[Title 33 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2014 Edition]
[From the U.S. Government Publishing Office]



[[Page i]]



          Title 33

Navigation and Navigable Waters


________________________

Part 200 to End

                         Revised as of July 1, 2014

          Containing a codification of documents of general
          applicability and future effect

          As of July 1, 2014
                    Published by the Office of the Federal Register
                    National Archives and Records Administration as 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                687
  Finding Aids:
      Table of CFR Titles and Chapters........................     735
      Alphabetical List of Agencies Appearing in the CFR......     755
      List of CFR Sections Affected...........................     765

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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.

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

[[Page v]]



                               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

    The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).

HOW TO USE THE CODE OF FEDERAL REGULATIONS

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    To determine whether a Code volume has been amended since its
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OMB CONTROL NUMBERS

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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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this volume.

[[Page vii]]

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    Charles A. Barth,
    Director,
    Office of the Federal Register.
    July 1, 2014.







[[Page ix]]



                               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, 2014. 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 John
Hyrum Martinez, assisted by Ann Worley.

[[Page 1]]



                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....................         135
210             Procurement activities of the Corps of
                    Engineers...............................         160
214             Emergency supplies of drinking water........         178
220             Design criteria for dam and lake projects...         180
221             Work for others.............................         181
222             Engineering and design......................         198
223             Boards, commissions, and committees.........         296
230             Procedures for implementing NEPA............         297
236             Water resource policies and authorities:
                    Corps of Engineers participation in
                    improvements for environmental quality..         309
238             Water resources policies and authorities:
                    Flood damage reduction measures in urban
                    areas...................................         311
239             Water resources policies and authorities:
                    Federal participation in covered flood
                    control channels........................         314
240             General credit for flood control............         316
241             Flood control cost-sharing requirements
                    under the ability to pay provision......         322
242             Flood Plain Management Services Program
                    establishment of fees for cost recovery.         328
245             Removal of wrecks and other obstructions....         329
263             Continuing authorities programs.............         333
273             Aquatic plant control.......................         351
274             Pest control program for civil works
                    projects................................         356

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276             Water resources policies and authorities:
                    Application of section 134a of Public
                    Law 94-587..............................         360
277             Water resources policies and authorities:
                    Navigation policy: Cost apportionment of
                    bridge alterations......................         363
279             Resource use: Establishment of objectives...         371
320             General regulatory policies.................         376
321             Permits for dams and dikes in navigable
                    waters of the United States.............         389
322             Permits for structures or work in or
                    affecting navigable waters of the United
                    States..................................         390
323             Permits for discharges of dredged or fill
                    material into waters of the United
                    States..................................         398
324             Permits for ocean dumping of dredged
                    material................................         405
325             Processing of Department of the Army permits         406
326             Enforcement.................................         436
327             Public hearings.............................         447
328             Definition of waters of the United States...         450
329             Definition of navigable waters of the United
                    States..................................         452
330             Nationwide permit program...................         457
331             Administrative appeal process...............         468
332             Compensatory mitigation for losses of
                    aquatic resources.......................         483
334             Danger zone and restricted area regulations.         513
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............................         621
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........................         623
337             Practice and procedure......................         630
338             Other Corps activities involving the
                    discharge of dredged material or fill
                    into waters of the U.S..................         637
384             Intergovernmental review of Department of
                    the Army Corps of Engineers programs and
                    activities..............................         638
385             Programmatic regulations for the
                    comprehensive Everglades Restoration
                    Plan....................................         641
386-399

[Reserved]

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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 stations while tows are moving adjacent
to any part of a lock. They shall protect the lock walls by the use of

[[Page 57]]

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 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

[[Page 58]]

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.
    (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

[[Page 59]]

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 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

[[Page 60]]

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.
    (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:

[[Page 61]]

    (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 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

[[Page 62]]

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.
    (b) If a double lockage is required: One long blast of the whistle
followed by two short blasts.

[[Page 63]]

    (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 permitted
to enter or leave the locks until directed to do so by the

[[Page 64]]

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 structures in the process of construction or repair
shall reduce their speed and navigate with special caution

[[Page 65]]

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.
    (3) After lock walls and weir piers are awash they will be marked as
prescribed in paragraph (x) of this section.

[[Page 66]]

    (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.
    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]

[[Page 67]]



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 (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

[[Page 68]]

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 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

[[Page 69]]

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) 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.
    (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 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.

[78 FR 78720, Dec. 27, 2013]



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.

[[Page 70]]

    (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
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]

[[Page 71]]



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.
    (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,

[[Page 72]]

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, 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

[[Page 73]]

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 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

[[Page 74]]

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. 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

[[Page 75]]

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 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

[[Page 76]]

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 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

[[Page 77]]

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.
    (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.

[[Page 78]]

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 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.

[[Page 79]]

    (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 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

[[Page 80]]

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 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.

[[Page 81]]

    (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 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

[[Page 82]]

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 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

[[Page 83]]

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]



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

[[Page 84]]

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 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.

[[Page 85]]

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.
    (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

[[Page 86]]

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.
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

[[Page 87]]

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 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

[[Page 88]]

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 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.

[[Page 89]]

    (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 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

[[Page 90]]

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, 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]

[[Page 91]]



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, 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.

[[Page 92]]

    (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 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

[[Page 93]]

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 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

[[Page 94]]

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, 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.

[[Page 95]]

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.
    (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

[[Page 96]]

(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 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

[[Page 97]]

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 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

[[Page 98]]

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 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

[[Page 99]]

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 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

[[Page 100]]

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
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.

[[Page 101]]

    (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 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

[[Page 102]]

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 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

[[Page 103]]

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 at www.fdsys.gov.



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.
    (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

[[Page 104]]

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 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

[[Page 105]]

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.
    (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

[[Page 106]]

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, Texas.
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.
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

[[Page 107]]

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, 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:

[[Page 108]]

    (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 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

[[Page 109]]

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 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

[[Page 110]]

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 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]

[[Page 111]]



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.

    (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

[[Page 112]]

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 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.

[[Page 113]]

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 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

[[Page 114]]

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 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.

[[Page 115]]

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 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

[[Page 116]]

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 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

[[Page 117]]

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 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 118]]



                                                                                        List of Projects
                                                                     [Non-Corps projects with Corps Regulation Requirements]
------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                                   Elev limits feet     Area in acres
                                                                                                         Storage        M.S.L.       ------------------
      Project name \1\ (1)        State       County (3)         Stream \1\ (4)    Project purpose \2\   1000 AF --------------------                    Authorizing legis.    Proj. owner \4\
                                   (2)                                                     (5)             (6)      Upper     Lower    Upper    Lower         \3\ (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

[[Page 119]]


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
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
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.

[[Page 120]]


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..........  LCRA.
                                                                                   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

[[Page 121]]


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..........
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.

[[Page 122]]


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.........
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  FICR...............     191.0    3406.0    3327.0      460       90  PL 78-534..........  Vale
                                                               R.                                                                                                            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

[[Page 123]]


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; LCRA--Lower Colorado River Authority; 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.


(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; 79 FR 13564, Mar. 11, 2014]

[[Page 124]]



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

    In the interest of flood control, the Lower Colorado River Authority
(LCRA) shall operate the Marshall Ford Dam and Reservoir in accordance
with the water control plan of regulation most recently approved by the
U.S. Army Corps of Engineers (USACE), effective on the date specified in
the approval. Information regarding the most recently approved water
control plan of regulation may be obtained by contacting the LCRA
offices in Austin, Texas, or the offices of the U.S. Army Corps of
Engineers, Fort Worth Engineer District, in Fort Worth, Texas.

[79 FR 13564, Mar. 11, 2014]



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 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

[[Page 125]]

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
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]

[[Page 126]]



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 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.

[[Page 127]]

    (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, 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

[[Page 128]]

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 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.

[[Page 129]]

    (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.
    (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

[[Page 130]]

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 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

[[Page 131]]

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
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.

[[Page 132]]

    (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]



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

[[Page 133]]

agent, shall report at once to the District Engineer by telephone or
telegraph and, unless otherwise instructed, shall report once daily
thereafter in that manner until the reservoir level recedes to elevation
1039. These latter reports shall reach the District Engineer by 9 a.m.
each day.
    (d) The regulations of this section, insofar as they govern use of
flood control storage capacity above elevation 1039.0, are subject to
temporary modification in time of flood by the District Engineer if
found desirable on the basis of conditions at the time. Such desired
modifications shall be communicated to the representative of the Bureau
of Reclamation and its designated agent in immediate charge of
operations of the Norman Dam by any available means of communication,
and shall be confirmed in writing under date of the same day to the
Regional Director in charge of the locality, and his designated agent,
with a copy to the representative in charge of the Norman Dam.
    (e) Flood control operation shall not restrict pumping necessary for
municipal and industrial uses and releases necessary for downstream
users.
    (f) Releases made in accordance with the regulations of this section
are subject to the condition that releases shall not be made at rates or
in a manner that would be inconsistent with emergency requirements for
protecting the dam and reservoir from major damage or inconsistent with
the safe routing of the inflow design flood (spillway design flood).
    (g) The discharge characteristics of the river outlet works (capable
of discharging approximately 5,400 c.f.s. with the reservoir level at
elevation 1039.0) shall be maintained in accordance with the
construction plans (Bureau of Reclamation Specifications No. DC-5793 as
revised by the ``as built drawings'').
    (h) All elevations stated in this section are at Norman Dam and are
referred to the datum in use at that location.

[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

[[Page 134]]

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, 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

[[Page 135]]

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 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.

[[Page 136]]

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.
    (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,

[[Page 137]]

    (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, 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

[[Page 138]]

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 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.

[[Page 139]]

    (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 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

[[Page 140]]

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 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.

[[Page 141]]

    (4) The report on an application for license will contain
recommendations of the Division Engineer concerning the inclusion in the
license of any terms and conditions that are considered to be necessary
or desirable in the public interest from the standpoint of Corps of
Engineers responsibilities.
    (5) The report on an application for permit will contain such
recommendations as required to insure coordination of the applicant's
studies with the Division or District Engineer in cases where interests
of the Corps of Engineers are involved. In all cases, the report will
contain, in lieu of specific recommendations, a discussion of interests
which should be protected by articles in a license issued subsequent to
the permit period.
    (6) If the project is on a Federal reservation or contemplates the
use of a dam, either of which is under the jurisdiction of the
Department of the Army, the report should state, giving reasons:
    (i) Whether the project will interfere or be inconsistent with the
purpose for which such reservation was created or acquired and what
conditions, if any, should be imposed for the adequate protection and
utilization of the reservation.
    (ii) Whether the dam may be advantageously used by the United States
for public purposes in addition to authorized purposes and whether it
should be reserved for such use.
    (iii) Whether the development should be undertaken by the United
States.
    (7) The reports will not be released or made public except by
specific authority of the Chief of Engineers, nor will copies of a
report, its findings, or recommendations be furnished to the applicant,
to interested parties, or to the Commission until released by the Chief
of Engineers.
    (d) 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

[[Page 142]]

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''.
    (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

[[Page 143]]

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 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

[[Page 144]]

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 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

[[Page 145]]

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 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,

[[Page 146]]

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 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

[[Page 147]]

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 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,

[[Page 148]]

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 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.

[[Page 149]]

    (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 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

[[Page 150]]

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.



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:

[[Page 151]]

    (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:
    (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

[[Page 152]]

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 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

[[Page 153]]

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).

                              [ ---------------- 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

[[Page 154]]

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 ``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

[[Page 155]]

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]



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

[[Page 156]]

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 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

[[Page 157]]

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 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

[[Page 158]]

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, (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.

[[Page 159]]

    (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.
    (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,

[[Page 160]]

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 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

[[Page 161]]

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 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.

[[Page 162]]

    (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 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

[[Page 163]]

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 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,

[[Page 164]]

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 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,

[[Page 165]]

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 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

[[Page 166]]

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 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

[[Page 167]]

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 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)

[[Page 168]]

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.
    (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.

[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

[[Page 169]]

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 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,

[[Page 170]]

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 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

[[Page 171]]

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 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

[[Page 172]]

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.
    (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

[[Page 173]]

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 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

[[Page 174]]

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 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

[[Page 175]]

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 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

[[Page 176]]

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
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

[[Page 177]]

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 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]

[[Page 178]]



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).
    (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.

[[Page 179]]

    (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.
    (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.

[[Page 180]]



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.



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

[[Page 181]]

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 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


[[Page 182]]


    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 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.''

[[Page 183]]

    (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. 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

[[Page 184]]

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.
    (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

[[Page 185]]

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 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

[[Page 186]]

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 (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.

[[Page 187]]

    (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, 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

[[Page 188]]

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 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

[[Page 189]]

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 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

[[Page 190]]

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 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

[[Page 191]]

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 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.

[[Page 192]]

    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 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

[[Page 193]]

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 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

[[Page 194]]

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 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

[[Page 195]]

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 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

[[Page 196]]

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 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

[[Page 197]]

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 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

[[Page 198]]

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 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.

[[Page 199]]

    (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.
    (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

[[Page 200]]

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.
    (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

[[Page 201]]

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.
    (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

[[Page 202]]

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 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.)

[[Page 203]]

    (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.
    (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

[[Page 204]]

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 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.

[[Page 205]]

    (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 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

[[Page 206]]

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.
    (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

[[Page 207]]

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. 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

[[Page 208]]

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/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.

[[Page 209]]

    (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 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.

[[Page 210]]

    (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 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

[[Page 211]]

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 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.

[[Page 212]]

    (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 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

[[Page 213]]

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 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.

[[Page 214]]

    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. 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

[[Page 215]]

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
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 216]]


                                                      Appendix E to Sec. 222.5--List of Projects
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                                                 Elev limits feet      Area in acres
                                                                     Project purpose   Storage        M.S.L.       --------------------
       Project name \1\           State/county       Stream \1\            \2\        1,000 AF --------------------                      Auth legis \3\
                                                                                                  Upper     Lower     Upper     Lower
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                            Lower Mississippi Valley Division
--------------------------------------------------------------------------------------------------------------------------------------------------------
Alligator--Catfish FG.........  MS Issaquena....  Little Sunflower  F...............       0.0       0.0       0.0         0         0  FCA Jun 36.
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
                                                   Courtableau.                                                                          391-70.
Darbonne CS...................  LA St. Landry...  Bayou Darbonne..  FI..............       0.0      18.0      16.0         0         0  FCA May 28, PL
                                                                                                                                         391-70.

[[Page 217]]


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 Sewer  F...............      20.6     315.0     307.0     4,000       700  FCA May 50, PL
                                                                                                                                         516.
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.
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 Bayou  I...............       0.0       0.0       0.0         0         0  PL 86-645.
                                                                    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
 Prot FG.                                                                                                                                89-298.
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  ................

[[Page 218]]


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 Sunflower  F...............   1,569.9     281.4     236.0    58,500    10,700  FCA Jun 36.
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.
                                                                    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.

[[Page 219]]


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.
                                                                    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.

[[Page 220]]


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 Papillion  F...............      14.0   1,142.0   1,121.0       922       392  PL 90-483.
                                                   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 Trib  F...............       5.7   1,266.0   1,242.4       410       100  PL 85-500.
                                                   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 Salt  F...............       4.0   1,350.0   1,335.0       355       174  HD 396-84.
                                                   Cr.
                                                                    FCR.............       1.5   1,335.0   1,314.0       174         4  PL 85-500.
Papio Dam Site 18 & Lk.......  NE Douglas......  Boxelder Cr       F...............       7.1   1,128.2   1,110.0       595       255  PL 90-483.
                                                   Papio Cr.
                                                                    FCAR............       3.4   1,110.0   1,060.5       255         0  HD 349-90.

[[Page 221]]


Papio Dam Site 20 & Lk.......  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.
Pawnee Lk & Dam 14............  NE Lancaster....  No. Middle Cr of  F...............      21.0   1,263.5   1,244.3     1,470       728  PL 85-500.
                                                   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.
                                                                    FRC.............       9.6   1,442.4   1,415.0       885        62  HD 266-89.
Pomme De Terre Lk.............  MO Polk.........  Pomme De Terre R  F...............     407.2     874.0     839.0    15,980     7,890  PL 75-761.
                                                                    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.

[[Page 222]]


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  ................
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.

[[Page 223]]


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.
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.

[[Page 224]]


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
                                 Swift.                                                                                                  36.
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 Ship  FNP.............       2.7     579.0     577.5     1,850     1,800  RHA 1930.
                                                   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.

[[Page 225]]


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.
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.

[[Page 226]]


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.
--------------------------------------------------------------------------------------------------------------------------------------------------------
                                                                 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-
 Lk.                             Okanogan.                                                                                               525.
Cottage Grove Lk..............  OR Lane.........  Coast Fk,         F...............      29.8     791.0     750.0     1,155       295  HD 544, PL 75-
                                                   Willamete R.                                                                          761.
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.

[[Page 227]]


                                                                    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-
                                                   Willamette R.                                                                         761.
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-
                                                   Clearwater R.                                                                         874.
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-
                                 Franklin.                                                                                               14.
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-
                                 Whitman.                                                                                                14.
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-
                                 Whitman.                                                                                                14.
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-
                                 Franklin.                                                                                               14.

[[Page 228]]


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.
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.

[[Page 229]]


                                                                    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  ................
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-
                                 Westmoreland.                                                                                           761.
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  ................

[[Page 230]]


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.
                                                                    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  ................

[[Page 231]]


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 R  F...............      22.0     993.0     985.5     3,240     2,650  PL-74-738
                                                                    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,
                                 Fayette.                                                                                                1973.
Monroe Lk.....................  IN Monroe.......  Salt Cr.........  F...............     258.8     556.0     538.0    18,450    10,750  FCA 1958.
                                                                    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.

[[Page 232]]


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  ................

[[Page 233]]


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  ................
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  ................

[[Page 234]]


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.
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-
                                 Glades, Hendry,   Southern FL.                                                                          392, PL 79-14,
                                 Palm Beach,                                                                                             PL 80-858, PL
                                 Martin.                                                                                                 83-780, PL 90.
Lock A........................  MS Monroe.......  Tombigbee R.....  N...............       0.9     220.5     219.5       980       850  PL 79-525.

[[Page 235]]


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.
--------------------------------------------------------------------------------------------------------------------------------------------------------


[[Page 236]]


                                                                 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.
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 Mendocino  CA Mendocino....  East Fork,        F...............      50.1     764.8     737.5     1,922     1,740  PL 75-761.
                                                   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.

[[Page 237]]


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  ................
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
                                 Bend.                                                                                                   1938.
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 Trinity  F...............     170.4     724.0     694.0     7,630     3,770  HD103-771.
                                 Parker.           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  ................

