretary believes it is necessary, and 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 South Florida 
Water Management District, the Florida Department of Environmental 
Protection, other Federal, State, and local agencies, and the public, 
revise guidance memoranda that have been completed. Such revisions shall 
be developed and approved consistent with the provisions of paragraph 
(b) of this section. Revisions to the six guidance memoranda described 
in paragraph (a) of this section shall be made following the same 
concurrence process as in paragraph (b)(5) of this section.
    (d) Other guidance. Nothing in this part shall be considered or 
construed to preclude the ability of the Corps of Engineers, the South 
Florida Water Management District, and other non-Federal sponsors from 
issuing other guidance or policy to assist in implementing the Plan. Any 
such guidance or policy shall be consistent with applicable law, policy, 
and regulations.



Sec. 385.6  Review of programmatic regulations.

    (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 Secretary of 
the Army shall place appropriate notice in the Federal Register upon 
initiating review of the regulations of this part.
    (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.



Sec. 385.7  Concurrency statements.

    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: http://
www.evergladesplan.org/pm/progr--regs--final--rule.cfm.



              Subpart B_Program Goals and Responsibilities



Sec. 385.8  Goals and purposes of the Comprehensive Everglades Restoration Plan.

    (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.

[[Page 660]]

    (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 generated by the Plan 
would go to the natural system in order to attain restoration goals, and 
the remainder of the water would go for use in the human environment. 
The Corps of Engineers, the South Florida Water Management District, and 
other non-Federal sponsors shall ensure that Project Implementation 
Reports identify the appropriate quantity, timing, and distribution of 
water to be dedicated and managed for the natural system that is 
necessary to meet the restoration goals of the Plan. In accordance with 
the ``Comprehensive Everglades Restoration Plan Assurance of Project 
Benefits Agreement,'' dated January 9, 2002 pursuant to section 
601(h)(2) of WRDA 2000, the South Florida Water Management District or 
the Florida Department of Environmental Protection shall make sufficient 
reservations of water for the natural system under State law in 
accordance with the Project Implementation Report for that project and 
consistent with the Plan before water made available by a project is 
permitted for a consumptive use or otherwise made unavailable.
    (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.



Sec. 385.9  Implementation principles.

    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 Sec. 
385.38 to provide a means for evaluating restoration success of the Plan 
at specific time intervals during implementation. Interim

[[Page 661]]

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 Sec. 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.



Sec. 385.10  Implementation responsibilities, consultation, and coordination.

    (a) Implementing agencies. Implementation of the Plan shall be the 
responsibility of the Corps of Engineers and the non-Federal sponsors.
    (b) Consultation--(1) Consultation with tribes. (i) In addition to 
any other applicable provision for consultation with Native American 
Tribes, including but not limited to, laws, regulations, executive 
orders, and policies the Corps of Engineers and non-Federal sponsors 
shall consult with and seek advice from the Miccosukee Tribe of Indians 
of Florida and the Seminole Tribe of Florida throughout the 
implementation process to ensure meaningful and timely input by tribal 
officials regarding programs and activities covered by this part. 
Consultation with the tribes shall be conducted on a government-to-
government basis.
    (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) Consultation with agencies. The Corps of Engineers and non-
Federal sponsors shall consult with and seek advice from the Department 
of the Interior, the Environmental Protection Agency, the Department of 
Commerce, the Florida Department of Environmental Protection, and other 
Federal, State, and local agencies throughout the implementation process 
to ensure meaningful and timely input by those agencies regarding 
programs and activities covered under this part. The time for, and 
extent of, consultation shall be appropriate for, and limited by, the 
activity involved.
    (c) Coordination. The Corps of Engineers and the non-Federal sponsor 
shall coordinate implementation activities and the preparation of 
documents with other Federal, State, and local agencies and the tribes 
to fulfill the requirements of all applicable Federal and State laws, 
including but not limited to, the Fish and Wildlife Coordination Act, 
the National Environmental Policy Act, the Clean Air Act, the Clean 
Water Act, the National Historic Preservation Act, the Coastal Zone 
Management Act, the Marine Mammal Protection Act, and the Endangered 
Species Act.
    (d) Timeliness obligations of consultation. Consultation involves 
reciprocal obligations: on the part of the Corps of Engineers and the 
non-Federal sponsor to involve agencies, tribes, and the public at an 
early stage and in such a way to ensure meaningful consultation, and on 
the part of the parties consulted to respond in a timely and meaningful 
fashion so that the implementation of the Plan is not jeopardized and so 
that delays do not result in other adverse consequences to restoration 
of the natural system, to the other goals and purposes of the Plan, or 
to

[[Page 662]]

the public interest generally. Prescribed time limits set by regulation 
are too inflexible for the entire consultation process. It is expected 
that the Corps of Engineers and the non-Federal sponsor will set 
reasonable time limits for consultation on specific decisions consistent 
with the purposes of this part and that the parties will consult in a 
timely and meaningful way. The Corps of Engineers and the non-Federal 
sponsor recognize that the time limits established for each specific 
decision will be proportionate to the complexity of the decision and 
will take into account the resources of the entity with whom the 
consultation is occurring in order to allow consultation to occur in a 
meaningful way. This part does not intend for a delay in consultation to 
be used as a de facto veto power. This part authorizes the Corps of 
Engineers and the non-Federal sponsor to set reasonable limits on the 
amount of time for consultation. In setting reasonable time limits, the 
agencies and tribes may consider relevant considerations such as 
sequencing of projects, planning, contracting and funding, and any 
factor listed for setting time limits for consulting under the National 
Environmental Policy Act (NEPA) (40 CFR 1501.8), including but not 
limited to, the nature and size of the proposed action, the degree to 
which relevant information is known or obtainable, the degree to which 
the action is controversial, the state of the art of analytical 
techniques, the number of persons affected, and the consequences of 
delay. In engaging in consultation, the Corps of Engineers and non-
Federal sponsor shall inform the agencies, tribes, and public of the 
ending date for consultation. In addition, the agencies and tribes 
should adhere to all time limits imposed by law, regulations or 
executive order. In appropriate circumstances, the Corps of Engineers 
and the non-Federal sponsor may extend the time for consultation upon a 
showing that delays will not result in adverse consequences to the 
implementation of the Plan, to the restoration of the natural system, to 
the other goals and purposes of the Plan, or to the public interest and 
that relevant considerations justify a longer time. Failure of an 
agency, tribe or the public to engage in consultation with the Corps of 
Engineers and the non-Federal sponsor, or file comments in, a timely and 
meaningful way shall not be a sufficient reason for extending a 
consultation or comment period. Nothing in this part is intended to 
alter existing time limits established by statute or other regulations.
    (e) South Florida Ecosystem Restoration Task Force. The Department 
of the Army recognizes the valuable role that the South Florida 
Ecosystem Restoration Task Force (Task Force), its working group, and 
its other advisory bodies play in the discussion and resolution of 
issues related to the South Florida ecosystem. The Corps of Engineers 
and the South Florida Water Management District regularly brief the Task 
Force on the Plan and regularly serve on the working group and other 
advisory bodies. The Corps of Engineers and the South Florida Water 
Management District and other non-Federal sponsors shall continue to 
provide information to, and consult with, the South Florida Ecosystem 
Restoration Task Force, the Florida-based working group, and advisory 
bodies to the Task Force as appropriate throughout the implementation 
process for the Plan. In addition to consultation with the Task Force 
specified elsewhere in this part, the Corps of Engineers and the South 
Florida Water Management District shall consult with the South Florida 
Ecosystem Restoration Task Force, its working group, and its advisory 
bodies, on other matters related to the implementation of the Plan, as 
the Task Force from time to time may request. Pursuant to the provisions 
of WRDA 1996, the Task Force shall provide general input concerning the 
implementation of the Plan. The Task Force shall provide recommendations 
to the Secretary of the Army regarding the implementation of the Plan, 
as provided in this part. The Secretary of the Army shall notify the 
Task Force to ensure it is afforded an opportunity to review and provide 
recommendations on reports and products, including but not limited to, 
interim goals and interim targets, Project Implementation Reports, Pilot 
Project Design Reports, Pilot Project Technical Data Reports,

[[Page 663]]

the pre-CERP baseline, assessment reports, guidance memoranda, Master 
Implementation Sequencing Plan, Comprehensive Plan Modification Reports, 
periodic CERP updates, and reports to Congress prepared pursuant to 
Sec. 385.40.



                 Subpart C_CERP Implementation Processes



Sec. 385.11  Implementation process for projects.

    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) Project Management Plan. The Project Management Plan describes 
the activities, tasks, and responsibilities that will be used to produce 
and deliver the products necessary to implement the project.
    (b) Project Implementation Report. The Project Implementation Report 
provides information on plan formulation and evaluation, engineering and 
design, estimated benefits and costs, and environmental effects to 
bridge the gap between the conceptual design included in the Plan and 
the detailed design necessary to proceed to construction. The Project 
Implementation Reports will also set forth additional information and 
analyses necessary for the Secretary of the Army or Congress to approve 
the project for implementation.
    (c) Plans and specifications. During this phase, final design of the 
project is completed and plans and specifications are prepared. Plans 
and specifications contain the information necessary to bid and 
construct the project.
    (d) Real estate acquisition. The lands, easements, and rights-of 
way, and relocations necessary for the project are acquired prior to 
construction.
    (e) Construction. This phase is the actual construction of a 
project's components and includes an interim operation and monitoring 
period to ensure that the project operates as designed.
    (f) Operation. After construction of the project has been completed, 
it is operated in accordance with the System Operating Manual and the 
Project Operating Manual.
    (g) Monitoring and assessment. After the project has been 
constructed, monitoring is conducted as necessary to assess the 
effectiveness of the project and to provide information that will be 
used for the adaptive management program.



Sec. 385.12  Pilot projects.

    (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 Sec. 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 Sec. 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

[[Page 664]]

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 Sec. 385.22(b), the draft Pilot Project 
Technical Data Report shall be externally peer reviewed.
    (2) In accordance with Sec. 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.



Sec. 385.13  Projects implemented under additional program authority.

    (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 Sec. 385.11;
    (2) Not be implemented until a Project Implementation Report is 
prepared and approved in accordance with Sec. 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.



Sec. 385.14  Incorporation of NEPA and related considerations into the
implementation process.

    (a) General. (1) In implementing the Plan, the Corps of Engineers 
shall comply with the requirements of NEPA (42 U.S.C. 4371, et seq.) and 
applicable implementing regulations, including determining whether a 
specific action, when considered individually and cumulatively, will 
have a significant impact on the human environment.
    (2) As appropriate, other agencies shall be invited to be 
cooperating agencies in the preparation of NEPA documentation pursuant 
to Sec. 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) Actions normally requiring an Environmental Impact Statement 
(EIS). (1) In addition to the actions listed in Sec. 230.6 of this 
chapter, actions normally requiring an EIS are:
    (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) Actions normally requiring an EA, but not necessarily an EIS. In 
addition to the actions listed in Sec. 230.7 of this

[[Page 665]]

chapter, actions normally requiring an EA, but not necessarily an EIS, 
are modifications to Project Operating Manuals or the System Operating 
Manual, that do not provide for significant change in operation and/or 
maintenance.
    (d) Categorical exclusions. In addition to the activities listed in 
Sec. 230.9 of this chapter, the following actions do not require 
separate NEPA documentation, either because, when considered 
individually and cumulatively, they do not have significant effects on 
the quality of the human environment or because any such effects will 
already have been considered in NEPA documentation prepared in 
accordance with paragraphs (b) and (c) of this section. However, the 
District Engineer should be alert for extraordinary circumstances that 
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 applicable Federal, State, or Tribal law, including but not 
limited to, the Endangered Species Act, the Fish and Wildlife 
Coordination Act, the National Historic Preservation Act, the Clean 
Water Act, Clean Air Act, the Coastal Zone Management Act, and the 
Marine Mammal Protection Act.
    (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 Sec. 
222.5(f)(4) and Sec. 222.5(i)(5) of this chapter, and Engineer 
Regulation ER 1110-2-8156 ``Preparation of Water Control Manuals.''



Sec. 385.15  Consistency with requirements of the State of Florida.

    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.



Sec. 385.16  Design agreements.

    (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.



Sec. 385.17  Project Delivery Team.

    (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

[[Page 666]]

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 of Engineers and the non-
Federal sponsor, 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.



Sec. 385.18  Public outreach.

    (a) Goals. (1) The goal of public outreach is to open and maintain 
channels of communication with the public throughout the implementation 
process for the Plan in order to:
    (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) General requirements. (1) The Corps of Engineers and non-Federal 
sponsors shall provide a transparent, publicly accessible process 
through which scientific and technical information is used in the 
development of policy decisions throughout the implementation process 
for the Plan.
    (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

[[Page 667]]

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) Outreach to socially and economically disadvantaged individuals 
and communities. (1) The Corps of Engineers and non-Federal sponsors 
shall develop and conduct public outreach activities to ensure that 
socially and economically disadvantaged individuals, including 
individuals with limited English proficiency, and communities are 
provided opportunities to review and comment during implementation of 
the Plan.
    (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 communities, including 
individuals of limited English proficiency.
    (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.



Sec. 385.19  Environmental and economic equity.

    (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.



Sec. 385.20  Restoration Coordination and Verification (RECOVER).

    (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

[[Page 668]]

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 of other Federal, State, and 
local agencies and the Miccosukee Tribe of Indians of Florida and the 
Seminole Tribe of Florida on RECOVER, to use their expertise, to ensure 
that information developed by RECOVER is shared at the earliest possible 
time with agencies, tribes, and the public, and to ensure that matters 
of concern are addressed as early as possible. The Corps of Engineers 
and the South Florida Water Management District recognize the special 
role of the National Oceanic and Atmospheric Administration of the 
Department of Commerce, the Florida Fish and Wildlife Conservation 
Commission, the Department of the Interior and the Florida Fish and 
Wildlife Conservation Commission as stewards of the natural system and 
for their technical and scientific activities in support of restoration. 
The Corps of Engineers and the South Florida Water Management District 
recognize the special role of the Environmental Protection Agency and 
the Florida Department of Environmental Protection in water quality 
issues. Accordingly, the Corps of Engineers and the South Florida Water 
Management District have used and will continue to use the Department of 
the Interior, the Department of Commerce, the Florida Fish and Wildlife 
Conservation Commission, the Environmental Protection Agency, and the 
Florida Department of Environmental Protection as co-chairs along with 
the Corps of Engineers and the South Florida Water Management District 
on the appropriate technical teams that have been established to date as 
part of RECOVER.
    (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;

[[Page 669]]

    (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) Assessment activities. In accordance with Sec. 385.31, RECOVER 
shall conduct credible scientific assessments of hydrological, water 
quality, biological, ecological, water supply, and other responses to 
the Plan. The Corps of Engineers and the South Florida Water Management 
District will ensure that these assessments incorporate the best 
available science and that the results are provided for external peer 
review, as appropriate, and are made fully available for public review 
and comment. RECOVER shall conduct assessment activities, including, but 
not limited to:
    (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 
Sec. 385.38;
    (v) Assessing progress towards achieving the interim goals 
established pursuant to Sec. 385.38;
    (vi) Developing recommendations for interim targets in accordance 
with Sec. 385.39;
    (vii) Assessing progress towards achieving the interim targets 
established pursuant to Sec. 385.39; and
    (viii) Cooperating with the independent scientific review panel and 
external peer review in accordance with Sec. 385.22.
    (2) Evaluation activities. In accordance with Sec. 385.26(c) and 
Sec. 385.32, RECOVER shall assist Project Delivery Teams in ensuring 
that project design and performance is fully linked to the goals and 
purposes of the Plan and incorporating, as appropriate, information 
developed for Project Implementation Reports into the Plan. RECOVER 
shall conduct evaluation activities, including, but not limited to:
    (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) Planning and integration activities. RECOVER shall conduct 
planning and integration activities, in accordance with Sec. 385.31, in 
support of the adaptive management program as a basis for identifying 
opportunities for improving the performance of the Plan and other 
appropriate planning and integration activities associated with 
implementation of the Plan. RECOVER shall conduct planning and 
integration activities, including, but not limited to:
    (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 Sec. 385.40; 
and
    (v) Analyzing proposed revisions to the Master Implementation 
Sequencing Plan.

[[Page 670]]

    (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 Sec. 385.22(b).



Sec. 385.21  Quality control.

    (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 shall be 
independent of the Project Delivery Team and the project being reviewed, 
and should be knowledgeable of design criteria established for the Plan.
    (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.



Sec. 385.22  Independent scientific review and external peer review.

    (a) The independent scientific review panel required by section 
601(j). (1) Section 601(j) of WRDA 2000 requires that the Secretary of 
the Army, the Secretary of the Interior, and the Governor, in 
consultation with the South Florida Ecosystem Restoration Task Force, 
establish an independent scientific review panel, convened by a body, 
such as the National Academy of Sciences, to review the Plan's progress 
toward achieving the natural system restoration goals of the Plan. 
Section 601(j) also directs that this panel 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.
    (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

[[Page 671]]

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 shall enter into a separate 
Memorandum of Agreement that will specify how the Federal agencies will 
pay the Federal share of these costs. The State's fifty percent share 
shall be accounted for in the design agreement between the Corps of 
Engineers and the South Florida Water Management District.
    (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) External peer review. (1) The Department of the Army, the 
Department of the Interior, the South Florida Water Management District, 
and other Federal, State, and local agencies, the Miccosukee Tribe of 
Indians of Florida and the Seminole Tribe of Florida may initiate an 
external peer review process to review documents, reports, procedures, 
or to address specific scientific or technical questions or issues 
relating to their jurisdiction.
    (2) In accordance with Sec. 385.12(d), draft Pilot Project 
Technical Reports shall be externally peer reviewed.
    (3) In accordance with Sec. 385.31(b), draft assessment reports 
prepared for the adaptive management program shall be externally peer 
reviewed.



Sec. 385.23  Dispute resolution.

    (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.

[[Page 672]]

    (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.



Sec. 385.24  Project Management Plans.

    (a) General requirements. (1) 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 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 Project Management 
Plan prior to initiating activities on a project.
    (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 Sec. 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 Sec. 385.26(e).
    (5) The Project Management Plan shall provide schedule and funding 
information for the project.
    (6) In accordance with Sec. 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) Revisions to Project Management Plans. The Corps of Engineers 
and the non-Federal sponsor may, 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, revise the Project Management 
Plan whenever necessary, including after completion of the Project 
Implementation Report, or Plans and Specifications. In accordance with 
Sec. 385.18, the Corps of Engineers and the non-Federal sponsor shall 
provide opportunities for the public to review and comment on revisions 
to the Project Management Plan.



Sec. 385.25  Program Management Plans.

    (a) General requirements. (1) 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 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 Program Management 
Plan prior to initiating a program-level activity.
    (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 Sec. 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) Revisions to Program Management Plans. The Corps of Engineers 
and the

[[Page 673]]

non-Federal sponsor may, 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, revise the Program Management 
Plan whenever necessary to incorporate new or changed information that 
affects the scope, schedule, or budget of the activities described in 
the Program Management Plan. In accordance with Sec. 385.18, the Corps 
of Engineers and the non-Federal sponsor shall provide opportunities for 
the public to review and comment on revisions to the Program Management 
Plan.



Sec. 385.26  Project Implementation Reports.

    (a) General requirements. (1) The Project Implementation Report is a 
document that provides information on plan formulation and evaluation, 
engineering and design, estimated benefits and costs, environmental 
effects, and the additional information and analysis necessary for the 
Secretary of the Army to approve the project for implementation, or for 
Congress to authorize the project for implementation. The Project 
Implementation Report bridges the gap between the conceptual level of 
detail contained in the ``Final Integrated Feasibility Report and 
Programmatic Environmental Impact Statement,'' dated April 1, 1999 and 
the detailed design necessary to prepare plans and specifications 
required to proceed to construction. Prior to requesting approval or 
authorization for the implementation of a project, 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 Seminole Tribe of Florida, the Miccosukee 
Tribe of Indians of Florida, the Florida Department of Environmental 
Protection, and other Federal, State, and local agencies, complete a 
Project Implementation Report addressing the project's justification in 
accordance with section 601(f)(2) of WRDA 2000, and other factors 
required by section 601(h)(4)(A) of WRDA 2000. To eliminate duplication 
with State and local procedures, the Project Implementation Report shall 
also address the factors of relevant State laws, including sections 
373.1501 and 373.470 of the Florida Statutes.
    (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 Sec. 385.35, the appropriate 
quantity, timing, and distribution of water dedicated and managed for 
the natural system;

[[Page 674]]

    (viii) Identify, in accordance with Sec. 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 Sec. 385.36, if existing legal 
sources of water are to be eliminated or transferred;
    (xi) Determine, in accordance with Sec. 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 Sec. 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 Sec. 385.38 and the interim 
targets established pursuant to Sec. 385.39;
    (xvi) Include, in accordance with Sec. 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 Sec. 
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) Formulation and evaluation. In preparing a Project 
Implementation Report, the Corps of Engineers and the non-Federal 
sponsor shall formulate and evaluate alternative plans to optimize the 
project's contributions towards achieving the goals and purposes of the 
Plan, and to develop justified and cost-effective ways to achieve the 
benefits of the Plan.
    (1) General. The Corps of Engineers and the South Florida Water 
Management District shall develop a guidance memorandum in accordance 
with Sec. 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 processes to be used to formulate and evaluate alternative 
plans and their associated monetary and non-monetary benefits and costs, 
determine cost-effectiveness and optimize the project's contribution 
towards achieving the goals and purposes of the Plan, and the basis for 
justifying and selecting an alternative to be recommended for 
implementation. The guidance memorandum shall also provide a process for 
evaluating projects that are outside the boundary of regional computer 
models or projects whose effects cannot be captured in regional computer 
models. Project Implementation Reports approved by the Secretary of the 
Army before December 12, 2003 or before the development of the guidance 
memorandum may use whatever method that, in the Secretary of the Army's

[[Page 675]]

discretion, is deemed appropriate and is consistent with applicable law, 
policy, and regulations.
    (2) Project formulation and evaluation. The guidance memorandum 
shall describe the process for formulating and evaluating alternative 
plans for their ability to optimize contributions for achieving the 
goals and purposes of the Plan. The guidance memorandum shall describe 
the process for including each alternative plan with all of the other 
components of the Plan and evaluating the total monetary and non-
monetary benefits and costs of the resulting comprehensive plan when 
compared to the without CERP condition. In formulating alternative plans 
to be evaluated, the project as described in the ``Final Integrated 
Feasibility Report and Programmatic Environmental Impact Statement,'' 
dated April 1, 1999 shall be included as one of the alternative plans 
that is evaluated. For the selected plan, the guidance memorandum shall 
also describe the process for evaluating that plan as the next-added 
increment of the Plan.
    (3) Identification of selected alternative plan. The guidance 
memorandum shall also include a process for identification of a selected 
alternative plan, based on the analyses conducted in paragraph (b)(2) of 
this section. The alternative plan to be selected should be the plan 
that maximizes net benefits, both monetary and non-monetary, on a 
system-wide basis, provided that this plan is justified on a next-added 
increment basis. Alternative plans that are not justified on a next-
added increment basis shall not be selected. The guidance memorandum 
shall describe an iterative process for evaluating and/or combining 
alternative options until an alternative is identified that maximizes 
net benefits while still providing benefits that justify costs on a 
next-added increment basis.
    (c) RECOVER performance evaluation of alternative plans. (1) Prior 
to the identification of a selected alternative plan, RECOVER shall 
evaluate the performance of alternative plans towards achieving the 
goals and purposes of the Plan.
    (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) NEPA documentation for Project Implementation Reports. (1) The 
Corps of Engineers and the non-Federal sponsor shall prepare the 
appropriate NEPA document to accompany the Project Implementation 
Report. The NEPA document shall contain an analysis of the effects of 
the alternatives formulated for the Project Implementation Report. The 
NEPA document for the Project Implementation Report shall use the 
Programmatic Environmental Impact Statement included in the ``Final 
Integrated Feasibility Report and Programmatic Environmental Impact 
Statement,'' dated April 1, 1999, as appropriate, for the purpose of 
tiering as described in Sec. 230.14(c) of this chapter.
    (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 Sec. 230.14 of this chapter and other applicable 
Corps of Engineers regulations.
    (e) Fish and Wildlife Coordination Act requirements. (1) The Corps 
of Engineers and the non-Federal sponsor shall coordinate with the U.S. 
Fish and Wildlife Service, the National Marine Fisheries Service, the 
Florida Fish and Wildlife Conservation Commission, and other appropriate 
agencies in the preparation of a Project Implementation Report, as 
required by applicable law.
    (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

[[Page 676]]

    (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) Project Implementation Report review and approval process. (1) 
The Corps of Engineers and the non-Federal sponsor shall provide 
opportunities for the public to review and comment on the draft Project 
Implementation Report and NEPA document, in accordance with Sec. 385.18 
and applicable law and Corps of Engineers policy.
    (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.



