Maryland dredge and fill permit process handbook

[From the U.S. Government Printing Office, www.gpo.gov]

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MARYLAND

DREDGE AND FILL PERMIT
PROCESS HANDBOOK

Michael L. Clar

Hittman Associates

Jeffrey R. Hutchins, P.E.

Coastal Resources Division
Maryland Department of
Natural Resources

May 1983

Prepared for
Maryland Department of Natural Resources
Coastal Zone Management Program
Annapolis, Maryland 21401

Preparation of this report was partially
f u nded by the Of f Ice of Coastal
and Coastal Resources Management, National Oceanic and
Atmospheric Administration

CONTENTS

ACKNOWLEDGMENTS

PART 1 - AN OVERVIEW:
THE DREDGE AND FILL PERMIT REVIEW PROCESS
FOR MARYLAND

Introduction ....................................................... 3
Terms and Definitions .............................................. 6
The Role of Government Agencies .................................... 10
Government Agency Contacts ........................................ 17

PART 2 - DETAILED AGENCY REQUIREMENTS:
THE DREDGE AND FILL PERMIT REVIEW PROCESS
FOR MARYLAND

FEDERAL AGENCIES

U.S. Army Corps of Engineers ................................... 21
U.S. Environmental Protection Agency ............................ 23
U.S. Fish and Wildlife Service .................................... 24
National Park Service ........................................... 28
National Marine Fisheries Service ................................ 28
U.S. Coast Guard .............................................. 31

MARYLAND STATE AGENCIES

Department of Natural Resources
ri Water Resources Administration .............................. 32
%J a Wetland Permits Division .................................. 32
0 Watershed Permits Division ............................... 33
Tidewater Administration ..................................... 35
W- 0 Coastal Resources Division ................................ 35
0 Tidal Fisheries Division ................................... 36
* Waterway Improvement Division ........................... 38
Department of Health and Mental Hygiene
Office of Environmental Programs .............................. 40
Department of Transportation
Maryland Port Administration ................................. 41
Department of Economic and Community Development
Maryland Historical Trust .................................... 43
LL Maryland Board of Public Works ................................. 44
zz Regional Planning Council ....................................... 44

ill

MARYLAND LOCAL AGENCIES

Baltimore City .............................................. 46
Counties ................................................... 46

APPENDICES

A. U.S. Army Corps of Engineers Regulations
B. U.S. Environmental Protection Agency Regulations
C. U.S. Fish and Wildlife Service Regulations
D. National Park Service Manual.
E. U.S. Coast Guard Documentation
F. Maryland Department of Natural Resources (DNR)
Wetland Permits Division Documentation
G. Maryland DNR - Coastal Resources Division Guidelines
H. Maryland Historical Trust Regulations and Guidelines.
1. Baltimore City Guidelines,
J. Maryland Interagency Dredging Work Group Members

LIST OF TABLES

1 . Permit Activity by Structure/ Alteration Type
in the Chesapeake Bay: 1973-1979 ............................ 5
2. Summary of Required Agency Actions ......................... 12
3. Federal Agency Contacts .................................... 17
4. Maryland State and Local Government Agency Contacts .......... 18
5. Activities Which Require a Corps Permit ....................... 22

LIST OF FIGURES

1. Flow Chart of the Maryland Dredge and Fill Permit Process
State Process ............................................. 13
2. Flow Chart of the Maryland Dredge and Fill Permit Process
Federal Process .......................................... 15

ACKNOWLEGEMENTS

This handbook was developed by Hittman Associates, Inc. of Columbia, Maryland in
cooperation with the Coastal Resources Division of the Tidewater Administration, Maryland
Department of Natural Resources. This was accomplished under the direction of Dr. Sarah
Taylor, Director, Coastal Resources Division, Tidewater Administration. Special appreciation and
thanks is extended to Tom Dolan, Scott Brumburgh, Rick Wagner, and David Burke for all of
their time and assistance in helping to prepare this handbook. Many thanks to Peter Lampell for
assisting in Its publication.

The assistance and cooperation of numerous federal, state, and local agencies in the
preparation and review of the handbook are hereby acknowledged. Special thanks are extended to
the following people and the agencies they represent for their contributions to the handbook: Mr.
Tom Phillip, Baltimore District, and Mr. Frank Cianfrani, Philadelphia District, U.S. Army Corps
of Engineers; Dr. Jane Massey, U.S. Environmental Protection Agency; Mr. Glenn Kinser, U.S.
Fish and Wildlife Service; Mr. Ron Gatton, National Marine Fisheries; Mr. Joseph W. Karban,
National Park Service; Mr. Wayne Creed, U.S. Coast Guard.

Thanks to the following people from the State of Maryland: Mr. Elder Ghigiarelli, Coastal
Resources Division, Mr. Nick Carter, Tidal Fisheries Division, Mr. Vince Bogucki, Waterways
Improvement Division, Mr. Harold M. Cassell, Resource Management Program, and Mrs.
Rebecca Hughes, Watershed Permits Division, Maryland Department of of Natural Resources;
Mr. Eduardo Acevedo, Office of Environmental Programs, Maryland Department of Health and
Mental Hygiene; Mr. Frank Hamons, Jr., Mr. Paul Farragut, and Mr. Jerry Kreiner, Maryland
Department of Transportation; Mr. Wayne Clark, Maryland Historical Trust, and Mr. Alan
Tustin, Office of Business Liaison, Maryland Department of Economic and Community
Development; and Ms. Mary Dolan, Regional Planning Council.

Thanks to the following people representing local agencies: Mr. David Carroll, Baltimore City
Department of Planning; Mr. Robert Rauch, Talbot County Department of Public Works; and Mr.
Ed Phillips, Coastal Zone Technical Coordinator for Worcester and Wicomico Counties.

PART 1

AN OVERVIEW:

THE DREDGE AND FILL
PERMIT REVIEW PROCESS
FOR MARYLAND

INTRODUCTION

PURPOSE

The MARYLAND DREDGE AND FILL PERMIT PROCESS HANDBOOK brings together for
the first time State and Federal procedures required in the review of private and public dredge
and fill applications in the tidal waters of Maryland. Initiated through a work group composed of
all Maryland agencies with dredge and fill-related responsibilities, this handbook is intended to
promote more effective cooperation, understanding, and follow-through in the problem area of
dredge and fill permit review. By having each agency's current procedures readily available to
all, and by indicating the steps necessary to obtain such permits, agency staff may more easily
anticipate and satisfy their permit review needs In matters of dredging justification, placement
alternatives, and environmental and economic effects.

All agencies agree that coordination is highly desirable while respecting the mandates of
each agency. This handbook helps fulfill that need.

The handbook is arranged in a format for use by personnel directly involved with dredge and
fill activities and is composed of the following sections:

(1) An overview of the dredge and fill permit process which operates in Maryland.

(2) A summary of the permit process as derived from every agency involved in this
process at the federal, state, and local levels.

(3) Detailed information regarding each agency's role in the permitting process, its legal
mandates, regulations and/or guidelines which the agency has published pursuant to
its legal mandates, as well as any informal arrangements or operating procedures.

BACKGROUND
Dredging operations are a frequently occurring and important activity in Maryland coastal
waters. The effects of this activity range from environmental effects to socio-economic effects
which help shape the economy of the entire region. The term dredging incorporates the related
activities of dredging, channelization, fill and dredge material deposition. The term also
embraces both "new" dredging activities (i.e., the activity in question involves the removal of
material from an area which has not been dredged before) and "maintenance" dredging (i.e.,
the activity involves the removal of material which has been accumulated or deposited into a
previously dredged location). Dredging, fill, and related projects encompass a variety of
activities as shown in Table 1.
Dredging activities in Maryland usually occur in navigable waters, and dredged material
deposition is not customarily authorized in open water and vegetated wetland areas. Such waters
are valuable for a multitude of diverse interests, including navigation, commerce, recreation,
habitat, breeding, spawning for many species of fish and wildlife, and food for the nation's
population.
Prior to the 60's, wetlands generally had been perceived as wastelands, inhabited primarily
by mosquitoes and other pests. As a result, it is estimated that about one-third of the nation's
wetlands have been destroyed over the last 70 years, and in some states the loss exceeds 50

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percent (EPA, 1979). These wetlands have generally been converted for agricultural use,
residential and commercial development, landfills, and garbage dumps. However, the valuable
functions of wetlands and estuarine ecosystems in providing habitat, breeding, spawning, and
nursery grounds for various aquatic and terrestrial organisms, most notably waterfowl,
shellfish, and fish, has become increasingly recognized by all parties, public and private, over
the past two decades.

This increased awareness of the value of open waters, wetlands, and estuarine ecosystems
has been translated into various forms of legislative action to regulate environmental, public
health, and safety aspects of dredging and deposition operations. As a consequence, the current
dredge and fill permit process is a complex procedure involving several agencies from each level
of government, reviewing and making recommendations on proposed changes to the Maryland
shoreline and waters.

While general public concern for water quality and preservation of wetlands and estuarine
ecosystems has grown, development pressures, both private and public, have continued.
Property adjacent to open space or water is highly desirable, lending itself equally well for
commercial, residential, and recreational development. The degree of activity in the Maryland
coastal zone has been documented by the Department of Natural Resources (Eberhart, 1980).
The available data reveal that the permitting process for coastal zone-related activities is a
substantial undertaking. During the six-year period from 1973 to 1978, 5,684 permits were
issued in Maryland. New and maintenance dredging during the seven-year period from 1973 to
1979 accounted for 687 projects. Channelization projects amounted to 75 permits involving
1,361,259 cubic yards of material during that same period. Fill and dredged material deposition
activities totaled 2,727 projects involving 71.5 million cubic yards of material (Eberhart, 1980).
The time and effort required to evaluate permit applications In the coastal zone is highly
variable, reflecting the large variances in project size, and complexity. The most recent data
available for time required to process permit applications by the Baltimore Districts of the Corps
of Engineers reveal that the evaluation of a permit application can range from 2 to 60 weeks.

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TABLE 1,

PERMITACTIVITY BY'STRUfw,"TU,RE--,/A@LTItRA@,T@ll'ON
TYPIE 1141, HE C HESAPEAKe-ISAY!

TOTAL NUMBER OF TOTAL NUMBER OF STRUCTURE/
STRUCTU RE/ ALTERATION TYPE PERMITS GRANTED ALTERATIONS APPROVED

Pile 2,988 20,686
Pier 3,933 6,040
Bulkhead 1,869 1,962
Fill 1,848 1,848
Buoy 433 1,810
Jetty or Groin 472 1,698
Riprap 822 1,005
Dredging (New) 888 888
Spoil Disposal 610 610
Dolphin 68 406
Building 236 251
Boat Ramp 206 210
Discharge Pipe 105 169
Maintenance Dredging 115 115
Aerial Crossing 61 i0q
Bridge 89 89
Pipeline 65 75
Channelization 71 71
Submerged Cable 53 69
Crab Impoundment 38 38
Marine Railroad 26 34
Intake Pipe 20 32
Dam 17 17
Fence 14 14
Tunnel 5 10
Intake Structure 5 5
Artificial Reef 3 3
Wave Gauge 1 1
Duck Blind 1 1

New Structure Subtotals 15,061 38,266

Repair Activities 628 672
Temporary Structures 89 99

TOTALS 15,778 39,037

(Eberhart, 1980)

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TERMS AND DEFINITIONS

The definitions of a number of key terms associated with the permitting of dredging and fill
operations are presented below. Additional terms and definitions can be found in the
regulations of the various agencies presented in the Appendices.

It is important to note that the term "wetlands" can cover a broad range of natural
environments. Wetlands are generally defined as areas that are inundated or saturated by
surface or groundwater at a frequency or 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. The Maryland
Wetlands Act defines wetlands to include all lands under tidal waters as well as those containing
vegetated tidal marsh or swamp as State or Private Wetlands.
Wetlands regulated under Maryland and Federal laws are not always identical. In certain
locations the Federal jurisdiction extends beyond that of State laws.

KEY TERMS AND DEFINITIONS - FEDERAL

Navigable Waters of the United States

These waters are administratively defined to mean the waters of the United States 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 to use to transport interstate or foreign commerce up to the head of
navigation. A determination of navigability, once made, applies laterally over the entire surface
of the water body to the ordinary high water mark (OHWM). The OHWM for inland fresh waters
is the line on the shores established by the fluctuations of water and Indicated by physical
characteristics such as a clear, natural line impressed on the bank shelving; character of the soil;
destruction of terrestrial vegetation; the presence of litter; or other appropriate means that
consider surrounding areas. The head of navigation is determined by the Corps' District
Engineer.

Navigable waters of the United States are subject to Federal regulatory jurisdiction for
certain activities under Sections 9 and 10 of the River and Harbor Act of 3 March 1899.

Navigable waters of the United States in Maryland include all tidal tributaries of the
Chesapeake Bay in Maryland, to their mean high water marks, the coastal back bays and their
tidal tributaries to their mean high water marks, the territorial seas off Maryland's Atlantic
coastline (3-mile limit), the Potomac River within its ordinary high water marks to the Willis
Creek Bridge in Cumberland, in areas above the head of tide, and the Susquehanna River,
above tide within its ordinary high water marks from Conowingo Dam to the Pennsylvania
border.

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Waters of the United States

"The Federal authority to regulate discharges of dredged or fill material, pursuant to Section
404 of the Clean Water Act, pertain to all waters of the UnIt6d States. These waters are
administratively defined to include:"

(1) All NavigableWaters of the United Statesas defined above. (Note: Since the Territorial
Seas are Navigable Waters of the United States, there is no need to repeat it as being a
distinct water of the United States).

(2) All tributaries to "navigable waters of the United States" Including adjacent wetlands;
man-made drainage and irrigation ditches excavated on dry land are not included.

(3) Interstate waters and their tributaries, including adjacent wetlands.

(4) Other waters of the United States, such as isolated wetlands and lakes, intermittent
streams, prairie potholes.

The Corps of Engineers would like to emphasize the differences in jurisdictional area and
activities regulated under both Section 404 of the Clean Water Act and Section 10 of the River and
Harbor Act. It is their experience that some of the subtle differences between the statutes cause
considerable confusion. Section 404 applies to all waters of the United States but only regulates
the discharge of dredged or fill materials into them. On the other hand, Section 10 applies only to
Navigable Waters of the United States, but regulates many types of construction activities
including the act of dredging. e.g., One may dredge in a non-tidal marsh without a Corps permit
provided dredged material placement is on uplands.

Nationwide Permits

Nationwide permits are Department of the Army authorizations that were incorporated in and
issued by the final regulations (published July 9, 1977). The purpose of these nationwide permits
is to allow non-controversial, environmentally insignificant activities to continue with a minimum
of governmental interference. The nationwide permits authorize certain structures, discharges,
and/or work affecting "navigable waters of the United States" throughout the nation.
Experience with these nationwide permits indicates that there is sometimes great difficulty
interpreting certain of these nationwide authorizations. It is advisable that before proceeding
with any work in waters described in this handbook, contact with the Corps District Office be
made to confirm the project's coverage under one of these blanket authorizations.

Following is a list of activities which are permitted by Federal Regulations for purposes of
Section 10 of the River and Harbor Act of 1899, provided that no interference with navigation
results:

(1) Placement of aids to navigation by the U.S. Coast Guard.

(2) Structures constructed in artificial canals within principally residential developments
where the connection of the canal to a navigable water has already received a Section 10
permit.

(3) Repair, rehabilitation, or replacement of any previously authorized currently
serviceable structure, or of any currently serviceable structure constructed prior to the
requirement of a Section 10 permit. (No deviation from the originial plans is
authorized).
-7-

(4) Marine life harvesting devices, such as pound nets, crab traps, eel pots, and lobster
traps.

(5) Staff and tidal gages, water recording devices, water quality testing and improvement
devices, and similar scientific structures.

(6). Structures or work completed before December 18, 1968, or located in navigable waters
over which the District Engineer has not asserted jurisdiction.

Corps General Permit
Included in the Corps programs for exercising permit jurisdiction under both Section 10 of the
River and Harbor Act of 1899 and Section 404 of the Clean Water Act Is the general permit
program. General permits are issued for certain clearly described categories of structures,
discharges, and/or work, when those activities are substantially similar in nature, causing only
minimal adverse cumulative effect on the environment. General permits are for specific regions
of the country. Individual activities authorized by such permits do not require individual permit
processing; therefore, approval may be issued in a short time.

Individual Permit
.Any dredge or fill Activity exempted by a nationwide or general permit must obtain an
individual permit from the regional district.

It is recommended that the applicant check with the district Corps,of Engineers office to
confirm the exemption of the proposed activity.

KEY TERMS AND DEFINITIONS
STATE OF MARYLAND

State Wetlands

"State wetlands" means any land under the navigable waters of the state below the mean
high tide, affected by the regular rise and fall of the tide. Wetlands of this category which have
been transferred by the state by valid grant, lease, patent or grant confirmed by Article 5 of the
Declaration of Rights of the Constitution shall be considered "private wetland" to the extent of
the interest transferred.

State Wetlands License

The authorization necessary from the Maryland State Board of Public Works to perform any
dredge or fill activities in those areas defined as State Wetlands.

-8-

Private Wetlands

"Private wetlands" means land not considered "state wetland" bordering on or lying
beneath tidal waters, which is subject to regular or periodic tidal action and.,supports aquatic
growth. This includes wetlands, transferred by the state by a valid grant, lease, patent, or grant
confirmed by Article 5 of the Declaration of Rights of the Constitution, to the extent of the interest
transferred.

Private Wetland Permit

The authorization necessary from the Secretary of the Department of Natural Resources to
perform any dredge or fill activities in those areas defined as Private Wetlands.

0 Dredge Material

Material that is excavated or dredged from waters of the State of Maryland.

Dredging

"Dredging" means the removal or displacement, by any means, of soil, sand, gravel, shells,
or other material, whether or not of intrinsic value, from any state or private wetlands.

Fill Material

Any material used for the primary purpose of replacing an aquatic area with dry land or of
changing the bottom elevation of a waterbody.

Filling

Filling means either:

(a) The displacement of navigable water by the depositing into state or private wetlands of
soil, sand, gravel, shells, or other materials; or

(b) The artificial alteration of navigable water levels by any physical structure, drainage
ditch, or otherwise.

Filling includes storm drain projects which flow directly into tidal waters of the state. It does
not include drainage of agricultural land.

THE ROLE OF GOVERNMENT
AGENCIES

A summary of required agency actions in the Maryland dredge and fill permit review process
is presented in Table 2 and illustrated in Figures 1 and 2. The permit review process includes
three levels of government, Federal, state, and local, and can involve anywhere from 10 to 16
different agencies. The process follows two distinct paths - one for the State review and one for
the Federal review, as shown in Figures 1 and 2, and applicants must apply concurrently to
receive authorization for a dredge or fill project. Although not required to do so, the Corps of
Engineers will not issue a permit until a favorable State review is completed.

FEDERAL

The U.S. Army Corps of Engineers is the lead agency at the Federal level and coordinates the
input from the state and local agencies, special interest groups, and the general public. At the
Federal level the Corps coordinates the input of the following agencies which must, by law, be
consulted in the review process:

(1) U.S. Environmental Protection Agency (EPA).

(2) U.S. Fish and Wildlife Service, Department of the Interior (USFWS)(DOI).

(3) National Marine Fisheries Service, U.S. Department of Commerce (NMFS)(DOC).

In addition to these three agencies, the Corps will coordinate its activities with the U.S. Coast
Guard if a bridge or causeway is involved or if the project involves a matter related to navigation
safety.

If the project involves or can impact National Park lands then the input of the National Park
Service of USDOC will be integrated with the input of the USFWS.

The Corps has developed a joint agency review process which is a very efficient mechanism to
coordinate the input of the various agencies while expediting the review process. This joint
review group, which is administered by the Corps, includes the following agency representation:

(1) Corps of Engineers

(2) Environmental Protection Agency

(3) United States Fish and Wildlife Services

(4) National Marine Fisheries Service

(5) Wetland Permits Division representing the Maryland Department of Natural Resources

(6) Office of Environmental Programs of the Department of Health and Mental Hygiene.

-10-

This joint agency review group meets at least on a regular monthly schedule and may review as
many as 60 different permit applications at one meeting. The meeting provides an opportunity for
a rapid exchange of ideas and concerns related to the merits of a particular project as well as
assuring the timely processing of the more routine type of permit applications.

STATE

At the State level the permit review process always includes the Departments of Natural
Resources, Health and Mental Hygiene, and Economic and Community Development. If state
wetlands are involved, then the State Board of Public Works must issue a wetlands license in
order to authorize the project. If the project is in the Port of Baltimore, then the Maryland Port
Administration must issue a construction permit and the Regional Planning Council will be
involved in an advisory capacity.

Input from the Department of Natural Resources normally involves agency coordination from
the Water Resources Administration (WRA), the Tidewater Administration (TA), and the
Wildlife Administration (MWA). The WRA Wetland Permits Division has been designated by the
Secretary of the Department to act as the lead agency for the Department. In that capacity it acts
as the liaison with the Federal agencies chiefly through the Corps, and with other state and local
agencies and presents the official Department position related to dredging projects review and
approval after consultation with and integration of the inputs from the following Department
agencies:

(1). Watershed Permits Division, WRA

(2) Coastal Resources Division, TA

(3) Tidal Fisheries Division, TA

(4) Wildlife Administration, MWA

(5) Geological Survey, MGS

The input of the Department of Health and Mental Hygiene has been delegated totheOff ice of
Environmental Programs which is responsible for issuance of a Water Quality Certification.
Federal ly-sponsored dredging projects and dredging projects at Federal reservations do not
require a wetlands license; they must receive, however, a water quality certificate.

The Department of Economic and Community Development is involved in the permit process
through the responsibilities of the Maryland Historical Trust.

LOCAL
If the dredging project occurs within the jurisdiction of Baltimore City or any of the sixteen
Tidewater counties, then a grading and/or sedimentation permit may be required, and under
certain conditions, a building permit may be required. Certain types of projects may also require
other types of approvals at the local level, including zoning approvals, setbacks, subdivision
regulation approvals, etc.

TABLE 2
SUMMARY OF REOUIRED AGENCY ACTIONS

AGENCY ACTION REMARKS

Corps of Engineers Corps Permit Required for all dredging operations in Maryland
coastal waters.

Maryland Board of Wetlands License Required for all dredging projects Involving state
Public Works wetlands. Corps permit generally not Issued until
license is issued.

Wetland Permits Division Wetlands Permit Required for all dredging projects in private
Water Resources Administra- wetlands.
tion DNR

Coastal Resources Division Coastal Zone Consistency Required for all dredging projects. A positive
Tidewater Administration Determination determination is a prerequisite for Issuance of a
DNR Corps permit.

Office of Environmental Water Quality Certification Required for all dredging projects. This certification
Programs/ Department of is a prerequisite for issuance of a Corps permit.
Health and Mental Hygiene

Maryland Port Administra- Construction Permit Required for all port related construction- activity In
tion/Dept. of Transportation state waters. Usually limited to Port of Baltimore.

All coastal Counties a. Sediment I Grading a. Sediment/grading permit Is usually required for
and Baltimore City Permit all dredge material deposition areas.
b. Building permit b. Building permit may be required is any
temporary or permanent structures are erected.

Environmental Protection Review and approval Required for all dredging projects.
Agency comments

U.S. Fish and Wildlife Review comments Required for all dredging projects.
Service [DOI)

National Marine Fisheries Review comments Required for all tidal dredging projects.
Service [DOC)

U.S. Coast Guard Review and approval Required only when a bridge or causeway Is
comments invoived in the project.

National Park Service [DOI) Review comments Required only when National Park lands are
involved or Impacted.

Tidal Fisheries Division Review comments Comments solicited by and submitted to Wetland
Tidewater Administration Permits Division.
DNR

Watershed Permits Division Review comments Comments usually solicited by and submitted
Water Resources Administre- through Wetland Permits Division.
tIon/DNR

Maryland Historical Trust Review comments Required on all projects.

Regional Planning Council Review comments Involved in those projects attecting the Baltimore
Metropolitan Area only.
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MARYLAND
GEOLOGICAL SURVEY
FIGURE 1. FLOW CHART OF THE MARYLAND DREDGE
WILDLIFE AND FILL P, ERMIT PROCESS - STATE PROCESS
ADMINISTRATION

MARYLAND DNR COASTAL RESOURCES
WETLANDS DIVISION, TA
DIVISION TIDAL FISHERIES
DIVISION. TA

WATERSHED PERMITS]
PLICATION FOR WRA STATE
DOE AND/OR LICENSE
L AUTHORIZATION MD. BOARD OF
PUBLIC WORKS
PROJECT PUBLIC HEARING ING REPORT AND
MMENDATION/
ADVERTISEMENT IF NECESSARY DETERMINATION PRIVATE WETLANDS
PERMIT
SECRETARY
OFFICE OF MD DNR
L ENVIRONMENTAL COMMENTS SOLICITED
FROM STATEILOCAL ER QUALITY
PROGRAMS AGENCIES "IFICATE
DHMH

MARYLAND DREDGE
LETTER OF AND/Oll FILL
APPLICANT HISTORICAL OOMMENT AUTHORIZATION
TRUST

A
MPA CONSTRUCTION PA CO,
PPLICATION FOR MD DOT NSTRU710NI
PERMIT MPA

SEDIMENT AND
SEDIMENT AND
GRADING
PERMIT SECTION APPROVAL
BALTO CITY REVIEW BY
DEPT OF PLANNING DE PARTMENT OF
PLANNING
DEPT OF PUBLIC
WORKS BUILDING UILDING PERMIT
PERMIT SECTION

SEDIMEWAND
APPLICATION FO COUNTY DEPT . ..... GRAD1140 PLAN
CITY OR COU=R L & BUILDING
PERMITS OF PUBLIC WORKS IT IF REWIRED
i -ORGANIZATION
H

FED
UjL8
I:C
@E HEARING R.
MM
S-T @F
@01E.: [email protected] DE. EN
ETE MZ

WATI
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SEDIMEW
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APPROVA I GEL
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EVENT

-13-

FIGURE 2. FLOW CHART OF THE MARYLAND DREDGE
AND FILL PERMIT PROCESS - FEDERAL PROCESS

STATE OF MARYLAND COASTAL ZONE
COASTAL RESOURCES CONSISTENCY
DIVISION, TA DETERMINATION

STATE OF MARYLAND F_ WATER
OFFICE OF ENVIRON- COMMENTS SOLICITED
MENTAL PROGRAMS BUT NOT REQUIRED QUALITY
CERTIFICATE
DHMH

MARYLAND HISTORICAL LETTER OF
TRUST COMME ff:@A
EPA

A
P US FWS
P DOI
L DEPT OF COMMENTS
APPLICATION FOR THE ARMY LIC DEPT OF THE ARMY EVALUATION
EDGE AND FILL CORPS OF, NOTICE REO'D BY LAW AND
C RMIT ENGINEERS 33 CFA CORPS OF, ENGINEERS RECOMMENDATION
A
N NMFS/NE
T DOC

SECRET RY OF
THE ARMY7

OTHER FEDERAL
AGENCIES

COMMENTS
SOLICITED BUT
NOT REQUIRED

DREDGE/AND
FILL PERMIT
OTHER STATE
AND LOCAL
- ORGANIZATION AGENCIES

- EVENT
PUB
DR

GOVERNMENT AGENCY
CONTACTS

Listed below in Tables 3 and Table 4 are the agency contacts for the Federal Government,
Maryland State Government and local governments, respectively.

TABLE 3

FEDERAL AGENCY CONTACTS

U.S. Army Corps of Engineers U.S. Fish and Wildlife Service

� Baltimore District Annapolis Field Office
1825B Virginia Avenue
Operations Division Annapolis, MD
P.O. Box 1715 (301)-269-5448
Baltimore, MD
(30,1)-962-3670
National Park Service

� Philadelphia District Environmental Quality Division
Mid-Atlantic Region
Operations Division 143 South Third Street
Corps of Engineers, Custom House Philadelphia PA 19106
Second and Chestnut Streets (215)-507-7018
'Philadelphia, PA 19106
(215)-597-4723
National Marine Fisheries Service

U.S. Environmental Protection Agency/Region 3 Habitat Protection Branch
Oxford, MD 21654
EIS and Wetlands Review Section (301)-226-5771
3PM82
Sixth and Walnut Streets
Philadelphia, PA 19106 U.S. Coast Guard
(215)-597-7584
Bridge Section Chief
Portsmouth, VA
(804)-398-6227

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TABLE 4
MARYLAND STATE AND LOCAL GOVERNMENT AGENCY CONTACTS!

Department of Natural Resources Maryland Board of* Public Works,
Tawes State Office Building
Annapolis, MD 21401 Mr. Lawrence B. Goldstein
Annapolis, MD
Tidewater Administration (301)-269-2664

0 Coastal Resources Division
Mr. Elder Ghigiarelli Department of Economic and Community
(301)-269-2784 -Development
o Maryland Historical Trust
0Tidal Fisheries Division
Mr. Nick Carter Mr. Wayne E. Clark
Shaw House
(301)-269-3061 21 State Circle
Annapolis, MD 21401
0 Waterways Improvement Division
(301)-269-2212
Mr. Vince Boguckl
(301)-269-3664
Regional Planning Council
o Water Resources Administration
Ms. Mary Dolan
0Wetland Permits Division 2225 North Charles Street
Mr. Harold M. Cassell
(301)-269-3871 Baltimore, MD 21218
(301)-383-3129

0 Watershed Permits Division
Mr. Charles K. Cover Department of Health and Mental Hygiene
(301)-269-2265
Office of Environmental Programs
Wildlife Administration Mr. Eduardo Acevedo
Wildlife Technical Service
201 West Preston Street
Mr. Carlo Brunorl
Baltimore, MD 21201
(301 t-269-31 95
(301)-383-4244
Maryland Geological Survey
Mr. Jeff Halka
Department of Transportation
(301)-235-0771
Maryland Port Administration
Mr. Frank Hamons, Jr.
City of Baltimore
Department of Planning and Research
World Trade Center
Mr. David Carroll
Baltimore, MD 21202
Baltimore City Department of Planning
(301)-659-4795
222 East Saratoga Street
baltimore, MD
(301)-396-4343

Counties and Local
Contact appropriate Department of Public Works, Soil Conservation Service, or Planning and 1
Zoning Office for more details.