[[Page 238]]


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  ................
Fort Gibson Lk................  OK Wagoner......  Neosho (Grand) R  F...............     919.2     582.0     554.0    51,000    19,900  FEC 1941.
                                                                    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 Gabriel  F...............      87.6     834.0     791.0     3,220     1,310  PL 87-874.
                                                   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  ................

[[Page 239]]


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
                                                   Canal.                                                                                1946.
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
                                 Arkansas.                                                                                               1946.
L&D 03........................  AR Jefferson,     Arkansas R......  N...............       8.3     182.3     180.0     3,750     3,180  HD 758-79, RHA
                                 Lincoln.                                                                                                1946.
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.
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.

[[Page 240]]


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 Elm  TX Denton.......  Elm Fork Trinity  F...............     525.2     532.0     515.0    39,080    23,280  HD 403-77-1.
 Dam.                                              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 Gabriel  F...............      87.6     834.0     791.0     3,220     1,310  PL 87-874.
                                                   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  ................

[[Page 241]]


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.
                                                                    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]



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.

[[Page 242]]

    (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.
    (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

[[Page 243]]

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.
    (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

[[Page 244]]

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 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

[[Page 245]]

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.
    (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.

[[Page 246]]

    (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 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

[[Page 247]]

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 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

[[Page 248]]

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.
    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

[[Page 249]]

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.
    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 262]]

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 263]]



 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 264]]


 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 271]]

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 272]]



                                    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 273]]

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

[[Page 274]]

with time might develop into safety hazards, 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 275]]

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 276]]

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

[[Page 277]]

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 278]]

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 279]]

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 280]]

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 281]]

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


[[Page 282]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.018


[[Page 283]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.019


[[Page 284]]


[GRAPHIC] [TIFF OMITTED] TC31OC91.020


[[Page 285]]


[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 286]]

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 287]]

    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 288]]

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 289]]

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 290]]

[GRAPHIC] [TIFF OMITTED] TC31OC91.022


[[Page 291]]


[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 292]]

                              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 293]]

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 294]]

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 295]]

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 296]]

    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 297]]

    (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 298]]

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 299]]

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 300]]

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 301]]

    (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 302]]

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 303]]

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 304]]

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 305]]

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 306]]



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 307]]

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 308]]

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 309]]

    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 310]]

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

[[Page 311]]

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 312]]

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 313]]

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 314]]

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 315]]

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 316]]



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 317]]

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 Sec. 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 318]]

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 319]]

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 320]]

(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 321]]

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 322]]


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 323]]



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 324]]

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 325]]

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 326]]

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 
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 327]]

    (c) When 0 
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 328]]

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 329]]

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 330]]



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 331]]

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 332]]

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 333]]



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 334]]



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 335]]

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 336]]

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 337]]

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 338]]

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 339]]

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 340]]

    (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 341]]

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 342]]



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 343]]

    (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 344]]

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 345]]

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 346]]

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 347]]

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 348]]

    (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 349]]

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 350]]



  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 351]]

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\
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    \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 352]]

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 353]]



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\
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    \2\ 33 CFR 209.410 was removed at 45 FR 56761, Aug. 25, 1980.
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Sec. 273.15  Work Progress Report.

    Reporting officers will prepare and submit to DAEN-CWO-R a detailed
description of anticipated Aquatic Plant

[[Page 354]]

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 355]]

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 356]]

    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 357]]


    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 358]]

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 359]]

    (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 360]]

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 361]]



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 362]]



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 363]]



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 364]]



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 365]]



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 366]]

    (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 367]]

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 368]]

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 369]]



               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 370]]


 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 371]]


 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 372]]

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 373]]

[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 374]]

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 375]]

    (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 376]]

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 377]]

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 378]]

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 379]]

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 380]]

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 381]]

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 382]]

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 383]]

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 384]]

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 385]]

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 386]]

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 387]]

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 388]]

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 389]]

    (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 390]]

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 391]]

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 392]]

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 393]]

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 394]]

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 395]]

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 396]]

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 397]]

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 398]]

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 399]]

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 400]]

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 401]]

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 402]]

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 403]]

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 404]]

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 405]]



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 406]]

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 407]]

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 408]]

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 409]]

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 410]]

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 411]]

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 412]]

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 413]]

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 414]]

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 415]]

    (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 416]]

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 417]]


    ``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 418]]

    (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 419]]

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 420]]

    (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 421]]

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 422]]

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 423]]

    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 424]]

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 425]]

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 426]]

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 427]]

    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 428]]

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 429]]

    (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 430]]

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 431]]

    (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

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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 433]]

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 engineer 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 434]]

    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 435]]

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 436]]

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 437]]

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 438]]

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-

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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 440]]

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 441]]

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 $32,500. 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 442]]

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 443]]

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 444]]

    (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 445]]

    (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 446]]

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 447]]

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; 78
FR 5726, Jan. 28, 2013]



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

[[Page 448]]

and Harbors Act of 1899, section 404 of the Clean Water Act, or section
103 of the MPRSA, as amended, or the modification, suspension or
revocation of any DA permit (see 33 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 449]]

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 450]]

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 451]]

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 452]]

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 453]]

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 454]]

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 455]]

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 456]]

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 457]]

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 458]]

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 45-day period. The 45-day period starts on the date of receipt
of the notification in the Corps district office and ends 45 calendar
days later regardless of weekends or holidays. If the DE notifies the
prospective permittee that the notification is incomplete, a new 45-day
period will commence upon receipt of the revised notification. The
prospective permittee may not proceed with the proposed activity before
expiration of the 45-day period unless otherwise notified by the DE. If
the DE fails to act within the 45-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 459]]

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.

[56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]



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

[[Page 460]]

the NWPs. Other conditions may be imposed by district or division
engineers on a geographic, category-of-activity, or activity-specific
basis (See 33 CFR 330.4(e)).
    (i) Single and complete project means the total project proposed or
accomplished by one owner/developer or partnership or other association
of owners/developers. For example, if construction of a residential
development affects several different areas of a headwater or isolated
water, or several different headwaters or isolated waters, the
cumulative total of all filled areas should be the basis for deciding
whether or not the project will be covered by an NWP. For linear
projects, the ``single and complete project'' (i.e., single and complete
crossing) will apply to each crossing of a separate water of the United
States (i.e., single waterbody) at that location; except that for linear
projects crossing a single waterbody several times at separate and
distant locations, each crossing is considered a single and complete
project. However, individual channels in a braided stream or river, or
individual arms of a large, irregularly-shaped wetland or lake, etc.,
are not separate waterbodies.
    (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

[[Page 461]]

a discharge into waters of United States in that state, unless he
determines that such conditions do not comply with the provisions of 33
CFR 325.4. In the latter case, the conditioned 401 water quality
certification will be considered a denial of the certification (see
paragraph (c)(3) of this section).
    (3) If a state denies a required 401 water quality certification for
an activity otherwise meeting the terms and conditions of a particular
NWP, that NWP's authorization for all such activities within that state
is denied without prejudice until the state issues an individual 401
water quality certification or waives its right to do so. State denial
of 401 water quality certification for any specific NWP affects only
those activities which may result in a discharge. That NWP continues to
authorize activities which could not reasonably be expected to result in
discharges into waters of the United States. \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 NWPs.
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 45-day pre-
construction 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

[[Page 462]]

(CZMA) requires the Corps to provide a consistency determination and
receive state agreement prior to the issuance, reissuance, or expansion
of activities authorized by an NWP that authorizes activities within a
state with a Federally-approved Coastal Management Program when
activities that would occur within, or outside, that state's coastal
zone will affect land or water uses or natural resources of the state's
coastal zone.
    (2) If, prior to the issuance, reissuance, or expansion of
activities authorized by an NWP, a state indicates that additional
conditions are necessary for the state to agree with the Corps
consistency determination, the division engineer will make such
conditions regional conditions for the 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 45-day pre-construction 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 non-concurrence
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 463]]

    (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 464]]

    (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.

[56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]



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

[[Page 465]]

issuance under general permit authority is available at the Office of
the Chief of Engineers and at all district offices. The Chief of
Engineers will prepare this information which will be supplemented, if
appropriate, by division engineers.
    (ii) Concurrent with the Chief of Engineers' notification of
proposed, modified, reissued, or revoked NWPs, DEs will notify the known
interested public by a notice issued at the district level. The notice
will include proposed regional conditions or proposed 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

[[Page 466]]

under an NWP; cumulative adverse environmental effects resulting from
activities occurring under the NWP; the extent of the permittee's
compliance with the terms and conditions of the NWPs; revisions to
applicable statutory or regulatory authorities; and, the extent to which
asserting discretionary authority would adversely affect plans,
investments, and actions the permittee has made or taken in reliance on
the permit; and, other concerns for the environment, including the
aquatic environment under the section 404(b)(1) Guidelines, and other
relevant factors of the public interest.
    (2) 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 until the expiration date of the
NWP) unless the NWP authorization is modified, suspended, or revoked.
The response

[[Page 467]]

should also include a statement that the verification will remain valid
for the specified period of time, if during that time period, 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 the amount of time remaining until the expiration date of
the NWP 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

[[Page 468]]

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 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.

[56 FR 59134, Nov. 22, 1991, as amended at 78 FR 5733, Jan. 28, 2013]



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

[[Page 469]]

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 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

[[Page 470]]

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 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

[[Page 471]]

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 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,

[[Page 472]]

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 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

[[Page 473]]

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 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

[[Page 474]]

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 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

[[Page 475]]

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 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

[[Page 476]]

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 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

[[Page 477]]

``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.
    (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

[[Page 478]]

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 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 479]]



 Sec. Appendix A to Part 331--Administrative Appeal Process for Permit
                      Denials and Proffered Permits
[GRAPHIC] [TIFF OMITTED] TR28MR00.000


[[Page 480]]





 Sec. Appendix B to Part 331--Applicant Options With Initial Proffered
                                 Permit
[GRAPHIC] [TIFF OMITTED] TR28MR00.001


[[Page 481]]





Sec. Appendix C to Part 331--Administrative Appeal Process for Approved
                      Jurisdictional Determinations
[GRAPHIC] [TIFF OMITTED] TR28MR00.002


[[Page 482]]





Sec. Appendix D to Part 331--Process for Unacceptable Request for Appeal
[GRAPHIC] [TIFF OMITTED] TR28MR00.003


[[Page 483]]





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 484]]

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 485]]

    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 486]]

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 487]]

    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 488]]

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 489]]

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 490]]

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 491]]

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 492]]

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 493]]

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 494]]

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 495]]

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 496]]

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 497]]

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 498]]

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 499]]

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 500]]

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 501]]

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 502]]

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 503]]

    (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 504]]

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 505]]

    (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 506]]

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 507]]

    (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 508]]

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 509]]

    (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 510]]

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

[[Page 511]]

by DA permits when those resources are essential to maintaining the
ecological viability of adjoining aquatic 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.

[[Page 512]]

    (p) Accounting procedures. (1) For mitigation banks, the instrument
must 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

[[Page 513]]

must be finalized before any credits can be released.
    (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 Definitions.
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 514]]

334.70 Buzzards Bay, and adjacent waters, Mass.; danger zones for naval
          operations.
334.75 Thames River, Naval Submarine Base New London, restricted area.
334.80 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.
334.235 Potomac River, Marine Corps Base Quantico (MCB Quantico) in
          vicinity of Marine Corps Air Facility (MCAF), restricted area.
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.
334.285 York River and the Naval Weapons Station Yorktown-Cheatham
          Annex, Yorktown, Virginia; danger zone.
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.

[[Page 515]]

334.450 Cape Fear River and tributaries at Sunny Point Army Terminal,
          Brunswick County, NC; restricted area.
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; U.S. Marine Corps
          Recruit Depot, Parris Island, South Carolina; danger zones.
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.
334.605 Meloy Channel, U.S. Coast Guard Base Miami Beach, Florida;
          restricted area.
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 Armament Center,
          Eglin Air Force Base, Fla.
334.710 The Narrows and Gulf of Mexico adjacent to Santa Rosa Island,
          Headquarters Air Armament Center, Eglin Air Force Base, Fla.
334.720 Gulf of Mexico, south from Choctawhatchee Bay; Missile test
          area.
334.730 Waters of Santa Rosa Sound and Gulf of Mexico adjacent to Santa
          Rosa Island, Armament Center, Eglin Air Force Base, Fla.
334.740 North Shore Choctawhatchee Bay, Eglin Air Force Base, Fla.
334.742 Eglin Camp Pinchot, Fla., at Eglin Air Force Base, Fla.;
          restricted area.
334.744 Eglin Poquito Housing at Eglin Air Force Base, Fla.; restricted
          area.
334.746 U.S. Coast Guard, Destin Station at Eglin Air Force Base, Fla.;
          restricted area.
334.748 Wynnhaven Beach, Fla., at Eglin AFB; 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.

[[Page 516]]

334.780 Pensacola Bay, Fla.; seaplane restricted area.
334.782 SUPSHIP Gulf Coast, Pascagoula, Mississippi, Detachment Mobile,
          Alabama at AUSTAL, USA, Mobile, Alabama; restricted area.
334.783 Arlington Channel, U.S. Coast Guard Base Mobile, Mobile,
          Alabama, Coast Guard restricted area.
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.
334.815 Menominee River, at the Marinette Marine Corporation Shipyard,
          Marinette, Wisconsin; naval 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 Nicholas 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
          vicinity 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.

[[Page 517]]

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.
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 off the Pacific Missile Range Facility at Barking
          Sands, Island of Kauai, Hawaii; danger zone.
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,

[[Page 518]]

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 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

[[Page 519]]

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 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.

[[Page 520]]

    (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 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

[[Page 521]]

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]



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.


[[Page 522]]


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 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

[[Page 523]]

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 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. 334.80  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

[[Page 524]]

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
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.
    (2) [Reserved]

[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]

[[Page 525]]

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]



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

[[Page 526]]

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]



Sec. 334.130  Atlantic Ocean off Wallops Island and Chincoteague Inlet,
Va.; danger zone.

    (a) The area. An area immediately behind and directly offshore from
Wallops Island defined by lines drawn as follows: Beginning at latitude
37[deg]53[min]00[sec] N, longitude 75[deg]29[min]48[sec] W; thence to
latitude 37[deg]53[min]03[sec] N, longitude 74[deg]50[min]52[sec] W;
thence to latitude 37[deg]38[min]28[sec] N, longitude
74[deg]51[min]48[sec] W; thence to latitude 37[deg]22[min]00[sec] N,
longitude 75[deg]09[min]35[sec] W; thence to latitude
37[deg]19[min]11[sec] N, longitude 75[deg]30[min]00[sec] W; thence to
latitude 37[deg]47[min]57[sec] N, longitude 75[deg]32[min]19[sec] W; and
thence to latitude 37[deg]53[min]00[sec] N, longitude
75[deg]29[min]48[sec] W.
    (b) The regulations. (1) Persons and vessels shall only be
prohibited from entering the area when launch operations are being
conducted.
    (2) In advance of scheduled launch operations which, in the opinion
of the enforcing agency, may be dangerous to persons and watercraft,
appropriate warnings will be issued to navigation interests through
official government and civilian channels or in such other manner as the
District Engineer, U.S. Army Corps of Engineers, may direct. Such
warnings will specify the location, time, and duration of operations,
and give other pertinent information as may be required in the interests
of safety. Announcement of area of closure will appear in the weekly
``Notice to Mariners.''
    (3) The intent to conduct rocket-launching operations in the area
shall also be indicated by visual signals consisting of a large orange-
colored ``blimp-shaped'' balloon by day and a rotating alternately red
and white beacon by night. The balloon shall be flown at latitude
37[deg]50[min]38[sec] N, longitude 75[deg]28[min]47[sec] W and the
beacon shall be displayed about 200 feet above mean high water at
latitude 37[deg]50[min]16[sec] N, longitude 75[deg]29[min]07[sec] W. The
appropriate signals shall be displayed 30 minutes prior to rocket-
launching time and shall remain displayed until the danger no longer
exists.

[[Page 527]]

    (4) In addition to visual signals and prior to conducting launch
operations, the area will be patrolled by aircraft or surface vessels
and monitored by radars and cameras to ensure no persons or watercraft
are within the danger zone or designated area of interest within the
danger zone. Patrol aircraft and surface vessels are equipped with
marine band radios and may attempt to hail watercraft and request that
they leave the designated area and remain clear of the area at a safe
distance until launch operations are complete, and launch will not occur
until the designated area is clear. Patrol aircraft may also employ the
method of warning known as ``buzzing'' which consists of low flight by
the airplane and repeated opening and closing of the throttle.
Surveillance vessels may also come close to watercraft and employ
flashing light to establish communications to indicate that the
watercraft is entering the designated hazard area.
    (5) Any watercraft being so warned shall immediately leave the
designated area until the conclusion of launch operations, and shall
remain at a distance to ensure that it will be safe from falling debris.
    (6) Nothing in this regulation shall be intended to prevent
commercial fishing or the lawful use of approved waterfowl hunting
blinds along the shorelines of the Wallops Flight Facility at Wallops
Island, Virginia, provided that all necessary licenses and permits have
been obtained from the Virginia Marine Resources Commission, Virginia
Department of Game and Inland Fisheries, and U.S. Fish and Wildlife
Service. Commercial fishermen and waterfowl hunters must observe all
warnings and range clearances during hazardous range operations.
    (c) Enforcement. The regulations in this section shall be enforced
by the Director, National Aeronautics and Space Administration, Goddard
Space Flight Center, Wallops Flight Facility Wallops Island, Va., or
such agencies as he or she may designate.