Sec. 385.27  Project Cooperation Agreements.

    (a) General. Prior to initiating construction or implementation of a 
project, the Corps of Engineers shall execute a Project Cooperation 
Agreement with the non-Federal sponsor in accordance with applicable 
law.
    (b) Verification of water reservations. The Project Cooperation 
Agreement shall include a finding that the South Florida Water 
Management District or the Florida Department of Environmental 
Protection has executed under State law the reservation or allocation of 
water for the natural system as identified in the Project Implementation 
Report. Prior to execution of the Project Cooperation Agreement, the

[[Page 677]]

District Engineer shall verify in writing that the South Florida Water 
Management District or the Florida Department of Environmental 
Protection has executed under State law the reservation or allocation of 
water for the natural system as identified in the Project Implementation 
Report. The District Engineer's verification shall provide the basis for 
the finding in the Project Cooperation Agreement and be made available 
to the public.
    (c) Changes to water reservations. Reservations or allocations of 
water are a State responsibility. Any change to the reservation or 
allocation of water for the natural system made under State law shall 
require an amendment to the Project Cooperation Agreement.
    (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 with applicable State law, the non-
Federal sponsor shall provide opportunities for the public to review and 
comment on any proposed changes in the water reservation made by the 
State.
    (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) Savings clause provisions. The Project Cooperation Agreement 
shall ensure that the Corps of Engineers and the non-Federal sponsor 
not:
    (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.



Sec. 385.28  Operating Manuals.

    (a) General provisions. (1) 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 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 Operating Manuals to 
ensure that the goals and purposes of the Plan are achieved.
    (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 Sec. 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.

[[Page 678]]

    (5) The Corps of Engineers and the South Florida Water Management 
District shall develop a guidance memorandum in accordance with Sec. 
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 Sec. 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 Sec. 385.35(b), Sec. 385.36, and Sec. 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 Sec. 
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 Sec. 222.5(f)(4) and Sec. 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) Emergency deviations. Examples of some emergencies that can be 
expected to occur at a project are: drowning and other accidents, 
failure of the operation facilities, chemical spills, treatment plant 
failures and other temporary pollution problems. Water control actions 
necessary to abate the problem are taken immediately unless such action 
would create equal or worse conditions.
    (B) Unplanned circumstances. There are unplanned circumstances that 
create a temporary need for minor deviations from the Operating Manual, 
although they are not considered emergencies. Deviations are sometimes 
necessary to carry out maintenance and inspection of facilities. 
Requests for deviations for unplanned circumstances generally involve 
time periods ranging from a few hours to a few days. Approval of these 
changes shall be obtained from the Division Engineer.
    (7) Except as provided in this part, operating manuals generally 
shall follow the procedures for water control plans in Sec. 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) System Operating Manual. (1) Not later than December 31, 2005, 
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 System Operating Manual that 
provides a system-wide operating plan for the operation of implemented 
projects of the Plan and other Central and Southern Florida Project 
features to ensure that the goals and purposes of the Plan are achieved.

[[Page 679]]

    (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 Sec. 
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 Sec. 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) Project Operating Manuals. (1) 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 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 Project Operating 
Manual for each project of the Plan that is implemented.
    (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.



Sec. 385.29  Other project documents.

    (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.

[[Page 680]]



          Subpart D_Incorporating New Information Into the Plan



Sec. 385.30  Master Implementation Sequencing Plan.

    (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 Sec. 385.38 and the interim targets established pursuant 
Sec. 385.39, consistent with Sec. 385.36 and Sec. 385.37(b), and to 
the extent practical given funding, engineering, and other constraints. 
The sequencing and scheduling of projects shall be based on considering 
factors, including, but not limited to:
    (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 Sec. 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 Sec. 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 Sec. 385.36 and Sec. 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 Sec. 385.38 and the interim targets 
established pursuant to Sec. 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

[[Page 681]]

changes to the sequencing and scheduling of individual projects.
    (4) In accordance with Sec. 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.



Sec. 385.31  Adaptive management program.

    (a) General. 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, establish an adaptive 
management program to assess responses of the South Florida ecosystem to 
implementation of the Plan; to determine whether or not these responses 
match expectations, including the achievement of the expected 
performance level of the Plan, the interim goals established pursuant to 
Sec. 385.38, and the interim targets established pursuant Sec. 385.39; 
to determine if the Plan, system or project operations, or the sequence 
and schedule of projects should be modified to achieve the goals and 
purposes of the Plan, or to increase net benefits, or to improve cost 
effectiveness; and to seek continuous improvement 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 assessment principles contained in the 
Plan; and future authorized changes to the Plan integrated into the 
implementation of the Plan. Endorsement of the Plan as a restoration 
framework is not intended as an artificial constraint on innovation in 
its implementation.
    (b) Assessment activities. (1) RECOVER shall develop an assessment 
program to assess responses of the system to implementation of the Plan. 
The Corps of Engineers and the South Florida Water Management District 
shall develop a guidance memorandum in accordance with Sec. 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 processes 
to be used to conduct these assessments.
    (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

[[Page 682]]

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 Sec. 385.22(b), the draft assessment report 
shall be externally peer reviewed.
    (iii) In accordance with Sec. 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) Periodic CERP updates. Not later than June 14, 2004 and whenever 
necessary to ensure that the goals and purposes of the Plan are 
achieved, but not any less often than 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, conduct an evaluation of the Plan using new or updated 
modeling that includes the latest scientific, technical, and planning 
information. As part of the evaluation of the Plan, the Corps of 
Engineers and the South Florida Water Management District shall 
determine the total quantity of water that is expected to be generated 
by implementation of the Plan, including 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. 
The Corps of Engineers and the South Florida Water Management District 
shall also consult with the South Florida Ecosystem Restoration Task 
Force in conducting the evaluation of the Plan. As appropriate, the 
results of the evaluation of the Plan may be used to initiate management 
actions in accordance with paragraph (d) of this section that are 
necessary to seek continuous improvement 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 assessment principles contained in the 
Plan; and future authorized changes to the Plan integrated into the 
implementation of the Plan. In addition, and as appropriate, the results 
of the evaluation of the Plan may be used to consider changes to the 
interim goals in accordance with Sec. 385.38 and changes to the interim 
targets in accordance with Sec. 385.39.
    (d) Management actions. (1) In seeking continuous improvement 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 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 
Seminole Tribe of Florida, the Miccosukee Tribe of Indians of Florida, 
the Florida Department of Environmental Protection, and other Federal, 
State, and local agencies, use the assessment report prepared in 
accordance with paragraph (b) of this section, information resulting 
from independent scientific review and external peer review in 
accordance with Sec. 385.22, or other appropriate information including 
progress towards achievement of the interim goals established pursuant 
to Sec. 385.38 and the interim targets established pursuant to Sec. 
385.39 to determine if the activities described in paragraph (d)(2) of 
this section should be undertaken to ensure that the goals and purposes 
of the Plan are achieved. The Corps of Engineers and the South Florida 
Water Management District

[[Page 683]]

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, consider the following actions:
    (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 Sec. 385.28, revisions to the 
Master Implementation Sequencing Plan in accordance with Sec. 385.30, a 
Comprehensive Plan Modification Report in accordance with Sec. 385.32, 
or other appropriate mechanisms.



Sec. 385.32  Comprehensive Plan Modification Report

    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, determine that changes to the 
Plan are necessary to ensure that the goals and purposes of the Plan are 
achieved or that they are achieved cost-effectively, or to ensure that 
each project of the Plan is justified on a next-added increment basis, 
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, prepare a Comprehensive Plan Modification 
Report using a process that is consistent with the provisions of Sec. 
385.10, Sec. 385.14, Sec. 385.18, and Sec. 385.19. 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 Comprehensive Plan Modification Report.
    (a) General requirements. The Comprehensive Plan Modification Report 
shall:
    (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 Sec. 
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;

[[Page 684]]

    (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) Review and approval of Comprehensive Plan Modification Report. 
(1) The Corps of Engineers and the South Florida Water Management 
District shall provide opportunities for the public to review and 
comment on the draft Comprehensive Plan Modification Report and NEPA 
document, in accordance with Sec. 385.18 and applicable law and Corps 
of Engineers policy.
    (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 of the Comprehensive Plan Modification 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 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) Minor changes to the Plan. The Plan requires a process for 
adaptive management and incorporation of new information. As a result of 
this process, minor adjustments in the Plan may be made through Project 
Implementation Reports. It is not the intent of this section to require 
a continual cycle of report writing for minor changes. Instead, the 
intent of this section is to develop a Comprehensive Plan Modification 
Report for changes to the Plan that would require a supplement to the 
programmatic Environmental Impact Statement. The Corps of Engineers and 
the South Florida Water Management District may, in their discretion, 
elect to prepare a Comprehensive Plan Modification Report for other 
changes.



Sec. 385.33  Revisions to models and analytical tools.

    (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

[[Page 685]]

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 Sec. 
385.32(c) where appropriate.



Sec. 385.34  Changes to the Plan.

    (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 Sec. 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.



     Subpart E_Ensuring Protection of the Natural System and Water 
     Availability Consistent With the Goals and Purpose of the Plan



Sec. 385.35  Achievement of the benefits of the Plan.

    (a) Pre-CERP baseline water availability and quality. (1) Not later 
than June 14, 2004 the Corps of Engineers and the South Florida Water 
Management District shall, 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, develop for approval by the 
Secretary of the Army, the pre-CERP baseline to be used to aid the Corps 
of Engineers and the South Florida Water Management District in 
determining if existing legal sources of water will be eliminated or 
transferred as a result of project implementation as described in Sec. 
385.36 and memorialize the pre-CERP baseline in an appropriate document. 
The Corps of Engineers and the South Florida Water Management District 
shall consult with the South Florida Ecosystem Restoration Task Force in 
the development of the pre-CERP baseline.

[[Page 686]]

    (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 Sec. 385.36.
    (2) In accordance with Sec. 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 statement of concurrence or non-concurrence with the pre-
CERP baseline. 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 this section. A copy of any concurrency or non-
concurrency statements shall be made a part of the administrative record 
and referenced in the final determination of the pre-CERP baseline. Any 
non-concurrency statement shall specifically detail the reason or 
reasons for the non-concurrence.
    (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) Identification of water made available and water to be reserved 
or allocated for the natural system. (1) Initial modeling showed that 
most of the water generated by the Plan would go to the natural system 
in order to attain restoration goals, and the remainder of the water 
would go for use in the human environment. The Corps of Engineers, the 
South Florida Water Management District, and other non-Federal sponsors 
shall ensure that Project Implementation Reports identify the 
appropriate quantity, timing, and distribution of water to be dedicated 
and managed for the natural system that is necessary to meet the 
restoration goals of the Plan. In accordance with the ``Comprehensive 
Everglades Restoration Plan Assurance of Project Benefits Agreement,'' 
dated January 9, 2002 pursuant to section 601(h)(2) of WRDA 2000, the 
South Florida Water Management District or the Florida Department of 
Environmental Protection shall make sufficient reservations of water for 
the natural system under State law in accordance with the Project 
Implementation Report for that project and consistent with the Plan 
before water made available by a project is permitted for a consumptive 
use or otherwise made unavailable. In accordance with Sec. 385.31(c), 
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 
Miccosukee Tribe of Indians of Florida, the Seminole Tribe of Florida, 
the Florida Department of Environmental Protection, and other Federal, 
State, and local agencies, determine the total quantity of water that is 
expected to be generated by implementation of the Plan, including 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, and shall periodically update that 
estimate, as appropriate, based on new information resulting from 
changed or

[[Page 687]]

unforeseen circumstances, new scientific or technical information, new 
or updated models, or information developed through the adaptive 
assessment principles contained in the Plan, or future authorized 
changes to the Plan integrated into the implementation of the Plan.
    (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 quantity, 
timing, and distribution of water dedicated and managed for the natural 
system. Section 601(h)(4)(A)(iii)(V) of WRDA 2000 provides that Project 
Implementation Reports shall identify the amount of water to be reserved 
or allocated for the natural system necessary to implement, under State 
law, the provisions of section 601(h)(4)(A)(iii)(IV) and (VI) of WRDA 
2000. To implement these provisions and Sec. 385.5, the Corps of 
Engineers and the South Florida Water Management District shall develop 
a guidance memorandum in accordance with Sec. 385.5 for approval by the 
Secretary of the Army, with the concurrence of the Secretary of the 
Interior and the Governor. The guidance memorandum shall provide a 
process to be used in the preparation of Project Implementation Reports 
for identifying the appropriate quantity, timing, and distribution of 
water dedicated and managed for the natural system; determining the 
quantity, timing and distribution of water made available for other 
water-related needs of the region; determining whether improvements in 
water quality are necessary to ensure that water delivered by the Plan 
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) of WRDA 2000.
    (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

[[Page 688]]

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) Procedures in event that the project does not perform as 
expected. The Project Implementation Report shall include a plan for 
operations of the project in the event that the project fails to provide 
the quantity, timing, or distribution of water described in the Project 
Implementation Report. Such plan shall take into account the specific 
authorized purposes of the project and the goals and purposes of the 
Plan and shall also provide for undertaking management actions in 
accordance with Sec. 385.31(d).



Sec. 385.36  Elimination or transfer of existing legal sources of water.

    (a) Pursuant to the provisions of section 601(h)(5)(A) of WRDA 2000, 
Project Implementation Reports shall include analyses to determine if 
existing legal sources of water are to be eliminated or transferred as a 
result of project implementation. If implementation of the project shall 
cause an elimination or transfer of existing legal sources of water, 
then the Project Implementation Report shall include an implementation 
plan that ensures that such elimination or transfer shall not occur 
until a new source of water of comparable quantity and quality is 
available to replace the water to be lost as a result of implementation 
of the Plan. The Corps of Engineers and the non-Federal sponsor shall 
determine if implementation of the project will cause an elimination or 
transfer of existing legal sources of water by comparing the 
availability of water with the recommended project with the pre-CERP 
baseline developed in accordance with Sec. 385.35(a), by using the 
water quality and other analyses developed in Sec. 385.35(a)(1)(iii), 
and by using other appropriate information.
    (b) The Corps of Engineers and the South Florida Water Management 
District shall develop a guidance memorandum in accordance with Sec. 
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.

[[Page 689]]



Sec. 385.37  Flood protection.

    (a) General. In accordance with section 601 of WRDA 2000, flood 
protection, consistent with restoration, preservation, and protection of 
the natural system, is a purpose of the Plan.
    (b) Existing flood protection. Each Project Implementation Report 
shall include appropriate analyses, and consider the operational 
conditions included in the pre-CERP baseline developed pursuant to Sec. 
385.35(a), to demonstrate that the levels of service for flood 
protection that:
    (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) Improved and new flood protection. 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. As appropriate, the 
Corps of Engineers and the non-Federal sponsor shall consider 
opportunities to provide additional flood protection, consistent with 
restoration of the natural system, and the provisions of section 
601(f)(2)(B) of WRDA 2000 and other applicable laws.



Sec. 385.38  Interim goals.

    (a) Agreement. (1) The Secretary of the Army, the Secretary of the 
Interior, and the Governor shall, not later than December 13, 2004, and 
in consultation with the Environmental Protection Agency, the Department 
of Commerce, the Miccosukee Tribe of Indians of Florida, the Seminole 
Tribe of Florida, and other Federal, State, and local agencies, and the 
South Florida Ecosystem Restoration Task Force, execute an Interim Goals 
Agreement establishing interim goals to facilitate inter-agency 
planning, monitoring, and assessment so as to achieve the overarching 
objectives of the Plan and to provide a means by which the restoration 
success of the Plan may be evaluated, and ultimately reported to 
Congress in accordance with Sec. 385.40 throughout the implementation 
process.
    (2) After execution of the Interim Goals Agreement, the Department 
of the Army shall memorialize the agreement in appropriate Corps of 
Engineers guidance.
    (b) Purpose. (1) Interim goals are a means by which the restoration 
success of the Plan may be evaluated at specific points by agency 
managers, the State, and Congress throughout the overall planning and 
implementation process. In addition, interim goals will facilitate 
adaptive management and allow the Corps of Engineers and its non-Federal 
sponsors opportunities to make adjustments if actual project performance 
is less than anticipated, including recommending changes to the Plan. 
Interim goals are not standards or schedules enforceable in court.
    (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 Sec. 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 Sec. 
385.39 to the

[[Page 690]]

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 Sec. 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 Sec. 385.39; or
    (ii) Recommend changes to the interim goals in accordance with 
paragraph (b)(3) of this section.
    (c) Principles for developing interim goals. (1) RECOVER, using best 
available science and information, shall recommend a set of interim 
goals for implementation of the Plan, consisting of regional hydrologic 
performance targets, improvements in water quality, and anticipated 
ecological responses for areas such as, Lake Okeechobee, the Kissimmee 
River Region, the Water Conservation Areas, the Lower East Coast, the 
Upper East Coast, the Everglades Agricultural Area, and the 
Caloosahatchee River, Everglades National Park, Big Cypress National 
Preserve, Biscayne Bay, Florida Bay, and other estuaries and nearshore 
areas. These interim goals shall reflect the incremental accomplishment 
of the expected performance level of the Plan, and will identify 
improvements in quantity, quality, timing, and distribution of water for 
the natural system provided by the Plan in five-year increments that 
begin in 2005, with the goals reflecting the results expected to be 
achieved by 2010 and for each five-year increment thereafter. The 
interim goals shall be developed through the use of appropriate models 
and tools and shall provide a quantitative basis for evaluating the 
restoration success of the Plan during the period of implementation. In 
developing the interim goals for the five-year increments, RECOVER shall 
use the Master Implementation Sequencing Plan as the basis for 
predicting performance at a given time. RECOVER may recommend additional 
interim goals in addition to those initially developed and may propose 
revisions to the initial set of interim goals as new information is 
gained through adaptive management. Interim goals shall include 
incremental improvements in the quantity, quality, timing, and 
distribution of water anticipated to be required to meet long-term 
hydrological and ecological restoration goals, based on best available 
science. These goals may be modified, based on best available science 
and the adaptive assessment principles contained in the Plan, in 
accordance with paragraph (d) of this section.
    (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,

[[Page 691]]

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) Process for establishing interim goals. (1) The recommendations 
of RECOVER shall be provided to the Corps of Engineers, the Department 
of the Interior, and the South Florida Water Management District. These 
recommendations shall be provided no later than June 14, 2004. The 
proposed Interim Goals Agreement shall be developed by the Secretary of 
the Army, the Secretary of the Interior and the Governor in consultation 
with the Miccosukee Tribe of Indians of Florida, the Seminole Tribe of 
Florida, the Environmental Protection Agency, the Department of the 
Commerce, other Federal, State, and local agencies, and the South 
Florida Ecosystem Restoration Task Force. In considering the interim 
goals to be included in the Interim Goals Agreement, the Secretary of 
the Army, the Secretary of the Interior, and the Governor, shall be 
provided with, and consider, the technical recommendations of RECOVER 
and any modifications to those recommendations by the Corps of 
Engineers, the Department of Interior, or the South Florida Water 
Management District. The Secretary of the Army shall provide a notice of 
availability of the proposed agreement to the public in the Federal 
Register and seek public comments. After considering comments of the 
public on the proposed agreement, and incorporating any suggestions that 
are appropriate and consistent with the goals and purposes of the Plan, 
the Secretary of the Army, the Secretary of the Interior, and the 
Governor, shall execute the final agreement, and the Secretary of the 
Army shall provide a notice of availability to the public in the Federal 
Register by no later than December 13 2004.
    (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.



Sec. 385.39  Evaluating progress towards other water-related needs of 
the region provided for in the Plan.

    (a) Purpose. (1) 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. Progress towards providing for these 
other water-related needs shall also be evaluated.
    (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

[[Page 692]]

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 Sec. 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 Sec. 385.38; or
    (ii) Recommend changes to the interim targets in accordance with 
paragraph (a)(4) of this section.
    (b) Principles for developing interim targets. (1) RECOVER, using 
best available science and information, shall recommend a set of interim 
targets for evaluating progress towards other water-related needs of the 
region provided for in the Plan. These interim targets shall reflect the 
incremental accomplishment of the expected performance level of the 
Plan, and will identify improvements in quantity, quality, timing and 
distribution of water in five-year increments that begin in 2005, with 
the targets reflecting the results expected to be achieved by 2010 and 
for each five-year increment thereafter. The interim targets shall be 
developed through the use of appropriate models and tools and shall 
provide a quantitative basis for evaluating progress towards other 
water-related needs of the region provided for in the Plan during the 
period of implementation. In developing the interim targets for the 
five-year increments, RECOVER shall use the Master Implementation 
Sequencing Plan as the basis for predicting the performance at a given 
time. RECOVER may recommend additional interim targets for 
implementation of CERP in addition to those initially developed and may 
propose revisions to the initial set of interim targets as new 
information is gained through adaptive management.
    (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) Process for establishing interim targets. (1) The 
recommendations of RECOVER shall be provided to the Corps of Engineers 
and the South Florida Water Management District. These recommendations 
shall be provided no later than June 14, 2004. The proposed interim 
targets shall be developed by the Secretary of the Army and the 
Governor, 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, and the South Florida Ecosystem Restoration 
Task Force. In considering the interim targets, the Secretary of the 
Army and the Governor, shall be provided with, and consider, the 
technical recommendations of RECOVER and any modifications to those 
recommendations by the Corps of Engineers or the South Florida Water 
Management District. The Secretary of the Army shall provide a notice of 
availability of the proposed interim targets to the public in the 
Federal Register and seek public comments. After considering comments of 
the public on the proposed interim targets, and incorporating any 
suggestions that

[[Page 693]]

are appropriate and consistent with the goals and purposes of the Plan, 
the Secretary of the Army and the Governor, shall establish the final 
interim targets, and the Secretary of the Army shall provide a notice of 
availability to the public in the Federal Register by no later than 
December 13, 2004, but not prior to the execution of the Interim Goals 
Agreement pursuant to Sec. 385.38. Interim targets are intended to 
facilitate inter-agency planning, monitoring, and assessment throughout 
the implementation process and are not standards or schedules 
enforceable in court.
    (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.



Sec. 385.40  Reports to Congress.

    (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 submit to Congress a report on the implementation 
of the Plan as required by section 601(l) of WRDA 2000. Such reports 
shall be completed not less often than every five years.
    (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 Sec. 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 Sec. 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 Sec. 385.18 and Sec. 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;

[[Page 694]]

    (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 
Sec. 385.18.

[[Page 695]]



         Sec. Appendix A to Part 385--Illustrations to Part 385
[GRAPHIC] [TIFF OMITTED] TR12NO03.000


[[Page 696]]


[GRAPHIC] [TIFF OMITTED] TR12NO03.001


[[Page 697]]



CHAPTER IV--SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, DEPARTMENT OF 
                             TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
401             Seaway regulations and rules................         699
402             Tariff of tolls.............................         731
403             Rules of procedure of the Joint Tolls Review 
                    Board...................................         737
404-499

[Reserved]

[[Page 699]]



PART 401_SEAWAY REGULATIONS AND RULES--Table of Contents



                          Subpart A_Regulations

Sec.
401.1 Short title.
401.2 Interpretation.