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IDA
PART 2

DETA EN

THE DREDGE AND FILL
PERMIT REVIEW PROCESS
FOR MARYLAND
ILED AG CY
REQUIREMENTS

FEDERAL AGENCIES

U.S. ARMY CORPS OF ENGINEERS

The U.S. Army Corps of Engineers is the lead federal agency in the permitting process related
to dredge and fill operations in United States waters. As the lead agency, the Corps is responsible
for the issuance of a permit as well as the @otif ication and coordination of the review efforts of all
other participating federal, state, and local agencies and the general public.

A Corps permit is mandated by law for 3 basic purposes: (1) to protect the quality of the
nation's water, (2) to prevent alteration or obstruction of a navigable water of the United States,
and (3) to control dumping of dredged material into ocean waters.
A Corps permit is required to locate a structure; to fill, excavate, or discharge dredged or fill
material in waters of the United States; or to transport dredged material for the purpose of
dumping it into ocean waters. Table 5 provides a list of typical activities which require a Corps
permit. However, every activity may not require a separate individual permit application. Certain
activities and work have been authorized by nationwide permits and general permits.

Nationwide permits have been issued for discharges of dredged or fill material into certain
smaller or minor waters of the United States. Nationwide permits have also been issued for
certain types of activities in all waters of the United States. These permits and their conditions are
published in Section 330.4 and 330.5 of Title 33 of the Code of Federal Regulations. If any activity
is covered by a nationwide permit and the applicable conditions will be met, there is no need to
apply for an individual permit. In effect, activities authorized by the nationwide permits in the
regulation are permitted in advance. No paperwork or delay is required.

General permits are issued by the District Engineer. They are similar to the nationwide
permits, but are limited to smaller specified regions and may require some notification or
reporting procedures. The District Engineer is authorized to determine those categories of
activities in specified geographical regions that will cause only a minimal adverse environmental
impact and to permit them with general permits. These will reduce delays by eliminating the
need to process many individual applications.

Before an application is submitted, the responsible District Engineer office should be
contacted to obtain current information about nationwide and general permits.

Enabling Legislation

The Corps' permitting authority is derived from (1) Sections 9 and 10 of the River and Harbor
Act of 1899, and (2) Section 404 of the Clean Water Act. These two sources of authority are
described below.

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TABLE 5

LISTING OF TYPICAL
ACTIVITIES WHICH REQUIRE A CORPS PERMIT

Artificial canals Dolphins
Artificial islands Dredging
Beach nourishment Filling
Boat ramps Groins and jetties
Breakwaters Intake pipes
Bulkheads Levees
Dams, dikes, weirs Mooring Buoys
Discharging: Ocean dumping
Sand Outfall pipes
Gravel Piers and wharves
Dirt Riprap
Clay Road fills
Stone Signs
Tunnels

a. Sections 9 and 10 of the River and Harbor Act of 1899
Section 9 of the River and Harbor Act of 1899 requires a permit from the Corps of
Engineers to construct any dam or dike in a "navigable water of the United States". Bridges and
causeways constructed in "navigable waters of the United States" also require permits under
Section 9, but the authority to issue those permits was transferred to the United States Coast
Guard in 1966 when the United States Department of Transportation was created.
Section 10 regulates virtually all work in, over, and under navigable waters of the United
States.
Sections 9 and 10 of the River and Harbor Act of 1899 extend only over "navigable
waters of the United States". Even structures or work outside the limits defined for navigable
waters of the United States could require a Section 10 permit if the structure of work affects the
course, location, or condition of the water body in such a manner as to impact on the navigable
capacity of the water body. The law applies to all structures from the smallest recreational dock to
the largest commercial dock, and includes any dredging or excavation, bank protection, overhead
powerlines, and other work. (All tidal waters and Navigable Waters of the U.S.).

b. Section 404 of the Federal Water Pollution Control Act.
Section 404 of the Federal Water Pollution Control Act Amendments of 1972 (PL 92-500,
86 Stat. 816, 33 USC 1344) authorizes the Secretary of the Army, acting through the Chief of
Engineers, to regulate the discharge of dredged or fill material into waters of the United States at
specified disposal sites. The term "discharge or 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 to the construction of any structure in a water of the
United States; the building of any structure or impoundment requiring rock, sand, dirt, or other
material fills for recreational, industrial, commercial, residential, and other uses; causeways or
road fills; dams and dikes; artificial islands; 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; and artificial reefs. The term does not include
plowing, cultivating, seeding and harvesting for the production of food, fiber, and forest
products.

-22-

Regulations and Guidelines

In its role as the lead agency in the permitting process, the Corps has pub I ished both
regulations and guidelines describing the Corps responsibilities and policies. The Corps has
published a pamphlet titled, "U.S. Army Corps of Engineers, Permit Program, A Guide for
Applicants." Thisguide, whichwas published to assist persons applying for a Corps of Engineers
permit, contains a good description of the Corps permit program. The following materials have
been excerpted from this pamphlet and are provided in Appendix A.

(a) Information required in a permit application form.

(b) Application form for a Corps permit ENG. FORM 4345, 1 Oct. 77

(d) Application checklist

(e) Application Disapproval

(f) Map of Corps divisions and districts.

U.S. ENVIRONMENTAL PROTECTION AGENCY

The Environmental Protection Agency (EPA) participates in the review of permit applications
to conduct dredging operations as a review and commenting agency. In this capacity, EPA makes
recommendations to the Corps on whether a proposed permit should be approved or denied.
EPA's authority goes beyond that of the other review agencies because It has legal authority to
deny a proposed permit for environmental reasons. In the event of a disagreement between EPA
and the Corps on the issuance of a permit, EPA can challenge the Corps Decision.

EPA's principal concern is to control discharges of dredged or fill materials to assure that the
chemical, physical, and biological integrity of the waters of the United States is maintained
and/or restored.

Enabling Legislation
EPA derives its authority for involvement in the permitting of dredging operations from the
Federal Water Pollution Control Act as amended (33 U.S.C. 1251 et seq.), Section 401-405,
especially 404(b), and the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347),
Section 102. These acts spell out, specifically, the interrelationship between EPA and the Corps,
and give EPA its legal authority to deny a proposed permit for environmental reasons.

Regulations and Guidelines

EPA published final regulations on December 24, 1980, to implement Section 404(b)(1) of the
Federal Water Pollution Control Act. These regulations, which were published In the form of
guidelines, consist of two parts: Guidelines for Specification of Disposal Sites for Dredged or Fill
Material and Testing Requirements for the Specification of Disposal Sites for Dredged or Fill
Material. Both parts are contained in Appendix B.

Additionally, selected excerpts from EPA's Consolidated Permit Regulations, Part X
published on May 19, 1980 are provided in Appendix B.

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U.S. FISH AND WILDLIFE SERVICE
The U.S. Fish and Wildlife Service (FWS) participates in the review of permit applications to
conduct dredging operations as a commenting agency. The FWS assesses the impacts on fish and
wildlife of all water and related land resource development projects which are federally funded or
are constructed under a federal permit or license. The FWS provides reports to federal
construction or regulatory agencies and to permit applicants. Many of these projects occur In or
affect wetland areas. Federal permits for water-related development are reviewed by the FWS to
determine the existence of adverse impacts on fish and wildlife and their habitats, particulary in
wetland areas.

Enabling Legislation
The FWS has been delegated an advisory-consultant authority on dredge and fill permits as a
result of the following congressional acts:

(a) Fish and Wildlife Coordination Act (16 U.S.C. 661-667(e))

(b) Fish and Wildlife Act of 1956 (16 U.S.C. 742(d)-754)

(d) Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et $eq.)

(e) Estuary Protection Act (16 U.S.C. 1221-1226)

(f) Coastal Zone Management Act of 1972 (16 U.S.C. 1451-1464)

(g) Wild and Scenic Rivers Act (16 U.S.C. 1272-1287)

The major legal authority for FWS comes from the Fish and Wildlife Coordination Act of 1958
which established the agency and gave it environmental review authority. This Act along with
Section 102 of NEPA gives the FWS the authority to investigate each permit application that the
Corps receives, to provide environmental advice and comments, and to recommend denial of the
permit if necessary.

Regulations and Guidelines

The FWS published proposed regulations on May 18, 1979, implementing the Fish and
Wildlife Coordination Act. A summary of these regulations is provided In the following pages.
The full text contains the memorandum of understanding which has been developed between
FWS and the Department of the Army, EPA, and the National Park Service.

An abbreviated list of FWS criteria for reviewing proposed fill and dredge projects is also
provided. A more detailed description of the FWS mitigation policy was published on January 23,
1981, provided in Appendix C.

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U.S. FISH AND WILDLIFE SERVICE
FISH AND WILDLIFE COORDINATION ACT PROPOSED RULES (May 18y 1979)

I Existing dredge depths in navigational channels and access channels may be maintained
or previously dredged depths may be restored. Specific criteria for projects Involving
this use include:
(a) Designs and alignments should minimize disruption of natural sheetflow,
waterflow, and drainage patterns or systems.
(b) Designs should meet demonstrated navigational needs.
(c) Designs should prevent the creation of pockets or other hydraulic conditions which
would cause stagnant water problems.
(d) Designs should minimize shoreline or other erosion problems and interference
with natural sand and sediment transport processes.
(e) Designs, where recommended, should use temporary dams or plugs In the
seaward ends of canals or waterways until excavation has been completed.
(f Designs should minimize changes in tidal circulation patterns, salinity regimes, or
related nutrient and aquatic life distribution patterns.
(g) Alignments will be recommended by the FWS that avoid or minimize damages to
shellfish grounds, beds of aquatic vegetation, coral reefs, and other shallow water
and wetland areas of value to fish and wildlife resources.
(h) Alignments should make maximum use of existing natural channels.
(1) Construction should be conducted In a manner that minimizes turbidity and
dispersal of dredged material.
Construction should follow schedules. These schedules will aim at minimizing
interference with fish and wildlife migrations, spawning, and nesting or the
public's enjoyment and utilization of these resources.

2. New or expanded boating facilities may be permitted, Including designated wetland
areas. Specific criteria for projects involving docks and piers Include:
(a) The size and extension of a dock or pier should be limited to that required for the
Intended use.
(b) Project proposals should include transfer facilities for the proper handling of litter,
wastes, refuse, spoil drilling mud, and petroleum products.
(c) Piers and catwalks will be encouraged in preference to solid f ills to provide needed
access across biologically productive shallows and marshes to navigable water.

3. Bulkheads or seawalls. Specific criteria for projects involving this use include:
@a) Construction of bulkheads, seawalls, or the use or riprapping generally will be
acceptable in areas having unstable shorelines.
(b) Except in special circumstances such as eroding shorelines, structures should be
located no further waterward than the MHW line, and designated sothat reflected
wave energy does not destroy stable marine bottoms or constitute a safety hazard.
(c) In areas which have undergone extensive development, applications for bulkheads
will be acceptable that aesthetically and/or ecologically enhance the aquatic
environment.

4. Bridges. Specific criteria for projects involving this use Include:
(a) Designs and alignments should minimize disruption of sheetflow, water f low, and
drainage patterns or systems.
(b) Approaches to permanent structures in wetland areas should be located, to the
maximum extent possible, on pilings rather than solid fill causeways.

5. Projects Involving jetties, groins, and breakwaters will be acceptable if they do not
create adverse sand transportation patterns or unduly disturb the aquatic ecosystem.

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6. Levees and dikes. Specific criteria for projects Involving this use include:
(a) Designs and alignments should minimize disrupt Ion of natural sheetf low,
waterflow, and drainage patterns or systems.
(b) Shoulder and slope surface should be stabilized following construction with
natural vegetation plantings or by seeding of native species, where possible, or by
riprapping.
(c) Upon abandonment of a project site, levees and dikes will be evaluated for their
wildlife potential and will be recommended for their retention or removal.

7. Cables and Transmission lines. Installation of aerial or submerged cables and
transmission lines located and designed to provide maximum compatibility with the
environment will be acceptable. Particular emphasis will be placed on measures to
protect fish and wildlife resources, aesthetics, and unique natural features of the areas.
In operational areas, routes should make maximum use of existing rights-of-ways.

8. Pipelines. Specific criteria for projects involving pipelines include:
(a) Pipeline route that avoid or minimize damages to important spawning, nesting,
nursery, or rearing areas will be encouraged.
(b) In established operational areas, pipeline routes should make maximum use of
existing rights-of-way.
In all areas, pipelines should be confined to areas which will minimize
environmental impact; special care should be taken In unaltered areas.
(d) Where recommended, pipeline access canals should be Immediately plugged at
the seaward end and subsequently maintained to prevent freshwater or saltwater
intrusion.
(e) Where recommended, bulkheads, plugs, or dams should be installed and
maintained at all stream, bay, lake, or other waterway or water body crossings.
(f) Pipeline placement should be designed with a wide margin of safety against
breakage from mudslides, currents, earthquakes, or other causes.
(g) Pipeline placement by the push method in marshlands will be encouraged.

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U.S. FISH AND WILDLIFE SERVICE
CRITERIA FOR REVIEWING PROPOSED FILL AND DREDGE PROJECTS

The U.S. Fish and Wildlife Service considers that each notice of application should
demonstrate that the proposed works:

(1) are water dependent
(a) for non water-dependent works, particularly where biologically productive
wetlands are involved and alternative upland sites are available, the Service
usually recommends denial of a permit unless public interest requires further
consideration.
(b) For water-dependent works, the Service discourages the occupation and
destruction of biologically productive wetlands and shallows. The Service usually
recommends that the site occupied involve the least valuable of the alternative
sites; that avoidable loss or damage to such productive wetlands and shallows,
their fish and wildlife, and their human uses be prevented; and that any damages
or losses of such resources proved unavoidable be reasonably mitigated or
compensated.

(2) serves a recognized public need;

(3) minimizes environmental damages. The project must be:
(a) judged to be the least environmentally damaging alternative or combination of
alternatives (e.g., all appropriate means have been adopted to minimize
environmental losses and degradations) and,
(b) in the public's interest in safeguarding the environment from loss and
degradation.
In determining whether criteria (a) or (b) have been met, the FWS will always consider:
1. the long term effects of the proposed work, structure, or activity.
2. its cumulative effects, when viewed in the context of other already existing or
foreseeable works, structures, or activities of different kinds.
The Service will recommend denial of Federal permits for proposed projects as follows:
(1) Projects which needlessly degrade or destroy wetlands.
(2) Projects not designed to prevent or minimize significant fish, wildlife and
environmental damages.
(3) Projects which do not utilize practicable, suitable, and available upland sites as
alternatives to wetland areas.
(4) Projects located on uplands which do not assure the protection of adjacent
wetland areas.
(5) Projects not designed to use current technology.
(6) Projects where applicant uses a "piecemeal" approach to obtaining permits.

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NATIONAL PARK SERVICE

The National Park Service (NPS) is involved in the permit review process for dredge and fill
operations only on those projects involving park land under NPS jurisdiction. The two principal
units of NPS encountered in Maryland Coastal waters are Fort McHenry and Assateague National
Park. NPS may be involved either in the role of a review and commenting agency as is the case
with the 1-95 tunnels at Fort McHenry or as a permit application as Is the case with shoreline
stabilization work in the Assateague National Park.

Enabling Legislation
The National Park Service derives its authority for involvement In the permit review process
from two sources:

(a) The Congressional action which establish ed the National Park Service on August 25,
1916 (16 U.S.C.11)

(b) The National Environmental Policy Act of 1969.

Regulations and Guidelines

The guidelines employed by -the National Park Service in evaluating the environmental
impacts of potential dredge and fill projects are the Environmental Quality Procedures for
complying with the National Environmental Policy Act of 1969, Part 516 DM 1-7 of the
Department Manual of the Department of the Interior, which are provided in Appendix D.

.NATIONAL MARINE FISHERIES SERVICE

The basic goal or purpose of the National Marine Fisheries Service (NMFS) Is to maintain a
viable commercial and recreational marine fishery for the benefit of all present and future U.S.
citizens. To achieve this goal, the NMFS has established a variety of programs to deal with the
different needs of managing these- fisheries. One basic need Is to Improve management of the
habitat on which marine fish depend for spawning, nursery, and feeding. To achieve this the
branch of the NMFS which is responsible for maintaining environmental Integrity uses existing
legislation to ensure that all decisions regarding actions taken In the coastal zone -give full
consideration to potential effects on fish habitat.
The NMFS operates under more than fifty specific authorities, a few,of which impose upon
NMFS authority for management of coastal zone resources and for the overview and critique of
proposed activities that would affect aquatic resources and their habitats. Of these authorities,
the following eight deal most directly with NMFS's responsibilities related to dredging projects.

a. Fish and Wildlife Act of 1956, 18 USC 742a-742k. 661-688c. This Is the basic legislation
stating that fish and wildlife conservation shall receive equal consideration and be coordinated
with other features of water resources development through consultation with the Fish and
Wildlife Service, the NMFS (Reorganization Plan No. 4 of 1970), and State fish and game
directors.

-28-

b. Commercial Fisheries Research and Development Act of 1964, 16 USC 779-779f.
Authorizes the Secretary of the Interior (now Commerce) to cooperate with the States through
their respective State agencies which regulate commercial fisheries In carrying out projects
designed for research on and development of the commercial fisheries resources of the nation.
These studies, conducted through Federal grants, often provide important data for analyzing the
living marine resource aspects of environmental planning and coastal development projects.

c. Endangered Species Act of 1973, 16 USC 1531-1542. Provides for the conservation of
endangered and threatened species of fish, wildlife, and plants. The program is to be
administered jointly by the secretaries of the Interior and Commerce. Among other things, the
Act prohibits, except in certain instances, the import, export, taking, and interstate
transportation for commercial purposes of any endangered species.
The Secretaries shall cooperate with the States to the maximum extent before acquiring any
land or water, or interest therein, for the purpose of conserving any endangered or threatened
species.

d. Anadromous Fish Conservation Act of 1965, 16 USC 767a-757f. Authorizes the Secretary
of the Interior (and Commerce pursuant to Reorganization Plan No. 4) to enter Into cooperative
agreements with the States, jointly or severally, to conserve, develop, and enhance the
anadromous fishery resources of the nation that are subject to depletion from water
developments. Similar agreements are authorized to conserve, develop, and enhance Great Lake
Fish that ascend streams to spawn.

e. Marine Migratory Sport Fish Act of 1959, 16 USC 760e-760g. Directs the Secretary of
Commerce to undertake a comprehensive continuing study of migratory marine f Ish of Interest to
recreational fishermen, including species which migrate through inshore waters. Included in such
studies shall be research on migration, identity of stocks, growth rates, mortality, survival,
environmental influences including pollution, to develop wise conservation policies and
constructive management.

f. Fishery Conservation and Management Act of 1976. Directs the Secretary of Commerce to
manage the Fishery resources of the fishery conservation and excludes the territorial sea.

g. Marine Protection, Research and Sanctuaries Act of 1972. Title I of this Act authorizes
the Secretary of the Army, the Administrator of EPA, and the Secretary of the Department in
which the Coast Guard is operating, to regulate the dumping of material (including dredge spoil)
into the Great Lakes or coastal and ocean waters of the United States.
Title 11 authorizes the Secretary of Commerce to monitor and study the effects of dumping
material into the Great Lakes or coastal or ocean waters of the United States.

h. National Environmental Policy Act of 1969. Requires all Federal agencies to prepare an
environmental impact statement for all projects which could significantly affect the environment.

The National Marine Fisheries Service has not published regulations related tQ Its-
invol@ement in the review of dredging and spoil disposal operation's. The NMFS Northeast
Regional Office (NMFSINE) however, has provided informal guidance in the form of a list of
general responses to water-rIated projects requiring Federal permits. The NMFS/NE perceives
each project as having a unique set of characteristics which preclude development of exact
criteria for all situations. The general guidance was developed based upon biological principles
and past NMFS/NE project experience. Each project is reviewed as an independent action and
final recommendations are based upon specific site and project situations.
The NMFS1NE also has developed an informal description of project review considerations
which can be used as a guide in designing and evaluating your own project.

-29-

INFORMAL GUIDANCE

National Marine Fisheries Service, Northeast Region,
General Response to Water-Related Projects
Requiring Federal Permits

Each project has unique characteristics, thus criteria cannot be developed for all situations.
The following guidelines are generalities based upon past experiences. Our final
recommendations are based upon specific site and project situations.

1. The National Marine Fisheries Service, Northeast Region (NMFS/NE) encourages the
following:
(a) Stabilization of eroding shorelines with vegetation, gablons, or riprap.
(b) Spoil deposition in confined upland areas.
2. NMFS/NE usually does not object to issuance of permits for the following:
(a) Private mooring buoys.
(b) Private piers that do not encroach upon public shellfish grounds.
(c) Open-pile-type marinas located in areas where tidal circulation is adequate to
maintain good water quality, and where extensive dredging is not required.
Marinas should also avoid locating near shellfish beds, and provide sewage
pump-out facilities.

3. NMFS/NE usually discourages the following:
(a) Open-water spoil disposal
(b) Dredging in marine and estuarine areas. However, if dredging Is deemed
necessary, dredged areas should be connected to adjacent bottom contours of
equal or greater depth to promote circulation and prevent sump formation.

4. NMFS1NE usually recommends permit denial for the following:
(a) Filling of wetlands or open water to create fastiand
(b) Bulkheads located channelward of the mean high water line, unless special
circumstances require such placement
(c) Marinas located In or near productive shellfish beds or in areas where tidal
circulation of water is minimal
(d) Dredging of marsh, shellfish, and sea grass beds
(e) Dead-end canals
(f) Dredging for fill or borrow material
(g) Structures, such as tide gates or dikes, which impede circulation of tidal water over
wetlands. REVIEW CONSIDERATIONS

NMFS/NE suggest you consider the following items when initially planning your project.
(1) Alternatives: have you considered alternative project locations or designs that will meet
your objectives with a minimum of disruption to marine or estuarine waters. For
example, in many cases Instead of encroaching upon wetlands or shallow open waters, a
bulkhead can be placed at the base of the eroding bank, thus minimizing the loss of
marine habitat and living resources.
(2) Water-dependency: Can your project be located elsewhere or must It be located on the
water's edge?

-30-

(3) Public interest: A project may affect various public resources, including fisheries or
associated habitat, either positively or negatively. Will your project provide long-term
benefits to the community, such as Increased employment, Improved public water
access or protection of public health and safety?

Generally, if the above items are met, you should have little difficulty in obtaining
authorization to construct your project. However, If public fishery resources will be lost
as a result of project construction, we may want to discuss additional alternatives or
recommend to the Corps of Engineers that compensation be considered to offset the
loss resources or habitat.

Compensation will be tailored to the particular site and project, and may consist of:
replacement in-kind (i.e., conversion of uplands to marsh or shallow water); restoration
of existing habitat that has been degraded; or enhancement of habitat to improve Its
biological productivity or carrying capacity.

U.S. COAST GUARD

The U.S. Coast Guard has the authority and responsibility to issue permits to construct a
bridge or causeway in "navigable watets of the United States." Such a permit is required by
Section 9 of the River and Harbor Act of 1899. This function was formerly the responsibility of the
Corps but was transferred to the Coast Guard in 1966 when the Department of Transportation was
created.
The principal concern of the Coast Guard relates to navigational safety. In addition, however,
pursuant to the mandates of NEPA, the Coast Guard also conducts an environmental assessment
of the project.
As part of its overal jurisdiction for navigational safety the Coast Guard is consulted by the
Corps on those projects where navigational safety is a consideration.

Legislative Mandate

The U.S. Coast Guard derives its authority in dredging projects in matters related to
navigation safety and issuance of Section 9 permits for construction of bridges and causeways in
navigable waters from both the delegation of responsibility by the Secretary of the Department of
Transportation (DOT reorganization, 1967) and Section 9 of the River and Harbor Act of 1899.

Regulations and Guidelines

The Coast Guard has published regulations related to its jurisdiction in navigation safety and
construction of bridges and causeways in 33 CFR 115. These regulations, along with an
instruction form which provides guidelines to the Coast Guard requirements for approval of a
permit application, and a sample blank permit form are provided in Appendix E.

-31 -

MARYLAND STATE AGENCIES

DEPARTM.ENT OF NATURAL RESOURCES@

WATER RESOURCES ADMINISTRATION
WETLAND PERMITS DIVISION

The Wetland Permits Division of the Water Resources Administration is responsible for
wetland resource management, monitoring of overboard dredge material deposition, and the
management/ information system supporting these efforts. Priorities include review and
processing of wetland permits and approvals for dredging and filling privately-owned wetlands;
preparing reports and recommendations to the Board of Public Works on the Issuance of wetland
licenses for dredging and filling in state wetlands; performing the administrative tasks associated
with the above (i.e., wetland hearings, etc.); administering the State's effort regarding
environmental monitoring of dredge spoil deposition projects with particular emphasis on
research contracts and identification of funding associated with the monitoring.

Division responsibilities consist of site inspections, project evaluations, public hearings and
report/comment preparation as well as advisory services all for the purpose of meeting legal
mandates and minimizing adverse environmental impacts on tidal wetland and open water
resources.

The Wetlands Law obligates that a person secure a permit/ license in order to dredge or fill
within private or state wetlands. A change in the Wetlands Law has provided for maintenance
dredging projects in state wetlands. This procedure permits the Department of Natural Resources
to recommend inclusion in the wetlands license of a provision for periodic maintenance dredging
for a 6-year period. Specifications are applied to these projects Including limits upon area, depth,
and quantity of dredge material.

Enabling Legislation

The Wetland Permits Division derives its authority for involvement in the permitting of
dredging operations f rom Titles 8 and 9 of the Natural Resources Article of the Annotated Code of
Maryland.

Section 1413.1 of Title 8 directs the Department in cooperation with other appropriate
agencies to evaluate and monitor dredge spoil deposition in State waters for the purpose of
identifying potential environmental damage.

-32-

Title 9, Wetlan ds and Riparian Rights, contains two sections which address the licensing and
permitting of dredging operations. Section 202, License for Dredging or Filling of State
Wetlands, specifies that a person may not dredge or fill on state wetlands without a license.
Section 306, Permit to Conduct Activity not Permitted by Rules and Regulations, specifies that a
person proposing to conduct dredge and fill operations on any private wetland must obtain a
permit from the Secretary of the Department of Natural Resources.

Regulations and Guidelines

The Wetland Permits Division has prepared a brief instruction guide of the State
requirements related to wetland licenses, permits and notifications. This guide Includes (1) a
description of the legal requirements, (2) a sample application or notification form including a
sample plan, and (3) a supplemental form for storm drain projects.
The Division has prepared a set of guidelines for implementation of the Maryland Wetlands
Law. These guidelines include (1) a description of general requirements of the Wetlands Act, (2)
guidelines for evaluating applications, and (3) wetlands licensing procedures. The above
reference materials are included in Appendix F.

WATERSHED PERMITS DIVISION

The Watershed Permits Division reviews all plans and specifications submitted with proposed
dredge and fill projects, in particular those with dredge spoil disposal areas. The review focuses
on sediment and erosion control plans as required for proposed land clearing, soil moving, or
construction activities associated with the dredge and fill operation. The project review entails
verifying the design adequacy of the sediment control measures as well as the basic containment
area structures; ascertaining that all necessary measures have been identified and specified; and
that adequate standard details and specifications are incorporated into the construction
documents. Recommendations may be made to correct any perceived deficiencies in the plans
including the containment area size or configuration, dike size, construction methods, and outfall
erosion protection. In addition, standard specifications for sediment and erosion control as well as
innovative ideas proposed are checked for field efficiency.

Enabling Legislation

The Division derives its authority for involvement in the permit review process from
Annotated Code of Maryland, Natural Resources Article, Section 8-1106. Referrals from the
Water Resources Administration Wetland Permits Division are reviewed as a requirement of
Wetlands Licenses issued for dredge spoil disposal areas.

Regulations and Guidelines

The Division has not published any regulations or guidelines.
The chronological sequence of review activities for county, private, and State and Federal
(Corps of Engineers) dredging projects is described in the following attachments.

-33-

SEQUENCE OF REVIEW - STATE AND FEDERAL
(CORPS OF ENGINEERS) DREDGING PROJECTS

Preliminary comments and recommendations may be solicited from the Division via the
Wetland Permits Division. Standard general comments are forwarded to Wetlands including site
specific comments when pertinent. Preliminary site inspections may be made to review proposed
dredge spoil and disposal area.
In some instances preliminary plans and specifications may be submitted for additional review
and comment.
Upon issuance of the Department of Health Water Quality Certification, and prior to initiation
of any dike construction, the Contractor Is required to submit a proposed Sediment and Erosion
Control plan and engineering drawings of the spoil containment areas as proposed. This plan Is
reviewed for adequacy of proposed methods for controlling sediment runoff from the disturbed
area including sediment traps, straw bale or slit fence barriers, vegetative stabilization, etc. as
may be specified.* In addition, containment dike details are reviewed for sufficiency, Including
area capacity, configuration, dike side slope and top width, earth compaction specifications and
methods, pipe and riser details, outfall protection and discharge location. Changes to plans are
made as required.
Upon receipt and review of an acceptable plan, an approval letter is sent to the Contractor.
The complete file is transferred to the Water Resources Administration Enforcement Division for
use in field inspection of the spoil disposal area.

SEQUENCE OF REVIEW - COUNTY AND
PRIVATE DREDGING PROJECTS

Preliminary comments and recommendations may be solicited from the division by the
applicant or through the Wetland Permits Division. General comments may be made based on
standard requirements.
As a condition of the Wetlands License, plans for upland diked disposal areas are submitted to
the WRA Enforcement Division by the owner or Contractor. Plans are referred to the Watershed
Permits Division for review of dike configuration, adequacy, construction methods, slopes and
top width, pipe and riser details, outfall protection and discharge location. Changes are made as
required. The local County Soil Conservation District reviews the Sediment and Erosion Control
plans.
Upon receipt and review of an acceptable plan, a memorandum of approval is sent to the
Enforcement Division for inclusion In the Wetlands project file for use in field inspection.