[77 FR 61722, Oct. 11, 2012]



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 528]]

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 529]]

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 530]]

    (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 531]]



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 532]]

    (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 533]]

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 534]]

    (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 535]]

    (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 Warfare Center, Dahlgren, VA--(1) The areas.
Portions of the Upper Machodoc Creek and Potomac River near Dahlgren, VA
as described below:
    (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]22.4[sec]. Hazardous operations are conducted in
this zone at infrequent intervals.
    (ii) Middle zone. Beginning at the intersection of the Harry W. Nice
Bridge with the Virginia shore; thence to Light 33; thence to latitude
38[deg]19[min]06[sec], longitude 76[deg]57[min]06[sec] which point is
about 3,300 yards east-southeast of Light 30; thence to Line of Fire
Buoy O, about 1,150 yards southwest 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
southwest to a point near the northeast shore of Hollis Marsh at
latitude 38[deg]10[min]00[sec]; longitude 76[deg]45[min]22.4[sec];
thence northwest 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]54[sec],
longitude 77[deg]01[min]02[sec], a point of the Virginia shore on
property of the Naval Support Facility Dahlgren, a distance of about
4,080 yards; thence north along the Potomac shore of Naval Surface
Warfare Center, Dahlgren to Baber Point; and thence west along the Upper
Machodoc Creek shore of Naval Surface Warfare Center, Dahlgren to
Howland Point at latitude 38[deg]19[min]0.5[sec], longitude
77[deg]03[min]23[sec]; thence northeast to latitude
38[deg]19[min]18[sec], longitude 77[deg]02[min]29[sec], a point on the
Naval Surface Warfare Center, Dahlgren shore about 350 yards southeast
of the base of the Navy recreational pier. Hazardous operations are
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 north-northeast 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]35.5[sec], longitude
76[deg]59[min]15.5[sec]; thence south along the Maryland shore to, and
then along, a line passing through Light 1 to the Virginia shore,
parallel to the Harry W. Nice Bridge; thence north with the Virginia
shore to the point of beginning. Hazardous operations are conducted in
this zone at infrequent intervals.
    (2) The regulations. (i) Hazardous operations normally take place
between the hours of 8 a.m. and 5 p.m. daily except Saturdays, Sundays
and national holidays, with infrequent night firing between 5 p.m. and
10:30 p.m. During a national emergency, hazardous operations will take
place between the hours of 6 a.m. and 10:30 p.m. daily except Sundays.
Hazardous operations may involve firing large or small caliber guns and
projectiles, aerial bombing, use of directed energy, and operating
manned or unmanned watercraft.
    (ii) When hazardous operations are in progress, no person, or
fishing or oystering vessels shall operate within the danger zone
affected unless so authorized by the Naval Surface Warfare Center,
Dahlgren's patrol boats. Oystering and fishing boats or other craft may
cross the river in the danger zone only after they have reported to the
patrol boat and received instructions as to when and where to cross.
Deep-draft vessels using dredged channels and propelled by mechanical

[[Page 536]]

power at a speed greater than five miles per hour may proceed directly
through the danger zones without restriction except when notified to the
contrary by the patrol boat. Unless instructed to the contrary by the
patrol boat, small craft navigating up or down the Potomac River during
hazardous operations shall proceed outside of the northeastern boundary
of the Middle Danger Zone. All craft desiring to enter the Middle Danger
Zone when proceeding in or out of Upper Machodoc Creek during hazardous
operations will be instructed by the patrol boat; for those craft that
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
Naval Surface Warfare Center, Dahlgren to Line of Fire Buoy P, clearance
will be granted to proceed upon request directed to the patrol boat.
    (iii) Due to hazards of unexploded ordnance, no person or craft in
the Middle Danger Zone shall approach closer than 100 yards to the
shoreline of Naval Surface Warfare Center, Dahlgren, previously known as
the Naval Surface Weapons Center.
    (3) Enforcement. The regulations shall be enforced by the Commander,
Naval Surface Warfare Center, Dahlgren 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. Naval Surface Warfare Center, Dahlgren
(Range Control) can be contacted by Marine VHF radio (Channel 16) or by
telephone (540) 653-8791.
    (4) Exceptions. Nothing in this regulation shall be intended to
prevent commercial fishing or the lawful use of approved waterfowl
hunting blinds along the shorelines of Naval Surface Warfare Center,
Dahlgren, provided that all necessary licenses and permits have been
obtained from the Maryland Department of Natural Resources, the Virginia
Department of Game and Inland Fisheries, or the Potomac River Fisheries
Commission. Waterfowl hunters shall provide a completed copy of their
blind permit to the Natural Resources Manager at Naval Surface Warfare
Center, Dahlgren. Commercial fishermen and waterfowl hunters must
observe all warnings and range clearances, as noted herein. Federal,
State and local law enforcement agencies are exempt from the provisions
of paragraph (a) of this section.
    (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

[[Page 537]]

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; 76 FR 10523, Feb. 25,
2011]



Sec. 334.235  Potomac River, Marine Corps Base Quantico (MCB Quantico)
in vicinity of Marine Corps Air Facility (MCAF), restricted area.

    (a) The area. All of the navigable waters of the Potomac River
extending approximately 500 meters from the high-water mark on the
Eastern shoreline of the MCAF, bounded by these coordinates (including
the Chopawamsic Creek channel, but excluding Chopawamsic Island):
Beginning at latitude 38[deg]29[min]34.04[sec] N, longitude
077[deg]18[min]22.4[sec] W (Point A); thence to latitude
38[deg]29[min]43.01[sec] N, longitude 077[deg]18[min]4.1[sec] (Point B);
thence to latitude 38[deg]29[min]55.1[sec] N, longitude
077[deg]17[min]51.3[sec] W (Point C); thence to latitude
38[deg]30[min]10.1[sec] N, longitude 077[deg]17[min]40.3[sec] W (Point
D); thence to latitude 38[deg]30[min]23.43[sec] N, longitude
077[deg]17[min]50.30[sec] W (Point E); then along the western shoreline
of Chopawamsic Island to latitude 38[deg]30[min]35.13[sec] N, longitude
077[deg]17[min]47.45[sec] W (Point F); thence to latitude
38[deg]30[min]42.1[sec] N, longitude 077[deg]17[min]37.1[sec] W (Point
G); thence to latitude 38[deg]30[min]50.71[sec] N, longitude
077[deg]17[min]54.12[sec] W (Point H); then along the shoreline to
latitude 38[deg]30[min]0.058[sec] N, longitude 077[deg]18[min]39.26[sec]
W (Point I); then across the Chopawamsic Channel to latitude
38[deg]29[min]58.45[sec] N, longitude 077[deg]18[min]39.97[sec] W (Point
J); thence to latitude 38[deg]29[min]38.2[sec] N, longitude
077[deg]18[min]38.14[sec] W (Point K); and thence to the beginning point
of origin.
    (b) The regulations. (1) All persons, vessels, or other craft are
prohibited from entering, transiting, drifting, dredging, or anchoring
within the restricted area without the permission of the Commander, MCB
Quantico or his/her designated representatives. The restriction will be
in place 24 hours a day, seven days a week.
    (2) The boundary of the restricted area will be demarcated with
marker buoys and warning signs set at 500 foot intervals. In addition,
floating small craft intrusion barriers marked with reflective material
will be placed across the Chopawamsic Creek channel at the entrance to
the channel from the Potomac River and immediately west of the CSX
railroad bridge.
    (c) Enforcement. The regulations in this section shall be enforced
by the Commander, MCB Quantico or any such agencies he/she designates.
The areas identified in paragraph (a) of this section will be monitored
24 hours a day, 7 days a week. Any person or vessel encroaching within
the areas identified in paragraph (a) of this section will be directed
to immediately leave the restricted area. Failure to do so could result
in forceful removal and/or criminal charges.
    (d) Exceptions. Commercial fisherman will be authorized controlled
access to the restricted area (with the exception of Chopawamisc Creek
channel) after registering with MCB Quantico officials and following
specific access notification procedures.

[76 FR 6328, Feb. 4, 2011; 76 FR 10524, Feb. 25, 2011]



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

[[Page 538]]

Creek from the pilings remaining from the footbridge to the mouth of the
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
paragraph (a)(1) of this section, 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.
    (4) Felgates Creek (prohibited). Navigable waters of the United
States as defined at 33 CFR part 329 within Felgates Creek from the
boundary fence line at the mouth to the mean high water line of the head
and all associated tributaries. The area contains the entirety of
Felgates Creek and all

[[Page 539]]

associated tributaries south of the line which begins at latitude
37[deg]16[min]24[sec] N, longitude 76[deg]35[min]12[sec] W and extends
east to latitude 37[deg]16[min]21[sec] N, longitude
76[deg]35[min]00[sec] W.
    (5) Indian Field Creek (prohibited). Navigable waters of the United
States as defined at 33 CFR part 329 within Indian Field Creek from the
boundary fence line at the mouth to the mean high water line of the head
and all associated tributaries. The area contains the entirety of Indian
Field Creek and all associated tributaries south of the line which
begins at latitude 37[deg]16[min]05[sec] N, longitude
76[deg]33[min]29[sec] W and extends east to latitude
37[deg]16[min]01[sec] N, longitude 76[deg]33[min]22[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 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
retrieving 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, Virginia.
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 (Naval) when that berth is occupied by a vessel handling
explosives.
    (5) All persons and all vessels are forbidden to enter the
prohibited areas described in paragraphs (a)(4) and (a)(5) of this
section without prior permission of the enforcing agency.
    (6) The regulations of this section shall be enforced by the
Commander, Naval Weapons Station Yorktown, Virginia, and such agencies
as he/she may designate.

[77 FR 61723, Oct. 11, 2012]



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

[[Page 540]]

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.
    (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. 334.285  York River and the Naval Weapons Station Yorktown-Cheatham
Annex, Yorktown, Virginia; danger zone.

    (a) The area. The waters within an area beginning at mean high water
on the shore at the facility located at latitude
37[deg]17[min]33.10[sec] N, longitude 76[deg]36[min]19.06[sec] W; then
northeast to a point in the York River at latitude
37[deg]18[min]36.65[sec] N, longitude 76[deg]34[min]39.01[sec] W; thence
south, southeast to latitude 37[deg]17[min]59.37[sec] N, longitude
76[deg]34[min]13.65[sec] W; then southwest to

[[Page 541]]

a point on the shore located at latitude 37[deg]17[min]26.75[sec] N,
longitude 76[deg]36[min]14.89[sec] W.
    (b) The regulations. (1) Vessels and persons may transit this area
at any time. No vessel or persons shall anchor, fish or conduct any
waterborne activities within the danger zone established in accordance
with this regulation any time live firing exercises are being conducted.
    (2) Anytime live firing is being conducted, the person or persons in
charge shall display a red flag from a conspicuous location along the
shore to signify the range is active and post lookouts to ensure the
safety of all vessels passing through the area. At night, red lights
will be displayed in lieu of flags.
    (3) No firing activities shall be conducted when the visibility is
less than the maximum range of the weapons being used at the facility or
while a vessel is within the danger zone.
    (4) Recreational and commercial activities may be conducted in this
area anytime the range is inactive.
    (c) Enforcement. The regulations in this section shall be enforced
by the Commander, Naval Weapons Station, Yorktown, or such agencies as
he or she may designate.

[79 FR 35050, June 19, 2014]

    Effective Date Note: At 79 FR 35050, June 19, 2014, Sec. 334.285
was added, effective July 21, 2014.



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 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,

[[Page 542]]

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.
    (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.

[[Page 543]]

    (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 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

[[Page 544]]

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]



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

[[Page 545]]

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]



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.

[[Page 546]]

    (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 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

[[Page 547]]

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 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

[[Page 548]]

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].
    (v) The waters within a circular band with an inner radius of 1.8
statute miles and an outer radius of 2.5 statute miles having its center
at latitude 35[deg]02[min]12[sec], longitude -76[deg]28[min]00[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.
    (iii) The areas described in paragraph (b)(1)(v) of this section
shall be used as a strafing area. Practice and dummy ammunition will be
used. Operations will be conducted on five consecutive days (Monday
through Friday) per month during the months of February through November
between the hours of 4 p.m. to 11 p.m. The block training dates will be
scheduled two weeks in advance of the actual training start date. Marine
Corps Air Station Cherry Point will have a call-in number for public use
to provide information on the current use of the training area. The
Notification to Mariners System will also be utilized to inform the
public on the status of the training area. No vessel or person shall
enter the area during the scheduled block training session except for
such vessels as may be directed by the enforcing agency to enter on
assigned duties. The area will be patrolled and vessels ``buzzed'' by
the patrol plane prior to the conduct of operations in the area. Vessels
or personnel which have inadvertently entered the danger zone shall
leave the area immediately upon being so 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; 76 FR 30023, May 24, 2011]



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.

[[Page 549]]

    (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 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

[[Page 550]]

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-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

[[Page 551]]

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.
    (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, NC; 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. 35
(34[deg]02[min]03.218[sec] N, 077[deg]56[min]28.755[sec] W) at the north
approach channel to Sunny Point Army Terminal to U.S. Coast Guard buoy
No. 27 (33[deg]58[min]16.12[sec] N, 077[deg]56[min]59.736[sec] W) 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/she may designate.

[75 FR 53198, Aug. 31, 2010]



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

[[Page 552]]

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 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

[[Page 553]]

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
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

[[Page 554]]

and under no circumstances anchor, fish, loiter, or photograph until
clear of the restricted area.
    (3) Personnel, vessels and other watercraft may be restricted from
using any or all of the area described in paragraphs (a)(3) and (a)(6)
of this section without first obtaining an escort or other approval from
Commander, Naval Base, Charleston, when deemed necessary and
appropriately noticed by him/her for security purposes or other military
operations.
    (4) Personnel, vessels and other watercraft, other than those
specifically authorized by Commanding Officer, U.S. Naval Weapons
Station, Charleston, SC, entering the restricted area described in
paragraph (a)(8) of this section shall proceed at normal speed, and
under no circumstances anchor, fish, loiter, or photograph in any way
until clear of the restricted area.
    (5) Personnel, vessels and other watercraft, other than those
specifically authorized by Commanding Officer, U.S. Naval Weapons
Station, Charleston, SC, entering the areas described in paragraphs
(a)(9) and (a)(10) of this section are prohibited from entering within
one-hundred (100) yards of the west bank of the Cooper River, in those
portions devoid of any vessels or manmade structures. In those areas
where vessels or man-made structures are present, the restricted area
will be 100 yards from the shoreline or 50 yards beyond those vessels or
other man-made structures, whichever is the greater. This includes the
area in paragraph (a)(10) of this section.
    (6) In the interest of National Security, Commanding Officer, U.S.
Naval Weapons Station, Charleston, SC, may at his/her discretion,
restrict passage of persons, watercraft and vessels in the areas
described in paragraphs (a)(7), (a)(8) and (a)(11) of this section until
such time as he/she determines such restriction may be terminated.
    (7) All restricted areas and all danger zones and the approaches
leading to the danger zones will be marked with suitable warning signs.
    (8) The regulations described in paragraphs (b) (1), (2) and (3) of
this section shall be enforced by Commander, Naval Base, Charleston, and
such agencies as he/she may designate.
    (9) The regulations in this section for the danger zones described
in paragraphs (a)(12) and (a)(13) of this section and the regulations
described in paragraphs (b) (4), (5) and (6) of this section, shall be
enforced by the Commanding Officer, Naval Weapons Station Charleston,
SC, and such agencies as he/she may designate.
    (10) It is understood that none of the restrictions herein will
apply to properly marked Federal vessels performing official duties. It
is further understood that Federal employees will not take photographs
from within the above described restricted areas.
    (11) The unauthorized entering or crossing of the danger zones
described in paragraphs (a)(12) and (a)(13) of this section by all
persons, watercraft and vessels is prohibited at all times unless
specifically authorized by the Commanding Officer of the U.S. Naval
Weapons Station Charleston, SC.

[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

[[Page 555]]

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 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

[[Page 556]]

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 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

[[Page 557]]

the housing area northern boundary line at latitude 32.471172[deg],
longitude 80.809795[deg], thence proceeding a distance 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; U.S. Marine
Corps Recruit Depot, Parris Island, South Carolina; danger zones.

    (a) The areas. (1) The danger zone on Archers Creek (between the
Broad River and Beaufort River), Ribbon Creek, and the Broad River shall
encompass all navigable waters of the United States, as defined at 33
CFR part 329, adjacent to the existing rifle range. This area is bounded
by a line connecting the following coordinates: Commencing from the
shoreline at the southernmost portion of the area, at latitude
32[deg]19[min]59[sec] N, longitude 80[deg]42[min]54[sec] W, thence to a
point at latitude 32[deg]20[min]05[sec] N, longitude
80[deg]43[min]16[sec] W, thence

[[Page 558]]

to a point at latitude 32[deg]21[min]40[sec] N, longitude
80[deg]44[min]54[sec] W, thence to a point at latitude
32[deg]22[min]20[sec] N, longitude 80[deg]43[min]52[sec] W, thence to a
point on the shoreline at latitude 32[deg]21[min]34[sec] N, longitude
80[deg]42[min]48[sec] W, thence follow the mean high water line
southwesterly around Horse Island approximately 2.3 nautical miles to a
point at latitude 32[deg]21[min]22[sec] N, longitude
80[deg]42[min]30[sec] W, thence to a point on the shoreline at latitude
32[deg]20[min]56[sec] N, longitude 80[deg]41[min]50[sec] W, thence
follow the mean high water line southwesterly approximately 2.2 nautical
miles to terminate at the southernmost portion of the area (the starting
point).
    (2) The danger zone on the Broad River shall encompass all navigable
waters of the United States, as defined at 33 CFR part 329, adjacent to
the existing pistol range. This area is bounded by a line connecting the
following coordinates: Commencing from the shoreline at the easternmost
portion of the area, at latitude 32[deg]19[min]36[sec] N, longitude
80[deg]42[min]34[sec] W, thence to a point at latitude
32[deg]19[min]23[sec] N, longitude 80[deg]42[min]50[sec] W, thence to a
point at latitude 32[deg]19[min]06[sec] N, longitude
80[deg]43[min]31[sec] W, thence to a point at latitude
32[deg]19[min]28[sec] N, longitude 80[deg]43[min]54[sec] W, thence to a
point at latitude 32[deg]19[min]59[sec] N, longitude
80[deg]43[min]28[sec] W, thence to a point on the shoreline at latitude
32[deg]20[min]10[sec] N, longitude 80[deg]43[min]10[sec] W, and thence
follow the mean high water line southeasterly approximately 0.75
nautical miles to terminate at the easternmost portion of the area (the
starting point).
    (b) The regulations. (1) All persons, vessels, or other watercraft
are prohibited from entering, transiting, anchoring, or drifting within
the danger zones described in paragraph (a) of this section when the
adjacent rifle or pistol ranges on U.S. Marine Corps Recruit Depot
Parris Island are in use.
    (2) Firing over these ranges will normally take place between the
hours of 6 a.m. and 5 p.m., Monday through Friday, and from 6 a.m. to 12
p.m. on Saturday, National holidays excepted, and at other times as
designated and properly published by the Commanding General, U.S. Marine
Corps Recruit Depot Parris Island.
    (3) Warning signs indicating the periods when the rifle range is in
use will be posted by the entrances to Archers Creek and Ribbon Creek.
In addition, warning signs will be placed along the shoreline on the
Broad River near the upstream and downstream boundaries of both the
rifle range and the pistol range.
    (4) Warning flags shall be flown from the top of the lookout tower
and on the rifle range and pistol range during actual firing. In
addition, a sentry lookout will be on duty during actual firing and a
patrol boat will be accessible for clearing the area and warning all
approaching vessels of the danger zone and the schedule of firing.
    (5) During storms or similar emergencies these areas shall be opened
to vessels to reach safety without undue delay for the preservation of
life and property.
    (c) Enforcement. The regulations in this section shall be enforced
by the Commanding General, U.S. Marine Corps Recruit Depot Parris Island
and/or such persons or agencies as he/she may designate.