                          Condition of Vessels

401.3 Maximum vessel dimensions.
401.4 Maximum length and weight.
401.5 Required equipment.
401.6 Markings.
401.7 Fenders.
401.8 Landing booms.
401.9 Radiotelephone equipment.
401.10 Mooring lines.
401.11 Fairleads.
401.12 Minimum requirements--mooring lines and fairleads.
401.13 Hand lines.
401.14 Anchor marking buoys.
401.15 Stern anchors.
401.16 Propeller direction alarms.
401.17 Pitch indicators and alarms.
401.18 Steering lights.
401.19 Disposal and discharge systems.
401.20 Automatic Identification System.
401.21 Requirements for U.S. waters of the St. Lawrence Seaway.

                   Preclearance and Security for Tolls

401.22 Preclearance of vessels.
401.23 Liability insurance.
401.24 Application for preclearance.
401.25 Approval of preclearance.
401.26 Security for tolls.

                            Seaway Navigation

401.27 Compliance with instructions.
401.28 Speed limits.
401.29 Maximum draft.
401.30 Ballast water and trim.
401.31 Meeting and passing.
401.32 Cargo booms--deck cargo.
401.33 Special instructions.
401.34 Vessels in tow.
401.35 Navigation underway.
401.36 Order of passing through.
401.37 Mooring at tie-up walls.
401.38 Limit of approach to a lock.
401.39 Preparing mooring lines for passing through.
401.39-1 Raising fenders.
401.40 Entering, exiting or position in lock.
401.41 Tandem lockage.
401.42 Passing hand lines.
401.43 Mooring table.
401.44 Mooring in locks.
401.45 Emergency procedure.
401.46 Attending lines.
401.47 Leaving a lock.
401.48 Turning basins.
401.49 Dropping anchor or tying to canal bank.
401.50 Anchorage areas.
401.51 Signaling approach to a bridge.
401.52 Limit of approach to a bridge.
401.53 Obstructing navigation.
401.54 Interference with navigation aids.
401.55 Searchlights.
401.56 Damaging or defacing Seaway property.
401.57 Disembarking or boarding.
401.58 Pleasure craft scheduling.
401.59 Pollution.

                          Radio Communications

401.60 Listening watch and notice of arrival.
401.61 Assigned frequencies.
401.62 Seaway stations.
401.63 Radio procedures.
401.64 Calling in.
401.65 Communication--ports, docks and anchorages.

                             Dangerous Cargo

401.66 Applicable laws.
401.67 Explosive vessels.
401.68 Explosives Permission Letter.
401.69 Hazardous cargo vessels.
401.70 Fendering--explosive and hazardous cargo vessels.
401.71 Signals--explosive or hazardous cargo vessels.
401.72 Reporting--explosive and hazardous cargo vessels.
401.73 Cleaning tanks--hazardous cargo vessels.

                       Toll Assessment and Payment

401.74 Transit declaration.
401.75 Payment of tolls.
401.76 In-transit cargo.
401.77 [Reserved]

                         Information and Reports

401.78 Required information.
401.79 Advance notice of arrival, vessels requiring inspection.
401.80 Reporting dangerous cargo.
401.81 Reporting an accident.
401.82 Reporting mast height.
401.83 Reporting position at anchor, wharf, etc.
401.84 Reporting of impairment or other hazard by vessels transiting 
          within the Seaway.
401.85 Reporting of impairment or other hazard by vessels intending to 
          transit the Seaway.

                           Detention and Sale

401.86 Security for damages or injury.
401.87 Detention for toll arrears or violations.
401.88 Power of sale for toll arrears.

                                 General

401.89 Transit refused.

[[Page 700]]

401.90 Boarding for inspections.
401.91 Removal of obstructions.
401.92 Wintering and lying-up.
401.93 Access to Seaway property.
401.94 Keeping copies of regulations.
401.95 Compliance with regulations.

                      Navigation Closing Procedures

401.96 Definitions.
401.97 Closing procedures and ice navigation.

Schedule I to Subpart A--Vessels Transiting U.S. Waters
Schedule II to Subpart A--Table of Speeds
Schedule III to Subpart A--Calling-in Table
Appendix I to Subpart A--Vessel Dimensions

          Subpart B_Penalties_Violations of Seaway Regulations

401.101 Criminal penalty.
401.102 Civil penalty.

       Subpart C_Assessment, Mitigation or Remission of Penalties

401.201 Delegation of authority.
401.202 Statute providing for assessment, mitigation or remission of 
          civil penalties.
401.203 Reports of violations of Seaway regulations and instituting and 
          conducting civil penalty proceedings.
401.204 Criminal penalties.
401.205 Civil and criminal penalties.
401.206 Procedure for payment of civil penalty for violation of Seaway 
          regulations.



                          Subpart A_Regulations

    Authority: 33 U.S.C. 983(a) and 984(a)(4), as amended; 49 CFR 
1.52(a), unless otherwise noted.

    Source: 39 FR 10900, Mar. 22, 1974, unless otherwise noted.



Sec. 401.1  Short title.

    These regulations may be cited as the ``Seaway Regulations (the 
``Practices and Procedures'' in Canada).''

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52913, Aug. 31, 2000]



Sec. 401.2  Interpretation.

    In the regulations in this part:
    (a) Corporation means the Saint Lawrence Seaway Development 
Corporation;
    (b) Flashpoint means the lowest temperature of a flammable liquid at 
which its vapor forms an ignitable mixture with air as determined by the 
closed-cup method.
    (c) Manager means the St. Lawrence Seaway Management Corporation;
    (d) Navigation season means the annual period designated by the 
Corporation and the Manager, that is appropriate to weather and ice 
conditions or vessel traffic demands, during which the Seaway is open 
for navigation;
    (e) Officer means a person employed by the Corporation or the 
Manager to direct some phase of the operation or use of the Seaway;
    (f) Passing through means in transit through a lock or through the 
waters enclosed by the approach walls at either end of a lock chamber;
    (g) Pleasure craft means a vessel, however propelled, that is used 
exclusively for pleasure and that does not carry passengers who have 
paid a fare for passage;
    (h) Preclearance means the authorization given by the Corporation or 
the Manager for a vessel to transit;
    (i) Representative means the owner or charterer of a vessel or an 
agent of either of them and includes any person who, in an application 
for preclearance of a vessel, accepts responsibility for payment of the 
tolls and charges to be assessed against the vessel in respect of 
transit and wharfage;
    (j) Seaway means the deep waterway between the Port of Montreal and 
Lake Erie and includes all locks, canals and connecting and contiguous 
waters that are part of the deep waterway, and all other canals and 
works, wherever located, the management, administration and control of 
which have been entrusted to the Corporation or the Manager;
    (k) Seaway station means a radio station operated by the Corporation 
or the Manager. (Refer to 401.62. Seaway Stations for the list and 
location of stations).
    (l) Tanker means any vessel specifically constructed for carrying 
bulk cargoes of liquid petroleum products, liquid chemicals, liquid 
edible oils and liquified gases in tanks which form both an integral 
part and the total cargo carrying portion of that vessel.
    (m) Tariff of Tolls means the same as Schedule of Tolls in Canada.

[[Page 701]]

    (n) Tolls(s) or tolls and charges is included in the definition of 
fees in Canada.
    (o) Towed means pushed or pulled through the water;
    (p) Transit means to use the Seaway, or a part of it, either upbound 
or downbound;
    (q) Vessel (ship in Canada) means any type of craft used as a means 
of transportation on water; and
    (r) Vessel traffic controller (ship traffic controller in Canada) 
means the officer who controls vessel traffic from a Seaway station.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52377, Aug. 7, 1980; 65 
FR 52913, 52915, Aug. 31, 2000; 66 FR 15329, Mar. 16, 2001; 72 FR 2620, 
Jan. 22, 2007]

                          Condition of Vessels



Sec. 401.3  Maximum vessel dimensions.

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52377, Aug. 7, 1980; 47 
FR 51121, Nov. 12, 1982; 48 FR 20690, May 9, 1983; 61 FR 19550, May 2, 
1996; 65 FR 52913, Aug. 31, 2000; 70 FR 12970, Mar. 17, 2005]



Sec. 401.4  Maximum length and weight.

    No vessel of less than 6 m in overall length or 900 kg in weight 
shall transit through Seaway Locks.

[70 FR 12970, Mar. 17, 2005]



Sec. 401.5  Required equipment.

    (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 Sec. 401.6 to 401.21.
    (b) [Reserved]

(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)

[43 FR 25817, June 15, 1978, as amended at 45 FR 52378, Aug. 7, 1980]



Sec. 401.6  Markings.

    (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.

(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)

[47 FR 51121, Nov. 12, 1982, as amended at 61 FR 19551, May 2, 1996; 70 
FR 12970, Mar. 17, 2005]

[[Page 702]]



Sec. 401.7  Fenders.

    (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.

[61 FR 19551, May 2, 1996, as amended at 70 FR 12970, Mar. 17, 2005; 74 
FR 18994, Apr. 27, 2009]



Sec. 401.8  Landing booms.

    (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.

[70 FR 12970, Mar. 17, 2005, as amended at 72 FR 2620, Jan. 22, 2007; 74 
FR 18994, Apr. 27, 2009]



Sec. 401.9  Radiotelephone equipment.

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 11721, Mar. 13, 1975; 
47 FR 51121, Nov. 12, 1982; 48 FR 20690, May 9, 1983; 61 FR 19551, May 
2, 1996; 70 FR 12970, Mar. 17, 2005]



Sec. 401.10  Mooring lines.

    (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.

                                  Table
------------------------------------------------------------------------
                                      Length of  mooring      Breaking
      Overall length of ships                line             strength
------------------------------------------------------------------------
40 m or more but not more than 60   110 m................  10 MT
 m.
More than 60 m but not more than    110 m................  15 MT
 90 m.

[[Page 703]]

 
More than 90 m but not more than    110 m................  20 MT
 120 m.
More than 120 m but not more than   110 m................  28 MT
 180 m.
More than 180 m but not more than   110 m................  35 MT
 222.5 m.
------------------------------------------------------------------------
           Elongation of synthetic lines shall not exceed 20%
------------------------------------------------------------------------


(68 Stat. 93-96, 33 U.S.C. 981-990, as amended and sec. 4, 5, 6, 7, 8, 
12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51121, Nov. 12, 1982; 
48 FR 20691, May 9, 1983; 48 FR 22545, May 19, 1983; 61 FR 19551, May 2, 
1996; 65 FR 52913, Aug. 31, 2000; 70 FR 12970, Mar. 17, 2005; 74 FR 
18994, Apr. 27, 2009; 75 FR 10689, Mar. 9, 2010]



Sec. 401.11  Fairleads.

    (a) Mooring lines, and synthetic hawsers where permitted, 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.

[39 FR 10900, Mar. 22, 1974, as amended at 70 FR 12971, Mar. 17, 2005; 
74 FR 18994, Apr. 27, 2009]



Sec. 401.12  Minimum requirements--mooring lines and 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 100 m or less in overall length shall have at least 
three mooring lines--wires or synthetic hawsers, two of which shall be 
independently power operated and one if synthetic may be hand held.
    (i) One line shall lead forward from the break of the bow and one 
line shall lead astern from the quarter and be independently power 
operated by winches, capstans or windlasses and lead through closed 
chocks or fairleads acceptable to the Manager and the Corporation; and
    (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 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.
    (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:

                                  Table
------------------------------------------------------------------------
                                   For mooring lines   For mooring lines
     Overall length of ships         Nos. 1 and 2        Nos. 3 and 4
------------------------------------------------------------------------
100 m or more but not more than   Shall be at a       Shall be at a
 180 m.                            location on the     location on the
                                   ship side where     ship side where
                                   the beam is at      the beam is at
                                   least 90% of the    least 90% of the
                                   full beam of the    full beam of the
                                   vessel.             vessel.

[[Page 704]]

 
More than 180 m but not more      Between 20 m & 50   Between 20 m & 50
 than 222.5 m.                     m from the stern.   m from the stern.
------------------------------------------------------------------------


[74 FR 18994, Apr. 27, 2009, as amended at 75 FR 10689, Mar. 9, 2010]



Sec. 401.13  Hand lines.

    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.

[70 FR 12971, Mar. 17, 2005]



Sec. 401.14  Anchor marking buoys.

    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.

[70 FR 12971, Mar. 17, 2005]



Sec. 401.15  Stern anchors.

    (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.

[68 FR 36748, June 19, 2003]



Sec. 401.16  Propeller direction alarms.

    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.

(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)

[41 FR 12227, Mar. 24, 1976, as amended at 45 FR 52378, Aug. 7, 1980; 70 
FR 12971, Mar. 17, 2005; 71 FR 5606, Feb. 2, 2006]



Sec. 401.17  Pitch indicators and alarms.

    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.

(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)

[47 FR 51122, Nov. 12, 1982, as amended at 70 FR 12971, Mar. 17, 2005; 
71 FR 5606, Feb. 2, 2006]



Sec. 401.18  Steering lights.

    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.

[49 FR 30935, Aug. 2, 1984]



Sec. 401.19  Disposal and discharge systems.

    (a) Every vessel not equipped with containers for ordure shall be 
equipped with a sewage disposal system enabling compliance with 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.

[[Page 705]]

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52378, Aug. 7, 1980; 49 
FR 30936, Aug. 2, 1984; 55 FR 48578, Nov. 21, 1990; 55 FR 52844, Dec. 
24, 1990; 70 FR 12971, Mar. 17, 2005]



Sec. 401.20  Automatic Identification System.

    (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 Sec. 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.

[68 FR 9551, Feb. 28, 2003; 68 FR 11974, Mar. 13, 2003, as amended at 70 
FR 12972, Mar. 17, 2005]



Sec. 401.21  Requirements for U.S. waters of the St. Lawrence Seaway.

    In addition to the requirements set forth elsewhere in these 
Regulations, vessels transiting the U.S. waters of the St. Lawrence 
Seaway are subject to the requirements set out in Schedule I.

(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)

[45 FR 52378, Aug. 7, 1980]

[[Page 706]]

                   Preclearance and Security for Tolls



Sec. 401.22  Preclearance of vessels.

    (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 Sec. 401.24, to the Manager by the vessel's 
representative and the application has been approved by the Corporation 
or the Manager pursuant to Sec. 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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 
55 FR 48598, Nov. 21, 1990; 65 FR 52914, 52915, Aug. 31, 2000; 66 FR 
15329, Mar. 16, 2001; 70 FR 12972, Mar. 17, 2005; 72 FR 2620, Jan. 22, 
2007]



Sec. 401.23  Liability insurance.

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52378, Aug. 7, 1980]



Sec. 401.24  Application for preclearance.

    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 at http://www.greatlakes-seaway.com, apply for 
preclearance, giving particulars of the ownership, liability insurance 
and physical characteristics of the vessel and guaranteeing payment of 
the fees that may be incurred by the vessel.

[72 FR 2620, Jan. 22, 2007]



Sec. 401.25  Approval of preclearance.

    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.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52914, 52915, Aug. 31, 
2000]



Sec. 401.26  Security for tolls.

    (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

[[Page 707]]

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 Sec. 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 Sec. 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.

[65 FR 52914, Aug. 31, 2000, as amended at 71 FR 5606, Feb. 2, 2006]

                            Seaway Navigation



Sec. 401.27  Compliance with instructions.

    Every vessel shall comply promptly with transit instructions given 
by the traffic controller or any other officer.

[73 FR 9953, Feb. 25, 2008]



Sec. 401.28  Speed limits.

    (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 Sec. 
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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 
55 FR 48599, Nov. 21, 1990; 65 FR 52914, Aug. 31, 2000]



Sec. 401.29  Maximum draft.

    (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 its tendency to list or squat, so as to avoid 
striking bottom. \1\
---------------------------------------------------------------------------

    \1\ The main channels between the Port of Montreal and Lake Erie 
have a controlling depth of 8.23m.
---------------------------------------------------------------------------

    (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.

(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)

[42 FR 27587, May 31, 1977, as amended at 45 FR 52378, Aug. 7, 1980; 47 
FR 51122, Nov. 12, 1982; 65 FR 52914, Aug. 31, 2000; 73 FR 9953, Feb. 
25, 2008]



Sec. 401.30  Ballast water and trim.

    (a) Every vessel shall be adequately ballasted.

[[Page 708]]

    (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 http://www.greatlakes-seaway.com.
    (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 Control Act, or that are owned 
or operated by a state and used in government noncommercial service.

[39 FR 10900, Mar. 22, 1974, as amended at 67 FR 8887, Feb. 27, 2002; 70 
FR 12972, Mar. 17, 2005; 71 FR 5606, Feb. 2, 2006; 73 FR 9953, Feb. 25, 
2008]



Sec. 401.31  Meeting and passing.

    (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;

[[Page 709]]

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52378, Aug. 7, 1980; 49 
FR 30936, Aug. 2, 1984; 55 FR 48599, Nov. 21, 1990; 65 FR 52915, Aug. 
31, 2000; 73 FR 9953, Feb. 25, 2008]



Sec. 401.32  Cargo booms--deck cargo.

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 41 FR 12227, Mar. 24, 1976]



Sec. 401.33  Special instructions.

    No vessel of unusual design, vessel, or part of a vessel under tow, 
or vessel whose dimensions exceed the maximum vessel dimensions Sec. 
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.

[65 FR 52914, Aug. 31, 2000]



Sec. 401.34  Vessels in tow.

    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 Sec. 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.

[73 FR 9954, Feb. 25, 2008]



Sec. 401.35  Navigation underway.

    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.

[49 FR 30936, Aug. 2, 1984, as amended at 68 FR 36749, June 19, 2003; 70 
FR 12972, Mar. 17, 2005]



Sec. 401.36  Order of passing through.

    Vessels shall advance to a lock in the order instructed by the 
traffic controller.

[73 FR 9954, Feb. 25, 2008]



Sec. 401.37  Mooring at tie-up walls.

    (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 specified by 
the traffic controller or an officer.
    (b) Crew members being put ashore on landing booms and handling 
mooring lines on tie-up walls shall wear approved life jackets.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 
65 FR 52914, Aug. 31, 2000; 70 FR 12972, Mar. 17, 2005; 73 FR 9954, Feb. 
25, 2008]



Sec. 401.38  Limit of approach to a lock.

    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.

[74 FR 18995, Apr. 27, 2009]

[[Page 710]]



Sec. 401.39  Preparing mooring lines for passing through.

    Before a vessel enters a lock:
    (a) Winches shall be capable of paying out 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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 
70 FR 12972, Mar. 17, 2005]



Sec. 401.39-1  Raising fenders.

    Every vessel equipped with fenders that are not permanently attached 
shall raise its fenders when passing a lock gate in Snell or Eisenhower 
Locks.

(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)

[49 FR 30936, Aug. 2, 1984]



Sec. 401.40  Entering, exiting or position in lock.

    (a) 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.

(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)

[45 FR 52378, Aug. 7, 1980, and 47 FR 51122, Nov. 12, 1982, as amended 
at 48 FR 20691, May 9, 1983; 72 FR 2620, Jan. 22, 2007; 73 FR 9954, Feb. 
25, 2008]



Sec. 401.41  Tandem lockage.

    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.



Sec. 401.42  Passing hand lines.

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51122, Nov. 12, 1982; 
55 FR 48599, Nov. 21, 1990; 61 FR 19551, May 2, 1996; 70 FR 12972, Mar. 
17, 2005]



Sec. 401.43  Mooring table.

    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.

[[Page 711]]



------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                South Shore                                       Beauharnois                                           Wiley-Dondero Iroquois
                                 ---------------------------------------------------------------------------------------------------------------------------------------------------------------
                                      St. Lambert     Cote St. Catharine         Lower               Pool                Upper               Snell            Eisenhower           Iroquois
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Locks:
  Upbound.......................  Port..............  Port..............  Starboard.........  ..................  Starboard.........  Starboard.........  Starboard.........  Port.
  Downbound.....................  Starboard.........  Starboard.........  Port..............  ..................  Port..............  Port..............  Port..............  Starboard.
Tieup walls:
  Upbound.......................  ...do.............  ...do.............  ...do.............  Port..............  ..................  Starboard.........  Starboard.........  ...Do.
  Downbound.....................  Port..............  Port..............  ..................  Starboard.........  Starboard.........  Port..............  Port..............  Port.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


                                                                                          Welland Canal
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                        1                 2                 3                 4                 5                 6                 7          Guard Gate Cut           8
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Locks:
  Upbound.....................  Starboard.......  Starboard.......  Port............  Port............  Port............  Port............  Port............  ................  Starboard.
  Downbound...................  Port............  Port............  Starboard.......  ...do...........  ...do...........  ...do...........  Starboard.......  ................  Port.
Tieup walls:
  Upbound.....................  Starboard.......  Starboard.......  ...do...........  Starboard.......  ................  ................  ...do...........  Starboard.......  Port or
                                                                                                                                                                                 starboard.
  Downbound...................  Port............  Port............  Port............  ................  ................  Starboard.......  ...do...........  Port............   Do.
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------


(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)

[39 FR 10900, May 22, 1974, as amended at 40 FR 11721, Mar. 13, 1975; 45 
FR 52378, Aug. 7, 1980; 49 FR 30936, Aug. 2, 1984; 55 FR 48599, Nov. 21, 
1990; 61 FR 19551, May 2, 1996]



Sec. 401.44  Mooring in locks.

    (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.



Sec. 401.45  Emergency procedure.

    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.

[61 FR 19551, May 2, 1996]



Sec. 401.46  Attending lines.

    (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.



Sec. 401.47  Leaving a lock.

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 48 FR 20691, May 9, 1983]



Sec. 401.48  Turning basins.

    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.

                                  Table

    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.

[[Page 712]]

    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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51123, Nov. 12, 1982; 
48 FR 20691, May 9, 1983; 49 FR 30936, Aug. 2, 1984; 73 FR 9954, Feb. 
25, 2008]



Sec. 401.49  Dropping anchor or tying to canal bank.

    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.

[73 FR 9954, Feb. 25, 2008]



Sec. 401.50  Anchorage areas.

    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).

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 25813, June 19, 1975; 
73 FR 9954, Feb. 25, 2008]



Sec. 401.51  Signaling approach to a bridge.

    (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 shall be 
placed at distances varying between 550 m and 2,990 m upstream and 
downstream from moveable bridges at sites other than lock sites.

(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)

[48 FR 20691, May 9, 1983, as amended at 49 FR 30936, Aug. 2, 1984; 73 
FR 9954, Feb. 25, 2008]



Sec. 401.52  Limit of approach to a bridge.

    (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 fully open position and both signal lights show green.

[39 FR 10900, Mar. 22, 1974, as amended at 61 FR 19551, May 2, 1996; 65 
FR 52914, Aug. 31, 2000]



Sec. 401.53  Obstructing navigation.

    No vessel shall be operated, drop anchor or be fastened or moored in 
a manner that obstructs or hinders navigation.



Sec. 401.54  Interference with navigation aids.

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52914, 52915, Aug. 31, 
2000]



Sec. 401.55  Searchlights.

    No searchlight shall be used in such a manner that its rays 
interfere with the operators at a Seaway structure or on any vessel.



Sec. 401.56  Damaging or defacing Seaway property.

    The master of every vessel shall:
    (a) Navigate so as to avoid damage to Seaway property; and

[[Page 713]]

    (b) Prevent defacement of Seaway property by any member of the 
vessel's crew.



Sec. 401.57  Disembarking or boarding.

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 70 FR 12972, Mar. 17, 2005]



Sec. 401.58  Pleasure craft scheduling.

    (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.

[70 FR 12972, Mar. 17, 2005, as amended at 72 FR 2620, Jan. 22, 2007; 73 
FR 9954, Feb. 25, 2008]



Sec. 401.59  Pollution.

    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 45 FR 52379, Aug. 7, 1980; 65 
FR 52914, 52915, Aug. 31, 2000]

                          Radio Communications



Sec. 401.60  Listening watch and notice of arrival.

    (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 Sec. 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.



Sec. 401.61  Assigned frequencies.

    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).

[75 FR 10689, Mar. 9, 2010]



Sec. 401.62  Seaway stations.

    The Seaway stations are located as follows:

VDX20 (Seaway Beauharnois)--Upper Beauharnois Lock--Traffic Control 
Sector No. 1.
KEF (Seaway Eisenhower)--Eisenhower Lock--Traffic Control Sector No. 2.
VDX21 (Seaway Iroquois)--Iroquois Lock--Traffic Control Sector No. 3.