-34-

TIDEWATER ADMINISTRATION

COASTAL RESOURCES DIVISION

The Coastal Resources Division (CRD) has the responsibility to review and comment on all
proposed projects that have the potential to significantly impact coastal resources. This primarily
consists of Corps of Engineers and DNR (Water Resources Administration) permit applications,
and federally funded projects through the State Clearinghouse process. The Division's major
responsibilities in this regard are to (1) provide data and Information relevant to the project; and
(2) determine the project's consistency with the objectives and policies of the Coastal Zone
Management Program. For any project in which there is a federal action Involved, the Division
must issue a Federal Consistency determination to the appropriate federal agency. This
requirement is mandated by the Federal Consistency clause of the Coastal Zone Management Act
of 1972 which states that any federal action in the coastal zone must be consistent to the extent
practicable, with a State's approved Coastal Zone Management Program.

The results of the Division's review are submitted to the appropriate permitting program
responsible for making the decision on the project. This is generally the permitting program
within the Water Resources Administration, the regulatory agency with DNR. If a Corps permit Is
required but there- is no State permit or license involved, the Division takes the lead for DNR In
commenting on the project to the Corps.

State Clearinghouse projects are received by the Department and assigned to a lead agency by
the Clearinghouse Review Officer in the Office of the Secretary. The lead agency is responsible
for coordinating comments and recommendations of all appropriate units of the Department and
for preparing the Department's response. CRD is generally the lead agency when the project is
located in the coastal zone. When the Division is not the lead agency, its review of the project is
submitted to the lead agency for inclusion in the Department's position. CRD's comments on
Clearinghouse projects always include a Federal Consistency Determination.

Regardless of the type of project, any negative Federal Consistency determination must be
approved by the secretary of the Department. In this manner, any conflicting positions among
units of the Department are resolved by the Secretary prior to the determination leaving the
Department.

Enabling Legislation
The Coastal Resources Division draws its authority for involvement in the permitting of
dredging operations from:

(a) Section 306(e)(1)(c): Administrative review of all development plans, projects, or land
and water use regulations, Federal Coastal Management Act of 1972.

(b) Section 307(c), (d): Consistency of fecleral activities with approved State Coastal Zone
Management Programs, Federal Coastal Zone Management Act of 1972.

(c) Executive Order 01.01.1978.05 Coastal Zone Management State of Maryland, Executive
Department.
Regulations and Guidelines
CRD has published informal guidelines which describe (1) the process and guidelines for CRD
involvement in the review and evaluation of coastal related projects, and (2) the procedures used
in making Federal consistency determinations. These are presented in Appendix G.

-35-

TIDAL FISHERIES DIVISION

The Tidal Fisheries Division participates in the review of permit applications to conduct
dredging operations as a State technical review and commenting agency. The functions of this
agency in the review process are varied. They include serving on intergovernmental committees
and workshops, consideration of resource management plans, review of permit applications and
environmental impact assessment documents, preparation of position papers, providing technical
information to other agencies, and advising legislators.

The agency responses to dredging issues are primarily concerned with the maintenance of
aquatic biota populations. Because of the magnitude and variability of environmental modifiers,
evaluation of the "changes" resulting from modification proposals is critical to fulfilling the
agency mission. Review of proposed physical changes are examined for their ecological impacts
according to theory, past experience, and pertinent literature. Evaluation of the possible effects
of the proposed projects are made and forwarded to the appropriate lead agency.

Enabling Legislation
The Tidal Fisheries Division draws its authority for Involvement in the permitting of dredging
operations from both Federal and State legislation as outlined below.
a. Federal Legislation.

(1) Section 404: Permits for disposal of dredged or fill material.
Federal Water Pollution Control Act, as amended (33 U.S.C., 1251 et seq.)

(2) Section 9: Construction of dams and Section 10: Obstructions in navigable
waterways. River and Harbors Act of 1899.

(3) Section 102(2)C: Environmental Impact Statements.
National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347)

(4). Section 306(e)(1)(c): Administrative review of all development plans.
Coastal Zone Management Act of 1972.

(5) Section 2(a): Consultation with State wildlife resource agencies in the event of
modification to water bodies.
Fish and Wildlife Coordination Act.

b. State Legislation - Annotated Code of Maryland

(1) Subtitle 2: State Wetlands, Section 202; and Subtitle 3. Private Wetlands
Title 9. Wetlands and Riparian Rights

(2) Gas and Oil. Subtitle 5. Coastal Facilities Act, Section 506.

Regulations and Guidelines
This agency has not promulgated specific regulations or guidelines. However, it recommends
that at a minimum the following information be submitted for project evaluation:

(a) Exact location to include identifiable boundaries; maps
(b) Depth - existing and proposed -36-

(d) Method of Dredging

(e) Spoil disposal method - to include location

In addition the agency has informally adopted the general policies relative to specific types of
dredging projects.

GENERAL POLICIES OF TIDAL FISHERIES DIVISION
RELATED TO SPECIFIC TYPES OF PROJECTS

1. Dredging in shallow water, low salinity areas - These projects impact spawning grounds
and nursery areas for finfish, such as to present hazards to their well being. This
response Is applied to dredging projects removing more than 500 cubic yards of material.
The usually recommended no-dredging period for protection of spawning fish
populations is March 1 through June 15,

2. Channel dredging in close proximity to natural oyster bars. If dredging Is proposed
within a charted oyster bar, it is recommended that dredging be restricted to the period
October 1 to December 15. If dredging is proposed within 500 yards of natural oyster
bars, the usually recommended dredging period is October I and December 15 and/or
March 1 to May 31 of any year. The rationale behind this recommendation Is that
dredging operations should avoid the summer spawning and spat setting periods and the
colder periods of reduced adult activity.

3. Dredging for bulkhead and fill projects. These project proposals usually receive 'a
recommendation to limit bulkheading with accompanying dredged fill to the mean high
water line. If allowed to project past the high water line these projects would cenvert
shallow waste habitat into -fast land, thus degrading important habitat for aquatic
organisms.

4. Dredging for bulkhead and f ill projects on dead end canals. These proposals us;@&Iy dro
recommended to be denied on the grounds that the project would further deg,70,de
water quality and fishery habitat on an already ecologically stressed system. D"@Wa C';@"
canals have generally poor circulation and relatively vertical banks. A se@igc-sltw@@,.
alternative to bulkheading and dredging in these cases Is the placement of r1prP., on
banks and no fill allowed.

5. Dredging projects which would fill a marsh. These projects usually are recommonde6i
be denied. TFD's position is that the marsh protects the general water quality of
receiving waters adjacent to the project from the effects of storm water run-off arc;
field seepage. Waste assimilative capacity of marshland is significant as is themarsh'o
contribution of detritus to the aquatic food chain.
Modifications to the usual responses to the dredging projects cited ab,,-)v3- aro
occasionally made upon request of the permitting agency. Efforts are made to
extensions of project operations from adversely impacting habitat or aquatic organ@drn
population.

-37-

WATERWAY IMPROVEMENT DIVISION

The Waterway Improvement Division is neither a permitting agency nor a link In the permit
process. Rather, it evaluates and funds projects that qualify under the Natural Resources Articles
for Waterway improvement. The scenario for these services is as follows:

(a) A local governing body submits a project development proposal to the Dredging
Division.
(b) The Dredging Division arranges an on-site investigation with the governing body and an
evaluation is made as to the benefits that would accrue to the general recreational
boating public and the anticipated cost.
(c) A course of action is projected:
(1) If the benefits are sufficiently great, as compared to the project cost, the project
will be accepted for 100 percent state funding.
(2) If the benefits are not sufficiently great, as in a local private community, the
governing body can be offered an interest-free loan to construct the project. The
local community will petition the local governing body to establish a special
Waterway Improvement Tax District for repayment of the loan.
(3) The Dredging Division will conduct the necessary hydrographic and topographic
surveys, design the channel, and compute the material quantity to be removed
and the size of the spoil disposal pond required.
(4) The governing body must then locate and provide to the Dredging Division, a
properly executed entry and construction and dredged material acceptance
easement for the spoil disposal site.
(5) The Dredging Division will prepare the permit drawings and application for
execution by the local governing body, who must obtain all permits and licenses.
(6) The governing body forwards copies of all licenses and permits to the Dredging
Division.
(7) A budget request is prepared for inclusion in the next fiscal dredging budget for
legislative approval.
(d) The governing body prepares the spoil area design including the sediment control
practices approved by the local Soil Conservation District and bid specifications.
Consultant services can be requested for those governing bodies which do not
have these in-house capabilities.
(e) The governing body bids the project and recommends the low bidder to the Dredging
Division for acceptance.
(f) The contract is awarded for construction as permitted by the environmental windows
provided in the permit and license.
(g) The Dredging Division conducts the post dredge hydrographic survey and determines If
in fact the channel has been constructed to the contracted dimensions for final
acceptance of the project.
(h) The governing body is reimbursed for the project by the Dredging Division upon receipt
of an invoice accompanied by copies of their checks with their endorsements.

An estimate of projected dredging projects in Maryland's coastal counties is provided in the
following table.

_38-

WATERWAY IMPROVEMENTS DIVISION

6-10-20 YEAR PROGRAM

COU14TY VOLUME FUNDS CONSTRUCTION PROJI150TION

ANNE ARUNDEL COUNTY
Lake Hillarnere Im 3 $1120,00D.DD 1011181-12115181
Lake @,gleton 8,0911 100,000-00 1011181-121"16181
Lake sold slow 176,OW.00 311/82- 0130182
Marley Creek 64,00D 300,000-OD Hold for Spoil Site
Upper Magothy 2,30D 2DG-fW-0D Hold for Spoil site

CALVERT COUNTY
Calvert Marine Museum 9,W0 yde 3 30,000-00 6/15181- 9130181
2WODO.00 1011V811-121116181
SprIrg Cove 4.400 2 jetties 40,000-00 101 1181-12116/81
Hellen Crook 12,200
CHARLES COUNTY
Cuckhold Creek 9,700 yde3 43,000.00 1011181-12115181
Port Tobacco 12,,OW 7ZOOO.OD 9111181-111130181

DORCHESTER COUNTY
Cambridge Yacht Basin 3,400 36,OOD.00 101 11W1211$/W
IndlanCreek 14,100 7510W.0t; 101 1/80-12/15/81
Lodge Cliff 5,t32 9/30161-12/15181
MoCready Creek $0,000-00 91151130-11116fel
$At 35,00D.01)
Ragged Point Marine 6115182- 913Dt82
618DO 80000-00
Tyler Cove 22,100 135,00D.00 101 1181-12115181
Wallaoscreek 39,000 164,500.011 91161W11/30180

HARCORD COUNTY

Flying Point Park 3,200 $7,450.00 ill 1/80- 1/30/si
6115181- 81-30181
Foster Branch ?1000 25,000.01)
Light House Pier 1,2DO 15,000.00 9/15181-111116181

QUEEN ANNE'S COUNU
Kent Island Narrows Breakwater 7001000.W 11 5181- 1130181
Kent Island Commercial 2313*M 2W.W0.00 -50150 it W81- 3/30181
No-Name Crook 19@= 11101990.00

ST, h ARY'S Q
I _,OUN]Y
St. Goorge's Island Narrows 12,W0 120,000,00 10t 1181-12115181
St. Inegoe's Ramp Sm 25,000-00 10/ 1181-12tl5t8l
St. Jerome's 126,000.00 3115181- 6/30181
Tannor's Creek Jetties Held In litegatiOn above

SOMEERSET COUNTY
Ewell Marine 32,000 1W.000.00 1011181-12130181
TALBOT COUNTY
Edge Creek Tax District 61200 40,000-00 7115182-11116182
Peachblossom Cove T.D. 5,100 4000-00 101 1/82-12116182
St. Michaels Town Slips

WOR(,-Hl--$TER COUNTY

Georges Island Landing 27,000 150,000.00 913DI81-12116181
TurvII Is Creek 44,400 225,000.00 8116181-12/16/Eh

5-10-20 Years

Maintenance dredging as projects warrant
Qualified new projects as requested

-39-

Enabling Legislation
The Natural Resources Article, Section 8-707 establishes the Waterway Improvement Division
for the purposes of marking channels and harbors and to establish aids to navigation; to clear
debris, vegetation and obstructions from state waterways; dredge channels and harbors and
construct jetties and breakwaters; to construct marine facilities beneficial to the boating public; to
improve, reconstruct, or remove bridges, drawbridges, or similar structures over or across
waters; to evaluate water oriented recreation needs and capacities of Maryland waterways and
develop comprehensive plans for Waterway Improvements; and to provide matching grants to
local governments for the acquisition of vessels and equipment.

A
Do"EPARTMENT OF HEALTH AND"' MENTAL
H'YGIENE

OFFICE OF ENVIRONMENTAL PROGRAMS

TheOff iceof Environmental Programs of the Department of Health and Mental Hygiene must
by law evaluate all proposed dredging projects that may involve changes or alterations in all State
waters (tidal and non-tidal) for the purpose of issuing or denying a Water Quality Certification.

Under Section 401 of the Federal Water Pollution Control Act (PL 92-500; 86 Stat. 816, 33 USC
1411), any applicant for a federal permit to conduct an activity which may result in a discharge
into navigable waters is required to obtain a certification from the State that the discharge will
comply with the applicable water quality standards. The certification also pertains to the
subsequent operation of the facility.

In cases where the Corps of Engineers or U.S. Coast Guard has stated that a water quality
certificate is required, the Office of Environmental Programs issues or denies the water quality
certificate, or places certain conditions on the activity. Even in public notices that do no state that
a water quality certificate is required, but it is felt that the construction or use of the facility will
create a discharge to the waters of the State, the Off ice reviews the proposed activity and issues
or denies the water quality certificate, providing appropriate recommendations to the Corps of
Engineers to implement water quality protection measures. The Office may solicit comments
from interested parties and may schedule a public hearing on the project.

Failure to comply with the conditions of the Water Quality Certificate constitutes reason for
cancellation of certification and legal proceedings may be instituted against the applicant in
accordance with the Annotated Code of Maryland (1974 Volume). In granting the Water Quality
Certificate, the Office reserves the right to inspect at any time the operations and records
regarding the project.

-40-

Enabling Legislation

The authority of the Office of Environmental Programs for Issuing a water quality certificate is
derived from Section 401: Certification of Title IV - Permits and Licenses of Federal Water
Pollution Control Act of 1972, as amended.

Regulations and Guidelines
The Water Quality Certification is issued after close coordination with other agencies of the
State as well as local jurisdictions. Recommendations from Maryland DNR (Water Resources
Administration, Tidal Fisheries Division, Coastal Resources Division), County Health
Departments, Natural Resources Policies, other units of the State Health Department, and the
Soil Conservation Service are incorporated into the Water Quality Certification as necessary.

The Office has not developed any guidelines or criteria specifically for dredging projects. The
guidelines and criteria of the above-mentioned agencies have been employed. Guidelines for
overboard disposal of spoil material, developed by a Spoil Disposal Criteria Committee, have
been employed as a reference. Also, Department of Health and Mental Hygiene Code of
Maryland Regulations 10.50.01 Water Quality and Pollution Control, are employed. Other
sources of criteria are the sediment control requirements of the SCS, the Red Book published by
EPA, and the EPA Technical Bulletin titled, "Protection of Shellfish Waters," EPA
430/9-74-010, July 1974. Where no guidelines are available, professional judgment is employed.

DEPARTMENT OF TRANSPORTATION

MARYLAND PORT ADMINISTRATION

The Maryland Port Administration (MPA) has the overall responsibility to increase the
waterborne commerce of the ports in the state. Pursuant to its mission, MPA promotes the
State's commercial ports in general, and plans, constructs, markets, operates, and maintains
state-owned port facilities. In essence, MPA's role is essentially one of working closely with
private industry and providing services to port facility users such as shipping lines, stevedoring
firms, shippers, other port community businesses, and services to the general public.

With respect to dredging and spoil disposal activities the MPA has several areas of
responsibility, a number of which are shared with the Department of Natural Resources (DNR).
The major areas of responsibility include:

(a) Promotion of Port Oriented Waterway Improvements

(b) Estimates of Dredging and Spoil Disposal Needs

(d) Prioritization of Disposal Sites

(e) Site Acquisition and Plan Formulation

(f) Design and Construction

(g) Operations and Maintenance

(h) Monitoring
-41-

MARYLAND PORT ADMINISTRATION
Department of Engineering
World Trade Center Baltimore
Baltimore, Maryland 21202

INSTRUCTIONS FOR SECURING A
MARYLAND PORT ADMINISTRATION CONSTRUCTION PERMIT

The Applicant must submit to the Maryland Port Administration a letter of application and permit application
drawings as the first stop In the application procedure. The letter of application should Include a brief description
of the construction, the dates of commencement and completion of the work and the current estimated cost of such
work.

a- The Applicant shall furnish to the Maryland Port Administration three copies of a permit application drawing
showing location, character and extent of the work, ownership of the property Involved, and ownership of all
abutting properties. One set of the plans will be approved and returned to the Applicant if the permit Is granted.

b. All permit application drawings shall be shown where practicable on one sheet 8 inches wide and 101/2 Inches
long, including a one-inch margin at the top of the sheet. The preparation of such drawings shall be in the
conformance with current directives by the Baltimore District Office of the U.S. Army Corps of Engineers.

c. For large project construction, owner will submit, in addition to the permit application drawing, construction
drawings and specifications. The Engineering Department reserves the right to require such submission as It
deems necessary.

2. Upon receipt of the letter of application and drawings, the Maryland Port Administration shall forward two copies
of their serialized permit application form to be executed by Applicant. Both copies must be executed and
returned. The forms shall be signed In the name of the owner of the property ln-f ront of which the Improvements
are to be made. If a corporation Is owner, the application must be signed In the name of the corporation by the
President or ther duly appointed officer, witnessed by the Secretary or Assistant Secretary, and affixed with the
Corporate Seal.

a. The Applicant will pay to the Maryland Port Administration a construction Inspection charge for the work at the
rate of $1.00 per $1000.00 of the estimated cost of the work, with a minimum charge of $10.00 for each permit.
This payment shall be transmitted to the Maryland Port Administration with the executed application forms.

3. After receipt of the property executed forms, the Maryland Port Administration shall conduct a construction
inspection of the proposed site and determine if a permit is warranted, If a permit is approved, both copies of the
form will be executed by the Director of Engineering of the Maryland Port Administration, and the green copy
shall be returned to the Applicant as his authorization.

4. If the applicant's or agent's applying for permit does not own the property, the applicant's or agent's shall
secured a letter of authorization from the property owner and a copy of the letter shall accompany the letter of
application.
J

-42-

(i) Site Disposition

(j) Research

(k) Funding Management.

The MPA has both administrative and regulatory funtions. As part of its regulatory functions,
MPA requires that all dredging and spoil disposal projects within its jurisdiction obtain an MPA
construction permit.

Enabling Legislation

The MPA's authority for issuance of its construction permit and involvement in dredging and
spoil disposal activities comes from the Annotated Code of Maryland, Title 6 Ports, which
describes MPA's legislative mandates and general responsibilities.

Regulations and Guidelines

MPA has not published any regulations or guidelines related to its involvement in dredging
and spoil disposal activities. However, an instruction form for obtaining an MPA construction
permit has been prepared and is attached. In addition, the general and specific responsibilities of
MPA with respect to dredging and spoil disposal activities are described in the Memorandum of
Understanding (MOU) between MPA and DNR (available from either organization).

DEPARTMENT OF ECONOMIC AND
COMMUNITY DEVELOPMENT

MARYLAND HISTORICAL TRUST

The Maryland Historical Trust is responsible for the State administration of NEPA and the
National Historic Preservation Act in regard to the protection and enhancement of historic and
archaeological resources. The Trust administers the National Register, grants awards,
compliance, and educational programs necessary for fulfillment of the enabling legislation. The
Trust compliance staff reviews all federal projects or permits received from the A-95
Clearinghouse, Corps of Engineers, and other agencies and works with concerned agencies or
individuals in determining the effects of projects on our cultural heritage. The trust is also
involved in assisting State agencies to comply with the Board of Public Works Policy which
requires all State agencies with land holdings to assess the cultural resources on their property
and develop management for the protection of those resources. The Maryland Geological Survey.
is responsible for the issuance of permits for the excavation of archaeological sites on
State-owned property.

Enabling Legislation

The Maryland Historical Trust derives its authority for involvement in the permitting of
dredging operations from two principal sources: (1) Section 106 of the National Historic
Preservation Act of 1966, as amended (16 U.S.C. 470), and (2) Section 102(2)C of the National
Environmental Policy Act of 1969 (42 U.S.C. 4321-4347).

-43-

Regulations and Guidelines
The Maryland Historical Trust adheres to the regulations promulgated by the Advisory
Council on Historic Preservation. These regulations are included in Appendix H.

TheTrust has also published technical guidelines for archaeological investigations in
Maryland, available in the Maryland Historical Trust Technical Series No. 1, which are provided
in Appendix H.

MARYLAND BOARD OF PUBLIC WORKS

The Maryland Board of Public Works has the delegated authority to license all dredge and fill
operations on state wetlands. The Board is assisted by the Secretary of Natural Resources
through the Water Resources Administration's Wetlands Division, which submits a report to the
Board indicating whether the license should be granted and, if so, specifying any terms,
conditions, and considerations required after consultation with any interested federal, state, and
local unit, and after holding any hearing and taking any evidence the Secretary thinks advisable.

Enabling Legislation

The Board derives its authority to license dredge and fill operations on state wetlands from
Section 9-202: License for dredging and filling of Subtitle 2. State Wetlands of Title 9: Wetlands
and riparian rights of the Annotated Code of Maryland, Natural Resources (1974).

Regulations and Guidelines

The Board has not published any regulations and generally relies on the recommendations of
the Wetland Permits Division and their guidelines described in Appendix F.

REGIONAL PLANNING COUNCIL

The Regional Planning Council (RPC) was established to coordinate planning among
Baltimore City and f ive neighboring counties that form the Baltimore region. RPC has a
responsibility to review and comment on any project which will significantly impact coastal zone
management in the region, especially if the project conflicts with the General Development'Plan
for the Baltimore Region or the recommendations of the harbor and coastal zone plans mentioned
below. RPC maintains an active interest in planning for the harbor shoreline and coordinates a
round table task force which works to resolve differences between permit requests and agency
guidelines. This task force was established by the RPC and its advisory committee, the Coastal
Zone Metropolitan Advisory Board. RPC also maintains a clearinghouse of information on many
navigational projects of major importance in the Baltimore Region.

-44-

Enabling Legislation

The Regional Planning Council derives its authority for planning for the Baltimore Region and
thus involvement in the permit review process of dredge and fill operations from Article 78D of
the Maryland Annotated Code.

Regulations and Guidelines

RPC has not published specific regulations related to its involvement in the review of dredge
and fill projects. However, it has published a number of planning documents for the Baltimore
Region which serve as both policy and guidelines for projects within the region. Some of these
planning documents include:

(a) Baltimore Harbor Plan, March 1975

(b) Baltimore Metropolitan Coastal Area Study, An Agenda for Action, March 1978.

(d) Hawkins Point/Marley Neck: Development Opportunities in the Port of Baltimore,
August 1981.

-45-

MARYLAND LOCAL AGENCIES

BALTIMORE CITY

All dredging and spoil disposal projects that occur within the jurisdiction of Baltimore City
require the acquisition of the following approvals: (1) a building permit, (2) a grading permit, and
(3) review by the Baltimore City Department of Planning.
The Department of Planning coordinates the input of all city agencies with the state and
Federal agencies.

Enabling Legislation

The City of Baltimore derives its authority for issuing permits from Baltimore's revised city
charter of 1947.

Regulations and Guidelines

The City of Baltimore has not published regulations or guidelines related to the City's
involvement in dredging and spoil disposal projects. However, the requirements for permits and
approvals for building in Baltimore City are described in the development guidebook in
Appendix 1.

COUNTIES

The coastal counties are involved in the permitting process for dredging and spoil disposal
projects as both sponsoring and regulatory agencies. The coastal counties bear the responsibility
of obtaining and permitting suitable, spoil disposal facilities to handle the maintenance dredging
of county waterways.

As a regulatory agency, the counties may require the issuance of a building permit if any
temporary structures are to be constructed, or if fill is used for shoreline maintenance. Also, a
grading and/or sedimentation permit may be required if the following conditions apply: (1) the
slopeof the land isto bealtered morethan onefoot, (2)filling behind abulkhead exceeds50 cubic
yards of soil, and (3) dredge spoil is deposited on fast land. Zoning restrictions, setbacks, and
subdivision regulations may also require various approvals from the appropriate local agqncles.

-46-

APPENDICES

APPENDIX A

U.S. ARMY CORPS OF ENGINEERS
REGULATIONS

what information
a 0
is required
0
in a permit application?

Applicants are expected to furnish the Corps of Engineers:

o A detailed description of the proposed activity, including the pur-
pose, use, type of structures, types of vessels that will use the tacil-
ity, facilities for handling wastes and the type, composition and
quantity of dredged or fill material.

o Names and addresses of adjoining property owners and others, on
the opposite side of streams or lakes or whose property fronts on a
cove, who may have a direct interest because they could possibly
be affected by your project.

e Complete information about the location, including street number,
tax assessors description, political jurisdiction and name of water-
way in enough detail so that the site can be easily located during a
field visit.

e A list of the status of all approvals and certifications required by
other federal, state, and local governmental agencies. This informa-
tion is important because review time is often reduced by joint or
simultaneous processing.

o Reasons that explain denial of any approvals or certifications re-
quired by other government agencies. When other approvals or
authorizations are denied, application for a Corps permit may not
be approved.

If ENG Form 4345 is not signed by the applicant, attach a statement desig-
nating the duly authorized agent who is acting on your behalf.

For most projects little or no additional information is required. What you
provide on ENG Form 4345 and the drawings is usually all that is needed
to review your application.

Yet, when wetlands, historic or archeological sites, dredging, filling, or
ocean dumping are involved, you may be asked to furnish additional infor-
mation or drawings that will assist in evaluating your application.

A-6

APPLICATION FOR A DEPARTMENT OF THE ARMY PERMIT
For use of this form, see EP 1145-2-1

The Department of the Army permit program is authorized by Section 10 of the River and Harbor Act of 1899. Section 404 of
P. L. 92-500 and Section 103 of P. L. 92-532. These laws require permits authorizing structures and work in or affecting navigable
waters of the United States. the discharge of dredged or fill material into waters of the United States, and the transportation of
dredged material for the purpose of dumping it into ocean waters. Information provided in ENG Form 4345 will be used in evaluating
the application for a permit. Information in the application is made a matter of public record through issuance of a public notice.
Disclosure of the information requested is voluntary; however. the data requested are necessary in order to communicate with the
applicant and to evaluate the permit application. If necessary information is not provided. the permit application cannot be pro-
cessed nor can a permit be issued.

one set of original drawings or good reproducible copies which show the location and character of the proposed activity must
be attached to this application (see sample drawings and checklist) and be submitted to the District Engineer having jurisdiction
over the location of the proposed activity. An application that is not completed in full will be returned.

1. Application number (To be assigned by Corps) 2. Date 3. For Corps use only.

bay Mo. Yr.

4. Name and address of applicant. 5. Name. address and title of authorized agent.

Telephone no. during business hours Telephone no. during business hours

A/C A/C
A/C A/C
6. Describe in detail the proposed activity. its purpose and intendej use (private. public, commercial or other) including descrip-
tion of the type of structures, if any to be erected on fills. or pile or float-supported platforms, the type, composition and
quantity of materials to be discharged or dumped and means of conveyance, and the source of discharge or fill material. If
additional space is needed. use Block 14.

7. Names, addresses and telephone numbers of adjoining property owners, lessees, etc., whose property also adjoins the waterway.

8. Location where proposed activity exists or will occur.
Address: Tax Assessors Description: (if known)

Street. road or other descriptive location Map No. Subdiv. No. Lot No.

In or near city or town Sec. Twp. Rge.

County State Zip Code

9. Name of waterway at location of the activity.

ENG Form 4345, 1 OCT 77 Edition of 1 Apr 74 is obsolete.

A-7

10. Date activity is proposed to commence.

Date activity is expected to be completed

11. Is any portion of the activity for which authorization is sought now complete? 13 YES E3 NO
If answer is "Yes" give reasons in the remark section. Month and year the activity was completed
. . Indicate the existing work on the drawings.

12. List all approvals or certifications required by other federal, interstate. state or local agencies for any structures, constric-
tion. discharges, deposits or other activities described in this application.

Issuing Agency Type Approval Identification No. Date of Application Date of Approval

13. Has any agency denied approval for the activity described herein or for any activity directly related to the activity
described herein?
11 Yes 11 No Jlf "Yes" explain in remarks)

14. Remarks (Checklist, Appendix H for additional information required for certain activities).

15. Application is hereby made for a permit or permits to authorize the activities described herein. I certify that I am familiar
with the information contained in this application, and that to the.best of my knowledge and belief such information is true.
complete. and accurate. I further certify that I possess the authority to undertake the proposed activities.

Signature of Applicant or Authorized Agent

The application must be signed by the applicant: however. it may be signed by a duly authorized agent (named in Item 5)
it this form is accompanied by a statement by the applicant designating the agent and agreeing to furnish upon request,
supplemental information in support of the application.

18 U. S. C. Section 1001 provides that: Whoever, in any manner within the jurisdiction of any department or agency
Of The United States knowingly and willfully falsifies, conceals. or covers up by any trick. scheme, or device a material fact
or makes any false, fictitious or fraudulent statements or representations or makes or uses any false writing or document
knowing same to contain any false fictitious or fraudulent statement or entry, shall be fined not more than $10,000 or
imprisioned not more than five years. or both. Do not send a permit processing fee with this application. The appropriate
L fee will be assessed when a permit is issued.