[76 FR 62631, Oct. 11, 2011]



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.

[[Page 559]]

    (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 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

[[Page 560]]

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 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

[[Page 561]]

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 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

[[Page 562]]

George by regular cargo-carrying vessels proceeding along established
lanes for such vessels. When any such vessel is within the danger zone
the officer in charge of the bombing operations will cause the cessation
or postponement of such operations until the vessel has cleared the
area. The vessel shall proceed on its normal course and shall not delay
its progress.
    (5) The regulations in this section shall be enforced by the
Commander, Naval Air Bases, Sixth Naval District, Naval Air Station,
Jacksonville, Florida, and such agencies as he may designate.

[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]



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

[[Page 563]]

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 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

[[Page 564]]

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]



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

[[Page 565]]

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]



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. 334.605  Meloy Channel, U.S. Coast Guard Base Miami Beach, Florida;
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
area bounded by a line connecting the following coordinates: Commencing
from the shoreline at latitude 25[deg]46[min]20.07[sec] N, longitude
080[deg]08[min]50.94[sec] W; thence to latitude 25[deg]46[min]22.69[sec]
N, longitude 080[deg]08[min]44.01[sec] W; thence to latitude
25[deg]46[min]22.02[sec] N, longitude 080[deg]08[min]42.14[sec] W;
thence to latitude 25[deg]46[min]12.23[sec] N, longitude
080[deg]08'35.33[sec] W; thence to latitude 25[deg]46[min]09.13[sec] N,
longitude 080[deg]08[min]40.74[sec] W; thence to latitude
25[deg]46'11.63[sec] N, longitude 080[deg]08'43.36[sec] W; thence to
latitude 25[deg]46[min]17.22[sec] N, longitude 080[deg]08[min]47.17[sec]
W; thence to latitude 25[deg]46[min]17.15[sec] N, longitude
080[deg]08[min]47.62[sec] W; thence to latitude 25[deg]46[min]17.63[sec]
N, longitude 080[deg]08[min]49.33[sec] W; thence to latitude
25[deg]46[min]18.91[sec] N, longitude 080[deg]08[min]50.24[sec] W;
thence proceed directly to a point on the shoreline at latitude
25[deg]46[min]18.76[sec] N, longitude 080[deg]08[min]50.71[sec] W thence
following the mean high water line to the point of beginning.
    (b) The regulations. (1) The restricted area described in paragraph
(a) of this section is only open to U.S. Government vessels. U.S.
Government vessels include, but are not limited to, U.S. Coast Guard and
Coast Guard Auxiliary vessels, Department of Defense vessels, state and
local law enforcement and emergency services vessels, and vessels under
contract with the U.S. Government. Warning signs notifying individuals
of the restricted area boundary and prohibiting all unauthorized entry
into the area will be posted along the property boundary and, as
appropriate, on the piers of the MacArthur Causeway Bridge adjacent to
the restricted area.
    (2) All persons, vessels, and other craft are prohibited from
entering, transiting, drifting, dredging, or anchoring within the
restricted area described in paragraph (a) of this section without prior
approval from the Base Commander, U.S. Coast Guard Base Miami Beach or
his/her designated representative.
    (3) Fishing, trawling, net-fishing, and other aquatic activities are
prohibited in the restricted area without prior approval from the Base
Commander, U.S. Coast Guard Base Miami Beach or his/her designated
representative.
    (4) The restrictions described in paragraph (b) of this section are
in effect 24 hours a day, 7 days a week.
    (c) Enforcement. The regulations in this section shall be enforced
by the Base Commander, U.S. Coast Guard Base Miami Beach and/or such
persons or agencies as he/she may designate.

[77 FR 42652, July 20, 2012]



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

[[Page 566]]

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., 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

[[Page 567]]

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 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

[[Page 568]]

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.
    (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, Aug. 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

[[Page 569]]

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 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

[[Page 570]]

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.
    (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

[[Page 571]]

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 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 Armament
Center, Eglin Air Force Base, Fla.

    (a) The danger zones--(1) Aerial gunnery range in west part of
Choctawhatchee Bay. The danger zone shall encompass all navigable waters
of the United States as defined at 33 CFR part 329, including the waters
of Choctawhatchee Bay within an area bounded by a line connecting the
following coordinates, excluding that part of the area included within
the aerial gunnery range along the north shore of Choctawhatchee Bay as
described in paragraph (a)(2) of this section: Commencing at the
northeast shore at latitude 30[deg]28[min]09.11[sec] N, longitude
086[deg]29[min]02.30[sec] W; thence to latitude 30[deg]25[min]30[sec] N,
longitude 086[deg]21[min]30[sec] W; thence to latitude
30[deg]23[min]34.72[sec] N, longitude 086[deg]23[min]00.22[sec] W; then
following the shoreline at the mean high water line to latitude
30[deg]24[min]09.45[sec] N, longitude 086[deg]25[min]00.08[sec] W;
thence to the southwest shore at latitude 30[deg]27[min]54.18[sec] N,
longitude 086[deg]29[min]18.32[sec] W; then following the shoreline at
the mean high water line easterly to point of origin.

[[Page 572]]

    (2) Aerial gunnery range along north shore of Choctawhatchee Bay.
The danger zone shall encompass all navigable waters of the United
States as defined at 33 CFR part 329, including the waters of
Choctawhatchee Bay within an area bounded by a line connecting the
following coordinates: Commencing at the northwest shore at latitude
30[deg]27[min]26[sec] N, longitude 086[deg]25[min]30[sec] W; thence to
latitude 30[deg]26[min]00[sec] N, longitude 086[deg]25[min]30[sec] W;
thence to latitude 30[deg]26[min]57[sec] N, longitude
086[deg]20[min]35[sec] W; thence to latitude 30[deg]26[min]12[sec] N,
longitude 086[deg]20[min]35[sec] W; thence to latitude
30[deg]26[min]29[sec] N, longitude 086[deg]15[min]00[sec] W; thence to
the northeast shore at latitude 30[deg]29[min]08.7[sec] N, longitude
086[deg]15[min]00[sec] W; then following the shoreline at the mean high
water line easterly to point of origin.
    (b) The regulations--(1) Aerial gunnery range in west part of
Choctawhatchee Bay. The aerial gunnery range in the west part of
Choctawhatchee Bay (as described in paragraph (a)(1) of this section)
may be used by persons and watercraft except during periods when firing
is conducted. Use of the area will be advertised in advance by Eglin AFB
Public Affairs. 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.
    (2) Aerial gunnery range along north shore of Choctawhatchee Bay. No
person, vessel or other craft shall enter or remain within the aerial
gunnery range along the north shore of Choctawhatchee Bay (as described
in paragraph (a)(2) of this section) during times the area is active.
Activation of the area will be advertised in advance by Eglin AFB Public
Affairs.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75455, Dec. 2, 2011]



Sec. 334.710  The Narrows and Gulf of Mexico adjacent to Santa Rosa
Island, Headquarters Air Armament Center, Eglin Air Force Base, Fla.

    (a) The restricted area. The restricted area shall encompass all
navigable waters of the United States as defined at 33 CFR part 329,
including the waters of The Narrows and the Gulf of Mexico easterly of
the periphery of a circular area five nautical miles in radius, centered
at latitude 30[deg]23[min]10.074[sec] N, longitude
086[deg]48[min]25.433[sec] W (USC&GS Station Tuck 3), within the segment
of a circle, three nautical miles in radius, centered at latitude
30[deg]24[min]00[sec] N, longitude 086[deg]41[min]47[sec] W.
    (b) The regulations. 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. Notifications will be via
Eglin AFB water patrol and published in local news media in advance.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75455, Dec. 2, 2011]



Sec. 334.720  Gulf of Mexico, south from Choctawhatchee Bay; Missile
test area.

    (a) The danger zone. The danger zone shall encompass all navigable
waters of the United States as defined at 33 CFR part 329, including 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] N, longitude 086[deg]48[min]25.433[sec] W,
three nautical miles offshore of Santa Rosa Island; thence easterly

[[Page 573]]

three nautical miles offshore and parallel to shore, to a point south of
Apalachicola Bay, Florida at latitude 29[deg]32[min]00[sec] N, longitude
085[deg]00[min]00[sec] W; thence southeasterly to latitude
29[deg]17[min]30[sec] N, longitude 084[deg]40[min]00[sec] W; thence
southwesterly to latitude 28[deg]40[min]00[sec] N, longitude
084[deg]49[min]00[sec] W; thence southeasterly to latitude
28[deg]10[min]00[sec] N, longitude 084[deg]30[min]00[sec] W; thence
270[deg] true to longitude 086[deg]48[min]00[sec] W; thence due north
along longitude 086[deg]48[min]00[sec] W 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] N, longitude
086[deg]48[min]25.433[sec] W, 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.
    (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 zone, the officer in charge of firing operations will cause the
cessation or postponement of fire until the vessel has 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 persons and vessels, except those identified in paragraph
(b)(2) of this section, will be 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.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75455, Dec. 2, 2011]



Sec. 334.730  Waters of Santa Rosa Sound and Gulf of Mexico adjacent to
Santa Rosa Island, Armament Center, Eglin Air Force Base, Fla.

    (a) The areas--(1) The danger zone. The danger zone shall encompass
all navigable waters of the United States as defined at 33 CFR part 329,
including the 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] N, longitude 086[deg]48[min]25.433[sec] W
(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 as
measured from the Harvey Lock, Louisiana, ``zero mile'' location.
    (2) The restricted areas--(i) Area 1. The restricted area shall
encompass all navigable waters of the United States as defined at 33 CFR
part 329, including the waters of Santa Rosa Sound and Gulf of Mexico,
surrounding the danger zone 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] N, longitude
086[deg]48[min]25.433[sec] W (USC&GS Station Tuck 3). The portion of the
area in Santa Rosa Sound includes the Gulf Intracoastal Waterway between
mile designation 204.6 and 216.4 as measured from the Harvey Lock,
Louisiana, ``zero mile'' location.
    (ii) Area 2. Santa Rosa Island, North Side. The restricted area
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]06.58[sec] N, longitude 086[deg]40[min]25.00[sec] W;
thence to latitude 30[deg]24[min]08.08[sec] N, longitude
086[deg]40[min]25.00[sec] W; then the line meanders irregularly,
following the shoreline at a distance of 150 feet seaward from the mean
high water line to a point at latitude

[[Page 574]]

30[deg]23[min]12.34[sec] N, longitude 086[deg]50[min]57.62[sec] W,
thence proceeding directly to a point on the shoreline at latitude
30[deg]23[min]10.85[sec] N, longitude 086[deg]50[min]57.62[sec] W. The
area also includes all contiguous inland navigable waters which lie
within the land boundaries of Eglin AFB.
    (iii) Area 3. Choctawhatchee Bay, North side--Hurlburt Field. The
restricted area 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]28.30[sec]
N, longitude 086[deg]40[min]54.91[sec] W; thence to latitude
30[deg]24[min]26.32[sec] N, longitude 086[deg]40[min]54.91[sec] W; then
the line meanders irregularly, following the shoreline at a distance of
200 feet seaward from the mean high water line to a point at latitude
30[deg]24[min]20.92[sec] N, longitude 086[deg]41[min]45.96[sec] W;
thence directly to latitude 30[deg]24[min]23.31[sec] N, longitude
086[deg]42[min]00.20[sec] W; thence directly to latitude
30[deg]24[min]28.83[sec] N, longitude 086[deg]42[min]07.42[sec] W;
thence directly to latitude 30[deg]24[min]25.98[sec] N, longitude
086[deg]42[min]17.12[sec] W; thence directly to longitude
30[deg]24[min]26.31[sec] N, longitude 086[deg]42[min]19.82[sec] W; then
the line meanders irregularly following the shoreline at a distance of
200 feet seaward from the mean high water line to a point at latitude
30[deg]24[min]28.80[sec] N, longitude 086[deg]42[min]53.83[sec] W,
thence proceeding directly to a point on the shoreline at latitude
30[deg]24[min]30.79[sec] N, longitude 086[deg]42[min]53.83[sec] W.
    (b) The regulations--(1) The danger zone. (i) Experimental test
operations will be conducted by the U.S. Air Force (USAF) within the
danger zone. During periods when experimental test operations are
underway, no person, vessel or other watercraft shall enter or navigate
the waters of the danger zone.
    (ii) The area identified in paragraph (a)(1) of this section and the
associated restrictions described in paragraph (b)(1)(i) of this section
are in effect 24 hours a day, 7 days a week. The area is used on an
intermittent basis and, generally, any test operations shall not exceed
one hour and shall not occur more than twice weekly.
    (2) The restricted areas. (i) All persons, vessels and other craft
are permitted access to the restricted areas described in paragraph
(a)(2) of this section. Any person or vessel within the restricted areas
will be subject to identification checks by USAF patrol boats. During
times of high security threats against Eglin AFB or Hurlburt Field, all
entry, transit, anchoring or drifting within the restricted areas
described in paragraph (a)(2) of this section for any reason is not
allowed without permission of Eglin AFB or the Hurlburt Field Commander
or his/her authorized representative, 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.
    (ii) The areas identified in paragraph (a)(2) of this section and
the associated restrictions described in paragraph (b)(2)(i) of this
section are in effect 24 hours a day, 7 days a week.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75456, Dec. 2, 2011]



Sec. 334.740  North Shore Choctawhatchee Bay, Eglin Air Force Base, Fla.

    (a) The area. The restricted area 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]28[min]59.90[sec] N, longitude
086[deg]29[min]08.88[sec] W; thence to latitude 30[deg]28[min]59.61[sec]
N, longitude 086[deg]29[min]01.81[sec] W; thence to latitude
30[deg]29[min]08.01[sec] N, longitude 086[deg]28[min]47.78[sec] W; then
following the mean high water line at a distance of 1,000 feet to a
point at latitude 30[deg]26[min]48.60[sec] N, longitude
086[deg]32[min]31.95[sec] W, thence proceeding directly to a point on
the shoreline at latitude 30[deg]26[min]53.58[sec] N, longitude
086[deg]32[min]41.81[sec] W. The area

[[Page 575]]

also includes all contiguous inland navigable waters that lie within the
land boundaries of Eglin AFB.
    (b) The regulations. (1) All persons, vessels and other craft are
permitted access to the restricted area described in paragraph (a) of
this section. Any person or vessel within the restricted area will be
subject to identification checks by U.S. Air Force patrol boats. During
times of high security threats against Eglin AFB, all entry, transit,
anchoring or drifting within the restricted area described in paragraph
(a) of this section for any reason is not allowed without the permission
of the Commander, 96 Air Base Wing, Eglin AFB, and his/her authorized
representative.
    (2) The area identified in paragraph (a) of this section and the
associated restrictions described in paragraph (b)(1) of this section
are in effect 24 hours a day, 7 days a week.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75456, Dec. 2, 2011]



Sec. 334.742  Eglin Camp Pinchot, Fla., at Eglin 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 part 329, within the
area bounded by a line connecting the following coordinates: Commencing
from the shoreline at latitude 30[deg]28[min]18.68[sec] N, longitude
086[deg]35[min]38.66[sec] W; thence to latitude 30[deg]28[min]20.80[sec]
N, longitude 086[deg]35[min]36.25[sec] W; then the line meanders
irregularly, following the shoreline at a distance of 300 feet seaward
from the mean high water line to a point at latitude
30[deg]28[min]06.02[sec] N, longitude 086[deg]35[min]39.18[sec] W,
thence proceeding directly to a point on the shoreline at latitude
30[deg]28[min]07.47[sec] N, longitude 086[deg]35[min]42.17[sec] W.
    (b) The regulations. (1) All persons, vessels and other craft are
permitted access to the restricted area described in paragraph (a) of
this section. Any person or vessel within the restricted area will be
subject to identification checks by U.S. Air Force patrol boats. During
times of high security threats against Eglin AFB, all entry, transit,
anchoring or drifting within the restricted area described in paragraph
(a) of this section for any reason is not allowed without the permission
of the Commander, Eglin AFB, Florida, or his/her authorized
representative.
    (2) The area identified in paragraph (a) of this section and the
associated restrictions described in paragraph (b)(1) of this section
are in effect 24 hours a day, 7 days a week.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75457, Dec. 2, 2011]



Sec. 334.744  Eglin Poquito Housing at Eglin 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 part 329, within the
area bounded by a line connecting the following coordinates: Commencing
from the shoreline at latitude 30[deg]27[min]11.68[sec] N, longitude
086[deg]34[min]32.87[sec] W; thence to latitude 30[deg]27[min]11.86[sec]
N, longitude 086[deg]34[min]34.59[sec] W; then the line meanders
irregularly, following the shoreline at a distance of 150 feet seaward
from the mean high water line to a point at latitude
30[deg]27[min]31.25[sec] N, longitude 086[deg]34[min]38.56[sec] W,
thence proceeding directly to a point on the shoreline at latitude
30[deg]27[min]34.07[sec] N, longitude 086[deg]34[min]35.67[sec] W.
    (b) The regulations. (1) All persons, vessels and other craft are
permitted access to the restricted area described in paragraph (a) of
this section. Any person or vessel within the restricted area will be
subject to identification checks by U.S. Air Force patrol boats. During
times of high security threats

[[Page 576]]

against Eglin AFB, all entry, transit, anchoring or drifting within the
restricted area described in paragraph (a) of this section for any
reason is not allowed without the permission of the Commander, Eglin
AFB, Florida, or his/her authorized representative.
    (2) The area identified in paragraph (a) of this section and the
associated restrictions described in paragraph (b)(1) of this section
are in effect 24 hours a day, 7 days a week.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75457, Dec. 2, 2011]



Sec. 334.746  U.S. Coast Guard, Destin Station at Eglin 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 part 329, within the
area bounded by a line connecting the following coordinates: Commencing
from the shoreline at latitude 30[deg]23[min]33.45[sec] N, longitude
86[deg]31[min]37.51[sec] W; thence to latitude 30[deg]23[min]35.67[sec]
N, longitude 86[deg]31[min]37.31[sec] W; thence to latitude
30[deg]23[min]33.68[sec] N, longitude 86[deg]31[min]30.98[sec] W; thence
to latitude 30[deg]23[min]32.00[sec] N, longitude
86[deg]31[min]28.80[sec] W; thence proceeding directly to a point on the
shoreline at latitude 30[deg]23[min]30.14[sec] N, longitude
86[deg]31[min]30.21[sec] W.
    (b) The regulations. (1) No person or vessel shall enter the area
without the permission of the Commander, U.S. Coast Guard, Destin
Station, Florida, or his/her authorized representative.
    (2) The area identified in paragraph (a) of this section and the
associated restrictions described in paragraph (b)(1) of this section
are in effect 24 hours a day, 7 days a week.
    (c) Enforcement. The regulations in this section shall be enforced
by the Commander, U.S. Coast Guard, Destin Station, and such agencies as
he/she may designate.