[[Page 714]]

WAG (Seaway Clayton)--Clayton, N.Y.--Traffic Control Sector No. 4.
WAG (Seaway Sodus)--Sodus, N.Y.--Traffic Control Sector No. 4.
VDX72 (Seaway Newcastle)--Port Hope, Ontario-Traffic Control Sector No. 
5.
VDX70 (Seaway Newcastle)--Port Weller, Ontario-Traffic Control Sector 
No. 5.
VDX22 (Seaway Welland)--St. Catharines, Ontario--Traffic Control Sector 
No. 6.
VDX68 (Seaway Long Point)--Port Colborne, Ontario--Traffic Control 
Sector No. 7.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 25813, June 19, 1975; 
45 FR 52379, Aug. 7, 1980]



Sec. 401.63  Radio procedures.

    Every vessel shall use the channels of communication in each control 
sector as listed in the table to this section.

                                            Channels of Communication
----------------------------------------------------------------------------------------------------------------
                                 Control
           Station                sector         Sector limits          Call in          Work        Listening
                                  number                                                               watch
----------------------------------------------------------------------------------------------------------------
Seaway Beauharnois...........            1  C.I.P No. 2 to C.I.P     Ch. 14.......  Ch. 14.......  Ch. 14.
                                             No. 6-7.
Seaway Eisenhower............            2  C.I.P. No. 6-7 to        Ch. 12.......  Ch. 12.......  Ch. 12.
                                             C.I.P. No. 10-11.
Seaway Iroquois..............            3  C.I.P. No. 10-11 To      Ch. 11.......  Ch. 11.......  Ch. 11.
                                             Crossover Island.
Seaway Clayton...............            4  Crossover Island to      Ch. 13.......  Ch. 13.......  Ch. 13.
                                             Cape Vincent.
Seaway Sodus.................            4  Cape Vincent to Mid      Ch. 12.......  Ch. 12.......  Ch. 16.
                                             Lake Ontario.
Seaway Newcastle.............            5  Mid Lake Ontario To      Ch. 11.......  Ch. 11.......  Ch. 16.
                                             C.I.P. No. 15.
Seaway Welland...............            6  C.I.P. No. 15 to C.I.P.  Ch. 14.......  Ch. 14.......  Ch. 14.
                                             No. 16.
Seaway Long Point............            7  C.I.P. No. 16 to Long    Ch. 11.......  Ch. 11.......  Ch. 16.
                                             Point.
----------------------------------------------------------------------------------------------------------------


[75 FR 10690, Mar. 9, 2010]



Sec. 401.64  Calling in.

    (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).

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 43 FR 25818, June 15, 1978; 
47 FR 51123, Nov. 12, 1982; 61 FR 19551, May 2, 1996]

[[Page 715]]



Sec. 401.65  Communication--ports, docks and anchorages.

    (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 departing from a port, dock or anchorage, shall 
report to the appropriate Seaway station its destination and the 
expected time of arrival at the next check point.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 47 FR 51123, Nov. 12, 1982; 
55 FR 48599, Nov. 21, 1990; 61 FR 19551, May 2, 1996]

                             Dangerous Cargo

    Authority: 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.

    Source: Sections 401.66 through 401.73 appear at 45 FR 52379, Aug. 
7, 1980, unless otherwise noted.



Sec. 401.66  Applicable laws.

    (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 
Canada Shipping Act, or under the Transportation of Dangerous Goods Act 
or to which the Dangerous Cargo Act or the Hazardous Materials 
Transportation Act of the United States or regulations issued pursuant 
thereto apply, shall be deemed to carry dangerous substances and shall 
not transit unless all requirements of the said Statutes and regulations 
and of these Regulations have been fulfilled.
    (b) Every vessel carrying dangerous cargo, as described in 
Sec. Sec. 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 
current load plan as described in Sec. 401.72(e).

[45 FR 52379, Aug. 7, 1980, as amended at 61 FR 19551, May 2, 1996; 65 
FR 52915, Aug. 31, 2000]



Sec. 401.67  Explosive vessels.

    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.



Sec. 401.68  Explosives Permission Letter.

    (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

[[Page 716]]

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.

(Approved by the Office of Management and Budget under control number 
2135-0004)

[45 FR 52379, Aug. 7, 1980, as amended at 47 FR 51123, Nov. 12, 1982; 48 
FR 20691, May 9, 1983; 49 FR 30936, Aug. 2, 1984; 55 FR 48599, Nov. 21, 
1990; 65 FR 52914, Aug. 31, 2000; 70 FR 12972, Mar. 17, 2005; 72 FR 
2620, Jan. 22, 2007]



Sec. 401.69  Hazardous cargo vessels.

    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 [deg]C, 
including a tanker that is not gas free where its previous cargo had a 
flashpoint below 61 [deg]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 [deg]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 
[deg]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).

[45 FR 52379, Aug. 7, 1980, as amended at 47 FR 51123, Nov. 12, 1982; 48 
FR 20691, May 9, 1983]



Sec. 401.70  Fendering--explosive and hazardous cargo vessels.

    All explosive vessels requiring a Seaway Explosives Permission 
Letter in accordance with Sec. 401.68 and all tankers carrying cargo 
with a flashpoint of up to 61 [deg]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.

[72 FR 2620, Jan. 22, 2007]



Sec. 401.71  Signals--explosive or hazardous cargo vessels.

    An explosive or hazardous cargo vessel shall display at the masthead 
or at an equivalent conspicuous position a ``B'' flag.

[61 FR 19551, May 2, 1996]



Sec. 401.72  Reporting--explosive and hazardous cargo vessels.

    (a) Every explosive vessel or hazardous cargo vessel shall, when 
reporting information related to cargo as required by Sec. 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

[[Page 717]]

as required by Sec. 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 Sec. 
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.

[45 FR 52379, Aug. 7, 1980, as amended at 61 FR 19551, May 2, 1996; 65 
FR 52915, Aug. 31, 2000; 70 FR 12972, Mar. 17, 2005; 72 FR 2620, Jan. 
22, 2007]



Sec. 401.73  Cleaning tanks--hazardous cargo vessels.

    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.

[55 FR 48599, Nov. 21, 1990]

                       Toll Assessment and Payment



Sec. 401.74  Transit declaration.

    (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 http://www.greatlakes-
seaway.com.
    (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

[[Page 718]]

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.

(Approved by the Office of Management and Budget under control number 
2135-0003)

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 48 FR 20691, May 9, 1983; 49 
FR 30936, Aug. 2, 1984; 65 FR 52914, Aug. 31, 2000; 70 FR 12973, Mar. 
17, 2005; 71 FR 5607, Feb. 2, 2006]



Sec. 401.75  Payment of tolls.

    (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.

[61 FR 19552, May 2, 1996, as amended at 65 FR 52915, Aug. 31, 2000; 66 
FR 15329, Mar. 16, 2001; 70 FR 12973, Mar. 17, 2005; 74 FR 18995, Apr. 
27, 2009]



Sec. 401.76  In-transit cargo.

    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 is deemed to be ballast and not subject to toll assessment.



Sec. 401.77  [Reserved]

                         Information and Reports



Sec. 401.78  Required information.

    (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.

(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)

[45 FR 52380, Aug. 7, 1980, as amended at 65 FR 52915, Aug. 31, 2000]



Sec. 401.79  Advance notice of arrival, vessels requiring inspection.

    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.

[70 FR 12973, Mar. 17, 2005]



Sec. 401.80  Reporting dangerous cargo.

    (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

[[Page 719]]

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.

(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)

[48 FR 20691, May 9, 1983]



Sec. 401.81  Reporting an accident.

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 40 FR 11721, Mar. 13, 1975; 
65 FR 52915, Aug. 31, 2000; 70 FR 12973, Mar. 17, 2005; 71 FR 5607, Feb. 
2, 2006; 74 FR 18995, Apr. 27, 2009]



Sec. 401.82  Reporting mast height.

    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.

(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)

[48 FR 20691, May 9, 1983]



Sec. 401.83  Reporting position at anchor, wharf, etc.

    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 traffic controller and it shall not resume its voyage without the 
traffic controller's permission.

[73 FR 9954, Feb. 25, 2008]



Sec. 401.84  Reporting of impairment or other hazard by vessels transiting
within the Seaway.

    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 
Sec. Sec. 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.

(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)

[45 FR 52380, Aug. 7, 1980, as amended at 47 FR 51124, Nov. 12, 1982; 61 
FR 19552, May 2, 1996; 65 FR 52915, Aug. 31, 2000]



Sec. 401.85  Reporting of impairment or other hazard by vessels intending
to transit the Seaway.

    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 Sec. 401.84.

(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)

[45 FR 52380, Aug. 7, 1980]

                           Detention and Sale



Sec. 401.86  Security for damages or injury.

    An officer may detain a vessel that causes:

[[Page 720]]

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000]



Sec. 401.87  Detention for toll arrears or violations.

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000]



Sec. 401.88  Power of sale for toll arrears.

    (a) Where a vessel has been detained pursuant to Sec. 401.87(a) and 
payment of the tolls and charges or the fine imposed has not been made 
within a reasonable time after
    (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.

(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)

[39 FR 10900, Mar. 22, 1974, as amended at 41 FR 12227, Mar. 24, 1976; 
47 FR 51124, Nov. 12, 1982; 65 FR 52915, Aug. 31, 2000]

                                 General



Sec. 401.89  Transit refused.

    (a) An officer may refuse to allow a vessel to transit when,
    (1) The vessel is not equipped in accordance with Sec. Sec. 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.

[39 FR 10900, Mar. 22, 1974, as amended at 61 FR 19552, May 2, 1996; 65 
FR 52915, Aug. 31, 2000]



Sec. 401.90  Boarding for inspections.

    (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:

[[Page 721]]

    (1) Examine the vessel and its cargo; and
    (2) Determine that the vessel is adequately manned.
    (b) In addition to Sec. 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.

[65 FR 52915, Aug. 31, 2000; 65 FR 56486, Sept. 19, 2000, as amended at 
75 FR 10690, Mar. 9, 2010]



Sec. 401.91  Removal of obstructions.

    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.

[61 FR 19552, May 2, 1996, as amended at 65 FR 52915, Aug. 31, 2000]



Sec. 401.92  Wintering and lying-up.

    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.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000]



Sec. 401.93  Access to Seaway property.

    (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.

[39 FR 10900, Mar. 22, 1974, as amended at 65 FR 52915, Aug. 31, 2000; 
72 FR 2620, Jan. 22, 2007]



Sec. 401.94  Keeping copies of regulations.

    (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.

[70 FR 12973, Mar. 17, 2005, as amended at 75 FR 10690, Mar. 9, 2010]



Sec. 401.95  Compliance with regulations.

    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.

[70 FR 12973, Mar. 17, 2005]

[[Page 722]]

                      Navigation Closing Procedures



Sec. 401.96  Definitions.

    In Sec. 410.97:
    (a) Clearance date means the date designated in each year by the 
Corporation and the Manager as the date by which vessels must report at 
the applicable calling in point referred to in Sec. 401.97(c) for final 
transit of the Montreal-Lake Ontario Section of the Seaway;
    (b) Closing date means the date designated in each year by the 
Corporation and the Manager as the date on which the Seaway is closed to 
vessels at the end of the navigation season;
    (c) Closing period means the period that commences on the date 
designated in each year by the Corporation and the Manager as the date 
on which the closing procedures in Sec. 401.97 apply and that ends on 
the closing date;
    (d) Montreal-Lake Ontario Section of the Seaway means the portion of 
the Seaway between the Port of Montreal and mid-Lake Ontario;
    (e) Wintering vessel means a vessel that enters the Seaway upbound 
after a date designated each year by the Corporation and the Manager and 
transits above Iroquois Lock.

(68 Stat. 92-97, 33 U.S.C. 981-990, as amended and sec. 104, Pub. L. 95-
474, sec. 2, 92 Stat. 1472; 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)

[47 FR 51124, Nov. 12, 1982, as amended at 65 FR 52915, Aug. 31, 2000; 
74 FR 18995, Apr. 27, 2009]



Sec. 401.97  Closing procedures and ice navigation.

    (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.

(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)

[47 FR 51124, Nov. 12, 1982, as amended at 48 FR 20691, May 9, 1983; 48 
FR 39934, Sept. 2, 1983; 65 FR 52915, Aug. 31, 2000; 74 FR 18995, Apr. 
27, 2009]

[[Page 723]]



Sec. Schedule I to Subpart A of Part 401--Vessels Transiting U.S. Waters

    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:

                                ``Warning

    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.

(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)

[45 FR 52380, Aug. 7, 1980, as amended at 47 FR 51124, Nov. 12, 1982; 49 
FR 30936, Aug. 2, 1984; 61 FR 19552, May 2, 1996]

        Schedule II to Subpart A of Part 401--Table of Speeds \1\

----------------------------------------------------------------------------------------------------------------
                                                                    Maximum speed over the bottom, knots
              From--                         To--         ------------------------------------------------------
                                                                    Col. III                    Col. IV
----------------------------------------------------------------------------------------------------------------
1. Upper Entrance, South Shore      Lake St. Louis, Buoy   10.5......................  10.5.
 Canal.                              A13.
2. Lake St. Louis, Buoy A13.......  Lower Entrance, Lower  16........................  16.
                                     Beauharnois Lock.
3. Upper Entrance, Upper            Lake St. Francis,      9 upb; 10.5 dnb...........  9 upb; 10.5 dnb.
 Beauharnois Lock.                   Buoy D3.
4. Lake St. Francis, Buoy D3......  Lake St. Francis,      12........................  12.
                                     Buoy D49.
5. Lake St. Francis, Buoy D49.....  Snell Lock...........  8.5 upb; 10.5 dnb.........  8 upb; 10.5 dnb.
6. Eisenhower Lock................  Iroquois Lock........  11.5......................  10.5.
7. Iroquois Lock..................  McNair Island, Lt.     13........................  10.5.
                                     137.
8. McNair Island, Lt. 137.........  Deer Island, Lt. 186.  11.5......................  10.5.

[[Page 724]]

 
9. Deer Island, Lt. 186...........  Bartlett Point, Lt.    8.5 upb; 10.5 dnb.........  8 upb; 10.5 dnb.
                                     227.
10. Bartlett Point, Lt. 227.......  Tibbetts Point.......  13........................  10.5.
11. Junction of Canadian Middle     Open Waters between    9.5.......................  9.5.
 Channel and Main Channel abreast    Wolfe and Howe
 of Ironsides Island.                Islands through the
                                     said Middle Channel.
12. Port Robinson.................  Ramey's Bend through   8.........................  8.
                                     the Welland Bypass.
13. All other canals..............  .....................  6.........................  6.
----------------------------------------------------------------------------------------------------------------
\1\ Maximum speeds at which a vessel may travel in identified areas in both normal and high water conditions are
  set forth in this schedule. The Corporation and the Manager will, from time to time, designate the set of
  speed limits which is in effect.


[61 FR 19552, May 2, 1996, as amended at 65 FR 52915, Aug. 31, 2000]



      Sec. Schedule III to Subpart A of Part 401--Calling-in Table

------------------------------------------------------------------------
    C.I.P. and checkpoint     Station to call       Message content
------------------------------------------------------------------------
                             upbound vessels
------------------------------------------------------------------------
1. C.I.P. 2--entering Sector
 1 (order of passing through
 established):
  (a) Vessels transiting      Seaway           1. Name of vessel.
   from the Lower St.          Beauharnois,    2. Location.
   Lawrence River.             channel 14.     3. Destination.
                                               4. Drafts, fore and aft.
                                               5. Cargo.
                                               6. Manifested dangerous
                                                cargo--nature and
                                                quantity; IMO
                                                classification; location
                                                where dangerous cargo is
                                                stowed.
                                               7. Pilot requirement--
                                                Lake Ontario.
                                               8. Confirm pilot
                                                requirement--Upper
                                                Beauharnois Lock (inland
                                                vessels only).
  (b) Vessels in Montreal
   Harbor, dock, berth or
   anchorage:
    (i) Before getting under  ......do.......  1. Name of vessel.
     way.                                      2. Location.
                                               3. Destination.
                                               4. Drafts, fore and aft.
                                               5. Cargo.
                                               6. Manifested dangerous
                                                cargo--nature and
                                                quantity; IMO
                                                classification; location
                                                where dangerous cargo is
                                                stowed.
                                               7. Pilot requirement--
                                                Lake Ontario.
                                               8. Confirm pilot
                                                requirement--Upper
                                                Beauharnois Lock (inland
                                                vessels only).
    (ii) C.I.P. 2--entering   ......do.......  1. Name of vessel.
     Sector 1 (order of                        2. Location.
     passing through
     established).
2. C.I.P. 3--order of         ......do.......  1. Name of vessel.
 passing through established.                  2. Location.
3. Exiting Upper Beauharnois  ......do.......  1. Name of vessel.
 Lock.                                         2. Location.
                                               3. ETA C.I.P. 7.
                                               4. Confirm pilot
                                                requirement--Snell Lock
                                                (inland vessels only).
4. C.I.P. 7--leaving sector   ......do.......  1. Name of vessel
 1.                                            2. Location.
5. C.I.P. 7--entering sector  Seaway           1. Name of vessel.
 2.                            Eisenhower,     2. Location.
                               channel 12.     3. ETA Snell lock.
6. C.I.P. 8--order of         ......do.......  1. Name of vessel.
 passing through established.                  2. Location.
7. C.I.P. 8A................  ......do.......  1. Name of vessel.
                                               2. Location.
8. Exiting Eisenhower Lock..  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA C.I.P. 11.
                                               4. Confirm pilot
                                                requirement--Lake
                                                Ontario.
                                               5. All ports of call.
9. C.I.P. 11--leaving sector  ......do.......  1. Name of vessel.
 2.                                            2. Location.

[[Page 725]]

 
10. C.I.P. 11--entering       Seaway           1. Name of vessel.
 sector 3.                     Iroquois,       2. Location.
                               channel 11.
11. C.I.P. 12--order of       ......do.......  1. Name of vessel.
 passing through established.                  2. Location.
12. Exiting Iroquois lock...  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA Cross Over Island.
13. Cross Over Island--       ......do.......  1. Name of vessel.
 leaving sector 3.                             2. Location.
14. Cross Over Island--       Seaway Clayton,  1. Name of vessel.
 entering sector 4.            channel 13.     2. Location.
                                               3. ETA Cape Vincent or
                                                River Port.
15. Whale back Shoal--Con...  ......do.......  4. Confirm pilot
                                                requirement--Lake
                                                Ontario.
16. Wolfe Island Cut          ......do.......  1. Name of vessel.
 (Beauvais Point)--vessels                     2. Location.
 leaving main channel.                         3. ETA Kingston.
17. Cape Vincent............  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA Sodus Point.
                                               4. ETA Port Weller
                                                (C.I.P. 15) or Lake
                                                Ontario Port.
                                               5. Pilot requirement--
                                                Port Weller.
18. Sodus Point.............  Seaway Sodus,    1. Name of vessel.
                               Channel 12.     2. Location.
                                               3. ETA mid-Lake Ontario.
19. Mid Lake Ontario--        Seaway           1. Name of Vessel.
 entering Sector 5.            Newcastle,      2. Location.
                               channel 11.     3. Pilot requirement--
                                                Lake Erie.
20. Mid-Lake Ontario--        ......do.......  1. Name of vessel.
 entering sector 5.                            2. Location.
21. Newcastle...............  ......do.......  1. Name of Vessel.
                                               2. Location.
22. C.I.P. 15--order of       Seaway Welland,  1. Name of vessel.
 passing through established.  channel 14.     2. Location.
                                               3. Destination.
                                               4. Drafts, fore and aft.
                                               5. Cargo.
                                               6. Pilot requirement--
                                                Lake Erie.
 Port Colborne piers........  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA Long Point.
23. C.I.P. 16...............  Seaway Long      1. Name of vessel.
                               Point, channel  2. Location.
                               11.
24. Long Point--leaving       ......do.......  1. Name of vessel.
 sector 7.                                     2. Location.
------------------------------------------------------------------------
                            downbound vessels
------------------------------------------------------------------------
29. Long Point--entering      Seaway Long      1. Name of Vessel.
 Sector 7.                     Point, channel  2. Location.
                               11.             3. ETA C.I.P. 16 or Port.
                                               4. Manifested dangerous
                                                cargo, including:
                                               --nature and quantity.
                                               --IMO classification.
                                               --location where
                                                dangerous cargo is
                                                stowed.
                                               and, if proceeding to
                                                Welland Canal,
                                               5. Destination.
                                               6. Drafts, fore and aft.
                                               7. Cargo.
                                               8. Pilot requirement--
                                                Lake Ontario.
30. C.I.P. 16--order of       Seaway Welland,  1. Name of Vessel.
 passing through established.  channel 14.     2. Location.
31. Exiting lock No. 1,       ......do.......  1. Name of vessel
 Welland Canal.                                2. Location.
                                               3. ETA Newcastle.
                                               4. ETA Cape Vincent or
                                                Lake Ontario Port.
                                               5. Pilot requirement--
                                                Cape Vincent.
32. C.I.P. 15...............  Seaway           1. Name of vessel.
                               Newcastle,      2. Location.
                               channel 11.
33. Newcastle...............  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA mid-Lake Ontario.
                                               4. ETA Sodus Point.

[[Page 726]]

 
34. Mid-Lake Ontario--        ......do.......  1. Name of vessel.
 leaving sector 5.                             2. Location.
35. Mid-Lake Ontario--        Seaway Sodus,    1. Name of vessel.
 entering Sector 4.            Channel 12.     2. Location.
36. Sodus Point.............  Seaway Sodus,    1. Name of vessel.
                               Channel 12.     2. Location.
                                               3. Updated ETA Cape
                                                Vincent or Lake Ontario
                                                Port.
                                               4. Confirm river pilot
                                                requirement.
                                               5. Pilot requirement--
                                                Snell Lock and/or Upper
                                                Beauharnois Lock (inland
                                                vessels only).
37. Cape Vincent............  Seaway Clayton,  1. Name of vessel
                               channel 13.     2. Location.
                                               3. ETA Cross Over Island
                                                or river port.
38. Wolfe Island Cut (Quebec  ......do.......  1. Name of vessel.
 Head)--vessels entering                       2. Location.
 main channel.                                 3. ETA Cross Over Island
                                                or river port.
39. Cross Over Island--       ......do.......  1. Name of vessel.
 leaving sector 4.                             2. Location.
40. Cross Over Island--       Seaway           1. Name of vessel.
 entering sector 3.            Iroquois,       2. Location.
                               channel 11.
41. C.I.P. 14...............  ......do.......  1. Name of vessel.
                                               2. Location.
42. C.I.P. 13--order of       ......do.......  1. Name of vessel.
 passing through established.                  2. Location.
43. Exiting Iroquois Lock...  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA C.I.P. 10.
                                               4. Harbor or river pilot
                                                requirement--St.
                                                Lambert.
                                               5. Confirm pilot
                                                requirement--Snell Lock
                                                (inland vessels only).
44. C.I.P. 10--leaving        ......do.......  1. Name of vessel.
 sector 3.                                     2. Location.
45. C.I.P. 10--entering       Seaway           1. Name of vessel.
 sector 2.                     Eisenhower,     2. Location.
                               channel 12.
46. C.I.P. 9--order of        ......do.......  1. Name of vessel.
 passing through established.                  2. Location.
                                               3. ETA Snell lock.
47. Exiting Snell lock......  ......do.......  1. Name of vessel.
                                               2. Location.
                                               3. ETA C.I.P. 6.
48. Buoy D47 Lake St.         ......do.......  1. Name of vessel.
 Francis.                                      2. Location.
                                               3. Confirm pilot
                                                requirement--Upper
                                                Beauharnois Lock (inland
                                                vessels only).
49. C.I.P. 6--leaving sector  ......do.......  1. Name of Vessel.
 2.                                            2. Location.
50. C.I.P. 6--entering        Seaway           1. Name of vessel.
 sector 1.                     Beauharnois,    2. Location.
                               channel 14.
51. C.I.P. 5--order of        ......do.......  1. Name of vessel.
 passing through established.                  2. Location.
52. Exiting Lower             ......do.......  1. Name of vessel.
 Beauharnois Lock.                             2. Location.
                                               3. Confirm harbor or
                                                river pilot requirement--
                                                St. Lambert.
                                               4. Montreal Harbor Berth
                                                number (if applicable).
53. St. Nicholas Island.....  ......do.......  1. Name of vessel.
                                               2. Location.
54. St. Lambert lock to       ......do.......  1. Name of vessel.
 C.I.P. 2--leaving sector 1.                   2. Location.
------------------------------------------------------------------------

[[Page 727]]

 
                      Upbound and Downbound Vessels
------------------------------------------------------------------------
55. Vessels departing from    Appropriate      1. Name of Vessel.
 ports between mid-lake        Seaway station  2. Location.
 Ontario and Long Point,       for sector.     3. Manifested dangerous
 except vessels westbound                       cargo:
 from a Lake Erie port and                     --nature and quantity
 not transiting the Welland                    --IMO classification
 Canal.                                        --location where
                                                dangerous cargo is
                                                stowed.
                                               and if proceeding to
                                                Welland Canal,
                                               4. Destination.
                                               5. Drafts, fore and aft.
                                               6. Cargo.
                                               7. Pilot requirement:
                                               --Lake Erie if upbound or
                                                Lake Ontario if
                                                downbound.
------------------------------------------------------------------------


(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)

[39 FR 10900, Mar. 22, 1974, as amended at 39 FR 27797, Aug. 1, 1974; 40 
FR 11722, Mar. 13, 1975; 40 FR 25814, June 19, 1975. Redesignated at 42 
FR 27588, May 31, 1977; 43 FR 25819, June 15, 1978. Further redesignated 
and amended at 45 FR 52381, Aug. 7, 1980; 47 FR 51125, Nov. 12, 1982; 48 
FR 20692, May 9, 1983; 55 FR 48600, Nov. 21, 1990; 65 FR 52915, Aug. 31, 
2000; 75 FR 10690, Mar. 9, 2010]



       Sec. Appendix I to Subpart A of Part 401--Vessel Dimensions

    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 when the vessel is alongside the 
lock wall.
    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).
    Caution: Masters must take into account the ballast draft of the 
vessel when verifying the maximum permissible dimensions.