A-8

Ilk

PBLISSVILLE. k
ROJECT
SITE DUNTON
S... EFAR LAT. 42 00".
A AD
I ar A NO, I
GLEN
NECK
IN 8
AA L.N. +cr E. sound
P,
KING load VICINITY MAP
26' SHEET 'LING EAOI S I ING
SEC;IE
104
I - d
T ONA 004 zBon 2soo sonNI
ICE
In' S,0V to' AIE-0 LES 41311: UNS a... S.A.,
ii@_NUIA '-0
PLACED 6
SCALE IN
-E.'$T..6
PROPERTY L RE - AN . .6. "LA."A0
E.ISTING MULKNEA
I " WIL Rq
An'I
.I
ge"y N
EDB 01 L 1 0 U
A N a k
s

UN
o
BY, LIKE
S ". \ TOP Of BANK
Q ME.. II.G. WATER
1A.S1I.G % BEAR LOW *AT(*
BULKHEAD

#Orr
A]%PROXIMATLEY 100 CUBIC YARD$ OF CLEAN
D AND GRAVEL TO BE TRUCKED IN FOR
PLAN FILL
25 0ts so ?5 PROP VNKHREADIB FILL
CON11SEPORIBA ES DENCE
SCALE IN FEET
PU POSE FI(CLAIM ERODED LAND &.0 CONSTRUCT PRIVATE RESIDENCE IN WALTON CREEK
DATUN NGVO, Of 4929
AOJACEbY PROPERTY OWNERS AT BLISSVILLE, CONN.
--Ll- AY CASTLEMAN COUNTY Of COON STATE Co..
ART ... D CL... APPLICATION BY FRED P, SN(LTON
JOE N HENRY slEET I of I DATE An?/"

The sample application drawings shown here and on'the
following page are examples of the type of drawings that
should be submitted with ENG Form 4345 for simple pro-
jects. For compiicated structures and activities, more
detailed drawings are re quired.
'A JA

.A-9

FIVE. @lf-
A
TENDER PILES STATE GOLDEN MEADOW
t DIN W. 413.0
-6 1 L.? /.--, .0.1.
OIL* 00 A, IF
CON .1'11@
C PROJECT
aULKWE'D SIP
L
OCATION
.11EA !'ICS FLOW PROJECT
V CIANNEL- PAOPOSEC
OvIl"Ell
25'PENETRATION C R FIC CROSSING VICINITY MAP
on ..ED OS m-
REFUSAL BOST 10 TIOM HEAD -
ECTION "I VICINITY MA
TYPICAL S OF 0. L 0 1/4 @/2 3/4 1
.5 0 5 10 Is -@'Alt
10, 0 RAN. MEAN N.G. RATE. 6.1* SCALE 1. WHIES ------ IN ss..d.,d 0.1
.[A. LOWER LOS WATER 0 0' 1. E.1- C.1, RAN (D
Q 20' PLAN
.00 ?s SO Is a DO
SCALE I. I'll

4 2. TELEPHONE
PROPOS 0 R CAD I SS G LINE -1,

WE
I'D GUY WIRE
CBS

EL 4 0 EL. 421.0

0 I's 0
IWI ANCHOR LOG
22' 22 'O'LONr VDIA.

I.F
SECTION
"s
IT AN H 0 RI 10 IF TA L
PLAN APTAOXIMATE I'DEO CY OF BAN
MATERIAL To DRIBIE . CLI:USL.ELL
tft IV f4
'-o.. '3 0
OJ E ' T
C @A
"C"
FLOW

2 so TO ELEVATION -20 0 AN DEPOSITED 04 60 40 30 20 10 0 50
25 0 APPLICANTS UPLAND PROPERTY VE-C.
'0' 2. ALL ELE ATIONS REFER TO MEAN LOWER EEEt==
L SCALE IN FEET I a PURPOSE EXTEN SLE 104 FEET "0 PROP SED OV RHEAD
LOS RATE X IS 0
(D TE LEPI) HE SERVICE 0 E
PROPOSED PIER HO WIRE CROSSING
PURPOSE DOCKING FACILITIES DAI UM IS G.V D. of 1929 1. RED GIVE
IN coos BAY ADJACENT PROPERTY OWNERS AT EASTVILLENILL I RIVER MILE 2101
DATUM MEAN LOWER LOW WATER NATIONAL OCEAN SURVEY NEAR EMPIRE STATE OF ILLINOIS COUNTY OF COOK STATE OF ILLINOIS
ADJACENT PROPERTY OWNERS COUNTY OF COOS STATE OREGON H.L. HANSON APPLICATION BY NORTH CENTRAL BELL
(D SAMUEL T. EVANS APPLICATIONS By PACIFIC SEAFOODS
(Z) O.W. SMITH SWEET I OF I SWEET 1 01 1 DATE 1110/1,11

application checklist

General

0 Submit one original or good quality reproducible set of all drawings on 8" x 10-1/2" tracing
cloth, tracing film or paper. Submit the fewest number of sheets necessary to adequately show
the proposed activity. Drawings should be prepared in accordance with the general format of
the samples. Block style lettering should be used.

13 A 1-inch margin should be left at the top edge of each sheet for purposes of reproduction and
binding. A 1/2-inch margin is required on the three other edges.

13 Title block of each sheet submitted should identify the proposed activity and contain the name
of the body of water; river mile, it applicable; name of county and state; name of applicant or
agent; number of the sheet and total number of sheets in set; and date the drawing was pre-
pared.

0 Drawings should not reflect the approval, non-objection, or action of other agencies.

E3 Since drawings must be reproduced photographically, color shading cannot be used. Draw-
ings must show work as a dot shading, hatching, or similar graphic symbols.

Vicinity Map. Identify the map or chart from. which the vicinity map was taken and show the follow-
ing:

0 Location of the activity site including latitude and longitude and river mile, if known.

13 Name of waterway.

0 All applicable political (county, borough, town, city, etc.) boundary lines.

0 Name of and distance to local town, community, or other identifying location.

0 Names of all roads in the vicinity of the site.

0 Graphic scale.

0 North arrow.

Plan View. The plan view of the proposed activity should show the following:

0 Existing shorelines.

0 Ebb and flood in tidal waters and direction of flow in rivers.

13 North arrow.

0 Graphic or numerical scale.

0 Mean high an d low water lines it the proposed activity is located in tidal areas on the Atlantic
and Gulf coasts.

0 Mean higher high water and mean lower low water lines if the proposed activity is located in
tidal areas on the Pacific coast.

13 Ordinary high water line and ordinary low water line if the proposed activity is on a lake or
ordinary high water if on a stream.

A-11

� Water depths around the project.

� Principal dimensions of the structure or work and extent of encroachment beyond the applica-
ble high water line.

� Waterward dimension from an existing permanent fixed structure or object.

� Distances to nearby federal projects, if applicable.

� Number of cubic yards, type of material, method of handling, and location of fill or spoil dis-
posal area if applicable. If spoil material is to be placed in approved dumping grounds, a sepa-
rate map showing the location of the dumping grounds should be attached. The drawing must
indicate proposed retention levees, weirs, and/or other devices for retaining hydraulically
placed materials.

� Distance between proposed activity and navigation channel, where applicable.

� Federal harbor lines, if established and if known.

� Location of structures, if any, in navigable waters immediately adjacent to the proposed activi-
ty, including permit numbers, if known. Identify purpose of all structures.

13 Location of any wetlands, swamps, marshes, etc. Identify.

Elevation andlor Section View. The elevation and/or section view of the proposed project should
show the following:

0 Same water elevations as in the plan view.

13 Depth at waterward face of proposed work, or if dredging is proposed, show dredging grade.

� Dimensions from applicable high water line for proposed fill, float, or pile supported platform.
Identify any structures to be erected thereon.

� Graphic or numerical scale.

.13 Cross-section of excavation or fill, including approximate side slopes.

0 Elevation of spoil areas.

Notes on Drawings

� List names of adjacent property owners whose property also adjoins the water and are not
shown on plan view.

� State purpose (private use, commercial, etc.) of proposed activity.

C1 State datum used in plan and, elevation views. Use mean low water, mean lower low water, Na-
tional Ocean Survey Datum or National Geodetic Vertical Datum of 1929.

A-12

aim
when an
app@ication
Is
d1sa roved

There are times during the evaluation process when the Corps finds that a,
project and its intended use will have an adverse impact on the public in-
terest. If you are notified by the Corps that it is concerned about your
project, you may . . . .

� Discuss with the Corps the reasons that make your application unac-
ceptable

� Reconsider your plan and examine alternatives

� Modify the original project design to eliminate the objectionable fea-
tures

caution . 0 do not become a violator

Do not begin any work that requires a Corps permit before you have
received official authorization. Case-by-case consideration is given to
known violations.

Violators may be subject to:

� Civil and/or criminal court action

� Fines of $500 to $50,000 per day
IPP

� Imprisonment for up to 2 years

� Removal of structures and materials

A-13

divisions and districtsfor civil works activities

NORTH PACIFIC
NE
SEArFLE NORTH CENTRAL EN

PORTLAND
WALa
WALLA,,
I ST. PAUL
BUFFALO

DEMTROIT
MISSOURI RIVER

_T
ROCK I LAND) CHICAGO I .000q
AHA PITTSBURGH BAL MORE-
SACRAMENTO r - - - - - - - C91NCINNATI
KANSAS CITY LOUISVILLE T N
SAN HUNTtN
FRANCISCO
;-OHI
L UIS
RIVER
7 NASHVILLE
LOS TULSA LITTLE RO P' 1411 W
ANGELES M
ALBUOUEROU ATLAN ITA CHARL
VICKSBURG SAVANNA
SOUTH PACIFIC ALLAS

FORT WORTH JACKSON
SOUTHWESTERN NEW ORLEANS MOBILE SOUTH
The State of Alaska is under the GALVESTON LOWER
jurisdiction of the Alaska District,
North Pacific Division. MISSISSIPPI
VALLEY
The State of Hawaii and islands in
the Pacific are included in Honolulu
District, Pacific Ocean Division with
Headquarters at Honolulu, Hawaii.

The Territory of Puerto Rico and the DISTRICT BOUNDARIES
U.S. Virgin Islands are included in R DIVISION HEADQUARTERS
Jacksonville District, South Atlantic Division. 0 DISTRICT HEADQUARTERS
A DIVISION AND DISTRICT HEADQUARTERS

Thursday
July 22, 1982

Part 11

Department of
Defense

Corps of Engineers, Department of the
Army

Regulatory Programs of the Corps of
Engineers

A-15

31794 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

DEPARTMENT OF DEFENSE Environmental Impact Statement require state water quality certifications
We have determined that this action per revisions to Section 401 of the CWA.
Corps of Engineers, Department of the Section 3203(b): Recognition of the
Army does not constitute a major federal status of Indian tribes has been added
action significantly affecting thequality for Coastal Zone Management Act
33 CFR Parts 320, 321, 322, 323, 324, of the human enviroriment. Appropriate (CZMA) consistency requirements.
325, 326, 327, 328, 329 and 330 environmental documentation is Section 320.3(n).- A new section has
prepared for all permit decisions. We n added to recognize Corps of
Interim Final Rule for Regulatory prepared an environmental assessment bee
Programs of the Corps of Engineem for each of the nationwide permits in Engineers responsibility to review for
Part 330. We determined that, impacts on navigation applications to
AGENCY: Corps of Engineers, Army considering the potential impacts, EPA for point source discharge permits
Department, DOD. required conditions, discretionary under Section 402 of the Clean Water
ACTION: Interim final rule and request authority and best management Act.
for comments. practices, none would require Section 320.4(a). The public interest
preparation of an environmental impact review. This is the heart of our
SUMMARY: We are hereby issuing final statement.' evaluation process. It involves a
weighmg and balancing of all factors
rules which govern the regulatory Public Comment affecting the public interest. Many
programs of the Corps of Engineers. On comments expressed concern that the
September 19, 1980, (45 FR 62732), we We received nearly 400 public policy statements in paragraph (b)
published proposed rules in the Federal comments which covered the full range through (o) are too broad and are
Register which were based on of views. On balance, the comments subject to too wide a range of
legislative changes in the Clean Water were favorable, but there were many interpretation. We recognize that
Act, Executive Orders, judicial decisions strong criticisms that the regulations concern and are developing specific
and policy changes which occurred were too slanted towards environmental guidance on how each of the factors
since our previous regulations were protection on the one hand and too may affect the public interest balancing
published on July 19, 1977. The major slanted towards economic development process based on specific citations of
changes of these Regulations are on the other. We also held two public law, Executive policy and policies of the
reduction in processing time and hearings on proposed nationwide Corps and other Federal agencies. We
expansion of the nationwide permit permits, transcripts of which are on file have changed � 320.4(a)(2)(ii) to conform
program. Because it has been nearly two in the Office of the Chief of Engineers. to CEQ-NEPA regulations that
years since the proposed rules were We convened a task force of alternatives to proposed actions need
published; we are providing an experienced field and headquarters not be investigated when there are no
additional comment period for regulatory and legal personnel to review unresolved conflicts as to resource use.
interested parties to update their views. all comments, and synthesized them into
We will review all comments and major issues. Significant changes are as We have also made a technical change.
determine whether any changes are indicated below. The analysis of cumulative impacts
necessary. previously required by � 320.4(a)(2)(iv)
Part 320-General Regulatory Policies has been inco 'rporated in � 320.4(a)(1)..
EFFECTIVE DATES: July 22,1982. The potential for cumulative impacts
Comments must be received by August Section 320.1(a).- This new section will be considered in the evaluation of
23,1982. discussing Corps of Engineers approach the impacts on each public Interest
to its regulatory authorities received factor rather than in a separate
ADDRESS: Office of the Chief of generally favorable support and has cumulative impact analysis which may
Engineers, DAEN-CWO-N, 20 been adopted as proposed. overlook potential cumulative effects of
Massachusetts Ave., N.W., Washington, Section 320.1(h).- Types of activities one or more of the factors.
D.C. 20314. regulated. In the proposed regulations, Several comments questioned the
FOR FURTHER INFORMATION CONTACT. we changed the definition of our Section relationship between our public interest
Mr. Bernie Goode 202-272-0199 10 authority to add the term "physical" review and the Environmental
or to the historic "course, condition, Protection Agency, Guidelines for the
Mr. Morgan Rees, 292--697-6985. location or physical capacity". This was Specification of Disposal Sites for
based on the judicial opinion in Dredged or Fill Material. The guidelines
SUPPLEMENTARY INFORMATION. National Wildlife Federation v. (40 CFR Part 230) were published in the
Classification Alexander, 6!3 F 2d 1054 (DC CIRC Dec Federal Register"on December 24, 1980
7, 79). (An incorrect cite was given in the pursuant to Section 404(b)(II of the
We have determined these regulation preamble to the proposed regulations.) CWA. The guidelines and the public
revisions not to be a major rule requiring Since several other judicial opinions . interest review go hand-in-hand. Once
a Regulatory Impact Analysis (RIA) conflict and the case cited above is all aspects of the public interest have
under Executive Order 12291. However. under appeal, we have decided not to been considered, if a project does not
because of the extensive public interest change the regulations at this time. The conform to the guidelines, the permit
in the overall program we prepared an word "physical" has been deleted would be denied.
RIA. We submitted the RIA to the Office throughout these final regulations. We Section 320.4(c).- The statement on
of Management and Budget. A copy has also changed the language referring to mitigation of fish and wildlife impacts
been placed in the agency record for this outer continental shelf jurisdiction to has been deleted from this section as it
rule making and is available for public conform to language in recent is now incorporated in the policy for
inspection. Since these revisions, for the amendments to the Outer Continental conditioning permits expressed in 33
most part, provide regulatory relief, they Shelf Lands Act. CFR 325.4.
do not require a 30-day delay in Section 320.3(a). This revision Section 320.46). Some comments were
implementation under 5 U.S.C. 553(d). recognizes that Federal applicants now concerned that permits may be issued

A-16

Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31795

without compliance with the Section 322.5(f). In the proposed rules, requirement for the district engineer to
requirements of Federal law such as we specifically requested comments on notify the regional administrator of EPA
water quality certification and coastal our long standing policy of limiting our when the median rather than the
zone consistency. That is not the case. review of structures on the Outer average annual flow is used to
Those requirements are covered in 33 Continental Shelf (OCS) underlease determine the headwaters of a stream.
CFR Part 325. Section 320.4(j) deals with from the Department of Interior (DOI). EPA and others expressed concern that
only those requirements established by About 10 years ago, we adopted a policy EPA should be kept informed of these
local or state laws or Federal laws of limiting our review to navigation and determinations. However, we know of
administered by other Federal agencies. national security because the DOI does no cases in the past where EPA has
Section 320.4(l) and (m): Extensive a comprehensive review during its objected to such determinations. In the
comments were received on both the leasing procedures. There were interests of reducing paperwork, we
floodplain management and water extensive comments on both sides of the have deleted the notification
conservation policies. However, after issue. Based on all the comments and in requirement. District engineers,
considering all the points of view, we order to be responsive to Executive however, should notify EPA if EPA is
have retained the policies *. The Order 12291, we have maintained our known to have an interest in the area in
floodplain policy is consistent with policy of limited review. The DOI question.
Executive Order 11988. With addition of concurred in this policy. Section 323.2(n). A provision has been
language from Section 101(g) of the Section 322.5(g). We have changed added to allow general permits to be
CWA, the water conservation policy is this section to be consistent with the issued to avoid unnecessary duplication
consistent with Federal policy. It doe- discussion under J 320.1(b) above. of the regulatory control of another
not infringe on the primary authority of Appendixes: The appendixes to Parts agency as discussed for 322.2(o, above.
the states to allocate water rights. 322, 323, and 324 and Appendixes B and - The nationwide permits
Section 320.4(n). A section has been D-H to Part 325 have been deleted. They Section 323.4.
added to recognize the national deal with internal Corps of Engineers which previously appeared in this
importance of energy conservation and operations and interagency agreements. section have been moved to Part 330. A
development. They need not be incorporated in the new section has been added to describe
Section 320.4(o).- A section has been Code of Federal Regulations. Also, we the legislative exemptions to the
I are sensitive to reducing the volume of program under Sections 404(f) and (r) of,
added on navigation policy. Previously, these regulations. The interagency the CWA. The wording of � 323.4(a)(1)(i)
33 CFR Part 328 addressed Corps agreements have recently been revised and � 323.4(a)(1)(iii)(c)(1)(Iv) have been
authority to establish harbor lines and and copies are available to the public. changed slightly to recognize irrigation
was used as a basis for navigation as a normal farming practice and to
policy. However, with the rescission of Part 323--Discharges of Dredged and change the time for removal of stream
t.hat par-t, there is a need to express Fill Material blockages, to one year from the date of
navigation policy elsewhere. We also Section 323.2(a). In the proposed rules, discovery, respectively. EPA has
had to retain in our regulations the we consolidated former categories 1, 2, concurred with these changes and will
provision which authorizes all activities and 3 of waters of the United States into at the next convenient opportunity
which took place shoreward of a harbor one category. Some concerns were amend its regulations at 40 CFR Part 230
line prior to 27 May 1970, the date on raised about this change. While we to coincide with these modifications.
which harbor lines were changed from believe it would be a change only *in
permit authorization lines to form and not in substance, we did not Section 323.5.- A new section has been
navigational guidance lines. make the change as proposed. This was added to note the authority of EPA to
Part 322-Dams and Dikes to be consistent with EPA's definition transfer Section 404 programs to the
found in 40 CFR Part 126. states and Army support of program
There were no significant objections Section 323.2(c). We received many transfer., Many comments urged a more
to a minor wording change to exclude comments on revisions to the definition extensive discussion of procedural steps
weirs from Section 9 coverage and to of wetlands. In addition to a Corps field which the Corps intends to follow in a
provide an expedited decision process task force, we convened an interagency transfer process. However, we did not
by processing applications concurrently meeting to review potential include such a discussion. EPA has
with the applicant obtaining the improvements to the definition. Both published at 40 CFR Part 123 extensive
necessary approval from either the groups, after extensive deliberation, did transfer regulations. As we have not yet
Congress or the State Legislature. not provide any improvement on a had the opportunity to discuss these
Part 322-Structures and Work technical basis. We have therefore, with any states who have an interest in
decided not to change the definition at program transfer, we have not
Section 322.2(f).- A provision has been this time. developed any transfer procedures.
added to allow general permits to be Section 323.2(e) and (f). These Section 323.6(b). This section formerly
issued to avoid unnecessary duplication sections were modified to combine the � 323.5(b), has ben modified to be
of the regulatory control exercised by terms natural lake and impoundment consistent with current agreements
another agency provided it has been into one term, lake. Many people between the Corps and EPA which
determined that the environmental commented that impoundments should reflect EPA authority to veto disposal
consequences of the action are not be given the same status In the site specifications under Section 404(c)
individually and cumulatively minimal. review process as natural lakes. of the CWA.
Section 322.3(affil: The term "physical However, we believe that the evaluation Part 324@Ocean Disposal
capacity" has been reverted to of the public interest should be based on
"navigable capacity" in the definition of what the impacts actually are and not Section 324.3(b)(2). This section was
Section 10 authority. See the discussion on whether the area in question is modified to note the requirement that
for � 320.1(b) above. natural or man-made. Federal agencies must obtain Section
Section 322.4.- Nationwide permits Section 323.2(h). The footnote for this 401 water quality certifications from the
have been moved to Part 330. section was changed to delete the appropriate state or interstate agency to

A-17

31796 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

dispose of dredged material within the suit involving ocean dumping, would Include expedited coordination
territorial sea. respectively. with state and Federal agencies with an
Pad 325-Permit Processing Section 325.2(a)(6)., The term interest in any resources involved.
::Findings of Fact" has been changed to Section 325.3(a)(9) deletes the
Section 325.1(b). This is a new Statement of Findings" in this section requirement for a statement concerning
provision for pre-application and throughout these regulations to a preliminary determination of the need
consultation based on regulations of the more properly reflect the nature of the for and/or availability of an
Council on Environmental Quality for document. This section also allows the environmental impact statement and
agency procedural compliance with the district and division engineers to divulge adds a notice of categorical exclusion, If
National Environmental Policy Act recommendations on applications appropriate, in accordance with
(NEPA). Other Corps procedures and forwarded for higher authority decision. Appendix B to 33 CFR Part 230.
policies for compliance with CEQ's Section 325.2(a)(9)., This section Section 325.3(c). The requirement
NEPA regulations in its regulatory concerning distribution of copies of which was added in the proposed rules
programs are now found in Appendix B permits has been moved from former for periodic purging of the public notice
to 33 CFR Part 230; a number of changes � 325.2(b)(5). mailing list and the authority to publish
and deletions have been made Section 325.2(b). The provision for notices in the local newspaper have
throughout Part 325 to reflect this, issuing joint notices with water quality been deleted from the final regulation.
' Section 325.1(d). Many people certifying agencies has been moved and District engineers are still expected to
commented that we required too much consolidated with other joint notice and take these actions as appropriate, but
or too little information in support of an processing authorities stated in 33 CFR they are within the scope of normal
application. In deciding what should be 320.1(a)(5),320.4(j)(6), and � 325.2(e). public involvement principles and need
required, we have tried to achieve a Section 325,2(b)(1) has been expanded not be expressed in the CFR.
balance among various considerations and clarified to describe procedures Section 325.3(d) has been deleted from
such as clarity of plans for review by where more than one state is involved in the regulation. It is an internal
technical and non-technical people, cost the water quality certification process. requirement which has been added to
of developing data and its utility in the Section 325.2(b)(1)(1i) has been our internal reports system.
review process, and to severely limit reworded for clarification. Section 325.4. The former section on
requests for additional information once Section 325.2(b)(2) has been expanded
an application is considered complete. to cover costal zone certification environmental Impact statements has
Section 325.1(d)(2). This new section procedures where Indian lands are been moved to Appendix B of 33 CFR
would avoid piecemeal applications for involved. Part 230. A new section on permit
work associated with the same project. Section 325.2(b)(5) refers to conditioning has been added. We
Comments on this addition were very endangered species review (proposed to received many comments on this
favorable. be in � 325.2(e). The former � 325.2(b)(5) section. It has been rewritten to
Section 325.1(d)(6).- This new section has been moved to Section 325.2(a)(5) incorporate many of those comments
on dam safety drew extensive comment, for format purposes. and to clarify the intent. The authority
some saying we did not go far enough. Section 325.2(b)(6) has been deleted. for bonding was moved from Part 326 of
others saying that we have only The provision is a requirement of the the proposed rules as it is related more
duplicated existing state requirements. Freedom of Information Act and need to permit conditioning than to
The intent of this section is that the not be repeated in this regulation. enforcement.
district engineer must be reasonably Section 325.2(d) has been revised to Section 325.5(c).- This section has been
assured that proper design standards reduce processing time goals in revised to conform to new Section
are met. This may be done through accordance with comments received in 325.2(e) on alternative processing and
evidence of approval by a duly response to the 1980 proposed rules. evaluation procedures.
established state review, design or Subparagraph 4 is added to clarify that. Section 325.6(c) and (d). These
review by appropriately qualified decisions will normally not be deferred sections have been rewritten to clarify
persons, or other reasonable means. pending action on other agency the difference between the expiration of
Section 325.1(e).- This new section authorizations. a permit itself and the expiration of an
limits the additional information Section 325.2(e) has been added to authorized construction period.
requested of an applicant to that which specify alternative processing Specification of a starting time for
is essential for the district engineer's procedures available to division and permitted activities is now optional. The
decision process. district engineers. These include letters term "revalidation" is no longer in use
Section 325.1(f) Fees. This was of permission, regional permits, joint and has been deleted. Ocean dumping
� 325.1(g) in the proposed rules. It was procedures with other Federal, state, permits are limited to three years based
renumbered because the former Section and local agencies and expedited review on a stipulation agreed to in a law quit.
325.1(f), signature of application, was processes such as joint agency review Section 325.7(b) ond (k) have been
moved to � 325.1(d)(7) for format meetings. revised to give permittees who are
purposes. The fee for letters of Section 325.2(e)(4). The authority to notified of suspension proceedings an
permission (LOP) has been deleted on approve emergency processing opportunity to have an informal meeting
the basis that LOP's are minor and do procedures has been delegated from the as well as or instead of a public hearing.
not generate benefits to the permittee Assistant Secretary of the Army to the . Section 325.7(d) has been modified to
significant enough to warrant payment division engineers. Many people asked delegate permit revocation authority
of a fee. for a more explicit description of from the Chief of Engineers to the
Section 325.2(o)(1) and (2): These emergency procedures. However,'since authority who made the decision on the
sections were revised to reflect the it is impossible to determine ahead of original permit.
requirement of Section 404(a) of the time the nature of emcrgencies, division Section 325.8(b) and (c) have been
CWA that public notices be issued engineers are relied upon to use good revised to conform to Memoranda of
within 15 days of a completed judgment in establishing emergency Agreement reached with other Federal
application and a stipulation in a law procedures. Normally, such procedures agencies pursuant to Section 404(q) of

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31797

the CWA and to authorize district 6. The last phrase of condition "b" initiative giving due consideration in the
engineers to deny certain permits under "Discharges of dredged or fill processing requirements and the public
without issuing a public notice where material into waters of the United interest review to the extent of
other required authorizations have been States" relating to toxic pollutants has information furnished by the responsible
denied or where the activity will clearly been changed from "in to dther than party.
interfere with navigation. trace quantities"' to "in toxic amounts" Section 326.5. The former section
Section 325.9 has been revoked and to agree with the language of Section dealing with processing after-the-fact
reserved. The former section on 101(a)(3) of the CWAL permit applications has been deleted.
supervision and enforcement has been 7. Condition "d" under "Discharges Of The processing requirements are
moved to Part 326, except subparagraph Dredged or Fill Material into Waters of contained in Part 325. Former � 325.9 on
(e) on bonding authority which has been, the United States" pertaining to wild supervision and enforcement has been
addressed in � 325A. and -scenic rivers has bee@ deleted as ils moved to this section as it more directly
Section 325.11 ondistrict engineer original inclusion "a permit condition related to this part.than to Part 325,
case reports to higher authority has was inappropriate. Part 327-Public Hearings
been deleted.. It is an internal Appendix B has been revoked and
requiremerif of the'Corps and'needttot reserved' The 1967 Memorandum of The public bearing regulation has
be expressed in the CFRi Understanding with Ddpartment Of been changed to make the public
Appendix A. The permit form has Interior has been terminated. New hearing policies consistent under all
been revised as indicated in the agreements have been reached with five Corps of Engineers regulatory
proposed regulations. There were no Federal agencies, under Section 404(q) authorities. As a standard, we adopted
significant comments on this appendix. of the Clean Water Act. the policies and criteria previously
1. The term "Federal Water Pollution Appendix C, Procedures for the applicable to Section 404 only. This part
Control Act (86 Stat. 816, PL 92-500)" Protection of Cultural Resources, is also combines the hearing file with the
being revised and was not yet complete
has been changed to "Clean Water Act r complete administrative record of the
(33 U.S.C. 1344)" to reflect the new law for publication. The interim procedures permit action. All the information
citation. adopted on April 3, 1980, 40 FR 66, pgs. previously required for the public
2. The last clause of general condition 22112, et seq. still apply. bearing file was also required to be in
"i" has been deleted and set forth as a Part 326-Eriforcement the administrative record, This
new condition "j": "That this permit Comments on this part were generally duplication has been eliminated. The
does not obviate the requirement to related to concerns that increased requirement for a verbatim hearing
obtain state or, local assent required by authority given to district engineers in transcript has been retained. The
law for the activity authorized herein." determining the disposition of an mandatory requirement for district
This change is to eliminate any enforcement case would result in greater counsel to be present at all hearings as a
suggestion that this provision relates to risk to environmental quality. However, legal adviser to the presiding officer
property rights. the changes are actually related only to (� 327.6) has been changed to a
3. General conditions "j" and "k" have discretionary decision, the district
been combined into a new condition program management. Most violations engineer may wish to informally resolve
are minor, many of them resulting from
"k": "That this permit may be modified, lack of public understanding of Federal a hearing request (� 327.4); and � 327.5
suspended or revoked in whole or in jurisdiction. This regulation has been provides that the district engineer may
part pursuant to the policies and advised to allow district engineers to also appoint an appropriately qualified
procedures prescribed in 33 CFR 325.7." recognize those cases and not require person other than the deputy district
This change eliminates present lengthy paperwork and processing engineer to be a hearing officer. The
inconsistencie& between the two procedures on all of them. The staff intent of these changes is to provide
conditions and the regulation provisions. resources thereby made available would greater flexibility in responding to
It also avoids the necessity to revise the allow the district engineer to take more requests for public hearings.
standard permit conditions in the future vigorous enforcement action and Part 328-Harbor Lines
as the suspension, modification, and conduct greater coordination with
revocation procedures change in the interested parties on those cases which This part has been revoked and
regulations through rulemaking are potentially significant. The changes reserved. The Corps policy on harbor
procedures. provide a focus on the substance of the lines and their impact on the public
4. General condition "o" has been violation and the need for enforcement interest review process is now found at
revised to delete the start time dates action. It is expected that in significant 33 CFR 320.4(o). That subparagraph also
pursuant to the change to � 325.6(c). cases, there will be full coordination retains the authorization for activities
5. New general condition "u" has been with interested parties to develop constructed shoreward of harbor lines
added as follows, "That if the permittee, appropriate protective or remedial prior to 27 May 1970.
during prosecution of the work measures. The full public interest Part 329-Definition of Navigable
authorized herein, encounters a balancing process has been deleted from Waters of the United States
previously unidentified archeological or this Part 326 but remains in the after-the-
other cultural resource within the area fact evaluation phase of 33 CFR Part 325 Based on a court decision (Leslie Salt
subject to Department of the Army thereby eliminating the duplication of Co. v. Froelke, 578 F.2d 742) (9th Cir
jurisdiction that might be eligible for that evaluation required in the previous .1978) the shoreward limit of navigable
listing in the National Register of regulation. waters of the United States (frequently
Historic Places, he shall immediately Section 326.3(d) has been added to referred to as "Section 10 waters") in
notify the district engineer." This provide for cases which are not suitable coastal areas is the mean high water
notification will enable the district for legal action and where the line on both the Atlantic and Pacific
engineer to notify the appropriate responsible party refuses to apply for coasts (formerly the mean higher high
authorities as required by historic after-the-fact authorization. The district water was used on the Pacific coast).
preservation laws. engineer may now proceed on his own Therefore, Part 329 has been amended to