[76 FR 75457, Dec. 2, 2011]



Sec. 334.748  Wynnhaven Beach, Fla., at Eglin AFB; 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
area bounded by a line connecting the following coordinates: Commencing
from the shoreline at latitude 30[deg]24[min]35.06[sec] N, longitude
086[deg]46[min]20.31[sec] W; thence to latitude 30[deg]24[min]33.57[sec]
N, longitude 086[deg]46[min]20.31[sec] W; then the line meanders
irregularly, following the shoreline at a distance of 150 feet seaward
from the mean high water line to a point at latitude
30[deg]24[min]34.81[sec] N, longitude 086[deg]46[min]09.19[sec] W,
thence proceeding directly to a point on the shoreline at latitude
30[deg]24[min]36.30[sec] N, longitude 086[deg]46[min]09.19[sec] W.
    (b) The regulations. (1) All persons, vessels and other craft are
permitted access to the restricted area described in paragraph (a) of
this section. Any person or vessel within the restricted area will be
subject to identification checks by U.S. Air Force patrol boats. During
times of high security threats against Eglin AFB, all entry, transit,
anchoring or drifting within the restricted area described in paragraph
(a) of this section for any reason is not allowed without the permission
of the Commander, Eglin AFB, Florida, or his/her authorized
representative.
    (2) The area identified in paragraph (a) of this section and the
associated restrictions described in paragraph (b)(1) of this section
are in effect 24 hours a day, 7 days a week.
    (c) Enforcement. (1) The regulations in this section shall be
enforced by the Commander, 96 Air Base Wing, Eglin AFB, Florida and such
agencies as he/she may designate.
    (2) Enforcement of the regulations in this section will be
accomplished in accordance with the active security level as defined by
the Department of Defense Force Protection Condition (FPCON) System.

[76 FR 75457, Dec. 2, 2011]

[[Page 577]]



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.
    (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.

[[Page 578]]

    (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.
    (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,

[[Page 579]]

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]



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

[[Page 580]]

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 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

[[Page 581]]

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 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 Gulf Coast, Pascagoula, Mississippi, Detachment
Mobile, Alabama at AUSTAL, USA, Mobile, Alabama; 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.

[[Page 582]]

    (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 U.S. 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, Gulf Coast, Pascagoula, Mississippi or his/
her authorized representative.
    (2) The restricted area is in effect twenty four hours per day and
seven days a week.
    (3) Should warranted access into the restricted navigation area be
needed, all entities are to contact the Supervisor of Shipbuilding,
Conversion and Repair, USN, Gulf Coast, Pascagoula, Mississippi, 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, Gulf Coast,
Pascagoula, Mississippi, and/or such agencies or persons as he/she may
designate.

[74 FR 48152, Sept. 22, 2009, as amended at 77 FR 42653, July 20, 2012]



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]
------------------------------------------------------------------------


[[Page 583]]


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.
    (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. 334.815  Menominee River, at the Marinette Marine Corporation
Shipyard, Marinette, Wisconsin; naval restricted area.

    (a) The area. The waters adjacent to Marinette Marine Corporation's
pier defined by a rectangular shaped area on the south side of the river
beginning on shore at the eastern property line of Marinette Marine
Corporation at latitude 45[deg]5[min]58.7[sec] N, longitude
087[deg]36[min]55.9[sec] W; thence northerly to latitude
45[deg]5[min]59.2[sec] N, longitude 087[deg]36[min]55.8[sec] W; thence
westerly to latitude 45[deg]5[min]59.6[sec] N, longitude
087[deg]36[min]57.5[sec] W; thence westerly to latitude
45[deg]6[min]00.0[sec] N, longitude 087[deg]36[min]58.7[sec] W; thence
westerly to latitude 45[deg]6[min]1.7[sec] N, longitude
087[deg]37[min]4.9[sec] W; thence westerly to latitude
45[deg]6[min]2.8[sec] N, longitude 087[deg]37[min]9.8[sec] W; thence
southerly to latitude 45[deg]6[min]2.2[sec] N, longitude
087[deg]37[min]10.0[sec] W; thence easterly along the Marinette Marine
Corporation pier to the point of origin. The restricted area will be
marked by a lighted and signed floating buoy line.
    (b) The regulation. All persons, swimmers, vessels and other craft,
except those vessels under the supervision or contract to a 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 when marked by a signed floating buoy line without
permission from the Supervisor of Shipbuilding, Conversion and Repair,
United States Navy, Bath, Maine or his/her authorized representative.
    (c) Enforcement. The regulation in this section shall be enforced by
the Supervisor of Shipbuilding, Conversion and Repair, United States
Navy, Bath,

[[Page 584]]

Maine and/or such agencies or persons as he/she may designate.

[77 FR 20296, Apr. 4, 2012]



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]



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

[[Page 585]]

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.; 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

[[Page 586]]

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 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

[[Page 587]]

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 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

[[Page 588]]

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.
    (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://

[[Page 589]]

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. 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

[[Page 590]]


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.
    (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

[[Page 591]]

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.
    (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.

[[Page 592]]

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, 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]

[[Page 593]]



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 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.

[[Page 594]]

    (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. 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

[[Page 595]]

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 Nicholas Island, Calif.; naval
restricted area.

    (a) The area--(1) Perimeter (restricted). The waters of the Pacific
Ocean around San Nicholas Island, Calif., extending about 3 miles
seaward from the shoreline, described as follows:

------------------------------------------------------------------------
                                        Latitude           Longitude
------------------------------------------------------------------------
Point A..........................  33[deg]10[min]10[s  119[deg]24[min]20
                                    ec]                 [sec]
Point C..........................  33[deg]10[min]10[s  119[deg]31[min]10
                                    ec]                 [sec]
Point D..........................  33[deg]12[min]00[s  119[deg]35[min]30
                                    ec]                 [sec]
Point E..........................  33[deg]14[min]20[s  119[deg]37[min]40
                                    ec]                 [sec]
Point F..........................  33[deg]16[min]40[s  119[deg]38[min]10
                                    ec]                 [sec]
Point G..........................  33[deg]19[min]10[s  119[deg]37[min]10
                                    ec]                 [sec]
Point I..........................  33[deg]20[min]10[s  119[deg]31[min]10
                                    ec]                 [sec]
Point K..........................  33[deg]17[min]40[s  119[deg]24[min]50
                                    ec]                 [sec]
Point L..........................  33[deg]13[min]50[s  119[deg]21[min]50
                                    ec]                 [sec]
------------------------------------------------------------------------

    (2) Sections of area. (i) ALPHA section is the northerly section of
the area, and is described as follows:

------------------------------------------------------------------------
                                        Latitude           Longitude
------------------------------------------------------------------------
Point H..........................  33[deg]20[min]01[s  119[deg]32[min]02
                                    ec]                 [sec]
Point I..........................  33[deg]20[min]10[s  119[deg]31[min]10
                                    ec]                 [sec]
Point K..........................  33[deg]17[min]40[s  119[deg]24[min]50
                                    ec]                 [sec]
Point L..........................  33[deg]13[min]50[s  119[deg]21[min]50
                                    ec]                 [sec]
Point O..........................  33[deg]13[min]50[s  119[deg]26[min]02
                                    ec]                 [sec]
------------------------------------------------------------------------
Thence northwesterly along shoreline to Point N
------------------------------------------------------------------------
Point N..........................  33[deg]17[min]04[s  119[deg]32[min]02
                                    ec]                 [sec]
Point H..........................  33[deg]20[min]01[s  119[deg]32[min]02
                                    ec]                 [sec]
------------------------------------------------------------------------

    (ii) BRAVO section is the westerly section of the area, and is
described as follows:

------------------------------------------------------------------------
                                        Latitude           Longitude
------------------------------------------------------------------------
Point N..........................  33[deg]17[min]04[s  119[deg]32[min]02
                                    ec]                 [sec]
------------------------------------------------------------------------
Thence westerly, southerly and easterly along the shoreline to Point M
------------------------------------------------------------------------
Point M..........................  33[deg]13[min]10[s  119[deg]29[min]40
                                    ec]                 [sec]
Point B..........................  33[deg]10[min]10[s  119[deg]29[min]40
                                    ec]                 [sec]
Point C..........................  33[deg]10[min]10[s  119[deg]31[min]10
                                    ec]                 [sec]
Point D..........................  33[deg]12[min]00[s  119[deg]35[min]30
                                    ec]                 [sec]
Point E..........................  33[deg]14[min]20[s  119[deg]37[min]40
                                    ec]                 [sec]
Point F..........................  33[deg]16[min]40[s  119[deg]38[min]10
                                    ec]                 [sec]
Point G..........................  33[deg]19[min]10[s  119[deg]37[min]10
                                    ec]                 [sec]
Point H..........................  33[deg]20[min]01[s  119[deg]32[min]02
                                    ec]                 [sec]
Point N..........................  33[deg]17[min]04[s  119[deg]32[min]02
                                    ec]                 [sec]
------------------------------------------------------------------------

    (iii) CHARLIE section is the southerly section of the area, and is
described as follows:

------------------------------------------------------------------------
                                        Latitude           Longitude
------------------------------------------------------------------------
Point L..........................  33[deg]13[min]50[s  119[deg]21[min]50
                                    ec]                 [sec]
Point O..........................  33[deg]13[min]50[s  119[deg]26[min]02
                                    ec]                 [sec]
------------------------------------------------------------------------
Thence southerly and westerly along the shoreline to Point M
------------------------------------------------------------------------
Point M..........................  33[deg]13[min]10[s  119[deg]29[min]40
                                    ec]                 [sec]
Point B..........................  33[deg]10[min]10[s  119[deg]29[min]40
                                    ec]                 [sec]
Point A..........................  33[deg]10[min]10[s  119[deg]24[min]20
                                    ec]                 [sec]
Point L..........................  33[deg]13[min]50[s  119[deg]21[min]50
                                    ec]                 [sec]
------------------------------------------------------------------------

    (b) The regulations. (1) Except during closure periods or as
otherwise provided in this section, the restricted area will be open to
all vessels.
    (2) 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 to anchor within 300 yards or to land on San
Nicolas Island, except in an emergency.
    (3) No person, vessel or other craft shall enter the restricted area
or designated section(s) during closure periods unless authorized to do
so by the Commanding Officer, Naval Base Ventura County or the Officer
in Charge, San Nicolas Island.
    (4) Submarine cables within the restricted area post a risk to the
equipment of vessels engaged in dredging, dragging, seining, anchoring
and other bottom contact operations. Appropriate care must be taken to
avoid damage.
    (5) Closure periods. Notice that the restricted area or section(s)
ALPHA, BRAVO, or CHARLIE are closed to entry shall be given by radio
broadcast Monday through Friday at 0900 and 1200 on 2638 kHz and 2738
kHz or by contacting ``PLEAD CONTROL'' on VHF-FM radio channel 11 or 16.
Closure information may also be requested by telephone between 0600 and
1800 Monday through Friday at (805) 989-8841 or via recorded message at
(805) 989-1470.
    (6) The regulations in this section shall be enforced by personnel
attached to Naval Base Ventura County, Point

[[Page 596]]

Mugu, Calif., and by such agencies as may be designated by the
Commandant, 11th Naval District, San Diego, Calif.

[79 FR 18451, Apr. 2, 2014]



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.

    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]

[[Page 597]]



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.
    (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]

[[Page 598]]



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]



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

[[Page 599]]

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.
    (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.
------------------------------------------------------------------------


[[Page 600]]

    (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 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

[[Page 601]]

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 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].

[[Page 602]]

    (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 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.

[[Page 603]]

    (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.
    (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,

[[Page 604]]

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.
    (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

[[Page 605]]

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 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]).

[[Page 606]]

    (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 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.

[[Page 607]]

    (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 at www.fdsys.gov.



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 at www.fdsys.gov.



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

[[Page 608]]

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 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 at www.fdsys.gov.



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

[[Page 609]]

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, 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.

[[Page 610]]

    (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 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]

[[Page 611]]


    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 at www.fdsys.gov.



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 at www.fdsys.gov.



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] 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.

[[Page 612]]

    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 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

[[Page 613]]

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 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

[[Page 614]]

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.
    (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

[[Page 615]]

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) 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]

[[Page 616]]



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 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.

[[Page 617]]

    (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 off the Pacific Missile Range Facility at
Barking Sands, Island of Kauai, Hawaii; danger zone.

    (a) The danger zone. All navigable waters within an area beginning
at a point on the shore at latitude 22[deg]04[min]13.65[sec] N,
longitude 159[deg]46[min]30.76[sec] W; and continue south along the
shoreline to latitude 21[deg]58[min]42.77[sec] N, and longitude
159[deg]45[min]26.35[sec] W. Thence extending southwest to latitude
21[deg]56[min]6.00[sec] N, and longitude 159[deg]46[min]55.91[sec] W
extending northwest to latitude 21[deg]58[min]59.81[sec] N and longitude
159[deg]50[min]51.42[sec] W, continuing north to latitude
22[deg]02[min]28.09[sec] N, and longitude 159[deg]51[min]28.15[sec] W,
and continuing northeast to latitude 22[deg]06[min] 30.71[sec] N,
longitude 159[deg]49[min]20.43[sec] W; and thence to point of beginning.
All coordinates reference 1983 North American Datum (NAD 83).
    (b) The regulations. (1) Dredging, dragging, seining, and other
similar operations within the danger zone are prohibited.
    (2) All persons, boats, vessels, or other craft are prohibited from
entering, transiting, or remaining within the danger zone during range
operations, test and training activities, or increases in force
protection that pose a hazard to the general public, as determined by
the enforcing agency. The enforcing agency's determination of the
necessity of closing the danger zone due to increases in force
protection will be based on the Department of Defense Force Protection
Condition (FPCON) System. From the lowest security level to the highest,
FPCON levels are titled Normal, Alpha, Bravo, Charlie and Delta.
    (3) Closure of the danger zone will be indicated by Notice to
Mariners, the presence of Pacific Missile Range Facility range boats,
beach markings including beach signs along the north and south beach
borders alerting shoreline foot traffic, security patrols, and radio
transmissions on common ocean frequencies to include Marine band channel
6 (156.300 Mhz), Marine band channel 16 (156.800 Mhz), and CB channel
22. The enforcing agency will post the danger zone closure schedule on
its official Navy Web site, http://www.cnic.navy.mil/PMRF/, and Facebook
page, http://www.facebook.com/PacificMissileRangeFacility. The danger
zone closure schedule may also be obtained by calling the following
phone numbers: 808-335-4301, 808-335-4388, and 808-335-4523.
    (4) Consistent with paragraph (b)(2) of this section, the enforcing
agency is authorized to prohibit access into the danger zone by anyone,
and all willful violations of the enforcing agency's prohibitions are
punishable under 33 U.S.C. 3.
    (c) The enforcing agency. The regulations in this section shall be
enforced by the Commanding Officer, Pacific Missile Range Facility,
Hawaii and such agencies or persons as he or she may designate.

[78 FR 76061, Dec. 16, 2013]

[[Page 618]]



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]



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]

[[Page 619]]



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.
    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.

[[Page 620]]

    (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]



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]

[[Page 621]]



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 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.

[[Page 622]]



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 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).

[[Page 623]]

    (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.



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,

[[Page 624]]

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).
    (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,

[[Page 625]]

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 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

[[Page 626]]

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 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.

[[Page 627]]

    (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 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

[[Page 628]]

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 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

[[Page 629]]

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
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

[[Page 630]]

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.
    (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).

[[Page 631]]

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 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:

[[Page 632]]

    (i) A statement on whether or not the proposed activity will be
undertaken in a manner consistent to the maximum extent practicable with
the state management program.
    (ii) Sufficient information to support the consistency determination
to include associated facilities and their coastal zone effect.
    (iii) Data and supporting information commensurate with the expected
effects of the activity on the coastal zone.
    (12) A statement on historic resources, state of present knowledge,
likelihood of damage or other adverse effect on such resources, etc.
    (13) A statement on endangered species.
    (14) A statement on evaluation factors to be considered, adapted
from that presented at 33 CFR 325.3(b).
    (15) The name, address, and telephone number of the Corps employee
from whom additional information concerning the project may be obtained.
    (16) The signature of the district engineer or his designee on all
maintenance dredged material disposal public notices.
    (17) For activities regulated under section 103 of the ODA, the
following additional information should be integrated into the public
notice:
    (i) A statement on the designation status of the disposal site.
    (ii) If the proposed disposal site is not a designated site, a
description of the characteristics of the proposed disposal site and an
explanation as to why no previously designated disposal site is
feasible.
    (iii) A brief description of known dredged material discharges at
the proposed disposal site.
    (iv) Existence and documented effects of other authorized disposals
that have been made at the disposal area.
    (v) An estimated length of time during which disposal would continue
at the proposed site.
    (vi) Information on the characteristics and composition of the
dredged material, and the following paragraph:

    The proposed transportation of this dredged material for disposing
of it in ocean waters is being evaluated to determine that the proposed
disposal will not unreasonably degrade or endanger human health,
welfare, or amenities or the marine environment, ecological systems, or
economic potentialities. In making this determination, the criteria
established by the Administrator, EPA pursuant to section 102(a) of the
ODA, will be applied. In addition, based upon an evaluation of the
potential effect which the failure to utilize this ocean disposal site
will have on navigation, economic and industrial development, and
foreign and domestic commerce of the United States, an independent
determination will be made of the need to dispose of the dredged
material in ocean waters, other possible methods of disposal, and other
appropriate locations.

    (b) The following statement should be included in the public
notices:

    Any person who has an interest which may be affected by the disposal
of this dredged material may request a public hearing. The request must
be submitted in writing to the district engineer within the comment
period of this notice and must clearly set forth the interest which may
be affected and the manner in which the interest may be affected by this
activity.