[[Page 728]]

[GRAPHIC] [TIFF OMITTED] TC31OC91.025


(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)

[45 FR 52381, Aug. 7, 1980, as amended at 49 FR 30936, Aug. 2, 1984; 61 
FR 19552, May 2, 1996]



          Subpart B_Penalties_Violations of Seaway Regulations

    Authority: 33 U.S.C. 981-990, 1231 and 1232; and 49 CFR 1.52.



Sec. 401.101  Criminal penalty.

    (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

[[Page 729]]

than five years, or both, and any person who, in the willful and knowing 
violation of this Act or any regulation issued hereunder, uses a 
dangerous weapon, or engages in conduct that causes bodily injury or 
fear of imminent bodily injury to any officer authorized to enforce the 
provisions of this Act or the regulations issued hereunder, shall, in 
lieu of the penalties prescribed in this paragraph be fined not more 
than $100,000 or imprisoned for not more than ten years, or both.
    (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.

[39 FR 12746, Apr. 8, 1974, as amended at 47 FR 20582, May 23, 1982]



Sec. 401.102  Civil penalty.

    (a) A person, as described in Sec. 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.

[39 FR 12746, Apr. 8, 1974, as amended at 47 FR 20582, May 23, 1982; 61 
FR 54734, Oct. 22, 1996; 67 FR 67113, Nov. 4, 2002; 71 FR 66113, Nov. 
13, 2006]



       Subpart C_Assessment, Mitigation or Remission of Penalties

    Authority: Sec. 106, Pub. L. 92-340, 86 Stat. 424, unless otherwise 
noted.

    Source: 39 FR 18443, May 28, 1974, unless otherwise noted.



Sec. 401.201  Delegation of authority.

    (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.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended; sec. 104, Pub. L. 92-
340, 86 Stat. 424 and secs. 12 and 13 at sec. 2 of Pub. L. 95-474, 92 
Stat. 1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985, as amended at 51 FR 4340, Feb. 4, 1986]



Sec. 401.202  Statute providing for assessment, mitigation or remission
of civil penalties.

    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.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended; and secs. 12 and 13 of 
sec. 2 of Pub. L. 95-474, 92 Stat. 1471)

[47 FR 20582, May 13, 1982]



Sec. 401.203  Reports of violations of Seaway regulations and instituting
and conducting civil penalty proceedings.

    (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

[[Page 730]]

forth the time and nature of the violation and advise the alleged 
violator relative to the administrative procedure employed in processing 
civil penalty cases. The alleged violator will be advised that he or she 
has 15 days in which to appear before the Associate Administrator or 
submit a written statement for consideration. The Associate 
Administrator shall, upon expiration of the 15-day period, determine 
whether there has been a violation of the Seaway Regulations.
    (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 Sec. 401.204, shall refer the findings to

[[Page 731]]

the United States Attorney for appropriate action.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 
86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 
1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985, as amended at 51 FR 4340, Feb. 4, 1986]



Sec. 401.204  Criminal penalties.

    (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.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 
86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 
1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985]



Sec. 401.205  Civil and criminal penalties.

    (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 Sec. 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.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 
86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 
1471, and 49 CFR 1.52)

[50 FR 10963, Mar. 19, 1985, as amended at 51 FR 4341, Feb. 4, 1986]



Sec. 401.206  Procedure for payment of civil penalty for violation of
the Seaway regulations.

    (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.

(68 Stat. 93-96, 33 U.S.C. 981-990, as amended sec. 104, Pub. L. 92-340 
86 Stat. 424 and secs. 12 and 13 of sec. 2 of Pub. L. 95-474, 92 Stat. 
1471, and 49 CFR 1.52)

[50 FR 10964, Mar. 19, 1985, as amended at 51 FR 4341, Feb. 4, 1986]



PART 402_TARIFF OF TOLLS--Table of Contents



Sec.
402.1 Purpose.
402.2 Title.

[[Page 732]]

402.3 Interpretation.
402.4 Tolls.
402.5 New Business Incentive Program.
402.6 Volume Rebate Incentive Program.
402.7 Description and weight of cargo.
402.8 Post-clearance date operational surcharges.
402.9 Coming into force.
402.10 Schedule of tolls.
402.11 Operational surcharges--no postponements.
402.12 Operational surcharges--after postponements.

    Authority: 33 U.S.C. 983(a),984(a)(4), and 988, as amended; 49 CFR 
1.52.

    Source: 66 FR 15329, Mar. 16, 2001, unless otherwise noted.



Sec. 402.1  Purpose.

    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.



Sec. 402.2  Title.

    This tariff may be cited as the St. Lawrence Seaway Tariff of Tolls 
(Schedule of Tolls in Canada).



Sec. 402.3  Interpretation.

    In this tariff,
    Bulk cargo means cargo consisting of goods, loose or in mass, that 
generally must be shoveled, pumped, blown, scooped or forked in the 
handling and includes:
    (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.
    Cargo means all goods aboard a vessel whether carried as revenue or 
non-revenue freight or carried for the vessel owner, but does not 
include:
    (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.
    Carrier means any company, or its representative, engaged in 
physically moving a cargo between an origin and a destination.
    Closing date means in respect of a year, the first date in such year 
after the opening date on which both the Montreal-Lake Ontario portion 
and the Welland Canal portion of the Seaway are closed for vessel 
traffic.
    Commodity means cargo that has been defined as a commodity in the 
Manager's then current publicly announced commodity codes.
    Containerized cargo means cargo shipped in a container that is 
enclosed, permanent, reusable, nondisposable, weather tight.
    Corporation means the Saint Lawrence Seaway Development Corporation.
    Domestic cargo means cargo the shipment of which originates at one 
Canadian point and terminates at another Canadian point, or originates 
at one United States point and terminates at another United States 
point, but does not include import or export cargo designated at the 
point of origin for transshipment by water at a point in Canada or in 
the United States.
    General cargo means goods other than bulk cargo, grain, government 
aid cargo, steel slabs and coal.
    Government aid cargo means:
    (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

[[Page 733]]

certified by the customs service of the United States or Canada.
    Grain means barley, corn, oats, flaxseed, rapeseed, soybeans, field 
crop seeds, buckwheat, dried beans, dried peas, rye, wheat, grain 
screenings or meal from those grains.
    Great Lakes/St. Lawrence Seaway System means all ports in the Great 
Lakes and the St. Lawrence River.
    Incremental volume means the portion of tonnage shipped through the 
Seaway by a specific shipper/receiver in a given season, above the pre-
approved maximum tonnage realized by that specific shipper/receiver over 
the previous five (5) navigation seasons.
    Manager means the St. Lawrence Seaway Management Corporation.
    Maximum volume means the highest total annual tonnage of a specific 
commodity that a shipper/receiver has shipped through the Seaway over 
the previous 5 years.
    Metric ton means 1,000 kilograms (2204.62 pounds).
    Navigation season means the period commencing on an opening date and 
ending on the next closing date.
    New business means:
    (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.
    Opening date means, in respect of any year, the earliest date in 
such year on which either the Montreal-Lake Ontario portion or the 
Welland Canal portion of the Seaway is opened for vessel traffic, 
provided however that if such date is prior to April 1 the opening date 
in such year shall be deemed to be the 1st day of April in such year.
    Passenger means a person being transported through the Seaway who 
has paid a fare for passage.
    Pleasure craft means a vessel, however propelled, that is used 
exclusively for pleasure and does not carry passengers.
    Seaway includes all facilities and services authorized under Public 
Law 358, 83rd Congress, May 13, 1954, enacted by the Congress of the 
United States, as amended, (33 U.S.C. 981, et seq.) and the meaning 
ascribed to it under the Canada Marine Act.
    Section of the Seaway means either the Montreal-Lake Ontario portion 
of the Seaway or the Welland Canal portion of the Seaway.
    Shipper/receiver means any company who owns or buys the cargo that 
is being shipped through the Seaway.
    Vessel (``ship'' in Canada) means every type of craft used as a 
means of transportation on water, except a vessel owned or employed by 
the Manager or the Corporation.
    Volume rebate means a percentage reduction, as part of an initiative 
program, offered on applicable cargo tolls for shipments of a specific 
commodity

[[Page 734]]

above and beyond a pre-approved historical maximum volume.

[66 FR 15329, Mar. 16, 2001, as amended at 71 FR 14807, Mar. 24, 2006; 
72 FR 4431, Jan. 31, 2007; 74 FR 10678, Mar. 12, 2009]



Sec. 402.4  Tolls.

    (a) Every vessel entering, passing through or leaving the Seaway 
shall pay a toll that is the sum of each applicable charge in Sec. 
402.10. Each charge is calculated based on the description set out in 
column 1 of Sec. 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.

[66 FR 15329, Mar. 16, 2001, as amended at 71 FR 14807, Mar. 24, 2006; 
74 FR 10679, Mar. 12, 2009]



Sec. 402.5  New Business Incentive Program

    (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.

[74 FR 10679, Mar. 12, 2009]



Sec. 402.6  Volume Rebate Incentive program

    (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.

[74 FR 10680, Mar. 12, 2009]



Sec. 402.7  Description and weight of cargo.

    For the purposes of calculating applicable tolls:
    (a) A cord of pulpwood is taken to weigh 1,450 kilograms (3,196.70 
pounds); and

[[Page 735]]

    (b) The cargo tonnage shall be rounded to the nearest 1,000 
kilograms (2,204.62 pounds.)

[66 FR 15329, Mar. 16, 2001, as amended at 72 FR 4431, Jan. 31, 2007. 
Redesignated at 74 FR 10679, Mar. 12, 2009]



Sec. 402.8  Post-clearance date operational surcharges.

    (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 
Sec. 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.

[66 FR 15329, Mar. 16, 2001. Redesignated and amended at 74 FR 10680, 
Mar. 12, 2009]



Sec. 402.9  Coming into force.

    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.

[66 FR 15329, Mar. 16, 2001. Redesignated at 74 FR 10679, Mar. 12, 2009]



Sec. 402.10  Schedule of tolls.

------------------------------------------------------------------------
                                                       Rate ($) Welland
                                   Rate ($) Montreal      Canal--Lake
   Item/description of charges     to or  from Lake   Ontario to or from
                                  Ontario  (5 locks)     Lake Erie  (8
                                                            locks)
Column 1                          Column 2..........  Column 3
------------------------------------------------------------------------
1. Subject to item 3, for
 complete transit of the Seaway,
 a composite toll, comprising:
    (1) a charge per gross        0.0966............  0.1546.
     registered ton of the ship,
     applicable whether the ship
     is wholly or partially
     laden, or is in ballast,
     and the gross registered
     tonnage being calculated
     according to prescribed
     rules for measurement or
     under the International
     Convention on Tonnage
     Measurement of Ships, 1969,
     as amended from time to
     time \1\.
    (2) a charge per metric ton
     of cargo as certified on
     the ship's manifest or
     other document, as follows:
        (a) bulk cargo..........  1.0012............  0.6834.
        (b) general cargo.......  2.4124............  1.0936.
        (c) steel slab..........  2.1833............  0.7829.
        (d) containerized cargo.  1.0012............  0.6834.
        (e) government aid cargo  n/a...............  n/a.
        (f) grain...............  0.6151............  0.6834.
        (g) coal................  0.6151............  0.6834.
    (3) a charge per passenger    1.5000............  1.5000.
     per lock.
    (4) a lockage charge per      n/a...............  0.2575.
     Gross Registered Ton of the
     vessel, as defined in item
     1(1), applicable whether
     the ship is wholly or
     partially laden, or is in
     ballast, for transit of the
     Welland Canal in either
     direction by cargo ships.
    Up to a maximum charge per    n/a...............  3,600.00.
     vessel.
2. Subject to item 3, for         20 per cent per     13 per cent per
 partial transit of the Seaway.    lock of the         lock of the
                                   applicable charge   applicable charge
                                   under items 1(1)    under items 1(1)
                                   and (2) plus the    and (2) plus the
                                   applicable charge   applicable charge
                                   under items 1(3)    under items 1(3)
                                   and (4).            and (4).
3. Minimum charge per vessel per  25.00.............  25.00.
 lock transited for full or
 partial transit of the Seaway.

[[Page 736]]

 
4. A charge per pleasure craft    25.00 \3\.........  25.00.
 per lock transited for full or
 partial transit of the Seaway,
 including applicable federal
 taxes \2\.
6. Under the New Business         20%...............  20%.
 Initiative Program, for cargo
 accepted as New Business, a
 percentage rebate on the
 applicable cargo charges for
 the approved period.
7. Under the Volume Rebate        10%...............  10%.
 Incentive program, a
 retroactive percentage rebate
 on cargo tolls on the
 incremental volume calculated
 based on the pre-approved
 maximum volume.
------------------------------------------------------------------------
\1\ Or under the US GRT for ships prescribed prior to 2002.
\2\ The applicable charge at the Saint Lawrence Seaway Development
  Corporation's locks (Eisenhower, Snell) for pleasure craft is $30 U.S.
  or $30 Canadian per lock. The applicable charge under item 3 at the
  Saint Lawrence Seaway Development Corporation's locks (Eisenhower,
  Snell) will be collected in U.S. dollars. The other amounts are in
  Canadian dollars and are for the Canadian share of tolls. The
  collection of the U.S. portion of tolls for commercial vessels is
  waived by law (33 U.S.C. 998a(a)).
\3\ Pleasure craft rates-subject to change in subsequent years.


[74 FR 10679, Mar. 12, 2009]



Sec. 402.11  Operational surcharges--no postponements.

----------------------------------------------------------------------------------------------------------------
                                                                                                      Column 3
                                Column 1  Place in Montreal-Lake  Column 2  Period after clearance   Amount ($)
             Item                       Ontario section                         date                  (5 locks)
                                                                                                         \1\
----------------------------------------------------------------------------------------------------------------
(a)..........................  Cape Vincent (downbound) or Cap    (a) 24 hours....................        20,000
                                Saint-Michel (upbound).           (b) 24 hours or more but less           40,000
                                                                   than 48 hours.                         60,000
                                                                  (c) 48 hours or more but less           80,000
                                                                   than 72 hours.
                                                                  (d) 72 hours or more but less
                                                                   than 96 hours.
(b)..........................  Port, dock or wharf within St.     (a) 24 hours....................           n/a
                                Lambert--Iroquois lock segment.   (b) 24 hours or more but less           20,000
                                                                   than 48 hours.                         40,000
                                                                  (c) 48 hours or more but less          60,000
                                                                   than 72 hours.
                                                                  (d) 72 hours or more but less
                                                                   than 96 hours.
----------------------------------------------------------------------------------------------------------------
\1\ Prorated on a per-lock basis.


[66 FR 15329, Mar. 16, 2001. Redesignated at 74 FR 10679, Mar. 12, 2009]



Sec. 402.12  Operational surcharges--after postponements.

----------------------------------------------------------------------------------------------------------------
                                                                                                      Column 3
                                Column 1  Place in Montreal-Lake  Column 2  Period after clearance   Amount ($)
             Item                           Ontario                             date                  (5 locks)
                                                                                                         \1\
----------------------------------------------------------------------------------------------------------------
(a)..........................  Cape Vincent (downbound) or Cape
                                Saint-Michel (upbound):
                               (1) If the postponement is for 24  (a) 24 hours or more but less           20,000
                                hours.                             than 36 hours.
                                                                  (b) 36 hours or more but less           40,000
                                                                   than 48 hours.
                                                                  (c) 48 hours or more but less           60,000
                                                                   than 72 hours.
                                                                  (d) 72 hours or more but less           80,000
                                                                   than 96 hours.
                               (2) If the postponement is for 48  (a) 48 hours or more but less           20,000
                                hours.                             than 56 hours.
                                                                  (b) 56 hours or more but less           40,000
                                                                   than 64 hours.
                                                                  (c) 64 hours or more but less           60,000
                                                                   than 72 hours.
                                                                  (d) 72 hours or more but less           80,000
                                                                   than 96 hours.
                               (3) If the postponement is for 72  (a) 72 hours or more but less           20,000
                                hours.                             than 78 hours.
                                                                  (b) 78 hours or more but less           40,000
                                                                   than 84 hours.
                                                                  (c) 84 hours or more but less           60,000
                                                                   than 90 hours.
                                                                  (d) 90 hours or more but less           80,000
                                                                   than 96 hours.
(b)..........................  Port, dock or wharf within St.
                                Lambert--Iroquois lock segment:
                               (1) If the postponement is for 24  (a) 24 hours or more but less              n/a
                                hours.                             than 48 hours.
                                                                  (b) 48 hours or more but less           20,000
                                                                   than 60 hours.
                                                                  (c) 60 hours or more but less           40,000
                                                                   than 72 hours.
                                                                  (d) 72 hours or more but less           60,000
                                                                   than 96 hours.
                               (2) If the postponement is for 48  (a) 48 hours or more but less              n/a
                                hours.                             than 72 hours.
                                                                  (b) 72 hours or more but less           20,000
                                                                   than 80 hours.
                                                                  (c) 80 hours or more but less           40,000
                                                                   than 88 hours.
                                                                  (d) 88 hours or more but less           60,000
                                                                   than 96 hours.
                               (3) If the postponement is for 72  (a) 72 hours or more but less             n/a
                                hours or more.                     than 96 hours.
----------------------------------------------------------------------------------------------------------------
\1\ Prorated on a per-lock basis.


[[Page 737]]


[66 FR 15329, Mar. 16, 2001. Redesignated and amended at 74 FR 10679, 
Mar. 12, 2009]



PART 403_RULES OF PROCEDURE OF THE JOINT TOLLS REVIEW BOARD--
Table of Contents



Sec.
403.1 Purpose of the Joint Tolls Review Board. [Rule 1]
403.2 Scope of rules. [Rule 2]
403.3 Definitions. [Rule 3]
403.4 Applications. [Rule 4]
403.5 Meetings and functions of Board. [Rule 5]
403.6 Additional information. [Rule 6]
403.7 Action on applications; notices of requirements. [Rule 7]
403.8 Proceedings; stay or adjournment. [Rule 8]
403.9 Prehearings. [Rule 9]
403.10 Hearings; witnesses; affidavits. [Rule 10]
403.11 Findings and recommendations. [Rule 11]

    Authority: 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.

    Source: 24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959, 
unless otherwise noted.



Sec. 403.1  Purpose of the Joint Tolls Review Board. [Rule 1]

    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).

[47 FR 13805, Apr. 1, 1982]



Sec. 403.2  Scope of rules. [Rule 2]

    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].

(68 Stat. 92-97, 33 U.S.C. 981-990, as amended; Agreement between the 
Governments of the United States and Canada finalized on March 20, 1978)

[43 FR 30539, July 17, 1978. Redesignated at 47 FR 13805, Apr. 1, 1982]



Sec. 403.3  Definitions. [Rule 3]

    In these rules, unless the context otherwise requires:
    (a) Application includes complaint;
    (b) Affidavit includes a written affirmation;
    (c) Board means the Joint Tolls Review Board;
    (d) Words in the singular include the plural and words in the plural 
include the singular [Rule 3].