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31798 Federal Register I Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

delete the second sentence of into account local and state needs. As a provide necessary consistency.
� 329.12(a)(2). result the regional conditioning However, in order to override a
Part 330-Nationwide Permits authority discussed below was added to nationwide permit for a entire category
address any special concerns states may or geographic region, approval must be
Combining the nationwide permits have. Even so, the State of Wisconsin obtained from the Chief of Engineers.
previously found in 33 CFR 322.4 took action to formally deny The nationwide permits published today
(Section 10 nationwide permits) and 33 certification of certain nationwide go into effect immediately. Should
CFR 323.4 (Section 404 nationwide permits. These permits have been so additional regional conditions be found
permits) received very favorable noted in the regulations. to be appropriate, they may be added at
response. Extensive comment was 3. Coastal Zone Management. Under any time and appropriately announce to
received on some aspects of the the Coastal Zone Management Act, a concerned parties. Work done between
nationwide permit program and on state must determine if the proposed now and the effective date of any
specific nationwide permits. We activity is consistent with its approved regional conditions would not be subject
conducted public hearings in state coastal zone management plan. to those conditions. We considered
Washington, DC and in St. Paul, We noted in the proposed rules that the deferring publication of the nationwide
Minnesota of obtain additional public nationwide permits would comply with permits until the division en&eers had
comment. Comments from all sources state coastal zone programs. A few an opportunity to develop regional
ranged from strongly supportive to states replied that they would need conditions. However, the benefitA to the
strongly opposed because the program more detailed information to make a regulated public and to the government
was either too broad or too restrictive. consistency determination. However, administrative efforts stemming from
We prepared environmental the nature of nationwide permits must immediate Implementation appear to far
assessments for all proposed nationwide be general to account for wide outweigh any risk to public resources
permits, and Section 404(b)(1) variations from region to region. We which may result while regional
evaluations for Section 404 actions. The appreciate the concern expressed and conditions are being considered. Note
Chief of Engineers then reached the have adopted the regional conditioning also that previously exercised
decision, supported by a Statement of authority to deal with those concerns. discretionary authority under
Findings (SOF) that each of the 4. Reporting on nationwide permits. In nationwide permits issued on 19 July
nationwide permits contained in Part the preamble to the proposed rules, we 1977 expires four months from the date
330 is in the public interest. The specifically sought comments on the of these regulations. However, it may be
decisions were based on the policies need for a reporting procedure as a reinstated after appropriate procedures
expressed in 33 CFR.Part 320 and prerequisite for working under a have been followed.
include consideration of the Clean nationwide permit.'Reaction was great 6. Section 330.3(a). The nationwide
Water Act Sections 101(b), 101L(f), 404(e), and sharply mixed. What appeared to permit for activities occurring before
and 404(q) and Executive Order 12291 be good for one region was not phase-in dates was issued with the July
which superseded E.O. 12044. practicable for another. Some of the
IL977 regulations. Those activities remain
The major areas of concern are as nationwide permits have automatic authorized. The section is included here
follows. procedures whereby the Corps is to retain in the regulation that these
1. Compliance with the specific informed of the activities. and others activities have been authorized.
language of Section 404(e) of the CWA. were consensus "no reporting"
That section provides that nationwide situations. The ones in between were 7. Section 330.4. The nationwide
permits may. be issued for categories of difficult to handle in a uniform national permits for activities occurring in certain
activities which are similar in nature fashion. Therefore, we have designed waters drew the most comments. Some
and which have individually and the regional'conditioning authority to urged that we broaden the categories of
cumulatively minor environmental provide for reporting on a regional basis water, others believed that this permit
impacts. The concern was that some of where the division engineer determines exceeds the authority of Section 404(e).
the nationwide permits, particularly the there is an appropriate need. Areas above the headwaters and
ones for discharges into certain waters 5. Discretionary A uthoritylRegional isolated waters have never been
(� 330.4) exceeded the Section 404(e) Conditioning. The discretionary regulated on a case-by-case basis
authority because the activities covered authority in the proposed rules (except for lakes greater than 10 acres)
were considered by the respondent to generated many comments. One major and it was clearly within the scope of
not be minor and similar in nature. concern was the removal of the CWA to retain the nationwide
However, those permits and others were discretionary authority from district permitsexisting at the time the
in effect at the time Congress adopted engineers to the Chief of Engineers. legislation was enacted. Fills in the
Section 404(e). The legislative history Some people supported that concept. areas involved, including the expansion
clearly shows Congress'-intent to However, most believed that the Chief is to include lakes of greater than 10 acres,
endorse the program in effect at the time too far removed from the local level and are not usually a threat to water quality
and to encourage its expansion. that the administrative process of of the surface tributary system. In
Therefore, we consider that categories seeking the Chief's approval would be addition, case-by-case regulation of
of activities may be based on inefficient and would thereby unduly such areas is a more appropriate role for
similarities in time (� 330.3), location influence a district engineer to avoid the states based on Sections 101(b) and
330.4) and type of work (� 330.5). seeking discretionary authority. On the 101(f) of the CWA. If there are areas
2. State certification under Section other hand, some commenters pointed where adequate state regulation is not
401 of the CWA. In the proposed rules, out and experience has shown a need to present and there is a threat to the
we stated that we assumed all states improve the consistency of principles of the CWA, division
would want to waive certification interpretation of Corps- jurisdiction and engineers may assert discretionary
requirements except for � 330.5(a)(16). policy. Accordingly, we have vested authority as appropriate. The two
run-off from uplanddisposal areas. discretionary authority on a case-by- nationwide permits found in � 33OA(a)
Several states responded with concerns case basis with the division engineer (1) and (2) consolidate the four
that the nationwide permits did not take who is closer to the problem and can nationwide permits previously found at

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Federal Re*ter I Vol. 47, No. 141 1 Thursday, July 22, 1982 / Rules and Regulations 31799

33 CFR � 32&4-2(a). Conditions (b)(2) under Its Section 402 permitting need not be regulated on an individual
was modified to comply with the authority. The public concern with basis as long as the water quality
Endangered Species Act. Impacts of outfall structures is generally concerns are protected through the
& Section 330.5. The section describes related to what comes out of the pipe Section 401 certification procedure.
specific nationwide permits I through rather than to the pipe itself. Some Reducing regulatory burdens on upland
25. A few generated no comments but expressed concern that EPA's scope of disposal should encourage such disposal
most had strong supporters and strong review is not broad enough to and avoid the confusion now existing on
opponents. We attempted to incorporate encompass occasionally significant why hydraulic disposal on the upland
all the concerns into the permit environmental concerns. We believe it needs a 404 permit while non-hydraulic
conditions, but as a result of the widely is. However, as an additional safeguard, disposal does not.
divergent views, found the task discretionary authority Is available q. Section 330.5(a)(17) is a new
impossible. While we recognize many of should the need arise. nationwide permit to avoid duplicating
the concerns raised about protection of h. Section 330.5(a)(8) is a new the regulatory control exercised by the
resources, we believe that we have nationwide permit to avoid duplicating Department of Energy, Federal Energy
minimized any significant risk through regulatory control exercised on the Regulatory Commission (FERC) under
the conditions and the discretionary Outer Continental Shelf by the the Federal Power Act of 1920 for small
authority, including regional Department of Interior, Bureau of Land hydropower projects. Some people were
conditioning. As noted above. the Management and Geological Survey. concerned that FERC review might not
requirements of the regulations have I. Section 330.5(a)(9) is a new fully reflect the principles of the Clean
been followed and it has been found nationwide permit to avoid duplicating Water Act. We disagree. However, the
that each of these nationwide permits is controls exercised by the U.S. Coast safeguard of discretionary authority is
in the public interest. Guard over vessel anchorage and still available.
a. Section 330.5(a)(1). This is an fleeting areas. There were many r. Sections 330.5(a)(18) and (19) are
expansion of an existing nationwide concerns expressed about fleeting areas n .ew nationwide permits for very small
permit previously found at 33 CFR in the upper Mississippi. However, only dredging and filling activities. We had
322.4(a). Only navigation aids installed one fleeting area has been designated by imposed a limit of five cubic yards in the
by the Coast Guard were included. This the Coast Guard and it is located in the proposed rules. However, we were
revision expands the coverage to all lower Mississippi near New Orleans. persuaded by the comments that
aids and regulatory markers regulated 1. Section 330.5(a)(10) is a new increasing the limit to 10 cubic yards is
by the Coast Guard. This permit avoids nationwide permit to avoid unnecessary reasonable.
dual Federal regulatory control. Federal control over private mooring a. Section 330.5(a)(20) is a new
b. Section 330.5(a)(2). This Is a buoys. nationwide permit to avoid regulatory
reauthorization of the nationwide permit k. Section 330.5(a)(11) is a new delays associated with oil and
for structures in artificial canals nationwide permit to avoid unnecessary hazardous substances containment and
previously found at 33 CFR 322.4(b). Federal control over temporary markers cleanup operations.
c. Section 330.5(a)(3). This is and buoys.
reauthorization of the nationwide permit 1. Section 330.5(a)(12) is an expansion t. Section 330.5(a)(21) is a new
previously found at 33 CFR 322.4(c). The of an existing nationwide permit for nationwide permit to avoid duplicating
term fill material has been added. utility line crossings previously found at the regulatory control exercised by the
Normally, fill for repair and 33 CFR 323.4-3(a)(1). It now also Department of the Interior under the
maintenance is exempt from regulation includes bedding and backfill for outfall Surface Mining Control and Reclamation
by Section 404(f)(1)(A). However, there and intake structures. Act of 1977. The provision for an
are conditions in Section 404(f)(2) under m. Section 330.5(a)(13) is an advance review by the Corps would
which the exemption may not apply. in expansion of aa existing Section 404 afford the Corps an opportunity to
those cases, the nationwide permit nationwide permit for bank stabilization msure that the activity needing a Corps
would be operable. previously found at 33 CFR 323.4-3(a)(2). permit would have minimal impacts and
d. Section 330.5(a)(4): Fish and It now includes Section 10 authorization thus qualify for the nationwide permit.
wildlife harvesting activities are added and some additional conditions. u. Section 330.5(a)(22) is a new
to this existing nationwide permit n. Section 330.5(a)(14) is a nationwide permit for work associated
previously found at 33 CFR 322.4(d). reauthorization of an existing with removal of wrecked vessels and
Such activities are or can be adequately nationwide permit for minor road navigational obstructions.
regulated through other Federal, State crossings previously found at 03 CFR v. Section 330.5(a)(23) is a new
and local fishing and hunting regulatory 323.4-3(a)(3). nationwide permit to reduce duplication
programs or they are so minor in impact o. Section 330.5(a)(15) is an expansion of effort and unnecessary paperwork
as not to require any individual review. of an existing nationwide permit concerning activities of other Federal
a. Section 330.5(a)(5).- This is a previously fourid at 33 CFR 325.4-3(a)(4) agencies which would have only
reauthorization of the nationwide permit for some bridge-associated fills in tidal minimal individual or cumulative
for water testing devices previously waters where those fills are regulated environmental impacts. Some concerns
found at 33 CFR 322.4(e). by the U.S. Coast Guard as part of the were raised that other federal agencies
f. Section 330.5(a)(6).- This is a bridge permit. The expansion to include are not as aware of CWA principles as
reauthorization and expansion of the non-tidal waters reduces dual Federal is the Corps of Engineers. We disagree,
nationwide permit for survey activities regulatory control for bridges crossing but have reserved discretionary
previously found at 33 CFR 322.4(f). tidal and non-tidal navigable waters of authority should the need arise. The
Seismic operations are added to avoid the United States. conditions specified in the proposed
unnecessary delays for geophysical p. Section 330.5(a)(16) is a new rules have been consolidated and the
survey activities. nationwide permit to recognize that the notification requirement has been
g. Section 330.5(a)(7) is a new return water from dredged material moved from the district engineer to the
nationwide permit to avoid duplicating placed hydraulically on upland sites is Chief of Engineers in accordance with
the regulatory control exercised by EPA administratively a 404 discharge but CEQ categorical exclusion procedures.

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31800 Federal Register / Vol. 47, No. 141 / Thursday, July. 22, 1982 / Rules and Regulations

w. Section 330.5(a)(24) is a new 33 CFR Part 322 full publi6 interest by balancing the
nationwide permit to -avoid duplications Continental shelf, Electric power, favorable impacts against the
with state-administered Sectf on 404 Navigation, Water pollution control, detrimental impacts. This Is known as
permit programs. Administration of the Waterways. the "public interest balancing process"
Section 404 program in waters which are or the "public interest review." The
navigable waters of the United States 33 CFR Part 323 program is one which reflects the
based solely on historical commercial Navigation, Water pollution control, national concerns for both the
use may be transferred to qualified Waterways. protection and utilization of important
states pursuant to Section 404(8) of the resources. It is a dynamic program that
CWA. However, the Corps retains 33 CFR Part 324 varies the weight given to a specific
Section 10 permitting authority in these Water pollution control. public interest factor in light of the
waters. Thus the discharge of dredged or importance of other such factors in a
fill material in such waters would 33 CFR Part 325 particular situation.
require both a Corp's Section 10 permif Administrative practice and (2) The Corps is a-highly decentralized
and State Section 404 permit. Since b- th Procedure, Intergovernmental relations, organization. Most of the authority for
EPA and the Corps have adequate Environmental protection, Navigation, administering the regulatory program
control over the state 404 programs to Water pollution control, Waterways. has been given to the thirty six district
protect the federal interest, a 33 CFR Part 326 engineers and eleven division engineers.
nationwide permit to satisfy the Section If a district or division engineer makes a
10 jurisdictional authority would avoid Investigations, Intergovernmental final decision on a permit application in
paperwork, duplications, and delays. relations, Law enforcement, Navigation, accordance with the procedures and
Other activities not involving thr. Water pollution control, Waterways. authorities contained in these
discharge of dredged and fill material in 33 CFR Part 327 regulations (33 CFR Parts 320--330), there
such waters would continue to be Administrative practice and is no administrative appeal of that
subject to Section 10. decision.
. x. Section 330.5(a)(25) is a new procedure, Navigation, Water pollution (3) The Corps seeks to avoid
nationwide permit for placement of control, Waterways. unnecessary regulatory controls. The
concrete into tightly sealed forms. This 33 CFR Part 329 general permit program described in 33
would address the situation where Waterways. CFR Parts 325 and 330 is the primary
poured concrete used as a structural method of eliminating unnecessary
member would require a Section 404 33 CFR Part 330 Federal control over activities which do
permit whereas a structural member Navigation, Water pollution control, not justify individual control or which
made of steel or wood but serving the Waterways. are adequately regulated by another
same purpose does not require a Section For the reasons set forth in the agency.
404 permit. The concrete structure itself preamble, Chapter 11 of Title 33 of the (4) The Corps believes that applicants
would still require a Section 10 permit if Code of Federal Regulations is amended are not necessarily due a favorable
'ocated in navigable waters of by revising Parts 320, 321, 322, 323, 324, decision but they are due a timely one.
L the
United States. This nationwide permit 325, 326, 327, and 329, removing and Reducing unnecessary paperwork and
was announced in the Federal Register reserving Part 328 and adding a new delays is a continuing Corps goal.
of May 15,1981 and was discussed at part 330 to read as set forth below. (5) The Corps believes that state and
our public hearings. Dated: July 16,1982. Federal regulatory programs should
y. Section 330.8. A 5-year expiration complement rather than duplicate one
date is added pursuant to Section 404(e) Forrest T. Gay M, another. Use of general permits, joint
of the CWA. Brigadier General, USA, Acting Director of processing procedures, interagency
civil Works. review coordination and authority
Note I PART 320-GENERAL REGULATORY transfers (where authorized by law) are
The term. "he" and its derivatives used in POLICIES encouraged to reduce duplications.
these regulations are generic and should be (b) Types of activities regulated. This
considered as applying to both male and Sec. regulation and the regulations that
female. 320.1 Purpose and scope. follow (33 CFR Parts 321-330) prescribe
Note 2 320.2 Authorities to issue permits. the statutory authorities, and general
320.3 Related laws. and special policies and procedures
One purpose of these regulations Is to bring 320.4 General policies for evaluating permit
up to date all policies which affect the Corps applications. applicable to the review of applications
regulatory programs. Ali policy guidance Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. for Department of the Army permits for
issued prior to January 1, 1981 is hereby 1344; 33 U.S.C. 1413. various types of activities that occur in
terminated. Since that time we have issued waters of the United States or the
guidance letters with specific expiration � 320.1 Purpose and scope. oceans, This part identifies the various
dates. (a) Regulatory approach of the Corps Federal statutes that require Department
Ust of Subjects of engineers. (1) The U.S. Army Corps of of the Army permits before these
Engineers has been involved in activities can be lawfully undertaken;
33 CFR Part 320 regulating certain activities in the the related Federal laws applicable to
Environmental protection, nation's waters since 1890. Until 1968, the review of each activity that requires
Intergovernmental relations, Navigation, the primary thrust of the Corps' a Department of the Army permit; and
Water pollution control, Waterways. regulatory program was the protection the general policies that are applicable
33 CFR Part 321 of navigation. As a result of several new to the review of an activities that
laws and judicial decisions, the program require Department of the Army permits.
Dams, Intergovernmental relations, evolved from one that protects Parts 321-324 address the various types
Navigation, Waterways. navigation only to one that considers the of activities that require Department of

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Federal Register./ Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31801

the Amy permits, including special and it is important from the outset that instrument of authorization is
pollci6s and Procedures applicable to the reader understand the difference designated a permit. The authority of the
those activities, as follows: between the two. "Navigable waters of Secretary of the Amy to prevent
(1) Dams or dikes in navigable waters the United States" are defined in 33 CFR obstructions to navigation in the
of the United States (Part 321); Part 329. These are waters that are navigable waters of the United States
(2) Other structures or work including navigable in the traditional sense where was extended to artificial islands,
excavation, dredging, and/or disposal permits are required for certain work or installations, and other devices located
activities, in navigable waters of the structures pursuant to Sections 9 and 10 on the outer continental shelf by Section
United States (Part 322);' of the River and Harbor Act of 1899. 4(e) of the Outer Continental Shelf
(3) Activities that alter or modify the "Waters of the United States" are Lands Act of 1953 as amended (43 U.S.C.
come, condition, location, or capacity defined in 33 CFR 323.2(a). These waters 1333(e)). (See also 33 CFR Part 322.)
of a navigable water of the United include more than navigable waters of (c) Section 11 of the River and Harbor
States (Part 322); the United States and are the waters Act approved March 3,1899 (33 U.S.C.
(4) Construction of artificial islands, where permits are required for the 404) authorizes the Secretary of the
installations and other devices on the discharge of dredged or fill material Army to establish harbor lines
outer continental shelf (Part 322); pursuant to Section 404 of the Clean channelward of which no piers,
(5) Discharges of dredged or fill Water Act. wharves, bulkheads or other works may
material into the waters of the United be extended or deposits made without
States (Part 323); � 320.2 Authorities to Issue permits. approval of the Secretary of the Army.
(6) Activities involving the (a) Section 9 of the River and Harbor Effective May 27,1970, permits for work
transportation of dredged material for Act approved March 3,1899 (33 U.S.C. shoreward of those lines must be
the purpose of disposal in ocean waters 401) (hereinafter referred to as Section obtained in accordance with Section 10
(Part 324); and 9) prohibits the construction of any dam and, if applicable Section 404 of the
(7) Nationwide general permits for or dike across any navigable water of Clean. Water Act. (See � 320.4(o) of this
certain categories of these activities the United States in the absence of Part.) ,
(Part 330). Congressional consent and approval of (d) Section 13 of the River and Harbor
(c) Forms of authorization. the plans by the Chief of Engineers and Act approved March 3,1899 [33 U.S.C.
Department of the Army permits for the the Secretary of the Army. Where the [,,@ 407) provides that the Secretary of the
above described activities are issued navigable portions of the waterbody he
under various foms of authorization. wholly within the limits of a single state, Amy, whenever the Chief of Engineers
determines that anchorage and
These include individual permits that the structure may be built under navigation will not be injured thereby,
are issued following a review of an authority of the legislature of that State, may permi
individual application for a Department if the location and plans or any t the discharge of refuse into
of the Army permit and general permits modification thereof are approved by navigable waters. In the absence of a
that authorize the performance of a the Chief of Engineers and by the permit, such discharge of refuse is
category or categories of activities in a Secretary of the Army. The instrument prohibited. While the prohibition of this
specific geographical region or of authorization is designated a permit. section, known as the Refuse Act, is still
nationwide. The term "general permit" Section 9 also pertains to bridges and in effect the permit authority of the
as used in these regulations (33 CFR causeways by the authority of the Secretary of the Army has been
Parts 320-330) refers to both those Secretary of the Army and Chief of superseded by the permit authority
regional permits issued by district or Engineers with respect to bridges and provided the Administrator,
division engineers on a regional basis causeways was transferred to the Environmental Protection Agency (EPA),
and to nationwide permits issued by the Secretary of Transportation under the and the States under Sections 402 and
Chief of Engineers through publication Department of Transportation Act of 405 of the Clean Water Act, respectively
in the Federal Register and applicable October 15, 1966 (49 U.S.C. 1155g(6)(,A0)- (33 U.S.C. 1342 and 1345). (See 40 CFR
throughout the nation. Ile nationwide (See also 33 CFR Part 321.) A Parts 124 and 125.)
permits are found in 33 CFR Part 330. If Department of the Army permit (e) Section 14 of the River and Harbor
an activity is covered by a general pursuant to Section 404 of the Clean Act approved March 3,1899 (33 U.S.C.
permit, an application for a Department Water Act is required for the discharge 408) provides that the Secretary of the
of the Army permit does not have to be of dredged or fill material into waters of Army on the recommendation of the
made. In such cases, a person must only the United States associated with Chief of Engineers may grant permission
comply with the conditions contained in bridges and causeways. (See 33 CFR for the temporary occupation or use of
the general permit to satisfy Part 323.) any sea wall, bulkhead, jetty, dike,
requirements of law for a Department of (b) Section 10 of the River and Harbor levee, wharf, pier, or other work built by
the Army Permit. Act approved March 3, 1899 (33 U.S.C. the United States. This permission will
(d) General instructions. The 403) (hereinafter referred to as Section be granted by an appropriate real estate
procedures for processing all individual 10) prohibits the unauthorized instrument 14 accordance with existing
permits and regional general permits are obstruction or alteration of any real estate regulations.
contained in 33 CFR Part 325. However, navigable water of the United States. (0 Section 404 of the Clean Water Act
before reviewing those procedures, a The construction of any structure in or (33 U.S.C. 1344) (hereinafter referred to
person wanting to do work that requires over any navigable water of the United as Section 404) authorizes the Secretary
a Department of the Amy permit should States, the excavation from or- of the Army, acting through the Chief of
review the general and special policies depositing of material in such waters, or Engineers, to issue permits, after notice
that relate to the particular activity as the accomplishment of any other work and *opportunity for public hearing, for
outlined in this Part 320 and Parts 321 affecting'the course, location, condition, the discharge of dredged or fill material
through 324. The terms "navigable or capacity of such waters is unlawful into the waters of the United States as
waters of the United States" and unless the work has been recommended specified disposal sites. See 33 CFR Part
'.waters of the United States" are used by the Chief of Engineers and authorized 323. The selection and use of disposal
frequently throughout these regulations. by the Secretary of the Army. The sites will be in accordance with

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31802 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

guidelines developed by the A certification obtained for the Federal Government shall * * * insure
Administrator of EPA in conjunction construction of any facility must also that presently unquantified
with the Secretary of the Army and pertain to the subsequent operation of environmental amenities and values
published in 40 CFR 230. If these the facility. may be given appropriate consideration
guidelines prohibit the selection or use (b) Section 307(c) of the Coastal Zone in decision-making along with economic
of a disposal site, the Chief of Engineers Management Act of 1972, as amended and technical considerations * * ".
shall consider the economic impact on (16 U.S.C. 1456(c)). requires Federal (See Appendix B of 33 CFR Part 230.)
navigation of such a prohibition in agencies conducting activities, including (e) The Fish and Wildlife Act of 1956
reaching his decision. Furthermore, the development projects, directly affecting (16 U.S.C. 742a, et seq.), the Migratory
Administrator can prohibit or restrict a State's coastal zone, to comply, to the Marine Game-Fish Act (16 U.S.C. 760c-7
the use of any defined area as a disposal maximum extent practicable, with an 760g) and the Fish and Wildlife
site whenever he determines, after approved State coastal zone Coordination Act (16 U.S.C..661-666c)
notice and opportunity for public management program. Indian tribes and other acts express the will of
hearings and after consultation with the doing work on Federal lands win be Congress to protect the quality of the
Secretary of the Army, that the treated as a Federal agency for the aquatic environment as it affects the
discharge of such materials into such purpose of the Coastal Zone conservation, improvement and
areas will have an unacceptable adverse Management Act. The Act also requires enjoyment of fish and wildlife resources.
effect on municipal water supplies, any non-Federal applicant for a Federal Reorganization Plan No. 4 of 1970
shellfish beds and fishery areas, license or permit to conduct an activity transferred certain functions, including
wildlife, or recreational areas (See 40 affecting land or water uses in the certain fish and wildlife-water resources
CFR Part 230). State's coastal zone to furnish a coordination responsibilities, from the
(g) Section 103 of the Marine certification that the proposed activity Secretary of the Interior to the Secretary
Protection, Research and Sanctuaries will comply with the State's coastal of Commerce. Under the Fish and
Act of 1972, as amended (33 U.S.C. 1413) zone management program. Generally, Wildlife Coordination Act and
(hereinafter referred to as Section 103) no permit will be issued until the State Reorganization Plan No. 4. any Federal
authorizes the Secretary of the Army, has concurred with the non-Federal agency that proposes to control or
acting through the Chief of Engineers, to applicant's certification. This provision modify any body of water must first
issue permits, after notice and becomes effective upon approval by the consult with the United States Fish and
opportunity for public hearings, for the Secretary of Commerce of the State's Wildlife Service, the National Marine
transportation of dredged material for coastal zone management program. (See Fisheries Service, as appropriate, and
the purpose of disposal in the ocean also 15 CFR Part 930.) with the head of the appropriate State
where it is determined that the disposal (c) Section 302 of the Marine agency exercising administration over
will not unreasonably degrade or Protection, Research and Sanctuaries the wildlife resources of the affected
endanger human health, welfare, or Act of 1972, as a-mended (16 U.S.C. State.
amenities, or the marine environment, 1432), authorizes the Secretary of (f) The Federal Power Act of 1920 (16
ecological systems, or economic Commerce, after consultation with other U.S.C. 791a etseq.), as amended,
potentialities. The selection of disposal interested Federal agencies and with the authorizes the Department of Energy
sites will be in accordance with criteria approval of the President, to designate (DOE) to issue licenses for the
developed by the Administrator of the as marine sanctuaries those areas of the construction, operation and
EPA in consultation with the Secretary ocean waters or of the Great Lakes and maintenance of dams, water conduits,
of the Army and published in 4tO CFR their connecting waters or of other reservoirs, power houses, transmission
Parts 220-229. However, similar to the coastal waters which he determines lines, and other hysical structures of a
EPA Administrator's limiting authority p
cited in paragraph (f) of this section, the necessary for the purpose of preserving hydro-power project. However, where
Administrator can prevent the issuance or restoring such areas for their such structures will affect the navigable
of a permit under this'authority if he conservation, recreational, ecological, or capacity of any navigable waters of the
finds that the disposal of the material aesthetic values. After designating such United States (as defined in 16 U.S.C.
will result in an unacceptable adverse an area, the Secretary of Commerce 796), the plans for the dam or other
impact on municipal water supplies, shall issue regulations to control any physical structures affecting navigation
shellfish beds, wildlife, fisheries or activities within the area. Activities in must be approved by the Chief of
recreational areas. (See also 33 CFR the sanctuary authorized under othef Engineers and the Secretary of the
324.) authorities are valid only if the Army. In such cases, the interests of
Secretary of Commerce certifies that the navigation should normally be protected
� 320.3 Related law& activities are consistent with the by a recommendation to the DOE for the
(a) Section 401 of the Clean Water Act purposes of Title III of the Act and can inclusion of appropriate provisions in
(33 U.S.C. 1341) requires any applicant be carried out within the regulations for the DOE license rather than the issuance
for a Federal license or permit to the sanctuary. of separate Department of the Army
conduct any activity that may result in a (d) The National Environmental Policy permit under 33 U.S.C. 401 et seq. As to
discharge of a pollutant into waters of Act of 1969 (42 U.S.C. 4321-4347) any other activities in navigable waters
the United States to obtain a declares the national policy to not constituting construction, operation
certification from the State in which the encourage a productive and enjoyable and maintenance of physical structures
discharge originates or would originate, harmony betweer man and his licensed by the DOE under the Federal
or, if appropriate, from the interstate environment. Section 102 of that Act Power Act of 1920, as amended, the
water pollution control agency having directs that "to the fullest extent provisions of 33 U.S. C. 401 at seq.
jurisdiction over the affected waters at possible: (1) the policies, regulations, remain fully applicable. In all cases
the point where the discharge originates and public laws of the United States involving the discharge of dredged or fill
or would originate, that the discharge shall be interpreted and administered in material into waters of the United States
will comply with the applicable effluent accordance with the policies set forth in or the transportation of dredged
limitations and water quality standards. this Act, and (2) all agencies of the material for the purpose of disposal in