    (c) Public notices should be distributed as described in 33 CFR
325.3(c). In addition, public notices should be sent to CECW-D, Office
of the Chief of Engineers, Washington, DC 20314, if the project involves
the discharge of dredged material in waters of the U.S. or ocean waters.
District engineers should also develop, as appropriate, regional mailing
lists for Corps maintenance dredging and disposal activities to the
extent that property owners adjacent to the navigation channel and
disposal area are notified of the proposed activity. In order to effect
compliance with Executive Order 12372, district engineers should provide
copies of public notices to concerned state and local elected officials.
    (d) The district engineer should consider all comments received in
response to the public notice in his subsequent actions. All comments
expressing objections to or raising questions about the project should
be acknowledged. Comments received as form letters or petitions,
however, may be acknowledged as a group to the person or organization
responsible for the form letter or petition. If comments are received
which relate to matters within the special expertise of another agency,
the district engineer may seek the advice of that agency. The receipt of

[[Page 633]]

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 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.

[[Page 634]]



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 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

[[Page 635]]

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 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

[[Page 636]]

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.



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.

[[Page 637]]



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 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.

[[Page 638]]

    (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, 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

[[Page 639]]

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.

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

[[Page 640]]

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.



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.

[[Page 641]]



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.
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

[[Page 642]]

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
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.

[[Page 643]]

    (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 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,

[[Page 644]]

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 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

[[Page 645]]

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 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

[[Page 646]]

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 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

[[Page 647]]

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 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,

[[Page 648]]

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.
    (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

[[Page 649]]

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.
    (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

[[Page 650]]

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.
    (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

[[Page 651]]

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 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.

[[Page 652]]

    (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 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

[[Page 653]]

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, 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

[[Page 654]]

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 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.

[[Page 655]]

    (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 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;

[[Page 656]]

    (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 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

[[Page 657]]

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 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

[[Page 658]]

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 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

[[Page 659]]

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;
    (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;

[[Page 660]]

    (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. Sec. 385.26(c)
and 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.
    (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

[[Page 661]]

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 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

[[Page 662]]

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.
    (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

[[Page 663]]

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 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

[[Page 664]]

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;
    (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;

[[Page 665]]

    (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
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

[[Page 666]]

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
    (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

[[Page 667]]

    (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
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

[[Page 668]]

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.
    (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. Sec. 385.35(b), 385.36, and 385.37 and reflect
the operational criteria used in the identification of the appropriate
quantity, timing, and distribution of water dedicated and managed for
the natural system;

[[Page 669]]

    (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.
    (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.

[[Page 670]]

    (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.



          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. Sec. 385.36 and 385.37(b), and to
the extent practical given funding,

[[Page 671]]

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 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

[[Page 672]]

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 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.

[[Page 673]]

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 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

[[Page 674]]

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;
    (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

[[Page 675]]

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 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.

[[Page 676]]



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.
    (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

[[Page 677]]

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 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

[[Page 678]]

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 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

[[Page 679]]

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.



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

[[Page 680]]

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 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

[[Page 681]]

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, 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

[[Page 682]]

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 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

[[Page 683]]

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 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

[[Page 684]]

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. Sec. 385.18 and 385.19 as they
relate to socially and economically disadvantaged individuals and
individuals with limited English proficiency.
    (e) The discussion on interim goals in the periodic reports shall
include:
    (1) A discussion of the performance that was projected to be
achieved in the last periodic report to Congress;
    (2) A discussion of the steps taken to achieve the interim goals
since the last periodic Report to Congress and the actual performance of
the Plan during this period;
    (3) If performance did not meet the interim goals, a discussion of
the reasons for such shortfall;
    (4) Recommendations for improving performance; and
    (5) The interim goals to be achieved in the next five years,
including any revisions to the interim goals, reflecting the work to be
accomplished during the next five years, along with a discussion of
steps to be undertaken to achieve the interim goals.
    (f) The discussion on interim targets in the periodic reports shall
include:
    (1) A discussion of the expected and actual performance of the Plan
in achieving interim targets since the last periodic Report to Congress,
including the reasons for any deviations from expected performance; and
    (2) A discussion of the interim targets expected to be achieved
during the next five years, including specific activities to achieve
them and any recommendations for improving performance.
    (g) In preparing the report to Congress required pursuant to this
section, the Corps of Engineers and the Department of the Interior shall
provide an opportunity for public review and comment, in accordance with
Sec. 385.18.

[[Page 685]]



         Sec. Appendix A to Part 385--Illustrations to Part 385
[GRAPHIC] [TIFF OMITTED] TR12NO03.000


[[Page 686]]


[GRAPHIC] [TIFF OMITTED] TR12NO03.001

                        PARTS 386	399 [RESERVED]

[[Page 687]]



CHAPTER IV--SAINT LAWRENCE SEAWAY DEVELOPMENT CORPORATION, DEPARTMENT OF
                             TRANSPORTATION




  --------------------------------------------------------------------
Part                                                                Page
400

[Reserved]

401             Seaway regulations and rules................         689
402             Tariff of tolls.............................         723
403             Rules of procedure of the Joint Tolls Review
                    Board...................................         730
404-499

[Reserved]

[[Page 689]]

                           PART 400 [RESERVED]



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 Radio telephone and navigation 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.

[[Page 690]]

                                 General

401.89 Transit refused.
401.90 Boarding for inspections.
401.91 Removal of obstructions.
401.92 Wintering and laying-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) E-business means web applications on the St. Lawrence Seaway
Management Corporation Web site which provides direct electronic
transmission of data to complete and submit application forms and
transit data;
    (c) 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;
    (d) Manager means the St. Lawrence Seaway Management Corporation;
    (e) 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;
    (f) Officer means a person employed by the Corporation or the
Manager to direct some phase of the operation or use of the Seaway;
    (g) Passing through means in transit through a lock or through the
waters enclosed by the approach walls at either end of a lock chamber;
    (h) 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;
    (i) Preclearance means the authorization given by the Corporation or
the Manager for a vessel to transit;
    (j) 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;
    (k) 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;
    (l) Seaway station means a radio station operated by the Corporation
or the

[[Page 691]]

Manager. (Refer to 401.62. Seaway Stations for the list and location of
stations);
    (m) 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;
    (n) Tariff of Tolls means the same as Schedule of Tolls in Canada;
    (o) Tolls(s) or tolls and charges is included in the definition of
fees in Canada;
    (p) Towed means pushed or pulled through the water;
    (q) Transit means to use the Seaway, or a part of it, either upbound
or downbound;
    (r) Vessel (ship in Canada) means any type of craft used as a means
of transportation on water; and
    (s) 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; 79 FR 12659, Mar. 6, 2014]

                          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

[[Page 692]]

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]



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. Maximum of 4 lines will be handled by Seaway personnel and
the service does not include let go service.

[70 FR 12970, Mar. 17, 2005, as amended at 72 FR 2620, Jan. 22, 2007; 74
FR 18994, Apr. 27, 2009; 76 FR 13089, Mar. 10, 2011]



Sec. 401.9  Radio telephone and navigation 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.
    (c) Gyro compass error greater than 2 degrees must be serviced prior
to transiting the Seaway, and if noted during a Seaway transit, it must
be reported to the nearest Seaway station and the gyro compass must be
serviced at the first opportunity.
    (d) When magnetic compass error is greater than 5 degrees, the
vessel is required to have the compass swung and a new deviation card
produced, unless the ``record of deviations'' has been properly
maintained and verified.

(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; 79 FR 12659, Mar. 6, 2014]



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 64 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;

[[Page 693]]

    (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 must be used for mooring at approach walls when
using tie-up services at 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.
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%
------------------------------------------------------------------------

    (e) Hand held synthetic lines if permitted by the Manager or
Corporation shall meet the criteria in paragraph (a) of this section and
shall have a minimum length of not less than 65 meters.

(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; 78 FR 16181, Mar. 14,
2013; 79 FR 12659, Mar. 6, 2014]



Sec. 401.11  Fairleads.

    (a) Mooring lines shall:
    (1) Be led at the vessel's side through a type of fairlead or closed
chock, acceptable to the Manager and Corporation;
    (2) Pass through not more than three inboard rollers that are fixed
in place and equipped with horns to ensure that lines will not slip off
when slackened and provided with free-running sheaves or rollers; and
    (3) Where the fairleads are mounted flush with the hull, be
permanently fendered to prevent the lines from being pinched between the
vessel and a wall.
    (4) When passing synthetic lines through a type of fairlead or
closed chock acceptable to the Manager and the Corporation all sharp
edges of the fairlead, closed chock and/or bulwark shall be rounded to
protect the line from chafing or breakage.
    (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; 76 FR 13089, Mar. 10, 2011; 77 FR 40804,
July 11, 2012]



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 more than 100 m but not more than 150 m in overall
length shall have three mooring lines--wires or synthetic hawsers, which
shall be independently power operated by winches, capstans or
windlasses. All lines shall be led through closed chocks or fairleads
acceptable to the Manager and the Corporation.
    (i) One shall lead forward and one shall lead astern from the break
of the bow and one lead astern from the quarter.
    (ii) One synthetic hawser may be hand held or if wire line is used
shall be powered. The line shall lead astern from the break of the bow
through a closed chock to suitable bitts on deck for synthetic line or
led from a capstan, winch drum or windlass to an approved fairlead for a
wire line.
    (2) Vessels of more than 150 m in overall length shall have four
mooring

[[Page 694]]

lines--wires, independently power operated by the main drums of adequate
power operated winches as follows:
    (i) One mooring line shall lead forward and one mooring line shall
lead astern from the break of the bow.
    (ii) One mooring line shall lead forward and one mooring line shall
lead astern from the quarter.
    (3) Vessels of more than 150 m in overall length shall have four
mooring lines--wires, independently power operated by the main drums of
adequate power operated winches as follows:
    (i) One mooring line shall lead forward and one mooring line shall
lead astern from the break of the bow and shall be independently power
operated by the main drums of adequate power operated winches; and
    (ii) One mooring line shall lead forward and one mooring line shall
lead astern from the quarter and shall be independently power operated
by the main drums of adequate power operated winches.
    (iii) All lines shall be led through a type of fairlead acceptable
to the Manager and the Corporation.
    (b) Unless otherwise permitted by the officer, the following table
sets out the requirements for the location of fairleads or closed chocks
for vessels of 100 m or more in overall length:

                                  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.
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; 76
FR 13089, Mar. 10, 2011; 77 FR 40804, July 11, 2012]



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 12
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, as amended at 79 FR 12659, Mar. 6, 2014]



Sec. 401.14  Anchor marking buoys.

    (a) Every vessel shall have its anchors cleared and have the anchor
marking buoys free to deploy (weak link to hold buoy line on board) with
the buoy lines firmly secured to each anchor and ready to be released
prior to entering the Seaway.
    (b) Every vessel shall deploy the anchor marking buoy when dropping
an anchor in Seaway waters.

[79 FR 12659, Mar. 6, 2014]



Sec. 401.15  Stern anchors.

    (a) Every vessel of more than 125 m 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 125 m in overall length which is constructed after January
1, 2003 shall be equipped with a stern anchor.

[77 FR 40804, July 11, 2012]



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]

[[Page 695]]



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
Vessel Pollution and Dangerous Chemicals regulations (Canada), the U.S.
Clean Water Act and the U.S. River and Harbor Act, and amendments
thereto.
    (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
Vessel Pollution and Dangerous Chemicals regulations (Canada), 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; 79 FR 12660, Mar. 6, 2014]



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

[[Page 696]]

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]

                   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 representative of the vessel,
    (3) A material alteration in the physical characteristics of the
vessel, until another application for preclearance has been made and
approved, or
    (4) Past due invoices by the representative as set out in Sec.
401.75.
    (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; 79 FR 12660, Mar. 6, 2014]



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.

    (a) 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 (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. The form may also be
completed and submitted on the Seaway Web site via e-business.
Preclearance application must be received by the St. Lawrence Seaway
between 08:00--16:00 hours Monday through Friday excluding holidays and
at least 24 hours prior to Seaway inspection or vessel arrival.

[[Page 697]]

    (b) For representatives benefitting from the exemption of security
tolls as set out in Sec. 401.26(c) and Sec. 401.26(d), a continuous
preclearance status may be assigned to all vessels under their
responsibility. Validation of the continuous preclearance status will be
required every 5 years.
    (c) For representatives with a valid security for tolls and a good
payment history as set out in Sec. 401.26(c) and Sec. 401.26(d), a
continuous preclearance status may be assigned to all vessels under
their responsibility. Validation of the continuous preclearance status
will be required every year.
    (d) In the event that a vessel under the representative's
responsibility is modified or upgraded, an application for preclearance
will be required to update the vessel's information and reset the
vessel's preclearance status.

[79 FR 12660, Mar. 6, 2014]



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 letter of guarantee to the Manager given by a financial
institution approved by the Manager; or
    (3) A letter of guarantee given to the Manager by an acceptable
Bonding Company. Bonding Companies may be accepted if they:
    (4) A letter of guarantee to the Manager given by an institution
referred to in paragraph (a)(2) of this section.
    (5) A letter of guarantee or bond given to the Manager by an
acceptable Bonding Company. Bonding companies may be accepted if they:
    (i) Appear on the list of acceptable bonding companies as issued by
the Treasury Board of Canada; and
    (ii) Meet financial soundness requirements as may be defined by the
Manager at the time of the request.
    (b) The security for the tolls of a vessel shall be sufficient to
cover the tolls established in the ``St. Lawrence Seaway Tariff of
Tolls'' for the gross registered tonnage of the vessel, cargo carried,
and lockage tolls as well as security for any other charges estimated by
the Manager.
    (c)(1) Where a number of vessels:
    (i) For each of which a preclearance has been given;
    (ii) Are owned or controlled by the same individual or company; and
    (iii) Have the same representative,
    (2) The security for the tolls may not be 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 the tolls may be reduced or eliminated
provided the representative has paid every toll invoice received in the
preceding five (5) years within the period set out in Sec. 401.75(a).
Upon request from the Manager, 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; 79
FR 12660, Mar. 6, 2014]

                            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]

[[Page 698]]



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) Notwithstanding the above speed limits, every vessel approaching
a free standing lift bridge shall proceed at a speed so that it will not
pass the Limit of Approach sign should the raising of the bridge be
delayed.

(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; 78 FR 16181,
Mar. 14, 2013]



Sec. 401.29  Maximum draft.

    (a) Notwithstanding any provision herein, the loading of cargo,
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 meet a minimum draft requirement as
defined at inspection on the ESI form and not, in any case, exceed 79.2
dm or the maximum permissible draft designated in a Seaway Notice by the
Manager and the Corporation for the part of the Seaway in which a vessel
is passing.
    (c) Any vessel equipped with an operational Draft Information System
(DIS) verified by a member of the International Association of
Classification Societies (IACS) as compliant with the Implementation
Specifications found at http://www.greatlakes-seaway.com and having
onboard the items listed in paragraphs (c)(1) through (5) of this
section will be permitted, when using the DIS, subject to paragraph (a)
of this section, to increase their draft by no more than 7 cm above the
maximum permissible draft prescribed under paragraph (b) of this section
in effect at the time:
    (1) An operational AIS with accuracy=1 (DGPS); and
    (2) Up-to-date electronic navigational charts; and
    (3) Up-to-date charts containing high-resolution bathymetric data,
and
    (4) The DIS Display shall be located as close to the primary conning
position and be visible and legible; and
    (5) A pilot plug, if using a portable DIS.
    (d) Verification document of the DIS must be kept on board the
vessel at all times and made available for inspection.
    (e) A company letter attesting to officer training on use of the DIS
must be kept on board and made available for inspection.
    (f) Any vessel intending to use the DIS must notify the Manager or
the Corporation in writing at least 24-hours prior to commencement of
its initial transit in the System with the DIS.
    (g) Any vessel intending to use the DIS to transit at a draft
greater than the maximum permissible draft prescribed under paragraph
(b) of this section in effect at the time, for subsequent transits must
fax a completed confirmation checklist found at www.greatlakes-
seaway.com to the Manager or the Corporation prior to its transit.
    (h) If for any reason the DIS or AIS becomes inoperable,
malfunctions, or is not used while the vessel is transiting at a draft
greater than the maximum permissible draft prescribed under paragraph
(b) of this section in effect

[[Page 699]]

at the time, the vessel must notify the Manager or the Corporation
immediately.

[78 FR 16181, Mar. 14, 2013, as amended at 79 FR 12660, Mar. 6, 2014]



Sec. 401.30  Ballast water and trim.

    (a) Every vessel shall be adequately ballasted.
    (b) Every vessel shall be properly trimmed.
    (c) No vessel, other than under exceptional circumstances and with
special permission, shall be accepted for transit whose trim by the
stern exceeds 45.7 dm.
    (d) Any vessel that is not adequately ballasted or properly trimmed
in the opinion of an officer, may be refused transit or may be delayed.
    (e) To obtain clearance to transit the Seaway:
    (1) Every vessel entering the Seaway after operating beyond the
exclusive economic zone must agree to comply with the ``Code of Best
Practices for Ballast Water Management'' of the Shipping Federation of
Canada dated September 28, 2000, while operating anywhere within the
Great Lakes and the Seaway; and
    (2) Every other vessel entering the Seaway that operates within the
Great Lakes and the Seaway must agree to comply with the ``Voluntary
Management Practices to Reduce the Transfer of Aquatic Nuisance Species
Within the Great Lakes by U.S. and Canadian Domestic Shipping'' of the
Lake Carriers Association and Canadian Shipowners Association dated
January 26, 2001, while operating anywhere within the Great Lakes and
the Seaway. For copies of the ``Code of Best Practices for Ballast Water
Management'' and of the ``Voluntary Management Practices to Reduce the
Transfer of Aquatic Nuisance Species Within the Great Lakes by U.S. and
Canadian Domestic Shipping'' refer to the St. Lawrence Seaway Web site
at 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

[[Page 700]]

is designated as a ``no meeting area'' by signs erected by the
Corporation or the Manager in that area.
    (c) Except as instructed by the traffic controller, no vessel shall
overtake and pass or attempt to overtake and pass another vessel--
    (1) In any canal;
    (2) Within 600 m of a canal or lock entrance; or
    (3) After the order of passing through has been established by the
vessel traffic controller.

(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.
    (c) Seaway Traffic Control Center shall be notified of the height of
deck cargo prior to transiting the Seaway or when departing from a Port
or Wharf within the Seaway.

[39 FR 10900, Mar. 22, 1974, as amended at 41 FR 12227, Mar. 24, 1976;
77 FR 40804, July 11, 2012]



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.

    (a) No vessel that is not self-propelled (including but not limited
to tug/tows and/or dead ship/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 and must be equipped with an
operational anchor.
    (b) 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 required.

[79 FR 12660, Mar. 6, 2014]



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.