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959, as amended at 43 
FR 30539, July 17, 1978. Redesignated at 47 FR 13805, Apr. 1, 1982]



Sec. 403.4  Applications. [Rule 4]

    (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 Federal Register.
    (f) Interested parties shall have thirty days from date of 
publication of notice in which to make representations

[[Page 738]]

or to submit briefs to the Board. [Rule 4]

(68 Stat. 92-97, 33 U.S.C. 981-990, as amended; Agreement between the 
Governments of the United States and Canada finalized on March 20, 1978)

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959, as amended at 43 
FR 30539, July 17, 1978. Redesignated and amended at 47 FR 13805, Apr. 
1, 1982]



Sec. 403.5  Meetings and functions of Board. [Rule 5]

    (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 Federal 
Register.
    (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]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]



Sec. 403.6  Additional information. [Rule 6]

    The Board may require further information, particulars or documents 
from any party. [Rule 6]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]



Sec. 403.7  Action on applications; notices of requirements. [Rule 7]

    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]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]



Sec. 403.8  Proceedings; stay or adjournment. [Rule 8]

    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]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]



Sec. 403.9  Prehearings. [Rule 9]

    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]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]



Sec. 403.10  Hearings; witnesses; affidavits. [Rule 10]

    (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

[[Page 739]]

to the subject matter in question, and any objection to the admission of 
evidence shall be noted by the member and dealt with by the Board at the 
hearing. Such notice of the time and place of examination as is 
prescribed shall be given to the parties. All examinations shall be 
returned to the Board, and may without further proof be used in 
evidence, saving all just exceptions.
    (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]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]



Sec. 403.11  Findings and recommendations. [Rule 11]

    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]

[24 FR 9307, Nov. 18, 1959; 24 FR 10445, Dec. 23, 1959. Redesignated at 
47 FR 13805, Apr. 1, 1982]

                        PARTS 404	499 [RESERVED]

[[Page 741]]



                              FINDING AIDS




  --------------------------------------------------------------------

  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

[[Page 743]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2010)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
        IV  Miscellaneous Agencies (Parts 400--500)

                    Title 2--Grants and Agreements

            Subtitle A--Office of Management and Budget Guidance 
                for Grants and Agreements
         I  Office of Management and Budget Governmentwide 
                Guidance for Grants and Agreements (Parts 100--
                199)
        II  Office of Management and Budget Circulars and Guidance 
                (200--299)
            Subtitle B--Federal Agency Regulations for Grants and 
                Agreements
       III  Department of Health and Human Services (Parts 300-- 
                399)
        IV  Department of Agriculture (Parts 400--499)
        VI  Department of State (Parts 600--699)
      VIII  Department of Veterans Affairs (Parts 800--899)
        IX  Department of Energy (Parts 900--999)
        XI  Department of Defense (Parts 1100--1199)
       XII  Department of Transportation (Parts 1200--1299)
      XIII  Department of Commerce (Parts 1300--1399)
       XIV  Department of the Interior (Parts 1400--1499)
        XV  Environmental Protection Agency (Parts 1500--1599)
     XVIII  National Aeronautics and Space Administration (Parts 
                1880--1899)
      XXII  Corporation for National and Community Service (Parts 
                2200--2299)
     XXIII  Social Security Administration (Parts 2300--2399)
      XXIV  Housing and Urban Development (Parts 2400--2499)
       XXV  National Science Foundation (Parts 2500--2599)
      XXVI  National Archives and Records Administration (Parts 
                2600--2699)
     XXVII  Small Business Administration (Parts 2700--2799)
    XXVIII  Department of Justice (Parts 2800--2899)
       XXX  Department of Homeland Security (Parts 3000--3099)
      XXXI  Institute of Museum and Library Services (Parts 3100--
                3199)
     XXXII  National Endowment for the Arts (Parts 3200--3299)

[[Page 744]]

    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--99)
        II  Recovery Accountability and Transparency Board (Parts 
                200--299)

                   Title 5--Administrative Personnel

         I  Office of Personnel Management (Parts 1--1199)
        II  Merit Systems Protection Board (Parts 1200--1299)
       III  Office of Management and Budget (Parts 1300--1399)
         V  The International Organizations Employees Loyalty 
                Board (Parts 1500--1599)
        VI  Federal Retirement Thrift Investment Board (Parts 
                1600--1699)
      VIII  Office of Special Counsel (Parts 1800--1899)
        IX  Appalachian Regional Commission (Parts 1900--1999)
        XI  Armed Forces Retirement Home (Parts 2100--2199)
       XIV  Federal Labor Relations Authority, General Counsel of 
                the Federal Labor Relations Authority and Federal 
                Service Impasses Panel (Parts 2400--2499)
        XV  Office of Administration, Executive Office of the 
                President (Parts 2500--2599)
       XVI  Office of Government Ethics (Parts 2600--2699)
       XXI  Department of the Treasury (Parts 3100--3199)
      XXII  Federal Deposit Insurance Corporation (Parts 3200--
                3299)
     XXIII  Department of Energy (Parts 3300--3399)
      XXIV  Federal Energy Regulatory Commission (Parts 3400--
                3499)
       XXV  Department of the Interior (Parts 3500--3599)
      XXVI  Department of Defense (Parts 3600-- 3699)
    XXVIII  Department of Justice (Parts 3800--3899)
      XXIX  Federal Communications Commission (Parts 3900--3999)
       XXX  Farm Credit System Insurance Corporation (Parts 4000--
                4099)
      XXXI  Farm Credit Administration (Parts 4100--4199)
    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
      XXXV  Office of Personnel Management (Parts 4500--4599)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)

[[Page 745]]

     XLIII  National Science Foundation (Parts 5300--5399)
       XLV  Department of Health and Human Services (Parts 5500--
                5599)
      XLVI  Postal Rate Commission (Parts 5600--5699)
     XLVII  Federal Trade Commission (Parts 5700--5799)
    XLVIII  Nuclear Regulatory Commission (Parts 5800--5899)
         L  Department of Transportation (Parts 6000--6099)
       LII  Export-Import Bank of the United States (Parts 6200--
                6299)
      LIII  Department of Education (Parts 6300--6399)
       LIV  Environmental Protection Agency (Parts 6400--6499)
        LV  National Endowment for the Arts (Parts 6500--6599)
       LVI  National Endowment for the Humanities (Parts 6600--
                6699)
      LVII  General Services Administration (Parts 6700--6799)
     LVIII  Board of Governors of the Federal Reserve System 
                (Parts 6800--6899)
       LIX  National Aeronautics and Space Administration (Parts 
                6900--6999)
        LX  United States Postal Service (Parts 7000--7099)
       LXI  National Labor Relations Board (Parts 7100--7199)
      LXII  Equal Employment Opportunity Commission (Parts 7200--
                7299)
     LXIII  Inter-American Foundation (Parts 7300--7399)
      LXIV  Merit Systems Protection Board (Parts 7400--7499)
       LXV  Department of Housing and Urban Development (Parts 
                7500--7599)
      LXVI  National Archives and Records Administration (Parts 
                7600--7699)
     LXVII  Institute of Museum and Library Services (Parts 7700--
                7799)
    LXVIII  Commission on Civil Rights (Parts 7800--7899)
      LXIX  Tennessee Valley Authority (Parts 7900--7999)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
     LXXII  Special Inspector General for Iraq Reconstruction 
                (Parts 8200--8299)
    LXXIII  Department of Agriculture (Parts 8300--8399)
     LXXIV  Federal Mine Safety and Health Review Commission 
                (Parts 8400--8499)
     LXXVI  Federal Retirement Thrift Investment Board (Parts 
                8600--8699)
    LXXVII  Office of Management and Budget (Parts 8700--8799)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
      XCIX  Department of Defense Human Resources Management and 
                Labor Relations Systems (Department of Defense--
                Office of Personnel Management) (Parts 9900--9999)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 0--99)

[[Page 746]]

                         Title 7--Agriculture

            Subtitle A--Office of the Secretary of Agriculture 
                (Parts 0--26)
            Subtitle B--Regulations of the Department of 
                Agriculture
         I  Agricultural Marketing Service (Standards, 
                Inspections, Marketing Practices), Department of 
                Agriculture (Parts 27--209)
        II  Food and Nutrition Service, Department of Agriculture 
                (Parts 210--299)
       III  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 300--399)
        IV  Federal Crop Insurance Corporation, Department of 
                Agriculture (Parts 400--499)
         V  Agricultural Research Service, Department of 
                Agriculture (Parts 500--599)
        VI  Natural Resources Conservation Service, Department of 
                Agriculture (Parts 600--699)
       VII  Farm Service Agency, Department of Agriculture (Parts 
                700--799)
      VIII  Grain Inspection, Packers and Stockyards 
                Administration (Federal Grain Inspection Service), 
                Department of Agriculture (Parts 800--899)
        IX  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Fruits, Vegetables, Nuts), Department 
                of Agriculture (Parts 900--999)
         X  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Milk), Department of Agriculture 
                (Parts 1000--1199)
        XI  Agricultural Marketing Service (Marketing Agreements 
                and Orders; Miscellaneous Commodities), Department 
                of Agriculture (Parts 1200--1299)
       XIV  Commodity Credit Corporation, Department of 
                Agriculture (Parts 1400--1499)
        XV  Foreign Agricultural Service, Department of 
                Agriculture (Parts 1500--1599)
       XVI  Rural Telephone Bank, Department of Agriculture (Parts 
                1600--1699)
      XVII  Rural Utilities Service, Department of Agriculture 
                (Parts 1700--1799)
     XVIII  Rural Housing Service, Rural Business-Cooperative 
                Service, Rural Utilities Service, and Farm Service 
                Agency, Department of Agriculture (Parts 1800--
                2099)
        XX  Local Television Loan Guarantee Board (Parts 2200--
                2299)
      XXVI  Office of Inspector General, Department of Agriculture 
                (Parts 2600--2699)
     XXVII  Office of Information Resources Management, Department 
                of Agriculture (Parts 2700--2799)
    XXVIII  Office of Operations, Department of Agriculture (Parts 
                2800--2899)
      XXIX  Office of Energy Policy and New Uses, Department of 
                Agriculture (Parts 2900--2999)
       XXX  Office of the Chief Financial Officer, Department of 
                Agriculture (Parts 3000--3099)

[[Page 747]]

      XXXI  Office of Environmental Quality, Department of 
                Agriculture (Parts 3100--3199)
     XXXII  Office of Procurement and Property Management, 
                Department of Agriculture (Parts 3200--3299)
    XXXIII  Office of Transportation, Department of Agriculture 
                (Parts 3300--3399)
     XXXIV  National Institute of Food and Agriculture (Parts 
                3400--3499)
      XXXV  Rural Housing Service, Department of Agriculture 
                (Parts 3500--3599)
     XXXVI  National Agricultural Statistics Service, Department 
                of Agriculture (Parts 3600--3699)
    XXXVII  Economic Research Service, Department of Agriculture 
                (Parts 3700--3799)
   XXXVIII  World Agricultural Outlook Board, Department of 
                Agriculture (Parts 3800--3899)
       XLI  [Reserved]
      XLII  Rural Business-Cooperative Service and Rural Utilities 
                Service, Department of Agriculture (Parts 4200--
                4299)
         L  Rural Business-Cooperative Service, Rurual Housing 
                Service, and Rural Utilities Service, Department 
                of Agriculture (Parts 5000--5099)

                    Title 8--Aliens and Nationality

         I  Department of Homeland Security (Immigration and 
                Naturalization) (Parts 1--499)
         V  Executive Office for Immigration Review, Department of 
                Justice (Parts 1000--1399)

                 Title 9--Animals and Animal Products

         I  Animal and Plant Health Inspection Service, Department 
                of Agriculture (Parts 1--199)
        II  Grain Inspection, Packers and Stockyards 
                Administration (Packers and Stockyards Programs), 
                Department of Agriculture (Parts 200--299)
       III  Food Safety and Inspection Service, Department of 
                Agriculture (Parts 300--599)

                           Title 10--Energy

         I  Nuclear Regulatory Commission (Parts 0--199)
        II  Department of Energy (Parts 200--699)
       III  Department of Energy (Parts 700--999)
         X  Department of Energy (General Provisions) (Parts 
                1000--1099)
      XIII  Nuclear Waste Technical Review Board (Parts 1303--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

[[Page 748]]

                      Title 11--Federal Elections

         I  Federal Election Commission (Parts 1--9099)
        II  Election Assistance Commission (Parts 9400--9499)

                      Title 12--Banks and Banking

         I  Comptroller of the Currency, Department of the 
                Treasury (Parts 1--199)
        II  Federal Reserve System (Parts 200--299)
       III  Federal Deposit Insurance Corporation (Parts 300--399)
        IV  Export-Import Bank of the United States (Parts 400--
                499)
         V  Office of Thrift Supervision, Department of the 
                Treasury (Parts 500--599)
        VI  Farm Credit Administration (Parts 600--699)
       VII  National Credit Union Administration (Parts 700--799)
      VIII  Federal Financing Bank (Parts 800--899)
        IX  Federal Housing Finance Board (Parts 900--999)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
      XVII  Office of Federal Housing Enterprise Oversight, 
                Department of Housing and Urban Development (Parts 
                1700--1799)
     XVIII  Community Development Financial Institutions Fund, 
                Department of the Treasury (Parts 1800--1899)

               Title 13--Business Credit and Assistance

         I  Small Business Administration (Parts 1--199)
       III  Economic Development Administration, Department of 
                Commerce (Parts 300--399)
        IV  Emergency Steel Guarantee Loan Board (Parts 400--499)
         V  Emergency Oil and Gas Guaranteed Loan Board (Parts 
                500--599)

                    Title 14--Aeronautics and Space

         I  Federal Aviation Administration, Department of 
                Transportation (Parts 1--199)
        II  Office of the Secretary, Department of Transportation 
                (Aviation Proceedings) (Parts 200--399)
       III  Commercial Space Transportation, Federal Aviation 
                Administration, Department of Transportation 
                (Parts 400--499)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

[[Page 749]]

                 Title 15--Commerce and Foreign Trade

            Subtitle A--Office of the Secretary of Commerce (Parts 
                0--29)
            Subtitle B--Regulations Relating to Commerce and 
                Foreign Trade
         I  Bureau of the Census, Department of Commerce (Parts 
                30--199)
        II  National Institute of Standards and Technology, 
                Department of Commerce (Parts 200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  Foreign-Trade Zones Board, Department of Commerce 
                (Parts 400--499)
       VII  Bureau of Industry and Security, Department of 
                Commerce (Parts 700--799)
      VIII  Bureau of Economic Analysis, Department of Commerce 
                (Parts 800--899)
        IX  National Oceanic and Atmospheric Administration, 
                Department of Commerce (Parts 900--999)
        XI  Technology Administration, Department of Commerce 
                (Parts 1100--1199)
      XIII  East-West Foreign Trade Board (Parts 1300--1399)
       XIV  Minority Business Development Agency (Parts 1400--
                1499)
            Subtitle C--Regulations Relating to Foreign Trade 
                Agreements
        XX  Office of the United States Trade Representative 
                (Parts 2000--2099)
            Subtitle D--Regulations Relating to Telecommunications 
                and Information
     XXIII  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                2300--2399)

                    Title 16--Commercial Practices

         I  Federal Trade Commission (Parts 0--999)
        II  Consumer Product Safety Commission (Parts 1000--1799)

             Title 17--Commodity and Securities Exchanges

         I  Commodity Futures Trading Commission (Parts 1--199)
        II  Securities and Exchange Commission (Parts 200--399)
        IV  Department of the Treasury (Parts 400--499)

          Title 18--Conservation of Power and Water Resources

         I  Federal Energy Regulatory Commission, Department of 
                Energy (Parts 1--399)
       III  Delaware River Basin Commission (Parts 400--499)
        VI  Water Resources Council (Parts 700--799)

[[Page 750]]

      VIII  Susquehanna River Basin Commission (Parts 800--899)
      XIII  Tennessee Valley Authority (Parts 1300--1399)

                       Title 19--Customs Duties

         I  U.S. Customs and Border Protection, Department of 
                Homeland Security; Department of the Treasury 
                (Parts 0--199)
        II  United States International Trade Commission (Parts 
                200--299)
       III  International Trade Administration, Department of 
                Commerce (Parts 300--399)
        IV  U.S. Immigration and Customs Enforcement, Department 
                of Homeland Security (Parts 400--599)

                     Title 20--Employees' Benefits

         I  Office of Workers' Compensation Programs, Department 
                of Labor (Parts 1--199)
        II  Railroad Retirement Board (Parts 200--399)
       III  Social Security Administration (Parts 400--499)
        IV  Employees Compensation Appeals Board, Department of 
                Labor (Parts 500--599)
         V  Employment and Training Administration, Department of 
                Labor (Parts 600--699)
        VI  Employment Standards Administration, Department of 
                Labor (Parts 700--799)
       VII  Benefits Review Board, Department of Labor (Parts 
                800--899)
      VIII  Joint Board for the Enrollment of Actuaries (Parts 
                900--999)
        IX  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 1000--1099)

                       Title 21--Food and Drugs

         I  Food and Drug Administration, Department of Health and 
                Human Services (Parts 1--1299)
        II  Drug Enforcement Administration, Department of Justice 
                (Parts 1300--1399)
       III  Office of National Drug Control Policy (Parts 1400--
                1499)

                      Title 22--Foreign Relations

         I  Department of State (Parts 1--199)
        II  Agency for International Development (Parts 200--299)
       III  Peace Corps (Parts 300--399)
        IV  International Joint Commission, United States and 
                Canada (Parts 400--499)
         V  Broadcasting Board of Governors (Parts 500--599)
       VII  Overseas Private Investment Corporation (Parts 700--
                799)
        IX  Foreign Service Grievance Board (Parts 900--999)

[[Page 751]]

         X  Inter-American Foundation (Parts 1000--1099)
        XI  International Boundary and Water Commission, United 
                States and Mexico, United States Section (Parts 
                1100--1199)
       XII  United States International Development Cooperation 
                Agency (Parts 1200--1299)
      XIII  Millenium Challenge Corporation (Parts 1300--1399)
       XIV  Foreign Service Labor Relations Board; Federal Labor 
                Relations Authority; General Counsel of the 
                Federal Labor Relations Authority; and the Foreign 
                Service Impasse Disputes Panel (Parts 1400--1499)
        XV  African Development Foundation (Parts 1500--1599)
       XVI  Japan-United States Friendship Commission (Parts 
                1600--1699)
      XVII  United States Institute of Peace (Parts 1700--1799)

                          Title 23--Highways

         I  Federal Highway Administration, Department of 
                Transportation (Parts 1--999)
        II  National Highway Traffic Safety Administration and 
                Federal Highway Administration, Department of 
                Transportation (Parts 1200--1299)
       III  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 1300--1399)

                Title 24--Housing and Urban Development

            Subtitle A--Office of the Secretary, Department of 
                Housing and Urban Development (Parts 0--99)
            Subtitle B--Regulations Relating to Housing and Urban 
                Development
         I  Office of Assistant Secretary for Equal Opportunity, 
                Department of Housing and Urban Development (Parts 
                100--199)
        II  Office of Assistant Secretary for Housing-Federal 
                HousingCommissioner, Department of Housing and 
                Urban Development (Parts 200--299)
       III  Government National Mortgage Association, Department 
                of Housing and Urban Development (Parts 300--399)
        IV  Office of Housing and Office of Multifamily Housing 
                Assistance Restructuring, Department of Housing 
                and Urban Development (Parts 400--499)
         V  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 500--599)
        VI  Office of Assistant Secretary for Community Planning 
                and Development, Department of Housing and Urban 
                Development (Parts 600--699) [Reserved]
       VII  Office of the Secretary, Department of Housing and 
                Urban Development (Housing Assistance Programs and 
                Public and Indian Housing Programs) (Parts 700--
                799)

[[Page 752]]

      VIII  Office of the Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Section 8 Housing Assistance 
                Programs, Section 202 Direct Loan Program, Section 
                202 Supportive Housing for the Elderly Program and 
                Section 811 Supportive Housing for Persons With 
                Disabilities Program) (Parts 800--899)
        IX  Office of Assistant Secretary for Public and Indian 
                Housing, Department of Housing and Urban 
                Development (Parts 900--1699)
         X  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Interstate Land Sales 
                Registration Program) (Parts 1700--1799)
       XII  Office of Inspector General, Department of Housing and 
                Urban Development (Parts 2000--2099)
        XX  Office of Assistant Secretary for Housing--Federal 
                Housing Commissioner, Department of Housing and 
                Urban Development (Parts 3200--3899)
      XXIV  Board of Directors of the HOPE for Homeowners Program 
                (Parts 4000--4099)
       XXV  Neighborhood Reinvestment Corporation (Parts 4100--
                4199)

                           Title 25--Indians

         I  Bureau of Indian Affairs, Department of the Interior 
                (Parts 1--299)
        II  Indian Arts and Crafts Board, Department of the 
                Interior (Parts 300--399)
       III  National Indian Gaming Commission, Department of the 
                Interior (Parts 500--599)
        IV  Office of Navajo and Hopi Indian Relocation (Parts 
                700--799)
         V  Bureau of Indian Affairs, Department of the Interior, 
                and Indian Health Service, Department of Health 
                and Human Services (Part 900)
        VI  Office of the Assistant Secretary-Indian Affairs, 
                Department of the Interior (Parts 1000--1199)
       VII  Office of the Special Trustee for American Indians, 
                Department of the Interior (Parts 1200--1299)

                      Title 26--Internal Revenue

         I  Internal Revenue Service, Department of the Treasury 
                (Parts 1--899)

           Title 27--Alcohol, Tobacco Products and Firearms

         I  Alcohol and Tobacco Tax and Trade Bureau, Department 
                of the Treasury (Parts 1--399)
        II  Bureau of Alcohol, Tobacco, Firearms, and Explosives, 
                Department of Justice (Parts 400--699)

[[Page 753]]

                   Title 28--Judicial Administration

         I  Department of Justice (Parts 0--299)
       III  Federal Prison Industries, Inc., Department of Justice 
                (Parts 300--399)
         V  Bureau of Prisons, Department of Justice (Parts 500--
                599)
        VI  Offices of Independent Counsel, Department of Justice 
                (Parts 600--699)
       VII  Office of Independent Counsel (Parts 700--799)
      VIII  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 800--899)
        IX  National Crime Prevention and Privacy Compact Council 
                (Parts 900--999)
        XI  Department of Justice and Department of State (Parts 
                1100--1199)

                            Title 29--Labor

            Subtitle A--Office of the Secretary of Labor (Parts 
                0--99)
            Subtitle B--Regulations Relating to Labor
         I  National Labor Relations Board (Parts 100--199)
        II  Office of Labor-Management Standards, Department of 
                Labor (Parts 200--299)
       III  National Railroad Adjustment Board (Parts 300--399)
        IV  Office of Labor-Management Standards, Department of 
                Labor (Parts 400--499)
         V  Wage and Hour Division, Department of Labor (Parts 
                500--899)
        IX  Construction Industry Collective Bargaining Commission 
                (Parts 900--999)
         X  National Mediation Board (Parts 1200--1299)
       XII  Federal Mediation and Conciliation Service (Parts 
                1400--1499)
       XIV  Equal Employment Opportunity Commission (Parts 1600--
                1699)
      XVII  Occupational Safety and Health Administration, 
                Department of Labor (Parts 1900--1999)
        XX  Occupational Safety and Health Review Commission 
                (Parts 2200--2499)
       XXV  Employee Benefits Security Administration, Department 
                of Labor (Parts 2500--2599)
     XXVII  Federal Mine Safety and Health Review Commission 
                (Parts 2700--2799)
        XL  Pension Benefit Guaranty Corporation (Parts 4000--
                4999)

                      Title 30--Mineral Resources

         I  Mine Safety and Health Administration, Department of 
                Labor (Parts 1--199)
        II  Minerals Management Service, Department of the 
                Interior (Parts 200--299)
       III  Board of Surface Mining and Reclamation Appeals, 
                Department of the Interior (Parts 300--399)

[[Page 754]]

        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)

                 Title 31--Money and Finance: Treasury

            Subtitle A--Office of the Secretary of the Treasury 
                (Parts 0--50)
            Subtitle B--Regulations Relating to Money and Finance
         I  Monetary Offices, Department of the Treasury (Parts 
                51--199)
        II  Fiscal Service, Department of the Treasury (Parts 
                200--399)
        IV  Secret Service, Department of the Treasury (Parts 
                400--499)
         V  Office of Foreign Assets Control, Department of the 
                Treasury (Parts 500--599)
        VI  Bureau of Engraving and Printing, Department of the 
                Treasury (Parts 600--699)
       VII  Federal Law Enforcement Training Center, Department of 
                the Treasury (Parts 700--799)
      VIII  Office of International Investment, Department of the 
                Treasury (Parts 800--899)
        IX  Federal Claims Collection Standards (Department of the 
                Treasury--Department of Justice) (Parts 900--999)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)
         V  Department of the Army (Parts 400--699)
        VI  Department of the Navy (Parts 700--799)
       VII  Department of the Air Force (Parts 800--1099)
            Subtitle B--Other Regulations Relating to National 
                Defense
       XII  Defense Logistics Agency (Parts 1200--1299)
       XVI  Selective Service System (Parts 1600--1699)
      XVII  Office of the Director of National Intelligence (Parts 
                1700--1799)
     XVIII  National Counterintelligence Center (Parts 1800--1899)
       XIX  Central Intelligence Agency (Parts 1900--1999)
        XX  Information Security Oversight Office, National 
                Archives and Records Administration (Parts 2000--
                2099)
       XXI  National Security Council (Parts 2100--2199)
      XXIV  Office of Science and Technology Policy (Parts 2400--
                2499)
     XXVII  Office for Micronesian Status Negotiations (Parts 
                2700--2799)
    XXVIII  Office of the Vice President of the United States 
                (Parts 2800--2899)

               Title 33--Navigation and Navigable Waters

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)

[[Page 755]]

        II  Corps of Engineers, Department of the Army (Parts 
                200--399)
        IV  Saint Lawrence Seaway Development Corporation, 
                Department of Transportation (Parts 400--499)

                          Title 34--Education

            Subtitle A--Office of the Secretary, Department of 
                Education (Parts 1--99)
            Subtitle B--Regulations of the Offices of the 
                Department of Education
         I  Office for Civil Rights, Department of Education 
                (Parts 100--199)
        II  Office of Elementary and Secondary Education, 
                Department of Education (Parts 200--299)
       III  Office of Special Education and Rehabilitative 
                Services, Department of Education (Parts 300--399)
        IV  Office of Vocational and Adult Education, Department 
                of Education (Parts 400--499)
         V  Office of Bilingual Education and Minority Languages 
                Affairs, Department of Education (Parts 500--599)
        VI  Office of Postsecondary Education, Department of 
                Education (Parts 600--699)
       VII  Office of Educational Research and Improvmeent, 
                Department of Education [Reserved]
        XI  National Institute for Literacy (Parts 1100--1199)
            Subtitle C--Regulations Relating to Education
       XII  National Council on Disability (Parts 1200--1299)