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31803

ocean waters, Section 404 or Section 103 action authorized, funded or carried out (m) The Ocean Thermal Energy
will be applicable. by the Agency is not likely to jeopardize Conversion Act of 1980, (42 U.S.C.
(g) The National Historic Preservation the continued existence of such Section 9101 et seq.) establishes a
Act of 1966 (16 U.S.C. 470) created the endangered or threatened species or licensing regime administered by the
Ad.visory Council on Historic result in the destruction or adverse Administrator of NOAA for the
Preservation to advise the President and modification of habitat of such species ownership, construction, location and
Congress on matters involving historic which is determined by the Secretary of operation of ocean thermal energy
preservation. In performing its function the Interior or Commerce, as conversion (OTEC) facilities and
the Council is authorized to review and appropriate, to be critical. (See also So plantships. An application for an OTEC
comment upon activities licensed by the CFR Parts 17 and 402.) license filed with the Administrator
Federal Government which will have an '(j) The Deepwater Port Act of 1974 (33 constitutes an application for all Federal
effect upon properties listed in the U.S.C. 1501 et seq.) prohibits the authorizations required for ownership,
National Register of Historic Places, or ownership, construction, or operation of construction, location and operation of
eligible for such listing. The concern of a deepwater port beyond the territorial an OTEC facility or plantship, except for
Congress for the preservation of seas without a license issued by the certain activities within the jurisdiction
significant historical sites is also Secretary of Transportation. The of the Coast Guard. This includes
expressed in the Preservation of Secretary of Transportation may issue applications for Section 10t Section 404
Historical and Archeological Data Act such a license to an applicant if he and other Department of Army
of 1974 (16 U.S.C. 469 et seq.), which determines, among other things, that the authorizations which may be required.
amends the Act of June 27,1980. By this construction and operation of the (n) Section 402 of the Clean Water Act
Act, whenever a Federal construction deepwater port is in the national authorizes EPA to issue permits under
project or Federally licensed project, interest and consistent with national procedures established to implement the
activity or program alters any terrain security and other national policy goals National Pollutant Discharge
such that significant historical or and objectives,An application for a Elimination System [NPDES) program.
archeological data is threatened, the deepwater port license constitutes an The administration of this program can
Secretary of the Interior may take action application for all Federal be and, in many cases, has been
necessary to recover and preserve the authorizations required for the delegated to individual states. Section
data prior to the commencement of the ownership, construction, and operation 402(b)(6) states that no NPDES permit
project. of a deepwater port, including will be issued if the Chief of Engineers,
(h) The Interstate Land Sales Full applications for Section 10, Section 404 acting for the Secretary of the Army and
Disclosure Act (15 U.S.C. 1701 et seq.) and Section 103 permits which may also after consulting with the US Coast
prohibits any developer or agent from be required pursuant to the authorities Guard, determines that navigation and
selling or leasing any lot in a listed in � 320.2 and the policies anchorage in any navigable water will
subdivision (as defined in 15 U.S,C. specified in � 320.4 of this Part. be substantially impaired as a result of a
1701(3)) unless the purchaser is (k) The Marine Mammal Protection proposed activity.
furnished in advance a printed property Act of 1972 (16 U.S.C. 1361 et seq.)
report containing information which the expresses the intent of Congress that 320.4 General policies for evaluating
Secretary of Housing and Urban marine mammals be protected and permit applications.
Development may, by rules or encouraged to develop in order to The following policies shall be
regulations, require for the protection of maintain the health and stability of the applicable to the review of all
purchasers. In the event the lot in marine ecosystem. The Act imposes a applications for Department of the Army
question is part of a project that requires perpetual moratorium on the permits. Additional policies specifically
Department of the Army authorization, harassment, hunting, capturing, or kill!" applicable to certain types of activities
the Property Report is required by of marine mammals and on the are identified in Parts 321-324.
Housing and Urban Development importation of marine mammals and (a) Public interestreview. (1) The
regulation to state whether or not a marine mammal products without a decision whether to issue a permit will
permit for the development has been permit from either the Secretary of the be based on an evaluation of the
applied for, issued, or denied by the Interior or the Secretary of Commerce, probable impact including cumulative
Corps of Engineers under Section 10 or depending upon the species of marine impacts of the proposed activity and its
Section 404. The Property Report is also man-anal involved, Such permits may be intended use on the public interest.
required to state whether or not any issued only for purposes of scientific Evaluation of the probable impact which
enforcement action has been taken as a research and for public display if the the proposed activity may have on the
consequence of non-application for or purpose is consistent with the policies of public interest requires a careful
denial of such permit. the Act. The appropriate Secretary is weighing of all those factors which
(i) The Endangered Species Act (16 also empowered in certain restricted become relevant in each particular case.
U.S.C. 1531 et seq.) declares the circumstances to waive the The benefits which reasonably may be
intention of the Congress to conserve requirements of the Act. expected to accrue from the proposal
threatened and endangered species and (1) Section 7(a) of the Wild and Scenic must be balanced against its reasonably
the ecosystems on which those species Rivers Act (16 U.S.C. 1278 et seq.) foreseeable detriments. The decision
depend. The Act requires that Federal provides that no department or agency whether to authorize a proposal, and if
agencies in consultation with the US of the United States shall assist by loan, so, the conditions under which it will be
Fish and Wildlife Service and the grant, license, or otherwise in the allowed to occur, are therefore
National Marine. Fisheries Service use construction of any water resources determined by the outcome of the
their authorities in furtherance of its project that would have a direct and general balancing process. That decision
purposes by carrying out programs for adverse effect on the values for which should reflect the national concern for
the conservation of endangefed or such river was established, as both protection and utilization of
threatened species, and by taking such determined by the Secretary charged important resources. All factors which
action necessary to insure that any with its administration. may be relevant to the proposal must be

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31804 Federal Register / Vol. 47, Wo. 141 / Thursday, July 22, 1982 / Rules and Regulations

considered including the cumulative (vi) Wetlands which are prime natural with the Regional Director, U.S. Fish and
effects thereof: among those are recharge areas. Prime recharge areas are Wildlife Seryice, the Regional Director,
conservation, economics, aesthetics, locations where surface and ground National Marine Fisheries Service, and
general environmental concerns, water are directly interconnected; and the head of the agency responsible for
wetlands, cultural values, fish and (vii) Wetlands which through natural fish and wildlife for the state in which
wildlife values, flood hazards, flood water filtration processes serve work is to be performed, with a view to
plain values, land use, navigation, shore significant and necessary water the conservation of wildlife resources by
erosion and accretion, recreation, water purification functions. prevention of their direct and indirect
supply and conservation, water quality, (3) Although a particular alteration of loss and damage due to the activity
energy needs, safety, food and fiber wetlands may constitute a minor proposed in a permit application. They
production, mineral needs and, in change, the cumulative effect of will give great weight to these views on
general, the needs and welfare of the numerous such piecemeal changes often fish and wildlife considerations in
people. No permit will be granted unless results in a major impairment of the evaluating the application.
its issuance is found to be in the public wetland resources. Thus, the particular (d) Water quality. Applications for
interest. wetland site for which an application is permits for activities which may
(2) The following general criteria will made will be evaluated with the adversely affect the quality of waters of
be considered in the evaluation of every recognition that it may be part of a the United States will be evaluated for
application: complete and interrelated wetland area. compliance with applicable effluent
(i) The relative extent of the public In addition, the District Engineer may limitations and, water quality standards,
and private need for the proposed undertake reviews of particular wetland during the construction, and subsequent
structure or work: areas in consultation with the operation of the proposed activity.
(ii] Where there are unresolved appropriate Regional Director of the Certification of compliance with
conflicts as to resource use, the Fish and Wildlife Service, the Regional applicable effluent limitations and water
practicability of using reasonable Director of the National Marine quality standards required under
alternative locations and methods to Fisheries Service of the National provisions of Section 401 of the Clean
accomplish the objective of the Oceanic and Atmospheric Water Act will be considered conclusive
proposed structure or work; and Administration, the Regional with respect to water quality
(iii) The extent and permanence of the Administrator of the Environmental considerations unless the Regional
beneficial and/or detrimental effects Protection Agency, the local Administrator, Environmental Protection
which the proposed structure or work representative of the Soil Conservation Agency (EPA), advises of other water
may have on the public and private uses Service of the Department of quality aspects to be taken into
to which the area is suited. Agriculture, and the head of the consideration.
(b) Effect on wetlands. (1) Some appropriate state agency to assess the (e) Historic, cultural, scenic, and
wetlands are vital areas that constitute cumulative effect of activities in such recreational values. Applications for
a productive and valuable public areas.
resource, the unnecessary alteration or (4) No permit will be granted which permits covered by this regulation may
destruction of which should be involves the alteration of wetlands involve areas which possess recognized
discouraged as contrary to the public identified as important by paragraph (b) historic, cultural, scenic, conservation,
interest. For projects to be undertaken (2) or of this section because of recreational or similar values. Full
by Federal, state, or local agencies, provisions of paragraph (b)(3), of this evaluation of the general public interest
additional guidance on wetlands section, unless the district engineer requires that due consideration be given
considerations is stated in Executive concludes, on the basis of the analysis to the effect which the proposed
Order 11990, dated 24 May 1977. required in paragraph (a), of this section, structure or activity may have on values
(2) Wetlands considered to perform that the benefits of the proposed such.as.those associated with wild and
functions important to the public alteration outweigh the damage to the scenic rivers, registered historic places
interest include: wetlands resource. In evaluating and natural landmarks, National Rivers,
(i) Wetlands which serve significant whether a particular alteration is National Wilderness Areas, National
natural biological functions, including necessary, the district engineer shall Seashores, National Recreation Areas,
food chain production, general habitat, consider whether the proposed activity National Lakeshores, National Par@s,
and nesting, spawning, rearing and is dependent on being located in, or in National Monuments, estuarine and
resting sites for aquatic or land species; close proximity to the aquatic marine sanctuaries, archeological
(ii) Wetlands set aside for study of the environment and whether practicable resources, including Indian religious or
aquatic environment or as sanctuaries alternative sites are available. The cultural sites, and such other areas as
or refuges; applicant must provide sufficient may be established under Federal or
(iii) Wetlands the destruction or information on the need to locate the state law for similar and related
alteration of which would affect proposed activity in the wetland and the purposes. Recognition of those values is
detrimentally natural drainage availability of practicable alternative often reflected by state, regional, or
characteristics, sedimentation patterns, sites. local land use classifications, or by
salinity distribution, flushing (5) In addition to the policies similar Federal controls or policies.
characteristics, current patterns, or expressed in this subpart, the Action or. permit applications should,
other environmental characteristics; Congressional policy expressed in the insofar as possible, be consistent with
(iv) Wetlands which are significant in Estuary Protection Act, Pub. L. 90454, and avoid significant adver@e effects on
shielding other areas from wave action, and state regulatory laws or programs the values or purposes for which those
erosion, or storm damage. Such for classification and protection of classifications, controls, or policies were
wetlands are often associated with wetlands will be given great weight. established.
barrier beaches, islands, reefs and bars; (c) Fish and wildlife. In accordance (f) Effect on limits of the territorial
(v) Wetlands which serve as valuable with the Fish and Wildlife Coordination sea. Structures or work affecting coastal
storage areas for storm and flood Act (paragraph 320.3(e) of this part) waters may modify the coast line or
waters; Corps of Engineers officials will consult base line from which the territorial sea

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31805

is measured for purposes of the to, or use of, navigable waters, the marine sanctuary established by the
Submerged Lands Act and international authorization will generally be denied. Secretary of Commerce under authority
law. Generally, the coast line or base (3) Where it is found that the work for of Section 302 of the Marine Protection,
line is the line of ordinary low water on which a permit is desired is in navigable Research and Sanctuaries Act of 1972,
the mainland; however, there are waters of the United States (see.33 CFR as amended, will be evaluated for
exceptions where there are islands or Part 329) and may interfere with an impact on the marine sanctuary. No
lowtide elevations offshore (the authorized Federal project, the applicant permit will be issued until the applicant
Submerged Lands Act, 43 U.S.C. 1301(a) should be apprised in writing of the fact provides a certification from the
and United States v. California, 381 and of the possibility that a Federal Secretary of Commerce that the
U.S.C. 139 (1965), 382 U.S. 448 (1966)). project which may be constructed in the proposed activity is consistent with the
Applications for structures or work vicinity of the proposed work might purposes of Title III of the Marine
affecting coastal waters will therefore necessitate its removal or Protection, Research and Sanctuaries
be reviewed specifically to determine reconstruction. The applicant should Act of 1972, as amended, and can be
whether the coast line or base line might also be informed that the United States carried out within the regulations
be altered. If it is determined that such a will in no case be liable for any damage promulgated by the Secretary of
change might occur, coordination with or injury to the structures or work Commerce to control activities within
the Attorney General and the Solicitor authorized by Sections 9 or 10 of the the marine sanctuary.
of the Department of the Interior is River and Harbor Act of 1899 or by (j) Other Federal, state, or local
required before final action is taken. The Section 404 of the Clean Water Act requi.rements. (1) Processing of an
district engineer will submit a which may be caused by or result from application for a Department of the
description of the proposed work and a future operations undertaken by the Army permit normally will proceed
copy of the plans to the Solicitor, Government for the conservation or concurrently with the processing of
Department of the Interior, Washington, improvement of navigation, or for other other required Federal, state, and/or
D.C. 20240, and request his comments purposes, and no claims or right to local authorizations or certifications.
concerning the effects of the proposed compensation will accrue from any such Final action on the Department of the
work on the outer continental rights of damage.' Army permit will normally not be
the United States. These comments will (4) Proposed activities which are in delayed pending action by another
be included in the administrative record the area of a Federal project which Federal, state or local agency (see 33
of the application. After completion of exists or is under construction will be CFR 325.2(d)(4)). However, where the
standard processing procedures, the evaluated to insure that they are required Federal, state and/or local
record will be forwarded to the Chief of compatible with the purpose of the certification and/or authorization has
Engineers. The decision on the project. been denied for activities which also
application will be made by the (h) Activities affecting coastal zones. require a Department of Army permit
Secretary of the Army after coordination Applications for Department of the before final action has been taken on
with the Attorney General. Army permits for activities affecting the the Army permit, the Army permit will
(g) Interference with adjacent coastal zones of those states having a be denied without prejudice to the right
properties or water resource projects. coastal zone management program of the applicant to reinstate processing
Authorization of work or structures by approved by the Secretary of Commerce of the application if subsequent
the Department of the Army does not will be evaluated with respect to approval is received from the
convey a property right, nor authorize compliance with that program. No appropriate Federal, state and/or local
any injury to property or invasion of permit will be issued to a non-Federal agency. Even if official certification
other rights. applicant until certification has been and/or authorization is not required by
(1) Because a landowner has the provided that the proposed activity state or Federal law, but a state,
general right to protect his property from complies with the coastal zone regional, or local agency having
erosion, applications to erect protective management program and the jurisdiction or interest over the
structures will usually receive favorable appropriate state agency has concurred particular activity comments on the
consideration. However, if the with the certification or has waived its application, due consideration shall be
protective structure may cause damage right to do so. However, a permit may be given to those official views as a
to the property of others, adversely issued to a non-Federal applicant if the reflection of local factors of the public
affect public health and safety, Secretary of Commerce, on his own interest.
adversely impact floodplain or wetland initiative or upon appeal by the
values, or otherwise appear not to be in applicant, finds that the proposed (2) Where officially adopted Federal,
the public interest, the district engineer activity is consistent with the objectives state, regional, local or tribal land-use
will so advise the applicant and inform of the Coastal Zone Management Act of classifications, determinations, or
him of poss1ble alternative methods of 1972 or is otherwise necessary in the policies are applicable to the land or -
protecting his property. Such advice will interests of national security. Federal water areas under consideration, they
be given in terms of general guidance agency and Indian tribe applicants for shall be presumed to reflect local factors
only so as not to compete with private Department of the Army permits are of the public interest and shall be
engineering firms nor require undue use responsible for complying with the considered in addition to the other
of government resources. Coastal Zone Management Act's national factors of the public interest
(2) A riparian landowner's general directives for assuring that their identified in � 320.4(a) of this part.
right bf access to navigable waters of activities directly affecting1he coastal (3) A proposed activity may result in
the United States is subject to the zone are consistent, to the maximum conflicting comments from several
similar rights of access held by nearby extent practicable, with approved State agencies within the same state. Where a
riparian landowners and to the general coastal zone management programs. state has not designated a single
public's right of navigation on the water (i) Activities in marine sanctuaries. responsible Coordinating agency, district
surface. In the case of proposals which Applications for Department of the engineers will ask the Governor to
create undue interference with access Army authorization for activities in a express his views or to designate one

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31806 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

state agency to represent the official as the review would indicate) by conservation as a factor in the public
state position in the particular case. similarly qualified persons. interest review including opportunities
(4) In the absence of overriding (1) Floodplain management. to reduce demand and improve
national factors of the public interest (1) Floodplains possess significant efficiency in order to minimize new
that may be revealed during the natural values and carry out numerous supply requirements. This policy is
evaluation of the permit application, a functions important to the public subject to Congressional policy stated in
permit will generally be issued following interest. These include: Sec. 101(g) of the Clean Water Act that
receipt of a favorable state (i) Water resources values (natural the authority of states to allocate water
determination provided the concerns, moderation of floods, water quality quantities shall not be superseded,
policies, goals, and requirements as maintenance, and groundwater abrogated, or otherwise impaired.
expressed in 33 CFR Part 320-324, and recharge); (n) Energy conservation and
the applicable statutes have been (iiI) Living resource value (fish, development. Energy conservation and
followed and considered: e.g., the wildlife, and plant resources); development is a major national
National Environmental Policy Act; the (iii) Cultural resource values (open objective. District engineers will give
Fish and Wildlife Coordination Act; the space, natural beauty, scientific study, great weight to energy needs as a factor
Historical and Archeological outdoor education, and recreation); and in the public interest review and will
Preservation Act; the National Historic (iv) Cultivated resource values give high priority to permit actions.
Preservation Act; the Endangered (agriculture, aquaculture, and forestry). involving energy projects.
Species Act; the Coastal Zone (2) Although a particular alteration to (o) Navigation. (1) Section 11 of the
Management Act; the Marine Protection, a floodplain may constitute a minor River and Harbor Act of 1899 authorized
Research and Sanctuaries Act of 1972, change, the cumulative impact of such establishment of harbor lines shoreward
as amended; the Clean Water Act, the changes may result in a significant of which no individual permits were
Archeological Resources Act, and the degradation of floodplain values and required. Because harbor lines were
American Indian Religious Freedom Act. functions and in increased potential for established on the basis of navigation
Similarily, a permit will generally be harm to upstream and downstream impacts only, the Corps of Engineers
issued for Federal and federally- activities. In accordance with the published a regulation on May 27,1970
authorized activities; another Federal requirements of Executive Order 11988, (33 CFR 209.150) which declared that
agency's determination to proceed is district engineers, as part of their public permits would thereafter be required for
entitled to substantial consideration in interest review, should avoid to the activities shoreward of the harbor lines.
the Corps' public interest review. extent practicable long and short term Review of applications would be based
(5) The district engineers are significant adverse impacts associated on a full public interest evaluation and
encouraged to develop joint procedures with the occupancy and modification of harbor lines would serve as guidance for
with those states and other Federal floodplains as well as the direct and assessing navigation impacts.
agencies with ongoing permit programs indirect support of floodplain Accordingly, activities constructed
for activities also regulated by the development whenever there is a shoreward of harbor lines prior to May
Department of the Army. In such cases, practicable alternative. For those 27, 1970 do not require specific
applications for Department of the Army activities, which in the public interest, authorization.
permits may be processed jointly with must occur in or impact upon (2) The policy of considering harbor
the state or other Federal applications to floodplains, the district engineer shall lines as guidance for assessing impacts
an independent conclusion and decision ensure to -the maximum extent on navigation continues.
by the district engineer and appropriate practicable that the impacts of potential (3) Navigation in all navigable waters
Federal or state agency. (See 33 CFR flooding on human health, safety and of the United States continues to be a
325.2(e).) welfare are minimized, the risks of flood primary concern of the Federal
(6) The district engineer shall develop losses are minimized, and, whenever government and will be given great
operating procedures for establishing practicable the natural and beneficial weight in the public interest balancing
official communications with Indian values served by floodplains and process.
Tribes within the district. The restored and preserved. (4) District engineers should protect
procedures shall provide for (3) In accordance with Executive navigational and anchorage interests in
appointment of atribal representative Order 11988, the district engineer should connection with the NPDES program by
who will receive all pertinent public avoid authorizing floodplain recommending to EPA or to the state, if
notices, and respond to such notices developments whenever practicable the program has been delegated, that a
with the official tribal position on the alternatives exist outside the floodplain. permit be denied unless appropriate
proposed activity. This procedure shall If there are no practicable alternatives, conditions can be included to avoid any
apply only to those Tribes which accept the district engineer may consider, as a substantial impairment of navigation
this option. Any adopted operating means of mitigation, alternatives within and anchorage.
procedures shall be distributed by the floodplain which will lessen any
public notice to inform the Tribes of the significant adverse impact to the PART 321-PERMITS FOR DAMS AND
option. floodplain. DIKES IN NAVIGABLE WATERS OF
(k) Safety of impoundment structures. (in) Water supply and conservation. THE UNITED STATES
To insure that all impoundment Water is an essential resource, basic to Sec.
structures are designed for safety, non- human survival, economic growth, and 321.1 General.
Federal applicants may be required to the natural environment. Water 321.2 Definitions.
demonstrate that the structure complies conservation requires the efficient use of 321.3 Special policies and procedures.
with established state dam safety water resources in all actions which Authority: 33 U.S.C. 401.
criteria or has been designed by involve the significant use of water or
qualified persons and, in appropriate that significantly affect the availability � 321.1 General.
cases, that the design has been of water for alternative uses. Full This regulation prescribes, in addition
independently reviewed (and modified consideration will be given to water to the general policies of 33 CFR Part 320

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31807

and procedures of 33 CFR Part 325, those United States is solely within the the United States that are subject to the
special policies, practices, and boundaries of one state. The district ebb and flow of the tide shoreward to
procedures to be followed by the Corps engineer, upon receipt of such an the mean high water mark, and/or are
of Engineers in connection with the application, will notify the applicant presently used, or have been used in the
review of applications for Department of that the consent of Congress or the state past, or may be susceptible to use to
Army permits to authorize the legislature must be obtained before a transport interstate or foreign
construction of a dike or dam in a permit can be issued. commerce. See 33 CFR Part 329 for a
navigable water of the United States more complete definition of this term.
pursuant to Section 9 of the River and PART 322-PERMITS FOR (b) The term "structure" shall include,
Harbor Act of 1899 (33 U.S.C. 401). See STRUCTURES OR WORK IN OR without limitation, any pier, wharf,
33 CFR 320.2(a). Dams and dikes in AFFECTING NAVIGABLE WATERS OF dolphin, weir, boom, breakwater,
navigable waters of the United States THE UNITED STATES bulkhead, revetment, riprap, jetty,
also require Department of the Army Sec permanent mooring structure, power
permits under Section 404 of the Clean 32i.1 General. transmission line, permanently moored
Water Act, as amended (33 U.S.C. 1344). 322.2 Definitions, floating vessel, piling, aid to navigation,
Applicants for Department of the Army 322.3 Activities requiring perinits. or any other obstacle or obstruction.
permits under this Part should also refer 322.4 Reserved. (c) The term "work" shall include.
to 33 CFR Part 323 to satisfy the 322.5 Special policies. without limitation, any dredging or
requirements of Section 404. Authority: 33 U.S.C. 403. disposal of dredged material,
� 321.2 Definitions. � 322.1 General. excavation, filling, or other modification
For the purpose of this regulation, the This regulation prescribes, in addition of a navigable water of the United
following terms are defined: to the general policies of 33 CFR Part 320 States.
(a) The term "navigable waters of the and procedures of 33 CFR Part 325 those (d) The term "letter of permission"
United States" means those waters of special policies, practices and means a type of individual permit issued
the United States that are subject to the proceAures to be followed by the Corps In accordance with the abbreviated
ebb and flow of the tide shoreward to of Engineers in connection with the procedures of 33 CFR 325.2(e).
the mean high water mark and/or are review of applications for Department of (e) The term "individual permit"
presently used, or have been used in the Army permits to authorize certain means a Department of the Army
past, or may be susceptible to use to structures or work in or affecting authorization that Is issued following a
transport interstate or foreign navigable waters of the United States case-by-case evaluation of a specific
commerce. See 33 CFR Part 329 for a pursuant to Section 10 of the River and structure or work in accordance with the
more complete definition of this term. Harbor Act of 1899 (33 U.S.C. 403) procedures of this regulation and 33 CFR
(b) The term "dike or dam" means an (hereinafter referred to as Section 10). 325 and a determination that the
impoundment structure that completely See 33 CFR 320.2(b). Certain stuctures or proposed structure or work is in the
spans a navigalble water of the United work in or affecting-navigable waters of public interest pursuant to 33 CFR 320.
States and that may obstruct interstate the United States are also regulated (f) The term "general permit" means a
waterborne commerce. The term does under other authorities of the Department of the Army authorization
not include a weir which is regulated Department of the Army. These include that is issued on a nationwide
pursuant to Section 10 of the River and discharges of dredged or fill material ("nationwide permits") or regional
Harbor Act of 1899 (see 33 CFR Part Into waters of the United States, ("regional permits") basis for a category
322). including the territorial seas, pursuant to or categories of activities when:
Section 404 of the Clean Water Act (33 (1) those activities are substantially
� 321.3 Special policies and procedures. U.S.C. 1344, see 33 CFR Part 323) and the similar in nature and cause only
The following additional special transportation of dredged material by minimal individual and cumulative
policies and procedures shall be vessel for purposes of dumping in ocean environmental impacts; or
applicable to the evaluation of pemit waters, including the territorial seas, (2) the general permit would result in
applications under this regulation: pursuant to Section 103 of the Marine avoiding unnecessary duplication of the
(a) The Secretary of the Army will Protection, Research and Sanctuaries regulatory control exercised by another
decide whether Department of the Army Act of 1972, as amended (33 U.S.C. 1413; Federal, state, or local agency provided
authorization for a dam or dike in a see 33 CFR Part 324). A Department of it has been determined that the
navigable water of the United States the Army permit will also be required environmental consequences of the
will be issued, since this authority has under these additional authorities if they action are individually and cumulatively
not been delegated to the Chief of are applicable to structures or work in minimal. (See 33 CFR 325.2(e) and 33
Engineers. the conditions to be imposed or affecting navigable waters of the CFR Part 330).
in any instrument of authorization will United States. Applicants for � 322.3 Activities requiring permits.
be recommended by the district engineer Department of the Army permits under
when forwarding the report to the this part should refer to the other cited (a) General. Department of the Army
Secretary of the Army, through the Chief authorities and implementing permits are required under Section 10
of Engineers. regulations for these additional permit for structures and/or work in or
(b) Processing a Department of the requirements to determine whether they affecting navigable waters of the United
Army application under Section 9 Will also are applicable to their proposed States except as otherwise provided in
not be completed until the approval of activities. these regulations. Activities that were
the United States Congress has been commenced or completed shoreward of
obtained if the navigable water of the 322.2 Definltlon& established Federal habor fines before
United States is an interstate For the purpose of this regulation, the May 27,1970 (see 33 CFR 320.4(o)) also
waterbody, or until the approval of the following terms are defined: do not require Section 10 permits;
appropriate state legislature has been (a) The term "navigable waters of the however, if those activities involve the
obtained if the navigable water of the United States" means those waters of discharp of dredged or fill material into