[[Page 701]]

    (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]



Sec. 401.39  Preparing mooring lines for passing through.

    Before a vessel enters a lock:
    (a) Winches shall be capable of paying out and heaving in at a
minimum speed of 46 m per minute; and
    (b) The eye of each mooring line shall be passed outward through the
fairleads at the side.

(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; 76 FR 13089, Mar. 10, 2011]



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) Unless directed by the Manager and the Corporation, no vessel
shall proceed into a lock in such a manner that the stem passes the stop
symbol on the lock wall nearest the closed gates.
    (b) On being cast off in a lock, no vessel shall be allowed to fall
back in such a manner that the stern passes the stop symbol on the lock
wall nearest the closed gates.
    (c) Every vessel proceeding into a lock shall be positioned and
moored as directed by the officer in charge of the mooring operation.
    (d) No vessel shall use thrusters when passing a lock gate.

(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; 76 FR 13089, Mar. 10, 2011]



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.

[[Page 702]]

    (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.

------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
                                                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) Once the mooring lines are on the mooring posts, lines shall be
kept slack until the ``all clear'' signal is given by the lock
personnel. When casting off signal is received, mooring lines should be
kept slack until the ``all clear'' signal is given by the lock
personnel.

[39 FR 10900, Mar. 22, 1974, as amended at 77 FR 40804, July 11, 2012]



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.

[[Page 703]]

    (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.
    (c) Mooring lines on deck must be individually attended unless the
vessel is equipped with side control and visual contact must be
maintained for signal from lock employees taking or letting go of
mooring lines.

[39 FR 10900, Mar. 22, 1974, as amended at 79 FR 12660, Mar. 6, 2014]



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.
    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. Every anchor shall be suitably rigged for immediate release,
holding and efficient retrieval.

[78 FR 16182, Mar. 14, 2013]



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 are
placed at distances varying between 550 m and 2990 m upstream and
downstream from

[[Page 704]]

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; 76 FR 13089, Mar. 10, 2011]



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; 79 FR 12660, Mar. 6, 2014]



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
    (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 under safe conditions.

[39 FR 10900, Mar. 22, 1974, as amended at 70 FR 12972, Mar. 17, 2005;
76 FR 13089, Mar. 10, 2011]



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

[[Page 705]]

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.
    (e) Except as authorized by the Manager or the Corporation, no over
the side painting shall be allowed in the Seaway.

(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; 77 FR 40805, July 11, 2012]

                          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.
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]

[[Page 706]]



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]



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 prior to departing from a port, dock, or anchorage
shall report to the appropriate Seaway station its destination and its
expected time of arrival at the next check point.

(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; 76 FR 13089, Mar.
10, 2011]

                             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

[[Page 707]]

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 Transportation of Dangerous Goods Regulations (Canada), the
United States regulations under the Dangerous Cargo Act and the
International Maritime Dangerous Goods Code, may be made to the St.
Lawrence Seaway Management Corporation, 202 Pitt Street, Cornwall,
Ontario, K6J 3P7, or to the Saint Lawrence Seaway Development
Corporation, P.O. Box 520, Massena, New York, U.S.A. 13662.
    (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; 79 FR 12660, Mar. 6, 2014]



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),

[[Page 708]]

    (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 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 Canadian Nuclear Safety Commission (CNSC) and/
or the U.S. Nuclear Regulatory Commission (USNRC) 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.

[[Page 709]]

    (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; 77 FR 40805, July 11, 2012]



Sec. 401.73  Cleaning tanks--hazardous cargo vessels.

    (a) Cleaning and gas freeing of tanks shall not take place:
    (1) In a canal or a lock;
    (2) In an area that is not clear of other vessels or structures; and
    (3) Before gas freeing and tank cleaning has been reported to the
nearest Seaway station.
    (b) Hot work permission. Before any hot work, defined as any work
that uses flame or that can produce a source of ignition, cutting or
welding, is carried out by any vessel on any designated St. Lawrence
Seaway Management Corporation (SLSMC) approach walls or wharfs, a
written request must be sent to the SLSMC, preferably 24 hours prior to
the vessel's arrival on SLSMC approach walls or wharfs. The hot work
shall not commence until approval is obtained from an SLSMC Traffic
Control Center.
    (c) Special requirements for tankers performing hot work. Prior to
arriving at any SLSMC designated approach wall or wharf, a tanker must
be gas free or have tanks inerted. The gas-free certificate must be sent
to the SLSMC Traffic Control Center in order to obtain clearance for the
vessel to commence hot work.

[78 FR 16182, Mar. 14, 2013]

                       Toll Assessment and Payment



Sec. 401.74  Transit declaration.

    (a) A Seaway Transit Declaration Form (Cargo and Passenger) shall be
forwarded to the Manager by the representative of a vessel, for each
vessel that has an approved preclearance except non-cargo vessels,
within fourteen (14) days after the vessel enters the Seaway on any up
bound or down bound transit. The form may be obtained from the St.
Lawrence Management Corporation, 151 Ecluse Street, St. Lambert, Quebec,
J4R 2V6 or downloaded from the St. Lawrence Seaway Web site at
www.greatlakes-seaway.com. The form may also be completed and submitted
on the Seaway Web site via e-business.
    (b) The loaded or manifest weight of cargo shall be shown on the
Seaway Transit Declaration Form, except in the case of petroleum
products where gallonage meters are not available at the point of
loading, in which case offloaded weights may be shown on the Declaration
Form.
    (c) Where a vessel carries cargo to or from an overseas port, a copy
of the cargo manifest, duly certified, shall be forwarded with the
Seaway Transit Declaration Form.
    (d) A Weight-Scale Certificate or similar document issued in the
place of a cargo manifest may be accepted in lieu thereof.
    (e) Where a Seaway Transit Declaration Form is found to be
inaccurate concerning the destination, cargo or passengers, the
representative shall immediately forward to the Manager a revised
Declaration Form.
    (f) Seaway Transit Declaration Forms shall be used in assessing toll
charges in accordance with the St. Lawrence Seaway Schedule of Tolls,
and toll accounts shall be forwarded 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,

[[Page 710]]

Mar. 17, 2005; 71 FR 5607, Feb. 2, 2006; 79 FR 12661, Mar. 6, 2014]



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 or
Paypal on the Seaway Web site. At U.S. locks, the toll is paid in U.S.
funds or the pre-established equivalent in Canadian funds or through
payment via Pay.gov on the Seaway Web site.
    (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.
    (d) Vessel representatives with past due toll accounts, unpaid after
45 days, may be subject to the suspension of preclearance for each
vessel of which a preclearance has been given and/or the immediate
removal of the waved security for the toll charges set in Sec.
401.26(c) and Sec. 401.26(d).

[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; 79 FR 12661, Mar. 6, 2014]



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.

    (a) Advance notice of arrival. All foreign flagged vessels intending
to transit the Seaway shall submit one complete electronic Notice of
Arrival (NOA) prior to entering at call in point 2 (CIP 2) as follows:
    (1) If your voyage time to CIP 2 is 96 hours or more, you must
submit an electronic NOA 96 hours before entering the Seaway at CIP 2.
    (2) If your voyage time to CIP 2 is less than 96 hours, you must
submit an electronic NOA before departure, but at least 24 hours before
entering the Seaway at CIP 2.
    (3) If there are changes to the electronic NOA, submit them as soon
as practicable but at least 12 hours before entering the Seaway at CIP
2.
    (4) The NOA must be provided electronically following the USCG
National Vessel Movement Center's (NVMC) procedures (http://
www.nvmc.uscg.gov).
    (5) To complete the NOA correctly for Seaway entry, select the
following:
    (i) ``CIP 2'' as the Arrival Port,
    (ii) ``Foreign to Saint Lawrence Seaway'' as the Voyage Type, and
    (iii) ``Saint Lawrence Seaway Transit'' as the Arrival State, City
and Receiving Facility.
    (b) Vessels requiring inspection or reinspection. All pre-cleared
vessels must provide a 24 hour notice of inspection as follows:
    (1) Enhanced Seaway inspection. All foreign flagged vessels and
vessels of

[[Page 711]]

unusual design are subject to a Seaway inspection prior to initial
transit of the Seaway each navigation season.
    (2) Inland self-inspection. Inland domestic vessels which are
approved by the Seaway and are ISM certified and have a company quality
management system, must submit the ``Self-Inspection Report'', every 2
navigation seasons and not later than 30 days after ``fit out''.
    (3) Inland domestic vessels not participating in the ``Self-
Inspection Program'' are subject to Seaway inspection prior to every
transit of the Seaway.
    (4) Tug/barge combinations not on the ``Seaway Approved Tow'' list
are subject to Seaway inspection prior to every transit of the Seaway
unless provided with a valid Inspection Report for a round trip transit.
    (5) A tall ship or vessel of an unusual design is subject to Seaway
yearly inspection.

[77 FR 40805, July 11, 2012, as amended at 78 FR 16182, Mar. 14, 2013;
79 FR 12661, Mar. 6, 2014]



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 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 of equipment on the vessel

[[Page 712]]

    (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; 77 FR 40805, July 11,
2012]



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:
    (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

[[Page 713]]

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.
    (4) The vessel is not in compliance with flag state and/or
classification society regulations.
    (b) [Reserved]

[39 FR 10900, Mar. 22, 1974, as amended at 61 FR 19552, May 2, 1996; 65
FR 52915, Aug. 31, 2000; 77 FR 40805, July 11, 2012]



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:
    (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 laying-up.

    No vessel shall winter within the Seaway or lay-up within the Seaway
during the navigation season except with the written permission of the
Manager or the Corporation and subject to the conditions and charges
that may be imposed.

[77 FR 40805, July 11, 2012]



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.

[[Page 714]]

    (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]

                      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.

[[Page 715]]

    (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]



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:

[[Page 716]]

    (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]



     Sec. 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   12 (dnb); 14 (upb)........  11 (upb); 13 (dnb).
                                     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.
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 the identified area in both normal and high water conditions
  are set out in this schedule. The Manager and the Corporation will, from time to time, designate the set of
  speed limits that is in effect.


[61 FR 19552, May 2, 1996, as amended at 65 FR 52915, Aug. 31, 2000; 77
FR 40805, July 11, 2012]



      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).

[[Page 717]]


    (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.
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.
------------------------------------------------------------------------

[[Page 718]]


                            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.
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).

[[Page 719]]


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.
------------------------------------------------------------------------
                      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 720]]

[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 721]]

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 722]]

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 723]]

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 724]]

402.3 Interpretation.
402.4 Tolls.
402.5 New Business Incentive Program.
402.6 Volume Rebate Incentive Program.
402.7 Service Incentive Program.
402.8 Description and weight of cargo.
402.9 Post-clearance date operational surcharges.
402.10 Coming into force.
402.11 Schedule of tolls.
402.12 Operational surcharges--no postponements.
402.13 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. Containers
are used to transport freight in multiple modes; ship, rail, and truck.
There are many configurations: Dry, insulated or thermal, refrigerated
or reefer, flat racks and platforms, open top and tank. Usual
dimensions: Width 8 feet, height 8 foot 6 inches or 9 foot 6 inches,
lengths 20 foot or 40 foot. Less common lengths include, for example,
24, 28, 44, 45, 46, 48, 53, and 56 feet.
    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

[[Page 725]]

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 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.
    Liner service means one or more vessels operated by a single
operator on a fixed route between designated port, providing regularly
scheduled service for consignments of multiple commodities.
    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.

[[Page 726]]

    Section of the Seaway means either the Montreal-Lake Ontario portion
of the Seaway or the Welland Canal portion of the Seaway.
    Semi-liner service means a reduced or limited liner service,
offering fewer regularly scheduled voyages and/or fewer designated ports
of calls.
    Service incentive means a percentage reduction, as part of an
incentive program offered on applicable cargo tolls in respect of New
Business shipments made by way of any newly established regular service
out of the Great Lakes.
    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 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; 78 FR 19106, Mar.
29, 2013; 79 FR 13252, Mar. 10, 2014]



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) Except as set out in paragraph (e) of this section, the Volume
Rebate incentive cannot be combined (i.e., applied to the same cargo
movement) with either of the New Business Incentive or the Service
Incentive Programs.
    (e) Except for cargoes that qualify for the New Business Incentive,
any cargo being shipped by a liner or semi-liner approved under the
Service Incentive program shall be eligible for the Volume Rebate
Incentive.

[66 FR 15329, Mar. 16, 2001, as amended at 71 FR 14807, Mar. 24, 2006;
74 FR 10679, Mar. 12, 2009; 79 FR 13252, Mar. 10, 2014]



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 a vessel in the Seaway at any time in the current navigation season
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, as amended at 78 FR 19106, Mar. 29, 2013]



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.

[[Page 727]]

    (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  Service Incentive Program.

    (a) To be eligible for the Service Incentive Program, cargos must
qualify as New Business under the New Business Incentive Program, and be
shipped by a service meeting all of the requirements (Qualifying
Service):
    (1) A liner or semi-liner service between the same ports;
    (2) The service must call on multiple origin ports, or multiple
destination ports;
    (3) The service must service markets outside of the Great Lakes; and
    (4) The service must not replace or displace any of the carrier's
existing services. The Manager reserves the right to require proof of
the ultimate origin and destination of cargoes in order to ensure there
is no diversion of existing cargoes.
    (b) The Service incentive applies only to New Business applications
approved after the commencement date of the Qualifying Service. New
Business applications approved prior to the date of commencement of the
Qualifying Service will be ineligible for the Service Incentive Program.
    (c) The Service Incentive applies only to cargoes exported from the
Great Lakes, and is not applicable to import cargoes.
    (d) The carrier will provide the Manager with written notice of its
intention to apply for the Service Incentive at least thirty (30) days
prior to implementation of the Qualifying Service.
    (e) The carrier will advise the Manager of the proposed interval
(weekly, monthly, etc.) of the Qualifying Service, and the number of
calls scheduled for the Navigation Season. Additional calls to the
system may be added during the season.
    (f) The carrier will advise the Manager of port rotation, outlining
core ports of calls when providing notification of schedule rotation.
Additional ports may be added at any time provided the core schedule
ports are called.
    (g) The carrier will advertise the Qualifying Service on its own Web
site, available port Web sites, and with Manager's Assistance on the HWY
H20 Web site.
    (h) The carrier must meet 75% schedule adherence with a minimum of
four (4) Great Lakes calls during the navigation season.
    (i) The carrier will provide the Manager with a request for the
Service Incentive refund, together with copies of any documents required
to support the request, within sixty (60) days of the close of the
navigation season. Requests for refunds should be submitted to the
Manager, Revenue and Forecast for the Manager, who will be responsible
for reviewing and approving Service Incentive requests.
    (j) Service Incentive of 20% of tolls paid in respect of cargo
shipped by Qualifying Service will be refunded by the Manager after the
close of the navigation season, once the Manager has confirmed that the
carrier has met the schedule adherence requirement.

[79 FR 13253, Mar. 10, 2014]



Sec. 402.8  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 728]]

    (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, and further redesignated at
79 FR 13253, Mar. 10, 2014]



Sec. 402.9  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, and further redesignated at 79 FR 13253, Mar. 10, 2014]



Sec. 402.10  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,
and further redesignated at 79 FR 13253, Mar. 10, 2014]



Sec. 402.11  Schedule of tolls.

------------------------------------------------------------------------
                    Column 1             Column 2           Column 3
            ------------------------------------------------------------
                                         Rate ($)      Rate ($)  Welland
    Item                              Montreal to or      Canal--Lake
                 Description of         from Lake        Ontario to or
                    charges            Ontario  (5       from Lake Erie
                                          locks)           (8 locks)
------------------------------------------------------------------------
1..........  Subject to item 3,     .................
              for complete transit
              of the Seaway, a
              composite toll,
              comprising:
             (1) a charge per       0.1020             0.1632
              gross 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.......  1.0570             0.7215
             (b) general cargo....  2.5469             1.1546
             (c) steel slab.......  2.3050             0.8266
             (d) containerized      1.0570             0.7215
              cargo.
             (e) government aid     n/a                n/a
              cargo.
             (f) grain............  0.6494             0.7215
             (g) coal.............  0.6494             0.7215
             (3) a charge per       1.5836             1.5836
              passenger per lock.
             (4) a lockage charge   n/a                0.2718
              per Gross Registered
              Ton of the vessel,
              as defined in tem
              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        n/a                3,801.00
              charge per vessel.

[[Page 729]]


2..........  Subject to item 3,     20 percent per     13 percent per
              for partial transit    lock of the        lock of the
              of the Seaway.         applicable         applicable
                                     charge under       charge under
                                     items 1(1), 1(2)   items 1(1), 1(2)
                                     and 1(4) plus      and 1(4) plus
                                     the applicable     the applicable
                                     charge under       charge under
                                     items 1(3)         items 1(3)
3..........  Minimum charge per     26.39              26.39
              vessel per lock
              transited for full
              or partial transit
              of the Seaway.
4..........  A charge per pleasure  30.00 \3\          30.00
              craft per lock
              transited for full
              or partial transit
              of the Seaway,
              including applicable
              federal taxes. \2\
5..........  Under the New          20%                20%
              Business Initiative
              Program, for cargo
              accepted as New
              Business, a
              percentage rebate on
              the applicable cargo
              charges for the
              approved period.
6..........  Under the Volume       10%                10%
              Rebate Incentive
              program, a
              retroactive
              percentage rebate on
              cargo tolls on the
              incremental volume
              calculated based on
              the pre-approved
              maximum volume.
7..........  Under the New Service  20%                20%
              Incentive Program,
              for New Business
              cargo moving under
              an approved new
              service, an
              additional
              percentage refund on
              applicable cargo
              tolls above the New
              Business rebate.
------------------------------------------------------------------------
\1\ Or under the US GRT for vessels 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 collection of the U.S. portion of tolls
  for commercial vessels is waived by law (33 U.S.C. 988a(a)).
\3\ $5.00 discount per lock applicable on ticket purchased for Canadian
  locks via PayPal.


[79 FR 13253, Mar. 10, 2014]



Sec. 402.12  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,
and further redesignated at 79 FR 13253, Mar. 10, 2014]



Sec. 402.13  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.

[[Page 730]]


                                                                  (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.