                          Title 35 [Reserved]

             Title 36--Parks, Forests, and Public Property

         I  National Park Service, Department of the Interior 
                (Parts 1--199)
        II  Forest Service, Department of Agriculture (Parts 200--
                299)
       III  Corps of Engineers, Department of the Army (Parts 
                300--399)
        IV  American Battle Monuments Commission (Parts 400--499)
         V  Smithsonian Institution (Parts 500--599)
        VI  [Reserved]
       VII  Library of Congress (Parts 700--799)
      VIII  Advisory Council on Historic Preservation (Parts 800--
                899)
        IX  Pennsylvania Avenue Development Corporation (Parts 
                900--999)
         X  Presidio Trust (Parts 1000--1099)
        XI  Architectural and Transportation Barriers Compliance 
                Board (Parts 1100--1199)
       XII  National Archives and Records Administration (Parts 
                1200--1299)
        XV  Oklahoma City National Memorial Trust (Parts 1500--
                1599)
       XVI  Morris K. Udall Scholarship and Excellence in National 
                Environmental Policy Foundation (Parts 1600--1699)

[[Page 756]]

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  Copyright Office, Library of Congress (Parts 200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                301--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--499)
         V  Under Secretary for Technology, Department of Commerce 
                (Parts 500--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--99)
        II  Armed Forces Retirement Home

                       Title 39--Postal Service

         I  United States Postal Service (Parts 1--999)
       III  Postal Regulatory Commission (Parts 3000--3099)

                  Title 40--Protection of Environment

         I  Environmental Protection Agency (Parts 1--1099)
        IV  Environmental Protection Agency and Department of 
                Justice (Parts 1400--1499)
         V  Council on Environmental Quality (Parts 1500--1599)
        VI  Chemical Safety and Hazard Investigation Board (Parts 
                1600--1699)
       VII  Environmental Protection Agency and Department of 
                Defense; Uniform National Discharge Standards for 
                Vessels of the Armed Forces (Parts 1700--1799)

          Title 41--Public Contracts and Property Management

            Subtitle B--Other Provisions Relating to Public 
                Contracts
        50  Public Contracts, Department of Labor (Parts 50-1--50-
                999)
        51  Committee for Purchase From People Who Are Blind or 
                Severely Disabled (Parts 51-1--51-99)
        60  Office of Federal Contract Compliance Programs, Equal 
                Employment Opportunity, Department of Labor (Parts 
                60-1--60-999)
        61  Office of the Assistant Secretary for Veterans' 
                Employment and Training Service, Department of 
                Labor (Parts 61-1--61-999)
            Chapters 62--100 [Reserved]
            Subtitle C--Federal Property Management Regulations 
                System
       101  Federal Property Management Regulations (Parts 101-1--
                101-99)
       102  Federal Management Regulation (Parts 102-1--102-299)
            Chapters 103--104 [Reserved]
       105  General Services Administration (Parts 105-1--105-999)

[[Page 757]]

       109  Department of Energy Property Management Regulations 
                (Parts 109-1--109-99)
       114  Department of the Interior (Parts 114-1--114-99)
       115  Environmental Protection Agency (Parts 115-1--115-99)
       128  Department of Justice (Parts 128-1--128-99)
            Chapters 129--200 [Reserved]
            Subtitle D--Other Provisions Relating to Property 
                Management [Reserved]
            Subtitle E--Federal Information Resources Management 
                Regulations System [Reserved]
            Subtitle F--Federal Travel Regulation System
       300  General (Parts 300-1--300-99)
       301  Temporary Duty (TDY) Travel Allowances (Parts 301-1--
                301-99)
       302  Relocation Allowances (Parts 302-1--302-99)
       303  Payment of Expenses Connected with the Death of 
                Certain Employees (Part 303-1--303-99)
       304  Payment of Travel Expenses from a Non-Federal Source 
                (Parts 304-1--304-99)

                        Title 42--Public Health

         I  Public Health Service, Department of Health and Human 
                Services (Parts 1--199)
        IV  Centers for Medicare & Medicaid Services, Department 
                of Health and Human Services (Parts 400--499)
         V  Office of Inspector General-Health Care, Department of 
                Health and Human Services (Parts 1000--1999)

                   Title 43--Public Lands: Interior

            Subtitle A--Office of the Secretary of the Interior 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Lands
         I  Bureau of Reclamation, Department of the Interior 
                (Parts 200--499)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10010)

             Title 44--Emergency Management and Assistance

         I  Federal Emergency Management Agency, Department of 
                Homeland Security (Parts 0--399)
        IV  Department of Commerce and Department of 
                Transportation (Parts 400--499)

[[Page 758]]

                       Title 45--Public Welfare

            Subtitle A--Department of Health and Human Services 
                (Parts 1--199)
            Subtitle B--Regulations Relating to Public Welfare
        II  Office of Family Assistance (Assistance Programs), 
                Administration for Children and Families, 
                Department of Health and Human Services (Parts 
                200--299)
       III  Office of Child Support Enforcement (Child Support 
                Enforcement Program), Administration for Children 
                and Families, Department of Health and Human 
                Services (Parts 300--399)
        IV  Office of Refugee Resettlement, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 400--499)
         V  Foreign Claims Settlement Commission of the United 
                States, Department of Justice (Parts 500--599)
        VI  National Science Foundation (Parts 600--699)
       VII  Commission on Civil Rights (Parts 700--799)
      VIII  Office of Personnel Management (Parts 800--899) 
                [Reserved]
         X  Office of Community Services, Administration for 
                Children and Families, Department of Health and 
                Human Services (Parts 1000--1099)
        XI  National Foundation on the Arts and the Humanities 
                (Parts 1100--1199)
       XII  Corporation for National and Community Service (Parts 
                1200--1299)
      XIII  Office of Human Development Services, Department of 
                Health and Human Services (Parts 1300--1399)
       XVI  Legal Services Corporation (Parts 1600--1699)
      XVII  National Commission on Libraries and Information 
                Science (Parts 1700--1799)
     XVIII  Harry S. Truman Scholarship Foundation (Parts 1800--
                1899)
       XXI  Commission on Fine Arts (Parts 2100--2199)
     XXIII  Arctic Research Commission (Part 2301)
      XXIV  James Madison Memorial Fellowship Foundation (Parts 
                2400--2499)
       XXV  Corporation for National and Community Service (Parts 
                2500--2599)

                          Title 46--Shipping

         I  Coast Guard, Department of Homeland Security (Parts 
                1--199)
        II  Maritime Administration, Department of Transportation 
                (Parts 200--399)
       III  Coast Guard (Great Lakes Pilotage), Department of 
                Homeland Security (Parts 400--499)
        IV  Federal Maritime Commission (Parts 500--599)

                      Title 47--Telecommunication

         I  Federal Communications Commission (Parts 0--199)

[[Page 759]]

        II  Office of Science and Technology Policy and National 
                Security Council (Parts 200--299)
       III  National Telecommunications and Information 
                Administration, Department of Commerce (Parts 
                300--399)
        IV  National Telecommunications and Information 
                Administration, Department of Commerce, and 
                National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 400--499)

           Title 48--Federal Acquisition Regulations System

         1  Federal Acquisition Regulation (Parts 1--99)
         2  Defense Acquisition Regulations System, Department of 
                Defense (Parts 200--299)
         3  Health and Human Services (Parts 300--399)
         4  Department of Agriculture (Parts 400--499)
         5  General Services Administration (Parts 500--599)
         6  Department of State (Parts 600--699)
         7  Agency for International Development (Parts 700--799)
         8  Department of Veterans Affairs (Parts 800--899)
         9  Department of Energy (Parts 900--999)
        10  Department of the Treasury (Parts 1000--1099)
        12  Department of Transportation (Parts 1200--1299)
        13  Department of Commerce (Parts 1300--1399)
        14  Department of the Interior (Parts 1400--1499)
        15  Environmental Protection Agency (Parts 1500--1599)
        16  Office of Personnel Management, Federal Employees 
                Health Benefits Acquisition Regulation (Parts 
                1600--1699)
        17  Office of Personnel Management (Parts 1700--1799)
        18  National Aeronautics and Space Administration (Parts 
                1800--1899)
        19  Broadcasting Board of Governors (Parts 1900--1999)
        20  Nuclear Regulatory Commission (Parts 2000--2099)
        21  Office of Personnel Management, Federal Employees 
                Group Life Insurance Federal Acquisition 
                Regulation (Parts 2100--2199)
        23  Social Security Administration (Parts 2300--2399)
        24  Department of Housing and Urban Development (Parts 
                2400--2499)
        25  National Science Foundation (Parts 2500--2599)
        28  Department of Justice (Parts 2800--2899)
        29  Department of Labor (Parts 2900--2999)
        30  Department of Homeland Security, Homeland Security 
                Acquisition Regulation (HSAR) (Parts 3000--3099)
        34  Department of Education Acquisition Regulation (Parts 
                3400--3499)
        51  Department of the Army Acquisition Regulations (Parts 
                5100--5199)

[[Page 760]]

        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement [Reserved]
        54  Defense Logistics Agency, Department of Defense (Parts 
                5400--5499)
        57  African Development Foundation (Parts 5700--5799)
        61  Civilian Board of Contract Appeals, General Services 
                Administration (Parts 6100--6199)
        63  Department of Transportation Board of Contract Appeals 
                (Parts 6300--6399)
        99  Cost Accounting Standards Board, Office of Federal 
                Procurement Policy, Office of Management and 
                Budget (Parts 9900--9999)

                       Title 49--Transportation

            Subtitle A--Office of the Secretary of Transportation 
                (Parts 1--99)
            Subtitle B--Other Regulations Relating to 
                Transportation
         I  Pipeline and Hazardous Materials Safety 
                Administration, Department of Transportation 
                (Parts 100--199)
        II  Federal Railroad Administration, Department of 
                Transportation (Parts 200--299)
       III  Federal Motor Carrier Safety Administration, 
                Department of Transportation (Parts 300--399)
        IV  Coast Guard, Department of Homeland Security (Parts 
                400--499)
         V  National Highway Traffic Safety Administration, 
                Department of Transportation (Parts 500--599)
        VI  Federal Transit Administration, Department of 
                Transportation (Parts 600--699)
       VII  National Railroad Passenger Corporation (AMTRAK) 
                (Parts 700--799)
      VIII  National Transportation Safety Board (Parts 800--999)
         X  Surface Transportation Board, Department of 
                Transportation (Parts 1000--1399)
        XI  Research and Innovative Technology Administration, 
                Department of Transportation [Reserved]
       XII  Transportation Security Administration, Department of 
                Homeland Security (Parts 1500--1699)

                   Title 50--Wildlife and Fisheries

         I  United States Fish and Wildlife Service, Department of 
                the Interior (Parts 1--199)
        II  National Marine Fisheries Service, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 200--299)
       III  International Fishing and Related Activities (Parts 
                300--399)

[[Page 761]]

        IV  Joint Regulations (United States Fish and Wildlife 
                Service, Department of the Interior and National 
                Marine Fisheries Service, National Oceanic and 
                Atmospheric Administration, Department of 
                Commerce); Endangered Species Committee 
                Regulations (Parts 400--499)
         V  Marine Mammal Commission (Parts 500--599)
        VI  Fishery Conservation and Management, National Oceanic 
                and Atmospheric Administration, Department of 
                Commerce (Parts 600--699)

                      CFR Index and Finding Aids

            Subject/Agency Index
            List of Agency Prepared Indexes
            Parallel Tables of Statutory Authorities and Rules
            List of CFR Titles, Chapters, Subchapters, and Parts
            Alphabetical List of Agencies Appearing in the CFR

[[Page 763]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2010)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Advanced Research Projects Agency                 32, I
Advisory Council on Historic Preservation         36, VIII
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            5, LXXIII
  Agricultural Marketing Service                  7, I, IX, X, XI
  Agricultural Research Service                   7, V
  Animal and Plant Health Inspection Service      7, III; 9, I
  Chief Financial Officer, Office of              7, XXX
  Commodity Credit Corporation                    7, XIV
  Economic Research Service                       7, XXXVII
  Energy Policy and New Uses, Office of           2, IX; 7, XXIX
  Environmental Quality, Office of                7, XXXI
  Farm Service Agency                             7, VII, XVIII
  Federal Acquisition Regulation                  48, 4
  Federal Crop Insurance Corporation              7, IV
  Food and Nutrition Service                      7, II
  Food Safety and Inspection Service              9, III
  Foreign Agricultural Service                    7, XV
  Forest Service                                  36, II
  Grain Inspection, Packers and Stockyards        7, VIII; 9, II
       Administration
  Information Resources Management, Office of     7, XXVII
  Inspector General, Office of                    7, XXVI
  National Agricultural Library                   7, XLI
  National Agricultural Statistics Service        7, XXXVI
  National Institute of Food and Agriculture.     7, XXXIV
  Natural Resources Conservation Service          7, VI
  Operations, Office of                           7, XXVIII
  Procurement and Property Management, Office of  7, XXXII
  Rural Business-Cooperative Service              7, XVIII, XLII, L
  Rural Development Administration                7, XLII
  Rural Housing Service                           7, XVIII, XXXV, L
  Rural Telephone Bank                            7, XVI
  Rural Utilities Service                         7, XVII, XVIII, XLII, L
  Secretary of Agriculture, Office of             7, Subtitle A
  Transportation, Office of                       7, XXXIII
  World Agricultural Outlook Board                7, XXXVIII
Air Force Department                              32, VII
  Federal Acquisition Regulation Supplement       48, 53
Air Transportation Stabilization Board            14, VI
Alcohol and Tobacco Tax and Trade Bureau          27, I
Alcohol, Tobacco, Firearms, and Explosives,       27, II
     Bureau of
AMTRAK                                            49, VII
American Battle Monuments Commission              36, IV
American Indians, Office of the Special Trustee   25, VII
Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
   Compliance Board
[[Page 764]]

Arctic Research Commission                        45, XXIII
Armed Forces Retirement Home                      5, XI
Army Department                                   32, V
  Engineers, Corps of                             33, II; 36, III
  Federal Acquisition Regulation                  48, 51
Benefits Review Board                             20, VII
Bilingual Education and Minority Languages        34, V
     Affairs, Office of
Blind or Severely Disabled, Committee for         41, 51
     Purchase From People Who Are
Broadcasting Board of Governors                   22, V
  Federal Acquisition Regulation                  48, 19
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chief Financial Officer, Office of                7, XXX
Child Support Enforcement, Office of              45, III
Children and Families, Administration for         45, II, III, IV, X
Civil Rights, Commission on                       5, LXVIII; 45, VII
Civil Rights, Office for                          34, I
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               44, IV
  Census Bureau                                   15, I
  Economic Affairs, Under Secretary               37, V
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  Fishery Conservation and Management             50, VI
  Foreign-Trade Zones Board                       15, IV
  Industry and Security, Bureau of                15, VII
  International Trade Administration              15, III; 19, III
  National Institute of Standards and Technology  15, II
  National Marine Fisheries Service               50, II, IV, VI
  National Oceanic and Atmospheric                15, IX; 50, II, III, IV, 
       Administration                             VI
  National Telecommunications and Information     15, XXIII; 47, III, IV
       Administration
  National Weather Service                        15, IX
  Patent and Trademark Office, United States      37, I
  Productivity, Technology and Innovation,        37, IV
       Assistant Secretary for
  Secretary of Commerce, Office of                15, Subtitle A
  Technology, Under Secretary for                 37, V
  Technology Administration                       15, XI
  Technology Policy, Assistant Secretary for      37, IV
Commercial Space Transportation                   14, III
Commodity Credit Corporation                      7, XIV
Commodity Futures Trading Commission              5, XLI; 17, I
Community Planning and Development, Office of     24, V, VI
     Assistant Secretary for
Community Services, Office of                     45, X
Comptroller of the Currency                       12, I
Construction Industry Collective Bargaining       29, IX
     Commission
Consumer Product Safety Commission                5, LXXI; 16, II
Copyright Office                                  37, II
Copyright Royalty Board                           37, III
Corporation for National and Community Service    2, XXII; 45, XII, XXV
Cost Accounting Standards Board                   48, 99
Council on Environmental Quality                  40, V
Court Services and Offender Supervision Agency    28, VIII
     for the District of Columbia
Customs and Border Protection Bureau              19, I
Defense Contract Audit Agency                     32, I
Defense Department                                5, XXVI; 32, Subtitle A; 
                                                  40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII

[[Page 765]]

  Army Department                                 32, V; 33, II; 36, III, 
                                                  48, 51
  Defense Acquisition Regulations System          48, 2
  Defense Intelligence Agency                     32, I
  Defense Logistics Agency                        32, I, XII; 48, 54
  Engineers, Corps of                             33, II; 36, III
  Human Resources Management and Labor Relations  5, XCIX
       Systems
  National Imagery and Mapping Agency             32, I
  Navy Department                                 32, VI; 48, 52
  Secretary of Defense, Office of                 2, XI; 32, I
Defense Contract Audit Agency                     32, I
Defense Intelligence Agency                       32, I
Defense Logistics Agency                          32, XII; 48, 54
Defense Nuclear Facilities Safety Board           10, XVII
Delaware River Basin Commission                   18, III
District of Columbia, Court Services and          28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Affairs, Under Secretary                 37, V
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          5, LIII
  Bilingual Education and Minority Languages      34, V
       Affairs, Office of
  Civil Rights, Office for                        34, I
  Educational Research and Improvement, Office    34, VII
       of
  Elementary and Secondary Education, Office of   34, II
  Federal Acquisition Regulation                  48, 34
  Postsecondary Education, Office of              34, VI
  Secretary of Education, Office of               34, Subtitle A
  Special Education and Rehabilitative Services,  34, III
       Office of
  Vocational and Adult Education, Office of       34, IV
Educational Research and Improvement, Office of   34, VII
Election Assistance Commission                    11, II
Elementary and Secondary Education, Office of     34, II
Emergency Oil and Gas Guaranteed Loan Board       13, V
Emergency Steel Guarantee Loan Board              13, IV
Employee Benefits Security Administration         29, XXV
Employees' Compensation Appeals Board             20, IV
Employees Loyalty Board                           5, V
Employment and Training Administration            20, V
Employment Standards Administration               20, VI
Endangered Species Committee                      50, IV
Energy, Department of                             5, XXIII; 10, II, III, X
  Federal Acquisition Regulation                  48, 9
  Federal Energy Regulatory Commission            5, XXIV; 18, I
  Property Management Regulations                 41, 109
Energy, Office of                                 7, XXIX
Engineers, Corps of                               33, II; 36, III
Engraving and Printing, Bureau of                 31, VI
Environmental Protection Agency                   2, XV; 5, LIV; 40, I, IV, 
                                                  VII
  Federal Acquisition Regulation                  48, 15
  Property Management Regulations                 41, 115
Environmental Quality, Office of                  7, XXXI
Equal Employment Opportunity Commission           5, LXII; 29, XIV
Equal Opportunity, Office of Assistant Secretary  24, I
     for
Executive Office of the President                 3, I
  Administration, Office of                       5, XV
  Environmental Quality, Council on               40, V
  Management and Budget, Office of                5, III, LXXVII; 14, VI; 
                                                  48, 99
  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2

[[Page 766]]

  Presidential Documents                          3
  Science and Technology Policy, Office of        32, XXIV; 47, II
  Trade Representative, Office of the United      15, XX
       States
Export-Import Bank of the United States           2, XXXV; 5, LII; 12, IV
Family Assistance, Office of                      45, II
Farm Credit Administration                        5, XXXI; 12, VI
Farm Credit System Insurance Corporation          5, XXX; 12, XIV
Farm Service Agency                               7, VII, XVIII
Federal Acquisition Regulation                    48, 1
Federal Aviation Administration                   14, I
  Commercial Space Transportation                 14, III
Federal Claims Collection Standards               31, IX
Federal Communications Commission                 5, XXIX; 47, I
Federal Contract Compliance Programs, Office of   41, 60
Federal Crop Insurance Corporation                7, IV
Federal Deposit Insurance Corporation             5, XXII; 12, III
Federal Election Commission                       11, I
Federal Emergency Management Agency               44, I
Federal Employees Group Life Insurance Federal    48, 21
     Acquisition Regulation
Federal Employees Health Benefits Acquisition     48, 16
     Regulation
Federal Energy Regulatory Commission              5, XXIV; 18, I
Federal Financial Institutions Examination        12, XI
     Council
Federal Financing Bank                            12, VIII
Federal Highway Administration                    23, I, II
Federal Home Loan Mortgage Corporation            1, IV
Federal Housing Enterprise Oversight Office       12, XVII
Federal Housing Finance Agency                    12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority, and General    5, XIV; 22, XIV
     Counsel of the Federal Labor Relations 
     Authority
Federal Law Enforcement Training Center           31, VII
Federal Management Regulation                     41, 102
Federal Maritime Commission                       46, IV
Federal Mediation and Conciliation Service        29, XII
Federal Mine Safety and Health Review Commission  5, LXXIV; 29, XXVII
Federal Motor Carrier Safety Administration       49, III
Federal Prison Industries, Inc.                   28, III
Federal Procurement Policy Office                 48, 99
Federal Property Management Regulations           41, 101
Federal Railroad Administration                   49, II
Federal Register, Administrative Committee of     1, I
Federal Register, Office of                       1, II
Federal Reserve System                            12, II
  Board of Governors                              5, LVIII
Federal Retirement Thrift Investment Board        5, VI, LXXVI
Federal Service Impasses Panel                    5, XIV
Federal Trade Commission                          5, XLVII; 16, I
Federal Transit Administration                    49, VI
Federal Travel Regulation System                  41, Subtitle F
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
Fishery Conservation and Management               50, VI
Food and Drug Administration                      21, I
Food and Nutrition Service                        7, II
Food Safety and Inspection Service                9, III
Foreign Agricultural Service                      7, XV
Foreign Assets Control, Office of                 31, V
Foreign Claims Settlement Commission of the       45, V
     United States
Foreign Service Grievance Board                   22, IX
Foreign Service Impasse Disputes Panel            22, XIV
Foreign Service Labor Relations Board             22, XIV
Foreign-Trade Zones Board                         15, IV
Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61

[[Page 767]]

  Federal Acquisition Regulation                  48, 5
  Federal Management Regulation                   41, 102
  Federal Property Management Regulations         41, 101
  Federal Travel Regulation System                41, Subtitle F
  General                                         41, 300
  Payment From a Non-Federal Source for Travel    41, 304
       Expenses
  Payment of Expenses Connected With the Death    41, 303
       of Certain Employees
  Relocation Allowances                           41, 302
  Temporary Duty (TDY) Travel Allowances          41, 301
Geological Survey                                 30, IV
Government Accountability Office                  4, I
Government Ethics, Office of                      5, XVI
Government National Mortgage Association          24, III
Grain Inspection, Packers and Stockyards          7, VIII; 9, II
     Administration
Harry S. Truman Scholarship Foundation            45, XVIII
Health and Human Services, Department of          2, III; 5, XLV; 45, 
                                                  Subtitle A,
  Centers for Medicare & Medicaid Services        42, IV
  Child Support Enforcement, Office of            45, III
  Children and Families, Administration for       45, II, III, IV, X
  Community Services, Office of                   45, X
  Family Assistance, Office of                    45, II
  Federal Acquisition Regulation                  48, 3
  Food and Drug Administration                    21, I
  Human Development Services, Office of           45, XIII
  Indian Health Service                           25, V
  Inspector General (Health Care), Office of      42, V
  Public Health Service                           42, I
  Refugee Resettlement, Office of                 45, IV
Homeland Security, Department of                  2, XXX; 6, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection Bureau            19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  Immigration and Naturalization                  8, I
  Transportation Security Administration          49, XII
HOPE for Homeowners Program, Board of Directors   24, XXIV
     of
Housing and Urban Development, Department of      2, XXIV; 5, LXV; 24, 
                                                  Subtitle B
  Community Planning and Development, Office of   24, V, VI
       Assistant Secretary for
  Equal Opportunity, Office of Assistant          24, I
       Secretary for
  Federal Acquisition Regulation                  48, 24
  Federal Housing Enterprise Oversight, Office    12, XVII
       of
  Government National Mortgage Association        24, III
  Housing--Federal Housing Commissioner, Office   24, II, VIII, X, XX
       of Assistant Secretary for
  Housing, Office of, and Multifamily Housing     24, IV
       Assistance Restructuring, Office of
  Inspector General, Office of                    24, XII
  Public and Indian Housing, Office of Assistant  24, IX
       Secretary for
  Secretary, Office of                            24, Subtitle A, VII
Housing--Federal Housing Commissioner, Office of  24, II, VIII, X, XX
     Assistant Secretary for
Housing, Office of, and Multifamily Housing       24, IV
     Assistance Restructuring, Office of
Human Development Services, Office of             45, XIII
Immigration and Customs Enforcement Bureau        19, IV
Immigration and Naturalization                    8, I
Immigration Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V
Indian Affairs, Office of the Assistant           25, VI
   Secretary
[[Page 768]]