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31808 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

waters of the United States after which Federal agencies are empowered interested Federal, state, regional and
October 18, 1972, a Section 404 permit is to act generally is not considered to be local agencies and the general public
required (see 33 CFR Part 323). sufficient authorization by Congress to simultaneously with the associated
(1) Structures or work are in the satisfy the purposes of Section 10. If an Federal projects. Non-Federal activities
navigable waters of the United States if agency asserts that it has Congressional which are not so coordinated will be
they are within limits defined in 33 CFR authorization meeting the test of Section individually evaluated in accordance
Part 329. Structures or work outside 10 or would otherwise be exempt from with these regulations. In evaluating the
these limits are subject to the provisions the provisions of Section 10, the public interest in connection with
of law cited in paragraph (a) of this legislative history and/or provisions of applications for permits for such
section, if these structures or work affect the Act should clearly demonstrate that coordinated operations, equal treatment
the course, location, or condition of the Congress was approving the exact will, therefore, be accorded to the fullest
waterbody in such. a manner As to location and plans from which Congress extent possible to both Federal and non-
impact on the navigable capacity of.the could have considered the effect on Federal operations. Furthermore,
waterbody. For purposes of a Section 10 navigable waters of the United States or permits for non-Federal dredging
permit, a tunnel or other structure or that Congress intended to exempt that operations will normally contain
work under or over a navigable water of agency from the requirements of Section conditions requiring the permittee to
the United States is considered to have 10. Very often such legislation reserves comply with the same practices or
an impact on the navigable capacity of final approval of plans or construction requirements utilized in connection with
the waterbody. for the Chief of Engineers. In such cases related Federal dredging operations with
(2) Pursuant to Section 154 of the evaluation and authorization under this respect to such matters as turbidity,
Water Resource Development Act of regulation are limited by the intent of water quality, containment of material,
1976 (Pub. L. 94-587), Department of the the statutory language involved. nature and location of approved spoil
Army permits will not be required under (3) The policy provisions set out in 33 disposal areas (non-Federal use of
Section 10 to construct wharves and CFR 320.40) relating to state or local Federal contained disposal areas will be
piers in any waterbody, located entirely certifications and/or authorizations, do in accordance with laws authorizing
within one State, that is a navigable not apply to work or structures ' such areas and regulations governing
water of the United States solely on the undertaken by Federal agencies, except their use), extent and period of dredging,
basis of its historical use to transport where compliance with non-Federal and other factors relating to protection
interstate commerce. Section 154 applies authorization is required by Federal law of enviromnental and ecological values.
only to the construction of a single pier or Executive policy, e.g., Section 313 and (2) A permit for the dredging of a
or wharf and not to marinas. Section 401 of the Clean Water Act. channel, slip, or other such project for
Furthermore, Section 154 is not navigation may also authorize the
applicable to any pier or wharf that � 322.4 [Reserved] periodic maintenance dredging of the
would cause an unacceptable impact on � 322.5 Special policies. project. Authorization procedures and
navigation.
(b) Outer continental shelf. The Secretary of the Army has limitations for maintenance dredging
Department of the Army perniits will delegated to the Chief of Engineers the shall be as prescribed in 33 CFR 325.6(e).
also be required for the construction of authority to issue or deny Section 10 The permit will require the permittee to
artificial islands, installations, and other permits. The following additional give advance notice to the district
devices on the outer continental shelf special policies and procedures shall engineer each time maintenance
pursuant to Section 4(e) of the Outer also be applicable to the evaluation of dredging is to be performed. Where the
Continental Shelf Lands Act as permit applications under this maintenance dredging involves the
amended (see 33 CFR 320.2(b)). regulation. discharge of dredged material into
(c) Activities of Federal agencies. (1) (a) General, Department of the Army waters of the United States or the
Except as specifically provided in this permits are required for structures or transportation of dredged material for
subparagraph, activities of the type work in or affecting navigable waters of the purpose of dumping in the ocean
described in paragraphs (a) and (b), of the United States. However, certain waters, the procedures in 33 CFR Parts
this section, done by or on behalf of any structures or work specified in 33 CFR 323 and 324 respectively shall also be
Federal agency, other than any work or Part 330 are permitted by that followed.
structures in or affecting navigable regulation. If a structure or work is not (d) Structures for small boats. (1) As a
waters of the United States that are part permitted by that regulation, an matter of policy, in the absence of
of the civil works activities of the Corps individual or regional Section 10 permit overriding public interest, favorable
of Engineers, are subject to the will be required. consideration will generally be given to
authorization procedures of these (b) [Reserved] applications from riparian owners for
regulations. Agreement for construction (c) Non-Federal dredging for permits for piers, boat docks, moorings,
or engineering services performed for navigation. (1) The benefits which an platforms and similar structures for
other agencies by the Corps of Engineers authorized Federal navigation project small boats. Particular attention will be
does not constitute authorization under are intended to produce will often given to the location and general design
this regulation. Division and district require similar and related operations of such structures- to prevent possible
engineers will therefore advise Federal by non-Federal agencies (e.g., dredging obstructions to navigation with respect
agencies accordingly, and cooperate to access channels to docks and berthing to both the public's use of the waterway
the fullest extent in expediting the facilities or deepening such channels to and the neighboring proprietors' access
processing of their applications. correspond to the Federal project depth). to the waterway. Obstructions can
(2) Congress has delegated to the These non-Federal activities will be result from both the existence of the
Secretary of the Army and the Chief of considered by Corps of Engineers structure, particularly in conjunction
Engineers in Section 10 the duty to officials in planning the construction with other similar facilities in the
authorize or prohibit certain work or and maintenance of Federal navigation immediate vicinity, and from its inability
structures in navigable waters of the projects and, to the maximum practical. to withstand wave action or other forces
United States. The general legislation by extent, will be coordinated with which can be expected. District

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31809

engineers will inform applicants of the or similar artificial waterway is subject operation, maintenance, or connection
hazards involved and encourage safety to the regulatory authorities discussed in of facilities at the bosders of the United
in location, design and operation. Corps � 322.3, of this part, if it constitutes a States are subject to Executive control
of Engineers officials will also navigable water of the United States, or and must be authorized by the
encourage cooperative or group use if it is connected to navigable waters of President, Secretary of State, or other
facilities in lieu of individual proprietor the United States in a manner which delegated official,
use facilities. affects their course, location, condition, (2) Applications for permits for the
(2) Floating structures for small or capacity or if at some point in its construction, operation, maintenance, or
recreational boats or other recreational construction or operation it results in an connection at the borders of the United
purposes in lakes controlled by the effect on the course, location, condition, States of facilities for the transmission
Corps of Engineers under a resource or capacity of navigable waters of the of electric energy between the United
manager are normally subject to permit United States. In all cases the States and a foreign country, or for the
authorities cited in � 322.3. above, when connection to navigable waters of the exportation or importation of natural
those waters are regarded as navigable United States requires a permit. Where gas to or from a foreign country, must be
waters of the United States. However, the canal itself constitutes a navigable made to the Secretary of Energy.
such structures will not be authorized water of the United States, evaluation of (Executive Order 10485, September 3,
under this regulation but will be the permit application and further 1953,16 U.S.C. 824(a)(e), 15 U.S.C.
regulated under applicable regulations exercise of regulatory authority will be 717(b), as amended by Executive Order
of the Chief of Engineers published in 36 in accordance with the standard 12038, February 3,1978, and 18 CFR
CFR 327.19 if the land surrounding those procedures of these regulations. For all Parts 32 and 153).
lakes is under complete Federal other canals, the exercise of regulatory (3) Applications for the landing or
ownership. District engineers will authority is restricted to those activities operation of submarine cables must be
delineate those portions of the navigable which affect the course, location, made to the Federal Communications
waters of the United States where this condition, or capacity of the navigable Commission. (Executive Order 10530,
provision is applicable and post notices waters of the United States. May 10, 1954, 47 U.S.C. 34 to 39, and 47
of this designation in the vicinity of the (2) The proponent of canal work CFR 1.766).
lake resource manager's office. should submit the application for a (4) The Secretary of State is to receive
(a) Aids to navigation. The placing of permit, including a proposed plan of the applications for permits for the
fixed and floating aids to navigation in a entire development. and the location construction, connection, operation, or
navigable water of the United States is and description of anticipated docks, maintenance, at the borders of the
within the purview of Section 10 of the piers and other similar structures which United'States, of pipelines, conveyor
River and Harbor Act of 1899. will be placed in the canal, to the belts, and similar facilities for the
Furthermore, these aids are of particular district engineer before commencing any exportation or importation of petroleum
interest to the U.S. Coast Guard because form of work. if construction of the products, coals, minerals, or other
of their control of marking, lighting and canal in such a manner as to result in an
standardization of such navigation aids. effect on the course, location, condition, products to or from a foreign country-,
A Section 10 nationwide permit has or capacity of the navigable waters of facilities for the exportation or
been issued for such aids provided they the United States has already taken importation of water or sewage to or
are approved by and installed in place without a permit, the district from a foreign country; and monorails,
accordance with the requirements of the engineer will proceed in accordance aerial cable cars, aerial tramways and
U.S. Coast Guard (33 CFR Part 330). with, 33 CFR Part 326. Where the similar facilities for the transportation of
Electrical service cables to such aids are construction of the canal would result In persons or things, or both, to or from a
not included in the nationwide permit an effect on the course, location, foreign country. (Executive Order 11423,
(an individual or 'regional Section 10 condition, or capacity of navigable. August 16, 1968).
permit will be required). waters of the United States, an (5) A Department of the Army permit
(0 Outer continental shelf. Artifical application for a Section 10 permit under Section 10 of the River and
islands, installations, and other devices should be made at the earliest stage of Harbor Act of 1899 is also required for
located on the outer continental shelf planning. Where the district engineer all of the above facilities which affect
are subject to the standard permit becomes aware that the canal the navigable waters of the United
procedures of this regulation. Where the construction has already begun, he will States, but in each case in which a
islands, installations and other devices advise the proponent in writing of the permit has been issued as provided
are to be constructed on lands which are need for a permit to the extent that the above, the district engineer, in
under mineral lease from the Bureau of construction will result in an effect on evaluating the general public interest,
Land Management, Department of the the course, location, condition, or may consider the basic existence and
Interior, that agency, in cooperation capacity of navigable waters of the operation of the facility to have been
with other Federal agencies, fully United States. He will also ask the primarily examined and permitted as
evaluates the potential effect of the proponent if he intends to undertake provided by the Executive Orders.
leasing program on the total such work and will request the Furthermore, in those cases where the
environment. Accordingly, the decision immediate submission of the plans and construction, maintenance, or operation
whether to issue a permit on lands permit application if it is so intended. at the above facilities involves the
which are under mineral lease from the The district engineer will also advise the discharge of dredged or fill material in
Department of the Interior will be proponent that any work is done at the waters of the United States or the
limited to an evaluation of the impact of risk that, if a permit is required, it may transportation of dredged material for
the proposed work on navigation and not be issued, and that the existence of the purpose of dumping it into ocean
national security. The public notice will partially completed excavation work waters, appropriate Department of the
so identify the criteria. will not be allowed to weigh favorably Army authorizations under Section 404
(g) Canals and other artifical in evaluation of the permit application. of the Clean Water Act or under Section
waterways connected to navigable (h) Facilities at the borders of the 103 of the Marine Protection, Research
waters of the United Statbs. (1) A canal United States. (1) The construction, and Sanctuaries Act of 1972, as

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31810 Federal Register / Vol. 47, No. 141 Thursday, July 22, 1982 Rules and Regulations

amended, are also required (see 33 CFR (2) The FAA must be notifed by an � 323.1 General.
Parts 323, 324). applicant whenever he proposes to This regulation prescribes, in addition
(i) Power transmission lines. (1) establish or operate a seaplane base. to the general policies of 33 CFR Part 320
Permits under Section 10 of the River The FAA will study the proposal and and procedures of 33 CFR Part 325, those
and Harbor Act of 1899 are required for advise the applicant, district engineer, special policies, practices, and
power transmission lines crossing and other interested parties as to the procedures to be followed by the Corps
navigable waters of the United States effects of the proposal on the use of of Engineers in connection with the
unless those lines are part of a water airspace. The district engineer will review of applications for Department of
power project subject to the regulatory therefore refer any objections regarding the Army permits to authorize the
authorities of the Department of Energy the effect of the proposal on the use of discharge of dredged or fill material into
under the Federal Power Act of 1920. If airspace to the FAA, and give due waters of the United States pursuant to
an application is received for a pernift consideration to its recommendation's Section 404 of the Clean Water Act (33
for lines which are part of such a water when evaluating the general public U.S.C. 1344) (hereinafter referred to as
project, the applicant will be instructed interest. - Section 404). See 38 CFR 320.2(g).
to pennit the application to the (3) If the seaplane base would serve Certain discharges of dredged or fill
Department of Energy. If the lines are air carriers licensed by the Civil material into waters of the United States
not part of such a water power project, Aeronautics Board, the applicant must are also regulated under other
the application will be processed in receive an airport operating certificate authorities of the Department of the
accordance with the procedures of these from the FAA. That certificate reflects a Army. These include dams and dikes in
regulations. determination and conditions relating to navigable waters of the United States
the installation, operation, and pursuant to Section 9 of the River and
(2) The following minimum clearances maintenance of adequate air navigation Harbor Act of 1899 (33 U.S.C. 401; see 33
are required for aerial electric power facilities and safety equipment. CFR Part 321) and certain structures or
transmission lines crossing navigable Accordingly, the district engineer may, work in or affecting navigable waters of
waters of the United States. These in evaluating the general public interest, the United States pursuant to Section 10
clearances are,related to the clearances consider such matters to have been of the River and Harbor Act of 1899 (33
over the navigable channel provided by primarily evaluated by the FAA. U.S.C. 403; see 33 CFR Part 322). A
existing fixed bridges, or the clearances (4) For regulations pertaining to Department of the Army permit will also
which would be required by the U.S. seaplane landings at Corps of Engineers be required under these additional
Coast Guard for new fixed bridges, in projects, see � 327.4 of this part. authorities if they are applicable to
the vicinity of the proposed power line (k) Foreign trade zones. The Foreign activities involving discharges of
crossing. The clearances are based on Trade Zones Act (48 Stat. 998-1003, 19 dredged or fill material into waters of
the low point of the line under U.S.C. 81a to 81u, as amended) the United States. Applicants for
conditions which produce the greatest authorizes the establishment of foreign-
sag, taking into consideration trade zonesin or adjacent to United Department of the Army permits under
temperature, load, wind, length of span, States ports of entry under terms of a this part should refer to the other cited
and type of supports as outlined in the grant and regulations prescribed by the authorities and implementing
National Electrical Safety Code. Foreign-Trade Zones Board. Pertinent regulations for these additional permit
regulations are published at Title 15 of requirements to determine whether they
the Code of Federal Regulations, Part also are applicable to their proposed
minimum 400. The Secretary of the Army is a activities.
additional
clearance member of the Board, and construction 323.2 Definition&
Nomdnal system volts", W (feet) above of a zone is under the supervision of the
ciearance For the purpose of this regulation, the
required for istrict engineer. Laws governing the
bridges navigable waters of the United States following terms are defined:
(a) The term "waters of the United
15 arW belov` ......................................................... 20 remain applicable to foreign-trade
1138 .......................................................................... . .22 zones, including the general States" means:
161 ..... . ....................... 24 requirements of these regulations. (1) All waters which are currently
230 ............................... . ............................................ 28
350 ............................................................................. 3o Evaluation by a district engineer of aused, or were used in the past, or may
500 ............................................................................. 135 permit application may give recognition be susceptible to use in interstate or
700. 42
750 iW'7'6**5-.--..'- ............. .............* 45 to the consideration by the Board of the foreign commerc&, including all waters
general economic effects of the zone on which are subject to the ebb and flow of
local and foreign commerce, general the tide;
location of wharves and facilities, and (2) All interstate waters including
(3) Clearances for communication. other factors pertinent to consQtion, interstate wetlands;
lines, stream gaging cables, ferry cables, operation, and maintenance of the zone. (3) All other waters such as intrastate
and other aerial crossings are usually lakes, rivers, streams (including
required to be a minimum of ten feet PART 323-PERMITS FOR intermittent streams), mudflats,
above clearances required for bridges. DISCHARGES OF DREDGED OR FILL sandflats, wetlands, sloughs, prairie
Greater clearances will be required if MATERIAL INTO WATERS OF THE potholes, wet meadows, playa lakes, or
the public interest so indicates. UNITED STATES natural ponds, the use, degradation or
(j) Seaplane operations. (1) Structures See. destruction of which could affect
in navigable waters of the United States 323.1 General.
associated with seaplane operations 323.2 Definitions. The terminology used by the CWA is "navigable
require Department of the Army permits, 323.3 Discharges requiring permits. waters" which is defined in Section 1902(7) of the
but close coordination with the Federal 323.4 Discharges not requiring, permits. Act as "waters of the United States including the
teffitorial seas." For purposes of clarity. and to
Aviation Administration (FAA), 323.5 program transfer to States. avoid confusion with other Corps of Engineers
Department of Transportation, is 323.6 Special policies and procedures. regulatory prugrams, the term "waters of the United
required on such applications. Authority: 33 U.S.C. 1344 States" is used throughout this regulation.

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31811

interstate or foreign commerce including ponds created by excavating and/or of dredged material that is extracted for
any such waters: diking dry land to collect and retain any commercial use (other than fill) are
(I) Which are or could be used by water for such purposes as stock not included within this term and are
interstate or foreign travels for watering, irrigation, settling basins, subject to Section 402 of the Clean
recreational or other purposes; or cooling, or rice growing. Water Act even though the extraction
(ii) From which fish or shellfish are or (0 The term "ordinary high water and deposit of such material may
could be taken and sold in interstate or mark" means that the line on the shore require a permit from the Corps of
foreign commerce; or established by the fluctuations of water Engineers, The term does not include
(III) Which are used or could be used and indicated by physical plowing, cultivating, seeding and
for industrial purposes by industries in characteristics such as a clear, natural harvesting for the production of food,
interstate commerce; line impressed on the bank; shelving; fiber, and forest products.
(4) All impoundments of waters changes in the character of soil; . (k) The term "fill material" means any
otherwise defined as waters of the destruction of terrestrial vegetation; the material used for the primary purpose of
United States under this definition. presence of litter and debris; or other replacing an aquatic area with dry land
(5) Tributaries of waters identified in appropriate means that consider the or of changing the bottom elevation of
paragraphs (a)(I)-[4) of this section; charactertics of the suff ounding areas. an waterbody. The term does not
(6) The territorial sea; (g) The term "high tide line" is the line include any pollutant discharged into
(7) Wetlands adjacent to waters used in Sec. 404 determinations and the water primarily to dispose of waste,
(other than waters that are themselves means a line or mark left upon tide flats, as that activity is regulated under
wetlands) identified in paragraphs (a) beaches, or along shore objects that Section 402 of the Clean Water Act.
(1)-(6) of this section. Waste treatment indicates the intersection of the land (1) The term "discharge of fill
systems, including treatment ponds or with the water's surface at the . material" means the addition of fill
lagoons designed to meet the maximum height reached by a rising material into waters of the United
requirements of CWA (other than tide. The mark may be determined by a States. The term generally includes,
cooling ponds as defined in 40 CFR line of oil or scum along shore objects, a without limitation, the following
123.11(m) which also meet the criteria of more or less continuous deposit of fine activities: Placement of fill that is
this definition) are not waters of the shell or debris on the foreshore or berni, necessary to the construction of any
United States. other physical markings or structure in a water of the United States;
(b) The term "navigable waters of the characteristics, vegetation lines, tidal the building of any structure or
United States" means those waters of gages, or other suitable means that
the United States that are subject to the delineate the general height reached by impoundment requiring rock, sand, dirt,
ebb and flow of the tide shoreward to a rising tide. The term includes spring or other material for its construction;
the mean high water mark and/or are high tides and other high tides that occur site-development fills for recreational,
presently used, or have been used in the with periodic frequency, but does not industrial, commercial, residential, and
past, or may be susceptible to use to include storm surges in which there is a other uses, causeways or road fills;
transport interstate or foreign departure from the normal or predicted dams and dikes; artificial islands;
commerce. (See 33 CFR Part 329 for a reach of the tide due to the piling up of property protection and/or reclamation
more complete definition of this term.) 1, devices such as riprap, groins, seawalls,
(c) The term "wetlands" means those water against a coast by strong winc s breakwaters, revetments; beach
areas that are inundated or saturated by such as those accompanying a hurricane nourishment; levees; fill for structures
or other intense storm. such as sewage treatment facilities,
surface or ground water at a frequency (h) The term "headwaters" means the
and duration sufficient to support, and point on a non-tidal stream above which intake and outfall pipes associated with
that under normal circumstances do the average annual flow is less than five power plants and subaqueous utility
support, a prevalence of vegetation cubic feet per second, 2 The District lines; and artificial reefs. The terms does
typically adapted for life in saturated engineer may estimate this point from not include plowing, cultivating, seeding
soil conditions. Wetlands generally available data by using the mean annual and harvesting for the production of
include swamps, marshes, bogs and area precipitation, area drainage basin food, fiber, and forest products,
similar'areas. maps, and the average runoff coefficient, (in) The term "individual permit"
(d) The term "adjacent" means or by similar means. means a Department of the Army
bordering, contiguous, or neighboring. (I) The term "dredged material" means authorization that is issued following a
Wetlands separated from other waters material that is excavated or dredged case-by-case evaluation of a specific
of the United States by man-made dikes from waters of the United States. project involving the proposed
or barriers, natural river berms, beach (j) The term. "discharge of dredged discharge(s) in accordance with the
dunes and the like are "adjacent material" rneans any addition of procedures of this regulation and 33 CFR
wetlands." dredged material into the waters of the Part 325 and a determination that the
(e) The term "lake" means a standing United States. The term includes, proposed discharge is in the public
body of open water that occurs in a without limitation, the addition of interest pursuant to 33 CFR Part 320.
natural depression fed by one or more dredged material to a specified (n) The term "general permit" means a
streams from which a streani may flow, discharge site located in waters of the Department of the Army authorization
that occurs due to the widening or United States and the runoff or overflow that is issued on a nationwide
natural blockage or cutoff of a river or from a contained land or water disposal ("nationwide permits") or regional
stream, or that occurs in an isolated area. Discharges of pollutants into ("regional permits") basis for a category
natural depression that is not a part of a waters of the United States resulting or categories of activities when:
surface river or stream. The term also 'from the onshore subsequent processing (1) those activities are substantially
includes a standing body of open water similar in nature and cause only
created by artificially blocking or 2Forstreams that are dry during longperiods of minimal individual and cumulative
restricting the flow of a river, stream, or the year, district engineers may establish the environmental impacts; or
headwater point as that point on the stream where a
tidal area. As used in this regulation, th&---' flow of five cubic feet per second is equaled or (2) the general permit would result In
term does not include artificial lakes or exceeded So percent of the time. avoiding unnecessary duplication of

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31812 Federal Register / Vol. 47, No. 141 Thursday, July 22, 1982 Rules and Regulations

regulatory control exercised by another farming, silviculture, or ranching use are (iv) The discharge of dredged or fill
Federal, state, or local agency provided not part of an established operation. An material incidental to the emergency
it has been determined that the operation ceases to be established when removal of sandbars, gravel bars, or
environmental consequences of the the area on which it was conducted has other similar blockages which are
action are individually and cumulatively been converted to another use or has formed during flood flows or other
minimal. (See 33 CFR 325.2(e) and 33 lain idle so long that modifications to events, where such blockages close or
CFR Part 330). the hydrological regime are necessary to constrict previously existing
� 323.3 Discharges requiring permits. resume operations. If an activity takes drainageways and, if not promptly
place outside the waters of the United removed, would result in damage to or
(a) General. Except as provided in States, or if it does not involve a loss of existing crops or would impair or
� 323.4 below, Department of the Army discharge, it does not need a section 404 prevent the plowing, seeding, harvesting
permits will be required for the permit, whether or not it is part of an or cultivating crops on land in
discharge of dredged or fill material into established farming, silviculture, or established use for crop production.
waters of the United States. Certain ranching operation. Such removal does not include enlarging
discharges specified in 33 CFR Part 330 (iii)(A) Cultivating means physical or extending the dimensions of, or
are permitted by that regulation methods of soil treatment employed changing the bottom elevations of, the
( ,nationwide permits"). Other within established farming, ranching affected drainageway as it existed prior
discharges may be authorized by district and silviculture lands on farm, ranch, or to the formation of the blockage.
or division engineers on a regional basis forest crops to aid and improve their Removal must be accomplished within
("regional permits"). If a discharge of growth, quality or yield. one year of discovery of such blockages
dredged or fill material is not exempted (B) Harvesting means physical in order to be eligible for exemption.
by � 323.4 of this part or permitted by 33 measures employed directly upon farm, (2) Minor drainage in waters of the
CFR Part 330, an individual or regional forest., or ranch crops within established U.S. is limited to drainage within areas
Section 404 permit will be required for agricultural and silvicultural lands to
the discharge of dredged or fill material that are part of an established farming
into waters of the United States. bring about their removal from farm, or-silviculture operation. It does not
(b) Activities of Federal agenci .es. forest, or ranch land, but does not include drainage associated with the
Discharges of dredged or fill material include the construction of farm, forest, immediate or gradual conversion of a
into waters of the United States done by or ranch roads. wetland to a non-wetland (e.g., wetland
or on behalf of any Federal agency, (C)(1) Minor Drainage means: species to upland species not typically
other than the Corps of Engineers (see (JI The discharge of dredged or fill adapted to life in saturated soil
33 CFR 209.145), are subject to the material incidental to connecting upland conditions), or conversion from one
authorization procedures of these drainage facilities tovaters of the wetland use to another (for example,
regulations. Agreement for construction United States, adequate to effect the silviculture to farming). In addition,
or engineering services performed for removal of excess soil moisture from minor drainage does not include the
other agencies by the Corps of Engineers upland croplands. (Construction and construction of any canal, ditch, dike or
does not constitute authorization under maintenance of upland (dryland) other waterway or structure which
the regulations. Division and district facilities, such as ditching and tiling, drains or otherwise significantly
engineers.will therefore advise Federal incidental to the planting, cultivating, modifies a stream, lake, swamp, bog or
protecting, or harvesting of crops,
agencies and instrumentalities any other wetland or aquatic area
accordingly and cooperate to the fullest involve no discharge of dredged or fill constituting waters of the United States.
extent in expediting the processing of material into waters of the United Any discharge of dredged or fill material
their applications. States, and as such never require a into the waters of the United States
Section 404 permit.); incidental to the construction of any
� 323.4 Discharges not requiring permits. (fil The discharge of dredged or fill such structure or waterway requires a
(a) General Except as specified in material for the purpose of installing permit.
paragraphs (b) and Cc) of this section, ditching or other such water control (D) Plowing means all forms of
any discharge of dredged or fill material facilities incidental to planting, primary tillage, including moldboard,
that may result from any of the cultivating, protecting, or harvesting of
chisel, or wide-blade plowing, discing,
following activities is not prohibited by rice, cranberries or other wetland crop
or otherwise subject to regulation under species, where these activities and the harrowing and similar physical means
Section 404: discharge occur in waters of the United utilized on farm, forest or ranch land for
(1)(i) Normal farming, silviculture and States which are in established use for the breaking up, cutting, turning over, or-
ranching activities such as plowing, such agricultural and silvicultural stirring of soil to prepare it for the
seeding, cultivating, minor drainage, and wetland crop production; planting of crops. The term does not
harvesting for the production of food, (iii) the discharge of dredged or fill include the redistribution of soil, rock,
fiber, and forest products, or upland soil material for the purpose of manipulating sand, or other surficial materials in a
and water conservation practices as the water levels of, or regulating the manner which changes any of area of
defined in paragraph (a)(1)(Iii) of ihis flow or distribution of water within, the waters of the United States to dry
section. existing impoundments which have been land. For example, the redistribution of
(ii) To fall under this exemption, the constructed in accordance with surface materials by blading, grading, or
activities specified in paragraph (a)(1)(i) applicable requirements of CWA, and other means to fill in wetland areas is
of this section must be part of an which are in established use for the not'plowing. Rock crushing activities
established (i.e., on-going) farming, production of rice, cranberries, or other which result in the loss of natural
Silviculture, or ranching operation. wetland crop specieS.3 drainage characteristics, the reduction
Activities on areas lying fallow as part 3The provisions of paragraphs (a)(i)(iii)(Qi)(h) conventional wetland/non-wetland crop rotation
of a conventional rotational cycle are and (flil of this section apply to areas that are in (e.g., the rotations of rice and soybeans) where such
part of an established operation. established use exclusively for wetland crop rotation results in the cyclical or intermittent
Activities which bring an area into production as well as areas in established use for temporary dewatering of such areas.

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31813

of water storage and recharge of waters of the United States are not (xi) The discharge shall not be located
capabilities, or the overburden of impaired, that the reach of the waters of in the proximity of a public water supply
natural water filtration capacities do not the United States is not reduced, and intake; -
constitute plowing. Plowing will never that any adverse effect on the aquatic (xii) The discharge shall not occur in
involve a discharge of dredged or fill environment will be otherwise areas of concentrated shellfish
material. minimized. These BMPs which must be production;
(E) Seeding means the sowing of seed applied to satisfy this provision shall (xiii) The discharge shall not occur in
and placement of seedlings to produce include those detailed BMPs described a component of the National Wild and
farm, ranch, or forest crops and includes in the state's approved program Scenic River System;
the placement of soil beds for seeds or description pursuant to the requirements (xiv) The discharge of material shall
seedlings on established farm and forest of 40 CFR 123.4(h)(4), and shall also consist of suitable material free from
lands. include the following baseline toxic pollutants in toxic amounts; and
(2) Maintenance, including emergency provisions: (xv) All temporary fills shall be
reconstruction of recently damaged (i) Permanent roads (for farming or removed in their entirety and the area
parts, of currently serviceable structures forestry activities), temporary access restored to its original elevation,
such as dikes, dams, levees, groins, roads (for mining, forestry, or farm
riprap, breakwaters, causeways, bridge purposes) and skid trails (for logging) in (b) If any discharge of dredged or fill
abutments or approaches, and waters of the U.S. shall be held to the material resulting from the activities
transportation structures. Maintenance minimum feasible number, width, arid listed in paragraphs (a)(1)-(6) of this
does not include any modification that total length consistent With the purpose section contains any toxic pollutant
changes the character, scope, or size of of specific farming, silvicultural or listed under section 307 of CWA such
the original fill design. Emergency mining operations, and local topographic discharge shall be subject to any
reconstruction must occur within a and climatic conditions; applicable toxic effluent standard or
reasonable period of time after damage (ii) All roads, temporary or prohibition, and shall require a permit.
occurs in order to qualify for this permanent, shall be located sufficiently (c) Amy discharge of dredged or fill
exemption. far from streams or other water bodies material into waters of the United States
(3) Construction or maintenance of (except for portions of such roads which incidental to any of the activities
farm or stock ponds or irrigation ditches, must cross water bodies) to minimize identified in paragraphs (a)(1)-(O) of this
or the maintenance (but not discharges of dredged or fill material section must have a permit if it is part of
construction) of drainage ditches. into waters of the U.S.; an activity whose purpose is to convert
Discharges associated with irrigation (iii) The road fill shall be bridged, an area of the waters of the United
facilities in the waters of the U.S. are culverted, or otherwise designed to States into a use to which it was not
included within the exemption unless prevent the restriction of expected flood previously subject and the flow for
the discharges have the effect of flows; circulation of waters of the United
bringing these waters into a use to (iv) The fill shall be properly States may be impaired or the reach of
which they were not previously subject stabilized and maintained during and such waters reduced. Where the
and the flow or circulation may be following construction to prevent proposed discharge will result in
impaired or reach reduced of such erosion; significant discernible alterations to
waters. (v) Discharges of dredged or fill flow or circulation, the presumption is
(4) Construction of temporary material into waters of the United States that flow or circulation may be impaired
sedimentation basins on a construction to construct a road fill shall be made in by such alteration. 4
site which does not include placement of a manner that minimizes the (d) Federal projects which qualify
fill material into waters of the U.S. The encroachment of trucks, tractors, under the criteria contained in Section
term "construction site" refers to any bulldozers, or other heavy equipment 404(r) of CWA (Federal projects
site involving the erection of buildings, within waters of the United States authorized by Congress where an EIS
roads, and other discrete structures and (including adjacent wetlands) that lie has been submitted to Congress prior to
the installation of support facilities outside the lateral boundaries of the fill authorization or an appropriation) are
necessary for construction and itself-, exempt from Section 404 permit
utilization of such structures. The term (vi) In designing, constructing, and requirements, but may be subject to
also includes any other land areas maintaining roads, vegetative other state or Federal requirements.
which involve land-disturbing disturbance in the waters of the U.S.
excavation activities, including shall be kept to a minimum; � 323.5 Program transfer to states.
quarrying or other mining activities, (vii) The design, construction and Section 404(h) of the Clean Water Act
where an increase in the runoff of maintenance of the road crossing shall allows the Administrator of the
sediment is controlled through the use of not disrupt the migration or other Environmental Protection Agency to
temporary sedimentation basins. movement of those species of aquatic transfer administration of the Section
(5) Any activity with respect to which life inhabiting the water body; 404 permit program for discharges into
a state has an approved program under (viii) Borrow material shall be taken certain waters of the United States to
section 208(b)(4) of CWA which meets from upland sources whenever feasible;
the requirements of sections 208(b)(4)(B) (ix) The discharge shall not take, or 4For example, a permit will be required for the
and (C). jeopardize the continued existence of, a conversion of a cypress swamp to some other vie or
(6) Construction or maintenance of threatened or endangered species as the conversion of a wetland from silviculture] to
farm roads, forest roads, or temporary defined under the Endangered Species agricultural use when there is a discharge of
dredged or fill material into waters of the United
roads for moving mining equipment, Act, or adversely modify or destroy the States in conjunction with construction of dikes,
where such roads are constructed and critical habitat of such species; drainage ditches or other works or structures used
maintained in accordance with best (x) Discharges into breeding and to effect such conversion. A discharge which
management practices (BMPs) to assure nesting areas for migratory waterfowl, elevates the bottom of waters of the United States
without converting it to dry land does not thereby
that flow and circulation patterns and spawning areas, and wetlands shall be reduce the reach of, but may alter the flow or
chemical and biological characteristics avoided if practical alternatives exist; circulation of, waters of the United States.