[66 FR 15329, Mar. 16, 2001. Redesignated and amended at 74 FR 10679,
Mar. 12, 2009, and further redesignated at 79 FR 13253, Mar. 10, 2014]



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

[[Page 731]]

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 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;

[[Page 732]]

    (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 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 733]]



                              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 735]]



                    Table of CFR Titles and Chapters




                      (Revised as of July 1, 2014)

                      Title 1--General Provisions

         I  Administrative Committee of the Federal Register 
                (Parts 1--49)
        II  Office of the Federal Register (Parts 50--299)
       III  Administrative Conference of the United States (Parts 
                300--399)
        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 2--199)
        II  Office of Management and Budget Guidance (Parts 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)
       VII  Agency for International Development (Parts 700--799)
      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 
                1800--1899)
        XX  United States Nuclear Regulatory Commission (Parts 
                2000--2099)
      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)

[[Page 736]]

       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)
    XXXIII  National Endowment for the Humanities (Parts 3300--
                3399)
     XXXIV  Department of Education (Parts 3400--3499)
      XXXV  Export-Import Bank of the United States (Parts 3500--
                3599)
    XXXVII  Peace Corps (Parts 3700--3799)
     LVIII  Election Assistance Commission (Parts 5800--5899)

                        Title 3--The President

         I  Executive Office of the President (Parts 100--199)

                           Title 4--Accounts

         I  Government Accountability Office (Parts 1--199)
        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)

[[Page 737]]

    XXXIII  Overseas Private Investment Corporation (Parts 4300--
                4399)
     XXXIV  Securities and Exchange Commission (Parts 4400--4499)
      XXXV  Office of Personnel Management (Parts 4500--4599)
    XXXVII  Federal Election Commission (Parts 4700--4799)
        XL  Interstate Commerce Commission (Parts 5000--5099)
       XLI  Commodity Futures Trading Commission (Parts 5100--
                5199)
      XLII  Department of Labor (Parts 5200--5299)
     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)
      XLIX  Federal Labor Relations Authority (Parts 5900--5999)
         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)
       LXX  Court Services and Offender Supervision Agency for the 
                District of Columbia (Parts 8000--8099)
      LXXI  Consumer Product Safety Commission (Parts 8100--8199)
    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)
      LXXX  Federal Housing Finance Agency (Parts 9000--9099)
   LXXXIII  Special Inspector General for Afghanistan 
                Reconstruction (Parts 9300--9399)

[[Page 738]]

    LXXXIV  Bureau of Consumer Financial Protection (Parts 9400--
                9499)
    LXXXVI  National Credit Union Administration (Parts 9600--
                9699)
     XCVII  Department of Homeland Security Human Resources 
                Management System (Department of Homeland 
                Security--Office of Personnel Management) (Parts 
                9700--9799)
     XCVII  Council of the Inspectors General on Integrity and 
                Efficiency (Parts 9800--9899)

                      Title 6--Domestic Security

         I  Department of Homeland Security, Office of the 
                Secretary (Parts 1--99)
         X  Privacy and Civil Liberties Oversight Board (Parts 
                1000--1099)

                         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)

[[Page 739]]

      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)
       XXV  Office of Advocacy and Outreach, Department of 
                Agriculture (Parts 2500--2599)
      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)
      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)

                    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)

[[Page 740]]

        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 1300--
                1399)
      XVII  Defense Nuclear Facilities Safety Board (Parts 1700--
                1799)
     XVIII  Northeast Interstate Low-Level Radioactive Waste 
                Commission (Parts 1800--1899)

                      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)
         X  Bureau of Consumer Financial Protection (Parts 1000--
                1099)
        XI  Federal Financial Institutions Examination Council 
                (Parts 1100--1199)
       XII  Federal Housing Finance Agency (Parts 1200--1299)
      XIII  Financial Stability Oversight Council (Parts 1300--
                1399)
       XIV  Farm Credit System Insurance Corporation (Parts 1400--
                1499)
        XV  Department of the Treasury (Parts 1500--1599)
       XVI  Office of Financial Research (Parts 1600--1699)
      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)

[[Page 741]]

               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--1199)
         V  National Aeronautics and Space Administration (Parts 
                1200--1299)
        VI  Air Transportation System Stabilization (Parts 1300--
                1399)

                 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)

[[Page 742]]

                    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)
      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  Office of Workers' Compensation Programs, 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)

[[Page 743]]

                       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)
         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  Millennium 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)

[[Page 744]]

        II  Office of Assistant Secretary for Housing-Federal 
                Housing Commissioner, 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)
      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)
        XV  Emergency Mortgage Insurance and Loan Programs, 
                Department of Housing and Urban Development (Parts 
                2700--2799)
        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)

[[Page 745]]

        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--End)

           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)

                   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)

[[Page 746]]

      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  Bureau of Safety and Environmental Enforcement, 
                Department of the Interior (Parts 200--299)
        IV  Geological Survey, Department of the Interior (Parts 
                400--499)
         V  Bureau of Ocean Energy Management, Department of the 
                Interior (Parts 500--599)
       VII  Office of Surface Mining Reclamation and Enforcement, 
                Department of the Interior (Parts 700--999)
       XII  Office of Natural Resources Revenue, Department of the 
                Interior (Parts 1200--1299)

                 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)
         X  Financial Crimes Enforcement Network, Department of 
                the Treasury (Parts 1000--1099)

                      Title 32--National Defense

            Subtitle A--Department of Defense
         I  Office of the Secretary of Defense (Parts 1--399)

[[Page 747]]

         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)
        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 Improvement, 
                Department of Education (Parts 700--799) 
                [Reserved]
            Subtitle C--Regulations Relating to Education
        XI  National Institute for Literacy (Parts 1100--1199)
       XII  National Council on Disability (Parts 1200--1299)

[[Page 748]]

                          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)

             Title 37--Patents, Trademarks, and Copyrights

         I  United States Patent and Trademark Office, Department 
                of Commerce (Parts 1--199)
        II  U.S. Copyright Office, Library of Congress (Parts 
                200--299)
       III  Copyright Royalty Board, Library of Congress (Parts 
                300--399)
        IV  Assistant Secretary for Technology Policy, Department 
                of Commerce (Parts 400--599)

           Title 38--Pensions, Bonuses, and Veterans' Relief

         I  Department of Veterans Affairs (Parts 0--199)
        II  Armed Forces Retirement Home (Parts 200--299)

                       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)

[[Page 749]]

       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 A--Federal Procurement Regulations System 
                [Note]
            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)
   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)
  103--104  [Reserved]
       105  General Services Administration (Parts 105-1--105-999)
       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)
  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--599)

[[Page 750]]

         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 400--999)
        II  Bureau of Land Management, Department of the Interior 
                (Parts 1000--9999)
       III  Utah Reclamation Mitigation and Conservation 
                Commission (Parts 10000--10099)

             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)

                       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)
         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)

[[Page 751]]

       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)
        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)

[[Page 752]]

        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)
        52  Department of the Navy Acquisition Regulations (Parts 
                5200--5299)
        53  Department of the Air Force Federal Acquisition 
                Regulation Supplement (Parts 5300--5399) 
                [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)

[[Page 753]]

         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 (Parts 1400--1499) 
                [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)
        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)

[[Page 755]]





           Alphabetical List of Agencies Appearing in the CFR




                      (Revised as of July 1, 2014)

                                                  CFR Title, Subtitle or 
                     Agency                               Chapter

Administrative Committee of the Federal Register  1, I
Administrative Conference of the United States    1, III
Advisory Council on Historic Preservation         36, VIII
Advocacy and Outreach, Office of                  7, XXV
Afghanistan Reconstruction, Special Inspector     22, LXXXIII
     General for
African Development Foundation                    22, XV
  Federal Acquisition Regulation                  48, 57
Agency for International Development              2, VII; 22, II
  Federal Acquisition Regulation                  48, 7
Agricultural Marketing Service                    7, I, IX, X, XI
Agricultural Research Service                     7, V
Agriculture Department                            2, IV; 5, LXXIII
  Advocacy and Outreach, Office of                7, XXV
  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

[[Page 756]]

Animal and Plant Health Inspection Service        7, III; 9, I
Appalachian Regional Commission                   5, IX
Architectural and Transportation Barriers         36, XI
     Compliance Board
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
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
Bureau of Ocean Energy Management, Regulation,    30, II
     and Enforcement
Census Bureau                                     15, I
Centers for Medicare & Medicaid Services          42, IV
Central Intelligence Agency                       32, XIX
Chemical Safety and Hazardous Investigation       40, VI
     Board
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
Council of the Inspectors General on Integrity    5, XCVIII
     and Efficiency
Court Services and Offender Supervision Agency    5, LXX
     for the District of Columbia
Coast Guard                                       33, I; 46, I; 49, IV
Coast Guard (Great Lakes Pilotage)                46, III
Commerce Department                               2, XIII; 44, IV; 50, VI
  Census Bureau                                   15, I
  Economic Analysis, Bureau of                    15, VIII
  Economic Development Administration             13, III
  Emergency Management and Assistance             44, IV
  Federal Acquisition Regulation                  48, 13
  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
  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 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 Financial Protection Bureau              5, LXXXIV; 12, X
Consumer Product Safety Commission                5, LXXI; 16, 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    5, LXX; 28, VIII
     for the District of Columbia
Customs and Border Protection                     19, I

[[Page 757]]

Defense Contract Audit Agency                     32, I
Defense Department                                2, XI; 5, XXVI; 32, 
                                                  Subtitle A; 40, VII
  Advanced Research Projects Agency               32, I
  Air Force Department                            32, VII
  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
  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          5, LXX; 28, VIII
     Offender Supervision Agency for the
Drug Enforcement Administration                   21, II
East-West Foreign Trade Board                     15, XIII
Economic Analysis, Bureau of                      15, VIII
Economic Development Administration               13, III
Economic Research Service                         7, XXXVII
Education, Department of                          2, XXXIV; 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                    2, LVIII; 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                             2, IX; 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                2, Subtitle A; 5, III, 
                                                  LXXVII; 14, VI; 48, 99

[[Page 758]]

  National Drug Control Policy, Office of         21, III
  National Security Council                       32, XXI; 47, 2
  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                       5, XXXVII; 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                    5, LXXX; 12, XII
Federal Housing Finance Board                     12, IX
Federal Labor Relations Authority                 5, XIV, XLIX; 22, XIV
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
Financial Crimes Enforcement Network              31, X
Financial Research Office                         12, XVI
Financial Stability Oversight Council             12, XIII
Fine Arts, Commission on                          45, XXI
Fiscal Service                                    31, II
Fish and Wildlife Service, United States          50, I, IV
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

[[Page 759]]

Forest Service                                    36, II
General Services Administration                   5, LVII; 41, 105
  Contract Appeals, Board of                      48, 61
  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; 8, I
  Coast Guard                                     33, I; 46, I; 49, IV
  Coast Guard (Great Lakes Pilotage)              46, III
  Customs and Border Protection                   19, I
  Federal Emergency Management Agency             44, I
  Human Resources Management and Labor Relations  5, XCVII
       Systems
  Immigration and Customs Enforcement Bureau      19, IV
  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 Review, Executive Office for          8, V
Independent Counsel, Office of                    28, VII
Indian Affairs, Bureau of                         25, I, V

[[Page 760]]

Indian Affairs, Office of the Assistant           25, VI
     Secretary
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, XV
Institute of Peace, United States                 22, XVII
Inter-American Foundation                         5, LXIII; 22, X
Interior Department                               2, XIV
  American Indians, Office of the Special         25, VII
       Trustee
  Bureau of Ocean Energy Management, Regulation,  30, II
       and Enforcement
  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
  National Indian Gaming Commission               25, III
  National Park Service                           36, I
  Natural Resource Revenue, Office of             30, XII
  Ocean Energy Management, Bureau of              30, V
  Reclamation, Bureau of                          43, I
  Secretary of the Interior, Office of            2, XIV; 43, Subtitle A
  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 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, XXVIII; 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
  Employee Benefits Security Administration       29, XXV
  Employees' Compensation Appeals Board           20, IV
  Employment and Training Administration          20, V
  Employment Standards Administration             20, VI

[[Page 761]]

  Federal Acquisition Regulation                  48, 29
  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
  Office of Workers' Compensation Programs        20, VII
  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 Royalty Board                         37, III
  U.S. Copyright Office                           37, II
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
Millennium Challenge Corporation                  22, XIII
Mine Safety and Health Administration             30, I
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   2, XXII; 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              5, LXXXVI; 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
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

[[Page 762]]

National Science Foundation                       2, XXV; 5, XLIII; 45, VI
  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
Natural Resource Revenue, Office of               30, XII
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                     2, XX; 5, XLVIII; 10, I
  Federal Acquisition Regulation                  48, 20
Occupational Safety and Health Administration     29, XVII
Occupational Safety and Health Review Commission  29, XX
Ocean Energy Management, Bureau of                30, V
Offices of Independent Counsel                    28, VI
Office of Workers' Compensation Programs          20, VII
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                                       2, XXXVII; 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, 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
Privacy and Civil Liberties Oversight Board       6, X
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

[[Page 763]]

Science and Technology Policy, Office of          32, XXIV
Science and Technology Policy, Office of, and     47, II
     National Security Council
Secret Service                                    31, IV
Securities and Exchange Commission                5, XXXIV; 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 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
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                   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
  Financial Crimes Enforcement Network            31, X
  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
U.S. Copyright Office                             37, II

[[Page 764]]

Utah Reclamation Mitigation and Conservation      43, III
     Commission
Veterans Affairs Department                       2, VIII; 38, I
  Federal Acquisition Regulation                  48, 8
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 765]]



List of CFR Sections Affected



All changes in this volume of the Code of Federal Regulations (CFR) that 
were made by documents published in the Federal Register since January 
1, 2009 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, parts and 
subparts as well as sections for revisions.
For changes to this volume of the CFR prior to this listing, consult the 
annual edition of the monthly List of CFR Sections Affected (LSA). The 
LSA is available at www.fdsys.gov. For changes to this volume of the CFR 
prior to 2001, see the ``List of CFR Sections Affected, 1949-1963, 1964-
1972, 1973-1985, and 1986-2000'' published in 11 separate volumes. The 
``List of CFR Sections Affected 1986-2000'' is available at 
www.fdsys.gov.

                                  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
    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

33 CFR
                                                                   75 FR
                                                                    Page
Chapter II
334.450 Revised....................................................53198
334.500 Revised....................................................19885
334.525 Added; eff. 7-19-10........................................34643
334.866 Added......................................................26102

[[Page 766]]

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

                                  2011

33 CFR
                                                                   76 FR
                                                                    Page
Chapter II
334.230 (a) revised................................................10523
334.235 Added.......................................................6328
    (b)(2) corrected...............................................10524
334.420 (b)(1)(v) and (2)(iii) added...............................30023
334.480 Revised....................................................62631
334.700 Revised....................................................75455
334.710 Revised....................................................75455
334.720 Revised....................................................75455
334.730 Revised....................................................75456
334.740 Revised....................................................75456
334.742 Added......................................................75457
334.744 Added......................................................75457
334.746 Added......................................................75457
334.748 Added......................................................75457
334.750 Removed....................................................75458
334.815 Added......................................................30024
Chapter IV
401.8 (c) revised..................................................13089
401.11 (a) introductory text revised...............................13089
401.12 (a)(1) introductory text, (i) and (2) revised...............13089
401.24 Revised.....................................................13089
401.39 (a) revised.................................................13089
401.40 (a) revised.................................................13089
401.51 (b) revised.................................................13089
401.57 (c) revised.................................................13089
401.65 (c) revised.................................................13089

                                  2012

33 CFR
                                                                   77 FR
                                                                    Page
Chapter II
334.78 Removed.....................................................42651
334.130 Revised....................................................61722
334.260 Revised....................................................61723
334.605 Added......................................................42652
334.782 Heading, (b) and (c) revised...............................42653
334.815 Correctly revised..........................................20296
Chapter IV
401.11 (a)(4) added................................................40804
401.12 (a)(1)(ii) revised..........................................40804
401.15 Revised.....................................................40804
401.28 (d) revised.................................................40804
401.29 Revised.....................................................40804
401.32 (c) added...................................................40804
401.44 (b) revised.................................................40804
401.59 (e) added...................................................40805
401.72 (d) revised.................................................40805
401.79 Revised.....................................................40805
401.84 (c) revised.................................................40805
401.89 (a)(4) added................................................40805
401.92 Revised.....................................................40805
401.1--401.97 (Subpart A) Schedule II amended......................40805

                                  2013

33 CFR
                                                                   78 FR
                                                                    Page
Chapter II
207.340 Revised....................................................78720
326.6 (a)(1) revised................................................5726
330.1 (e)(1) revised................................................5733
330.4 (c)(6) and (d)(6) revised.....................................5733
330.6 (a)(3)(ii) revised............................................5733
334.1390 Revised...................................................76061
Chapter IV
401.10 (a)(2) revised; (e) added...................................16181
401.14 Revised.....................................................16181
401.28 (d) revised.................................................16181
401.29 Revised.....................................................16181
401.49 Revised.....................................................16182
401.73 Revised.....................................................16182
401.79 (b)(4) revised..............................................16182
402.3 Amended......................................................19106
402.5 (b) revised..................................................19106
402.10 Revised.....................................................19106

                                  2014

   (Regulations published from January 1, 2014, through July 1, 2014)

33 CFR
                                                                   79 FR
                                                                    Page
Chapter II
208.11 (e) table amended...........................................13564
208.19 Revised.....................................................13564
211 Removed.........................................................7067
334.285 Added; eff. 7-21-14........................................35050
334.980 Revised....................................................18451

[[Page 767]]

Chapter IV
401.2 (b) through (r) redesignated as (c) through (s); new (b) 
        added......................................................12659
401.9 Heading revised; (c) and (d) added...........................12659
401.10 (c) revised.................................................12659
401.13 (b) revised.................................................12659
401.14 Revised.....................................................12659
401.19 (a) and (b)(2) revised......................................12660
401.22 (b)(2) and (3) revised; (b)(4) added........................12660
401.24 Revised.....................................................12660
401.26 (a)(2), (3), (c) and (d) revised............................12660
401.29 (b) revised.................................................12660
401.34 Revised.....................................................12660
401.46 (c) added...................................................12660
401.52 (b) revised.................................................12660
401.68 Heading and (c) revised.....................................12660
401.74 (a) and (f) revised.........................................12661
401.75 (b) revised; (d) added......................................12661
401.79 (b)(5) added................................................12661
402.3 Amended......................................................13252
402.4 (d) revised; (e) added.......................................13252
402.7 Redesignated as 402.8; new 402.7 added.......................13253
402.8 Redesignated as 402.9; redesignated from 402.7...............13253
402.9 Redesignated as 402.10; redesignated from 402.8..............13253
402.10 Redesignated as 402.11; redesignated from 402.9.............13253
402.11 Redesignated as 402.12; redesignated from 402.10 and 
        revised....................................................13253
402.12 Redesignated as 402.13; redesignated from 402.11............13253
402.13 Redesignated from 402.12....................................13253


                                  [all]