Indian Arts and Crafts Board                      25, II
Indian Health Service                             25, V
Industry and Security, Bureau of                  15, VII
Information Resources Management, Office of       7, XXVII
Information Security Oversight Office, National   32, XX
     Archives and Records Administration
Inspector General
  Agriculture Department                          7, XXVI
  Health and Human Services Department            42, V
  Housing and Urban Development Department        24, XII
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department
  American Indians, Office of the Special         25, VII
       Trustee
  Endangered Species Committee                    50, IV
  Federal Acquisition Regulation                  48, 14
  Federal Property Management Regulations System  41, 114
  Fish and Wildlife Service, United States        50, I, IV
  Geological Survey                               30, IV
  Indian Affairs, Bureau of                       25, I, V
  Indian Affairs, Office of the Assistant         25, VI
       Secretary
  Indian Arts and Crafts Board                    25, II
  Land Management, Bureau of                      43, II
  Minerals Management Service                     30, II
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  Surface Mining and Reclamation Appeals, Board   30, III
       of
  Surface Mining Reclamation and Enforcement,     30, VII
       Office of
Internal Revenue Service                          26, I
International Boundary and Water Commission,      22, XI
     United States and Mexico, United States 
     Section
International Development, United States Agency   22, II
     for
  Federal Acquisition Regulation                  48, 7
International Development Cooperation Agency,     22, XII
     United States
International Fishing and Related Activities      50, III
International Joint Commission, United States     22, IV
     and Canada
International Organizations Employees Loyalty     5, V
     Board
International Trade Administration                15, III; 19, III
International Trade Commission, United States     19, II
Interstate Commerce Commission                    5, XL
Investment Security, Office of                    31, VIII
James Madison Memorial Fellowship Foundation      45, XXIV
Japan-United States Friendship Commission         22, XVI
Joint Board for the Enrollment of Actuaries       20, VIII
Justice Department                                2, XXVII; 5, XXVIII; 28, 
                                                  I, XI; 40, IV
  Alcohol, Tobacco, Firearms, and Explosives,     27, II
       Bureau of
  Drug Enforcement Administration                 21, II
  Federal Acquisition Regulation                  48, 28
  Federal Claims Collection Standards             31, IX
  Federal Prison Industries, Inc.                 28, III
  Foreign Claims Settlement Commission of the     45, V
       United States
  Immigration Review, Executive Office for        8, V
  Offices of Independent Counsel                  28, VI
  Prisons, Bureau of                              28, V
  Property Management Regulations                 41, 128
Labor Department                                  5, XLII
  Benefits Review Board                           20, VII
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI
  Federal Acquisition Regulation                  48, 29

[[Page 769]]

  Federal Contract Compliance Programs, Office    41, 60
       of
  Federal Procurement Regulations System          41, 50
  Labor-Management Standards, Office of           29, II, IV
  Mine Safety and Health Administration           30, I
  Occupational Safety and Health Administration   29, XVII
  Public Contracts                                41, 50
  Secretary of Labor, Office of                   29, Subtitle A
  Veterans' Employment and Training Service,      41, 61; 20, IX
       Office of the Assistant Secretary for
  Wage and Hour Division                          29, V
  Workers' Compensation Programs, Office of       20, I
Labor-Management Standards, Office of             29, II, IV
Land Management, Bureau of                        43, II
Legal Services Corporation                        45, XVI
Library of Congress                               36, VII
  Copyright Office                                37, II
  Copyright Royalty Board                         37, III
Local Television Loan Guarantee Board             7, XX
Management and Budget, Office of                  5, III, LXXVII; 14, VI; 
                                                  48, 99
Marine Mammal Commission                          50, V
Maritime Administration                           46, II
Merit Systems Protection Board                    5, II, LXIV
Micronesian Status Negotiations, Office for       32, XXVII
Millenium Challenge Corporation                   22, XIII
Mine Safety and Health Administration             30, I
Minerals Management Service                       30, II
Minority Business Development Agency              15, XIV
Miscellaneous Agencies                            1, IV
Monetary Offices                                  31, I
Morris K. Udall Scholarship and Excellence in     36, XVI
     National Environmental Policy Foundation
Museum and Library Services, Institute of         2, XXXI
National Aeronautics and Space Administration     2, XVIII; 5, LIX; 14, V
  Federal Acquisition Regulation                  48, 18
National Agricultural Library                     7, XLI
National Agricultural Statistics Service          7, XXXVI
National and Community Service, Corporation for   45, XII, XXV
National Archives and Records Administration      2, XXVI; 5, LXVI; 36, XII
  Information Security Oversight Office           32, XX
National Capital Planning Commission              1, IV
National Commission for Employment Policy         1, IV
National Commission on Libraries and Information  45, XVII
     Science
National Council on Disability                    34, XII
National Counterintelligence Center               32, XVIII
National Credit Union Administration              12, VII
National Crime Prevention and Privacy Compact     28, IX
     Council
National Drug Control Policy, Office of           21, III
National Endowment for the Arts                   2, XXXII
National Endowment for the Humanities             2, XXXIII
National Foundation on the Arts and the           45, XI
     Humanities
National Highway Traffic Safety Administration    23, II, III; 47, VI; 49, V
National Imagery and Mapping Agency               32, I
National Indian Gaming Commission                 25, III
National Institute for Literacy                   34, XI
National Institute of Food and Agriculture.       7, XXXIV
National Institute of Standards and Technology    15, II
National Intelligence, Office of Director of      32, XVII
National Labor Relations Board                    5, LXI; 29, I
National Marine Fisheries Service                 50, II, IV, VI
National Mediation Board                          29, X
National Oceanic and Atmospheric Administration   15, IX; 50, II, III, IV, 
                                                  VI
National Park Service                             36, I
National Railroad Adjustment Board                29, III
National Railroad Passenger Corporation (AMTRAK)  49, VII
National Science Foundation                       2, XXV; 5, XLIII; 45, VI

[[Page 770]]

  Federal Acquisition Regulation                  48, 25
National Security Council                         32, XXI
National Security Council and Office of Science   47, II
     and Technology Policy
National Telecommunications and Information       15, XXIII; 47, III, IV
     Administration
National Transportation Safety Board              49, VIII
Natural Resources Conservation Service            7, VI
Navajo and Hopi Indian Relocation, Office of      25, IV
Navy Department                                   32, VI
  Federal Acquisition Regulation                  48, 52
Neighborhood Reinvestment Corporation             24, XXV
Northeast Interstate Low-Level Radioactive Waste  10, XVIII
     Commission
Nuclear Regulatory Commission                     5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Offices of Independent Counsel                    28, VI
Oklahoma City National Memorial Trust             36, XV
Operations Office                                 7, XXVIII
Overseas Private Investment Corporation           5, XXXIII; 22, VII
Patent and Trademark Office, United States        37, I
Payment From a Non-Federal Source for Travel      41, 304
     Expenses
Payment of Expenses Connected With the Death of   41, 303
     Certain Employees
Peace Corps                                       22, III
Pennsylvania Avenue Development Corporation       36, IX
Pension Benefit Guaranty Corporation              29, XL
Personnel Management, Office of                   5, I, XXXV; 45, VIII
  Human Resources Management and Labor Relations  5, XCIX
       Systems, Department of Defense
  Human Resources Management and Labor Relations  5, XCVII
       Systems, Department of Homeland Security
  Federal Acquisition Regulation                  48, 17
  Federal Employees Group Life Insurance Federal  48, 21
       Acquisition Regulation
  Federal Employees Health Benefits Acquisition   48, 16
       Regulation
Pipeline and Hazardous Materials Safety           49, I
     Administration
Postal Regulatory Commission                      5, XLVI; 39, III
Postal Service, United States                     5, LX; 39, I
Postsecondary Education, Office of                34, VI
President's Commission on White House             1, IV
     Fellowships
Presidential Documents                            3
Presidio Trust                                    36, X
Prisons, Bureau of                                28, V
Procurement and Property Management, Office of    7, XXXII
Productivity, Technology and Innovation,          37, IV
     Assistant Secretary
Public Contracts, Department of Labor             41, 50
Public and Indian Housing, Office of Assistant    24, IX
     Secretary for
Public Health Service                             42, I
Railroad Retirement Board                         20, II
Reclamation, Bureau of                            43, I
Recovery Accountability and Transparency Board    4, II
Refugee Resettlement, Office of                   45, IV
Relocation Allowances                             41, 302
Research and Innovative Technology                49, XI
     Administration
Rural Business-Cooperative Service                7, XVIII, XLII, L
Rural Development Administration                  7, XLII
Rural Housing Service                             7, XVIII, XXXV, L
Rural Telephone Bank                              7, XVI
Rural Utilities Service                           7, XVII, XVIII, XLII, L
Saint Lawrence Seaway Development Corporation     33, IV
Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
   National Security Council
[[Page 771]]

Secret Service                                    31, IV
Securities and Exchange Commission                17, II
Selective Service System                          32, XVI
Small Business Administration                     2, XXVII; 13, I
Smithsonian Institution                           36, V
Social Security Administration                    2, XXIII; 20, III; 48, 23
Soldiers' and Airmen's Home, United States        5, XI
Special Counsel, Office of                        5, VIII
Special Education and Rehabilitative Services,    34, III
     Office of
State Department                                  2, VI; 22, I; 28, XI
  Federal Acquisition Regulation                  48, 6
Surface Mining and Reclamation Appeals, Board of  30, III
Surface Mining Reclamation and Enforcement,       30, VII
     Office of
Surface Transportation Board                      49, X
Susquehanna River Basin Commission                18, VIII
Technology Administration                         15, XI
Technology Policy, Assistant Secretary for        37, IV
Technology, Under Secretary for                   37, V
Tennessee Valley Authority                        5, LXIX; 18, XIII
Thrift Supervision Office, Department of the      12, V
     Treasury
Trade Representative, United States, Office of    15, XX
Transportation, Department of                     2, XII; 5, L
  Commercial Space Transportation                 14, III
  Contract Appeals, Board of                      48, 63
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 12
  Federal Aviation Administration                 14, I
  Federal Highway Administration                  23, I, II
  Federal Motor Carrier Safety Administration     49, III
  Federal Railroad Administration                 49, II
  Federal Transit Administration                  49, VI
  Maritime Administration                         46, II
  National Highway Traffic Safety Administration  23, II, III; 47, IV; 49, V
  Pipeline and Hazardous Materials Safety         49, I
       Administration
  Saint Lawrence Seaway Development Corporation   33, IV
  Secretary of Transportation, Office of          14, II; 49, Subtitle A
  Surface Transportation Board                    49, X
  Transportation Statistics Bureau                49, XI
Transportation, Office of                         7, XXXIII
Transportation Security Administration            49, XII
Transportation Statistics Bureau                  49, XI
Travel Allowances, Temporary Duty (TDY)           41, 301
Treasury Department                               5, XXI; 12, XV; 17, IV; 
                                                  31, IX
  Alcohol and Tobacco Tax and Trade Bureau        27, I
  Community Development Financial Institutions    12, XVIII
       Fund
  Comptroller of the Currency                     12, I
  Customs and Border Protection Bureau            19, I
  Engraving and Printing, Bureau of               31, VI
  Federal Acquisition Regulation                  48, 10
  Federal Claims Collection Standards             31, IX
  Federal Law Enforcement Training Center         31, VII
  Fiscal Service                                  31, II
  Foreign Assets Control, Office of               31, V
  Internal Revenue Service                        26, I
  Investment Security, Office of                  31, VIII
  Monetary Offices                                31, I
  Secret Service                                  31, IV
  Secretary of the Treasury, Office of            31, Subtitle A
  Thrift Supervision, Office of                   12, V
Truman, Harry S. Scholarship Foundation           45, XVIII
United States and Canada, International Joint     22, IV
     Commission
United States and Mexico, International Boundary  22, XI
     and Water Commission, United States Section
Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8

[[Page 772]]

Veterans' Employment and Training Service,        41, 61; 20, IX
     Office of the Assistant Secretary for
Vice President of the United States, Office of    32, XXVIII
Vocational and Adult Education, Office of         34, IV
Wage and Hour Division                            29, V
Water Resources Council                           18, VI
Workers' Compensation Programs, Office of         20, I
World Agricultural Outlook Board                  7, XXXVIII

[[Page 773]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations that were 
made by documents published in the Federal Register since January 1, 
2001, are enumerated in the following list. Entries indicate the nature 
of the changes effected. Page numbers refer to Federal Register pages. 
The user should consult the entries for chapters and parts as well as 
sections for revisions.
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.

                                  2001

33 CFR
                                                                   66 FR
                                                                    Page
Chapter II
207.441 (b)(4) and (5) revised; eff. 7-5-01........................30063
    Corrected......................................................31277
323.2 (d)(2) through (5) redesignated as (d)(3) through (6); 
        (d)(1) introductory text, new (d)(4)(i) amended; new 
        (d)(2) added; (d)(4)(iii) removed; new (d)(4)(iv) 
        redesignated as new (d)(4)(iii).............................4574
    Regulation at 66 FR 4574 eff. date delayed.....................10367
334.440 (c)(6) added...............................................15799
Chapter IV
401.2 (b) revised..................................................15329
401.22 (c) added...................................................15329
401.75 (b) revised.................................................15329
402 Revised........................................................15329

                                  2002

33 CFR
                                                                   67 FR
                                                                    Page
Chapter II
323.2 (e) revised; (f) amended.....................................31142
334.45 Added.......................................................20446
334.81 Added.......................................................65313
334.293 Added.......................................................6654
334.300 Revised....................................................10844
334.1215 Added.....................................................36525
Chapter IV
401.30 Heading revised; (d) added...................................8887
401.102 (a) amended................................................67113
402.8 Revised.......................................................6870

                                  2003

33 CFR
                                                                   68 FR
                                                                    Page
Chapter II
203 Revised........................................................19359
203.62 Correctly revised...........................................36468
334.102 Added; eff. 7-28-03........................................37971
334.460 (b)(6) revised.............................................57624
334.865 Added; eff. 7-28-03........................................37972
385 Added..........................................................64220
Chapter IV
401.15 Revised; eff. 7-21-03.......................................36748
401.20 Added........................................................9551
    Heading corrected..............................................11974
401.35 (a) and (b) amended; (c) and (d) added; eff. 7-21-03........36749
402.8 Revised......................................................22615

                                  2004

33 CFR
                                                                   69 FR
                                                                    Page
Chapter II
277.2 Revised......................................................54216
277.3 (c), (d) and (e) revised.....................................54216
277.6 (a) revised..................................................54216
277.7 Revised......................................................54216
326 Authority citation revised; eff. 7-26-04.......................35518
326.6 (a)(1) revised; eff. 7-26-04.................................35518
334.82 Added; eff. 7-26-04.........................................35519
334.783 Added......................................................45259
334.845 Added......................................................45591
334.1065 Added.....................................................20547
334.1126 Added.....................................................20546
334.1127 Added.....................................................20545
334.1220 Revised.....................................................272
Chapter IV
402.8 Revised......................................................18812

[[Page 774]]

402.10 Reinstated in part; CFR correction..........................64258
403.1 Reinstated; CFR correction...................................64258
403.2 Reinstated; CFR correction...................................64258
403.3 Reinstated; CFR correction...................................64258
403.4 Reinstated in part; CFR correction...........................64258

                                  2005

33 CFR
                                                                   70 FR
                                                                    Page
Chapter II
334.475 Added......................................................43780
334.515 Added......................................................67371
334.560 (a) and (b)(2) revised.....................................67371
334.580 (b) revised................................................67371
334.610 (a)(6) revised.............................................67371
334.635 Added......................................................67371
334.760 Revised....................................................67372
334.775 Revised....................................................67372
334.778 (b) revised................................................67372
334.780 (b) revised................................................67372
334.855 Added......................................................15228
Chapter IV
401.3 (f) added....................................................12970
401.4 Revised......................................................12970
401.6 (c) revised..................................................12970
401.7 (a) introductory text and (2) introductory text revised; (b) 
        and (c) added..............................................12970
401.8 Revised......................................................12970
401.9 (b)(2) revised...............................................12970
401.10 (a)(3) and table revised; (a)(6) and (d) added..............12970
401.11 Introductory text and (b) revised...........................12971
401.12 (a)(1), (2), (3), (4) introductory text, (i), (b) and table 
        revised....................................................12971
401.13 Revised.....................................................12971
401.14 Revised.....................................................12971
401.16 Introductory text revised...................................12971
401.17 Introductory text revised...................................12971
401.19 (a) and (b)(2) revised; (d) added...........................12971
401.20 (b)(5), (6) and (7) redesignated as (b)(6), (7) and (8); 
        new (b)(5) added...........................................12972
401.22 (a) and (c) revised.........................................12972
401.24 Revised.....................................................12972
401.30 (c) and (d) redesignated as (d) and (e); new (e) 
        introductory text and (2) revised; new (c) added...........12972
401.34 Revised.....................................................12972
401.35 (c) revised.................................................12972
401.37 (b) revised.................................................12972
401.39 Introductory text and (a) revised...........................12972
401.42 (a)(4) revised; (b) removed; (c) redesignated as (b)........12972
401.57 (c) added...................................................12972
401.58 Revised.....................................................12972
401.68 (a)(1) and (4) revised......................................12972
401.72 (a), (e) introductory text, (2), (f) and (h) revised; 
        (e)(6) and (i) added.......................................12972
401.74 (a) revised.................................................12973
401.75 (b) revised.................................................12973
401.79 Revised.....................................................12973
401.81 (a) revised.................................................12973
401.93 (b) revised.................................................12973
401.94 Revised.....................................................12973
401.95 Revised.....................................................12973
402.8 Revised......................................................28212

                                  2006

33 CFR
                                                                   71 FR
                                                                    Page
Chapter II
207.718 (b), (d)(3), (e), (f)(1), (j) and (w)(7) revised...........25503
Chapter IV
401.16 (b) revised..................................................5606
401.17 (b) revised..................................................5606
401.24 Revised......................................................5606
401.26 (b) revised..................................................5606
401.30 (e)(2) revised...............................................5606
401.74 (a) and (g) revised..........................................5607
401.81 (a) revised..................................................5607
401.102 (a) amended................................................66113
402.3 (k) through (n) redesignated as (m) through (p) and revised; 
        new (k) and (l) added......................................14807
402.4 (d), (e) and (f) added.......................................14807
402.8 Revised......................................................14807

                                  2007

33 CFR
                                                                   72 FR
                                                                    Page
Chapter II
334.190 Revised....................................................65668
334.610 (a)(4) revised.............................................44973
334.1325 Added.....................................................65669

[[Page 775]]

Chapter IV
401.2 (k) revised...................................................2620
401.8 (c) revised...................................................2620
401.12 (a) introductory text revised................................2620
401.22 (c) revised..................................................2620
401.24 Revised......................................................2620
401.40 Heading revised; (b) and (c) redesignated as (c) and (d); 
        new (b) added...............................................2620
401.58 (b) revised..................................................2620
401.68 Heading, (a) introductory text, (b), (c) and (d) revised.....2620
401.70 Revised......................................................2620
401.72 (b) revised..................................................2620
401.93 (b) revised..................................................2620
402.3 (a)(5), (b)(1) and (f) revised................................4431
402.5 (b) revised...................................................4431
402.8 Revised.......................................................4431

                                  2008

33 CFR
                                                                   73 FR
                                                                    Page
Chapter II
323.2 (d)(2) removed; (d)(1) introductory text amended; (d)(3) 
        through (6) redesignated as (d)(2) through (5); new 
        (d)(3)(i) amended..........................................79645
325.1 (d)(7), (8) and (9) redesignated as (d)(8), (9) and (10); 
        new (d)(7) added...........................................19670
332 Added..........................................................19670
334.430 Revised....................................................41265
334.515 Revised....................................................54073
334.761 Added......................................................52927
334.762 Added......................................................52927
334.763 Added......................................................52928
334.1240 Revised...................................................78635
334.1244 Added.....................................................78636
334.1270 Revised...................................................78634
Chapter IV
401.12 (a)(1) introductory text, (i), (2) introductory text, (3) 
        introductory text and (4) introductory text revised.........9953
401.27 Revised......................................................9953
401.29 (a) revised..................................................9953
401.30 (f), (g) and (h) added.......................................9953
401.31 (c) introductory text revised................................9953
401.34 Revised......................................................9954
401.36 Revised......................................................9954
401.37 (a) revised..................................................9954
401.40 (b) revised..................................................9954
401.48 (a) revised..................................................9954
401.49 Revised......................................................9954
401.50 Introductory text revised....................................9954
401.51 (a) revised..................................................9954
401.58 (a) revised..................................................9954
401.83 Revised......................................................9954

                                  2009

33 CFR
                                                                   74 FR
                                                                    Page
Chapter II
334.540 Revised....................................................36401
334.550 Removed....................................................36401
334.595 Added......................................................36401
    (a) correctly revised..........................................58849
334.761 (a)(2) and (3) correctly revised...........................11481
334.782 Added......................................................48152
334.786 Removed....................................................43640
334.1380 Revised...................................................58848
Chapter IV
401.7 (a) introductory text revised................................18994
401.8 (c) revised..................................................18994
401.10 (a)(2), (6), (b) and (d) revised............................18994
401.11 Introductory text, (a), (b) and (c) redesignated as (a) 
        introductory text, (1), (2) and (3); new (a)(1) and (2) 
        revised; new (b) added.....................................18994
401.12 Revised.....................................................18994
401.38 Revised.....................................................18995
401.75 (c) added...................................................18995
401.81 (a) revised.................................................18995
401.96 (e) revised.................................................18995
401.97 Heading, (f) introductory text and (2) revised..............18995
402.3 (k) and (l) removed; (a) through (j) and (m) through (p) 
        designations removed; amended..............................10678
402.4 (a) revised; (d), (e) and (f) removed; new (d) added.........10679
402.5 Redesignated as 402.7; new 402.5 added.......................10679
402.6 Redesignated as 402.8; new 402.6 added.......................10680
402.7 Redesignated as 402.9; new 402.7 redesignated from 402.5; 
        heading revised............................................10679
402.8 Redesignated as 402.10.......................................10679

[[Page 776]]

    New 402.8 redesignated from 402.6; heading, (a) and (b) 
revised............................................................10680
402.9 Redesignated as 402.11; new 402.9 redesignated from 402.7; 
        heading revised............................................10679
402.10 Redesignated as 402.12; new 402.10 redesignated from 402.8 
        and revised................................................10679
402.11 Redesignated from 402.9; heading revised....................10679
402.12 Redesignated from 402.10; heading revised...................10679

                                  2010

    (Regulations published from January 1, 2010 through July 1, 2010)

33 CFR
                                                                   75 FR
                                                                    Page
Chapter II
334.500 Revised....................................................19885
334.525 Added; eff. 7-19-10........................................34643
334.866 Added......................................................26102
Chapter IV
401.10 (a)(3) and (b) revised......................................10689
401.12 (a)(4) redesignated as (a)(3)(iii); (a)(1) introductory 
        text, (2), (3) introductory text and (b) introductory text 
        revised....................................................10689
401.61 Revised.....................................................10689
401.63 Revised.....................................................10690
401.90 (d) added...................................................10690
401.94 (a) revised.................................................10690
401.1--401.97 (Subpart A) Schedule III amended.....................10690


                                  [all]