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31814 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

qualified states. (The program cannot be 324.2 Definitions. agencies by the Corps of Engineers does
transferred for those waters which are 324.3 Activities requiring permits. not constitute authorization under these
presently used, or are susceptible to use 324.4 Special procedures. regulations. Division and district
in their natural condition or by Authority: 33 USC 1413. engineers will therefore advise Federal
reasonable improvement as a means to � U4.1 General. agencies accordingly and cooperate to
transport interstate or foreign commerce the fullest extent in the expeditious
shoreward to their ordinary high water This regulation prescribes in addition processing of their applications. The
mark,'including all waters which are to the general policies of 33 CFR Part 320 activities of the Corps of Engineers that
subject to the ebb and flow of the tide and procedures of 33 CFR Part 325, those involve the transportation of dredged
special policies, practices and
shoreward to the high tide line, material for disposal in ocean waters
procedures to be followed by the Corps are regulated by 33 CFR 209.145.
including wetlands adjacent thereto). of Engineers in,connection with the
See 46 CFR Part 123 for procedural review of applications for Department of (2) The policy provisions set out in 33
regulations for transferring Section 404 the Army permits to authorize the CFR 320.4(j) relating to state or local
programs to states. Once a state's 404 transportation of dredged material by authorizations do not apply to work or
program is approved, the Corps of vessel or other vehicle for the purpose of structures undertaken by Federal
Engineers will suspend processing of dumping it in ocean waters at dumping agencies, except where compliance with
Section 404 applications in the sites designated under 40 CFR Part 228 non-Federal authorization is required by
applicable waters and will transfer pursuant to Section 103 of the Marine Federal law or Executive policy. Federal
pending applications to the state agency Protection, Research and Sanctuaries agencies are required to comply with the
responsible for administering the Act of 1972, as amended (33 USC 1413) substantive and procedural state,
program. District engineers will assist (hereinafter referred to as Section 103@ interstate, and local water quality
EPA and the states in any way See 33 CFR 320.2(h). Activities involving standards and effluent limitations as are
practicable to effect transfer and will the transportation of dredged material applicable by law that are adopted in
develop appropriate procedures to for the purpose of dumping in the ocean accordance with or effective under the
ensure orderly and expeditious transfer. waters also require Department of the provisions of the Clean Water Act and
� 323.6 Special policies and procedures. Army permits under Section 10 of the the Marine Protection, Research and
(a) The Secretary of the Army has River and Harbor Act of 1899 (33 USC Sanctuaries Act of 1972, as amended,
delegated to the Chief of Engineers the 403) for the dredging in navigable waters and related laws in the design,
authority to issue or deny Section 404 of the United States. Applicants for construction, management, operation,
permits. Applications for permits for the Department of the Army permits under and maintenance of their respective
this Part should also refer to 33 CFR Part facilities. (See Executive Order No.
discharge of dredged or fill material into 12088, dated October 18, 1978.) They are
waters of the United States will be 322 to satisfy the requirements of not required, however, to obtain and
reviewed in accordance with guidelines Section 10. provide certification of compliance with
promulgated by the Administrator, EPA, � 324.2 Definitions. effluent limitations and water quality
under authority of Section 404(b) of the For the purpose of this regulation, the standards from state or interstate water
Clean Water Act. (See 40 CFR Part 230.) following terms are defined: pollution control agencies in connection
If the EPA guidelines 'alone prohibit the (a) The term "ocean waters" means with activities involving the transport of
designation of a proposed disposal site those waters of the open seas lying dredged material for dumping into ocean
the economic impact on navigation an@ seaward of the baseline from which the waters beyond the territorial sea.
anchorage of the failure to authorize the territorial sea is measured, as provided � 324.4 Special procedures.
use of the proposed disposal site will for in the Convention on the Territorial
also be considered in evaluating Sea and the Contiguous Zone (15 UST The Secretary of the Axmy has
whether or not the proposed discharge is 1606: TIAS 5639). delegated to the Chief of Engineers the
in the public interest. (b) The term "dredged material" authority to issue or deny Section 103
(b) The Corps will not issue a permit means any material excavated or permits. The following additional
where the regional administrator of EPA dredged from navigable waters of the procedures shall also be applicable
has notified the district engineer and United States. under this regulation.
applicant in writing pursuant to 40 CFR (c) The term "transport" or (a) Public notice. For all applications
231.3(a)(1) that he intends to issue a "transportation" refers to the carriage for Section 103 permits, the district
public notice of a proposed and related handling of dredged engineer will issue a public notice which
determination to prohibit or withdraw material by a vessel or other vehicle. ?hall contain the information specified
the specification, or to deny, restrict or in 33 CFR 325.3.
withdraw the use for specification, of � 324.3 Activities requiring permits. (b) Evaluation. Applications for
any defined area as a disposal site in (a) General. Department of the Army permits for the transportation of dredged
accordance with Section 404(c) of the permits are required for the material for the purpose of dumping it in
Clean Water Act. However the Corps transportation of dredged material for ocean waters will be evaluated to
will continue to complete the the purpose of dumping it in ocean determine whether the proposed
administrative processing of the waters. dumping will unreasonably degrade or
application while the Section 404(c) (b) Activities of Federal agencies. (1) endanger human health, welfare, or
procedures are underway including The transportation of dredged material amenities, or the marine environment,
completion of final coordination with for the purpose of disposal in ocean ecological systems or economic
EPA under 33 CFR Part 325. waters done by or on behalf of any potentialities. In making this evaluation,
PART 324-PERMITS FOR OCEAN Federal agency other than the activities critieria established by the
DUMPING OF DREDGED MATERIAL of the Corps of Engineers are subject to Administrator, EPA, pursuant to Section
the procedures of this-regulation. 102 of the Marine Protection, Research
sec. Agreement for construction or and Sanctuaries Act of 1972, as
324.1 General. engineering services performed for other amended, shall be applied including an

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Federal Register / Vol. 47, No. 141 1 Thursday, July 22, 1982 / Rules and Regulations 31815

evaluation of the need for the ocean criteria or of the critical site designation which would Involve the preparation of
dumping and including the availability in accordance with 40 CFR 225.4. an environmental document, he shall
of alternatives to ocean dumping. Where contact the principals involved to advise
ocean dumping is determined to be PART 325-PROCESSING OF them of the requirement for the permit(s)
necessary, the district engineer will, to DEPARTMENT OF THE ARMY and the attendant public interest review
the extent feasible, specify disposal PERMITS including the development of an
sites using the recommendations of the Sec. environmental document. Whenever a
Administrator pursuant to Section 10210 325.1 Applications for permits. potential permit applicant indicates the
of the Act. See 40 CFR Parts 220 to 229. 325.2 Processing of application. intent to submit an application for work
(c) EPA review. If the Regional 325.3 Public notice. which may require the preparation of an
Administrator, EPA, advises the district 325.4 Conditioning of Permits. environmental document, a single point
engineer that the proposed dumping will 325.5 Forms of authorization. of contact shall be designated within the
comply with the criteria, the district 325.6 Duration of authorization. district's regulatory staff to effectively
engineer shall complete his evaluation 325.7 Modification, suspension, or coordinate the regulatory process,
revocation of authorizations.
of the Section 103 application under this 325.8 Authority to issue or deny including the National Environmental
regulation and 33 CFR Parts 320 and 325. authorizations. Policy Act (NEPA) procedures and all
If, however, the Regional Administrator 325.9 Reserved. attendant reviews, meetings, hearings,
advises the district engineer that the 325.10 Publicity. and other actions, including the scoping
proposed dumping will not comply with Appendix A-Pennit Form process if appropriate, leading to a
the criteria, the district engineer will Appendix B-Reserved decision by the district engineer. Effort
proceed as follows. Authority: 33 U.S.C. 401 et seq.; 33 USC devoted to this process should be
(1) The district engineer shall 1344; 33 USC 1413. commensurate with the likelihood of a
determine whether there is an � 325.1 Applications for permits. permit application actually being
economically feasible alternative (a) General. The processing submitted to the Corps. The regulatory
method or site available other than the procedures of this regulation (Part 325) staff coordinator shall maintain an open
proposed ocean disposal site. If there apply to any Department of the Army relationship with each applicant or his
are other feasible alternative methods Or permit. Special procedures and consultants so as to assure that the
sites available, the district engineer additional information are contained in applicant is fully aware of the substance
shall evaluate them in accordance with 33 CFR Parts 320 through 324 and Part (both quantitative and qualitative) of the
33 CFR Parts 320, 322, 323, 325 and this 330. This Part is arranged in the basic data required by the district engineer for
regulation, as appropriate. timing sequence used by the Corps of use in preparing an environmental
(2) If the district engineer makes a Engineers in processing applications for assessment or an environmental impact
determination that there is no Department of the Army permits. statement (EIS). The actual development
economically feasible alternative (b) Pre-application consultation for of the scope of data required in cases
method or site available, and the Mal .or applications. The district staff requiring an EIS should be the product
proposed project is otherwise found to element having responsibility for of the formal "scoping" process
be in the public interest, he shall so administering, processing, and enforc ng discussed In 33 CFR Part 230.
advise the Regional Administrator of his Federal laws and regulations relating to (c) Application form. Any person
intent to issue the permit setting forth the Corps of Engineers regulatory proposing to undertake any activity
his reasons for such determination. program shall be available to advise requiring Department of the Army
(d) EPA objection. If the Regional potential applicants of studies or other authorization as specified in 33 CFR
Administrator advises, within 15 days of information forseeably required for later Parts 321-324 (except activities already
the notice of the intent to issue, that he Federal action. The district engineer will authorized by general permit) must
will commence procedures specified by establish local procedures and policies apply* for a permit to the district
Section 103(c) of the Marine Protection, including appropriate publicity programs engineer in charge of the district where
Research, and Sanctuaries Act of 1972 to which will allow potential permit the proposed activity is to be performed.
prohibit designation of the disposal site, applicants to contact the district Applications for permits must be
the case will be forwarded to the Chief engineer or the staff element*to request prepared utilizing the prescribed
of Engineers for further coordination pre-application consultation. Upon application form (ENG Form 4345, OMB
with the Administrator, EPA, and receipt of such request, the district Approval No. OUB 49-110420). The form
decision. The report forwarding the case engineer will assure the conduct of an may be obtained from the district
will contain, in addition to the analysis orderly process which may involve other engineer having jurisdiction over the
required by 33 CFR 325.11, an analysis staff elements and affected agencies waters in which the proposed activity
of whether there are other economically (Federal, state, or local) and the public. will be located. Local variations of the
feasible methods or sites available to This early process should be brief but application form for purposes of
dispose of the dredged material. thorough so that the applicant may facilitating coordination with state and
(e) Chief of Engineers review. The begin to assess the viability of some of local agencies may be used.
Chief of Engineers shall evaluate the the more obvious alternatives in the (d) Content of application. (1)
permit application and make a decision permit application. The district engineer Generally, the application must include
to deny the permit or recommend its will endeavor at this stage, to provide a complete description of the proposed
issuance. If the decision of the Chief of the applicant with all helpful activity including necessary drawings,
Engineers is that ocean dumping at the information necessary in pursuing the sketches or plans sufficient for public
proposed disposal site is required application, including factors which the notice (the applicant is not expected to
because of the unavailability of Corps must consider in its permit submit detailed engineering plans and
economically feasible alternatives, he decision making process. Whenever the specifications); the location, purpose
shall so certify and request that the district engineer becomes aware of and intended use of the proposed
Secretary of the Army seek a waiver planning for work which may require a activity; scheduling of the activity; the
from the Administrator, EPA, of the Department of the Army permit and names and addresses of adjoining

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31816 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

property owners; the location and would indicate) by similarly qualified applicant two copies of the unsigned
dimensions of adjacent structures; and a persons. No specific design criteria are permit for his signature. He will also
list of authorizations required by other to be prescribed nor is an independent notify the applicant of the required fee
Federal, interstate, state or local detailed engineering review to be made and will request that any check or
agencies for the work, including all by the district engineer. money order be made payable to the
approvals received or denials already (7) Signatures on application. The Treasurer of the United States. The
made. See also Section 325.3 for application must be signed by the permit will then be issued upon receipt
information required to be in public person who desires to undertake the of the application fee and the two signed
notices. District and division engineers proposed activity or by a duly permit copies. Multiple fees are not to
are not authorized to develop additional authorized agent if accompanied by a be charged if more than one law is
information forms and will limit statement by that person designating the applicable. Any modification significant
requests for additional information to agent. In either case, the signature of the enough to require publication of a public
those cases where the specific applicant or the agent will be notice will also require a fee. No fee will
information is essential to complete an understood to be an affirmation that he be assessed when a permit is
evaluation of theproposal's impact on possesses the requisite property interest transferred from one property owner to
the public interest. to undertake the activity proposed in the another. No fees will be charged for time
@ (2) All activities which the applicant application. except where the lands are extensions, general permits or letters of
plans to undertake which are under the control of the Corps of permission. Agencies or
reasonably related to the same project Engineers, in which cases the district instrumentalities of Federal, state or
and for which a Department of the Army engineer will coordinate the transfer of local governments will not be required
permit would be required should be the real estate and the permit action. An to pay any fee in connection with
included in the same permit application. application may include, the activity of permits.
District engineers should reject, as more than one owner provided the
incomplete, any permit application character of the activity of each owner 325.2 Processing of applications.
which fails to comply with this is similar and in the same general area (a) Standardprocedures. (1) When an
requirement. For example, a permit and each owner submits a statement application for a permit is received, the
application for a marina will include designating the same agent. district engineer shall immediately
dredging required for access as well as (e) Additional infoTmation, In addition assign it a number for identification,
any fill associated with construction of to the information indicated in acknowledge receipt thereof, and advise
the marina. paragraph (d) of this section the the applicant of the number assigned to
(3) If the activity would involve applicant will be required to furnish it. He shall review the application for
dredging in navigable waters of the only such additional information at; the completeness, and if the application is
United States, the application must district engineer deems essential to incomplete, request from the applicant
include a description of the type, assist in the evaluation of the within 15 days of receipt of the
composition and quantity of the material application. Such additional information application any additional information
to be dredged, the method of dredging, may include environmental data and necessary for further processing.
and the site and plans for disposal of the information on alternate methods and
dredged material. sites as may be necessary for the (2) Within 15 days of receipt of all
(4) If the activity would include the preparation of the required information required in accordance with
discharge of dredged or fill material in environmental documentation. Sec. 325.1(d) of this part, the district
the waters of the United States or the (f) Fees. Fees are required for permits engineer will issue a public notice as
transportation of dredged material for under Section 404 of the Clean Water described in Sec. 325.3 of this part
unless specifically exempted by other
the purpose of disposing of it in ocean Act, Section 103 of the Marine provisions of this regulation. The district
,waters, the application must include the Protection, Research and Sanctuaries . eer will issue a supplemental,
source of the material; the purpose of Act of 1972, as amended, and Sections 9 engin
the discharge, a description of the type. and 10 of the River and Harbor Act of revised, or corrected public notice if in
composition and quantity of the 1899. A fee of $100.00 will be charged his view there is a change in the
material; the method of transportation when the planned or ultimate purpose of application data that would affect the
and disposal of the material; and the the project is commercial or industrial in public's review of the proposal.
location of the disposal site. nature andIs in support of operations (3) The district engineer will consider
Certification under Section 401 of the that charge for the production, all comments received in response to the
Clean Water Act is required for such distribution or sale of goods or services. public notice in his subsequent actions
discharges into waters of the United A $10.00 fee will be charged for permit on the permit application. Receipt of the
States. applications when the proposed work is comments will be acknowledged and
. (5) If the activity would include the non-commercial in nature and would they will be made a part of the
construction of a filled area or pile or provide personal benefits that have no administrative record of the application.
float-supported platform, the project connection with a commercial Comments received as form letters or
description must include the use of and enterprise. The final decision as to the petitions may be acknowledged as a
specific structures to be erected on the basis for a fee (commercial vs. non- group to the person or organization
fill or platform. commercial) shall be solely the responsible for the form letter or
(6) If the activity would involve the responsibility of the district engineer, No petition. If comments relate to matters
construction of an impoundment fee will be charged if the applicant within the special expertise of another
structure, the applicant may be required withdraws the application at any time Federal agency, the district engineer
to demonstrate that the structure prior to issuance of the permit or if the may seek the advise of that agency. At
complies with established state dam permit is denied. Collection of the fee the earliest practicable time, the
safety criteria or that the structure has will be deferred until the proposed applicant must be given the opportunity
been designed by qualified persons and, activity has been determined to be in to furnish the district engineer his
in appropriate cases, independently the public interest. At that time, the proposed resolution or rebuttal to all
reviewed (and modified as the review district engineer will furnish the objections from other Government

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31817

agencies and other substantive adverse disclose his recommendation to the the Director, Office of Marine
comments before final decision will be news media and other interested parties, Recreational Fisheries, National Marine
made on the application. The applicant with the caution that it is only a Fisheries Service, Washington, D.C.
may voluntarily elect to contact recommendation and not a final 20235.
objectors in an attempt to resolve decision. Such disclosure is encouraged (iii) If the activity involves the
objections. but will not be required to do in permit cases which have become erection of an aerial transmission line
SO. controversial and have been the subject across a navigable water of the United
(4) The district engineer will follow of stories in the media or have generated States, to the Director, National Ocean
Appendix B of 33 CFR Part 230 for strong public interest. In those cases Survey, NOAA, Department of
environmental procedures and where the application is forwarded for Commerce, Rockville, Maryland 20852,
documentation required by the National decision in the format prescribed by the reference C322.
Environmental Policy Act of 1969. A Chief of Engineers, the report will serve (iv) If the activity is listed in
permit application will require either an as the SOF or ROD. paragraphs (a)(9)(i), (ii), or (iii) of this
environmental assessment or an (7) If the final decision is to deny the section or involves the transportation of
environmental impact statement unless permit, the applicant will be advised in dredged material for the purpose of
it is included within a categorical' writing of the reason(s) for denial. If the dumping it in ocean waters, to the
exclusion. final decision is to issue the permit and appropriate District Commander, U.S.
(5) The district engineer will also a standard individual permit form will Coast Ouard.
evaluate the application to determine be used, the issuing official will forward (b) Procedures for particular types of
the need for a public hearing pursuant to two copies of the draft permit to the permit situations. (1) If the district
33 CFR Part 327. applicant for signature accepting the engineer determines that water quality
(6) After all above actions have been conditions of the permit. The applicant certification for the proposed activity is
completed, the district engineer will will return both signed copies to the necessary under the provisions of
determine in accordance with the record issuing official who then will sign and Section 401 of the Clean Water Act, he
and applicable regulations whether or date the permit and return one copy to shall so notify the applicant and obtain
not the permit should be issued. He shall the permittee. The permit is not valid from him or the certifying agency a copy
prepare a Statement of Findings (SOF) until signed by the issuing official. of such certification.
or, where an EIS has been prepared, a Letters of permission will be issued in (i) The public notice for such activity,
Record of Decision (ROD), on all permit letter form (signed by the issuing official which will contain a statement on
decisions. The SOF or ROD shall only). Final action on the permit certification requirements (see Sec.
include the district engineer's views on application is the signature on the letter 325,3(a)(8)), will serve as the notification
the probable effect of the proposed work notifying the applicant of the denial of to the Administrator of the
on the public interest including the permit or signature of the issuing Environmental Protection Agency (EPA)
conformity with the guidelines published official on the authorizing document. pursuant to Section 401(a)(2) of the
for the discharge of dredged or fill (8) The di8tricf engineer will publish Clean Water Act. If EPA determines that
material in waters of the United States monthly a list of permits issued or the proposed discharge may affect the
(40 CFR Part 230) or with the criteria for denied during the previous month. The quality-of the waters of any state other
dumping of dredged material in ocean list will identify each action by public than the state in which the discharge
waters (40 CFR Parts 220 to 229), if notice number, name of applicant, and will originate, it will so notify such other
applicable, and the conclusions of the brief description of activity involved. It state, the. district engineer, and the
district engineer. The SOF or ROD shall will also note that relevant applicant. If such notice or a request for
be dated, signed, and included in the environmental documents and the SOF's supplemental information is not
record prior to final action on the or ROD's are available upon written received within 30 days of issuance of
application. Where the district engineer request and, where applicable, upon the the public notice, the district engineer
has delegated authority to sign permits payment of administrative fees. This list will assume EPA has made a negative
for and in his behalf, he may similarly will be distributed to all persons who determination with respect to Section
delegate the signing of the SOF or ROD. may have an interest in any of the 401(a)(2). If EPA does determine another
If a permit is warranted, the district public'notices listed. state's waters may be affected, such
engineer will determine the special (9) Copies of permits will be furnished state has 60 days from receipt of EPA's
conditions, if any, and duration which to other agencies in appropriate cases as notice to determine if the proposed
should be incorporated into the permit. follows: discharge will affect the quality of its
In accordance with the authorities (i) If the activity involves the waters so as to violate any water
specified in � 325.8 of this Part, the construction of artificial islands, quality requirement in such state, to
district engineer will take final action or installations or other devices on the notify EPA and the district engineer in
forward the application with all outer continental shelf, to the Director, writing of its objection to permit
pertinent comments, records, and Defense Mapping Agency, Hydrographic issuance, and to request a public
studies, including the final EIS or Center, Washington, D.C. 20390 hearing. If such occurs, the district
environmental assessment, through Attention, Code NS12 and to the engineer will hold a public hearing in
channels to the official authorized to Director, National Ocean Survey, the objecting state. Except as stated
make the final decision. The report NOAA, Department of Commerce, below, the hearing will be conducted in
forwarding the application for decision Rockville, Maryland 20852. accordance with 33 CFR 327. The issues
will be in the format prescribed by the (ii) If the activity involves the to be considered at the public hearing
Chief of Engineers. District and division construction of structures to enhance will be limited to water quality impacts.
engineers will notify the applicant and fish propagation (e.g., fishing reefs) EPA will submit its evaluation and
interested Federal and state agencies along the coasts of the United States, to recommendations at the hearing with
that the application has been forwarded Defense Mapping Agency, Hydrographic respect to the state's objection to permit
to higher headquarters. The district or Center and National Ocean Survey as in issuance. Based upon the
division engineer may, at his option, paragraph (a)(9)(i) of this section and to recommendations of the objecting state,

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31818 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

EPA, and any additional evidence manner which is consistent, to the (3) If the proposed activity would
presented at the hearing, the district maximum extent practicable, with involve any property listed or eligible
engineer will condition the perinit, if approved Coastal Zone Management for listing in the National Register of
issued, in such a manner as may be Programs, (See 15 CFR Part 930.) If the Histbric Places, the district engineer will
necessary to insure compliance with State coastal zone agency objects to the proceed in accordance with Corps
applicable water quality requirements. If proposed Federal activity on the basis of National Historical Preservation Act
the imposition of conditions cannot, in its inconsistency with the State's counterpart implementing regulations.
the district engineer's opinion, insure approved Coastal Zone Management (4) If the proposed activity would
such compliance, he will deny, the Program, the district engineer shall not consist of dredging of an access channel
permit. make a final decision on the application and/or berthing facility associated with
(ii) No permit will be granted until until the disagreeing parties have had an an authorized Federal navigation
required certification has been obtained opportunity to utilize the procedures project, the activity will be included in
or has been waived. Waiver may be specified by the Coastal Zone the planning and coordination of the
explicit, or will be deemed to occur if Management Act-for resolving such construction or maintenance of the
the certifying agency fails or refuses to disagreements. Federal project to the maximum extent
act on a request for certification within (ii) If the applicant is not a Federal feasible. Separate notice, hearing, and
sixty days after receipt of such a request a ency and the application involves an environmental documentation will not
8
unless the district engineer determines a activity affecting the coastal zone, the be required for activities so included
shorter or longer period is reason Is district engineer shall obtain from the and coordinated; and the public notice
for the state to act. The request for applicant a certification that his issued by the district engineer for these
certification must be made in proposed activity complies with and will Federal and associated non-Federal
accordance with the regulations of the be conducted in a manner that is activities will be the notice of intent to
certifying agency. In determining consistent with the approved State issue permits for those included non-
whether or not a waiver period has Coastal Zone Management Program. Federal dredging activities. The decision
commenced or waiver has occurred, the Upon receipt of the certification, the whether to issue or deny such a permit
district engineer will verify that the
certifying agency has received a valid district engineer will forward a copy of will be consistent with the decision on
request for certification. If, however, the public notice (which will include the the Federal project unless special
applicant's certification statement) to considerations applicable to the
special circumstances identified by the posed activity are identified. (See
district engineer require that action on the state coastal zone agency and pro
an application be taken within a more request its concurrence or objection. If Sec. 322.5(C)).
limited period of time, the district the state agency objects to the (5) Applications will be reviewed for
engineer shall determine a reasonable certification or issues a decision the potential impact on threatened or
lesser period of time, advise the indicating that the proposed activity endangered species pursuant to Section
certifying agency of the need for action requires further review, the district 7 of the Endangered Species Act as
by a particular date and that, if engineer shall not issue the permit until amended. If the district engineer
certification is not received by that date, the state concurs with the certification determines that the proposed activity
it will be considered that the statement or the Secretary of Commerce would not affect listed species or their
requirement for certification has been determines that the proposed activity is critical habitat, he will include a
waived. Similarly if it appears that consistent with the purposes of the statement to this effect in the public
circumstances may reasonably require a Coastal Zone Management Act or is notice. If he finds that proposed activity
period of time longer than sixty days, necessary in the interest of national may jeopardize the continued existence
the district engineer, based on security. If the state agency fails to of listed species or destroy or adversely
information provided by the certifying concur or object to a certification modify their critical habitat, he will
agency, will determine a longer statement within six months of the state initiate formal consultation procedures
reasonable period of time, not to exceed agency's receipt of the certification with the U.S. Fish and Wildlife Service
one year, at which time a waiver will be statement, state agency concurrence or National Marine Fisheries Service by
deemed to occur. with the certification statement shall be including a statement to this effect in the
(2) If the proposed activity is to be conclusively presumed. District public notice (or will amend any
undertaken in a State operating under a engineers shall check with the certifying previous notice as appropriate). Public
coastal zone management program agency at the end of the allotted period notices forwarded to the U.S. Fish and
approved by the Secretary of Commerce of time before determining that a waiver Wildlife Service or National Marine
pursuant to the Coastal Zone has occurred. Fisheries Service will serve as the
Management Act (see 33 CFR 320.3(b)), (iii) If the applicant is requesting a request for information on whether any
the district engineer shall proceed as permit for work on Indian reservation listed or proposed to be listed
follows: lands which are in the coastal zone, the endangered or threatened species may
(i) If the applicant is a Federal agency, district engineer shall treat the be present in the area which would be
and the application involves a Federal application in the same manner as affected by the proposed activity,
activity in or affecting the coastal zone, prescribed for a Federal applicant in pursuant to Section 7(c) of the Act.
the district engineer shall forward a paragraph (b)(2)(i) of this section. References, definitions, and consultation
copy of the public notice to the agency However, if the applicant is requesting a procedures are fourd in 33 CFR Part 306
of the state responsible for reviewing permit on non-trust Indian lands and the and 50 CFR Part 402.
the consistency of Federal activities. state CZM agency has decided to assert (c) [Reserved]
The Federal agency applicant shall be jurisdiction over such lands, the district (d) Timing of processing of
responsible for complying with the engineer shall treat the application in applications. The district engineer will
Coastal Zone Management Act's the same manner as prescribed for a be guided by the followilIg time limits
directive for ensuring that Federal non-Federal applicant in paragraph for the indicated steps in the evaluation
agency activities are undertaken in a (b)(2)(ii) of this section. process:

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31819

(1) The public notice will be issued granted prior to other (non-prerequisite) concerns for the aquatic environment so
within 1.5 days of receipt of all authorizations by other agencies should, indicate, he may exercise discretionary
information required to be submitted by where appropriate, be conditioned in a utbority to override the regional permit
the applicant in accordance with such manner as to give those other and require an individual application
�325.1.(d) of this part. authorities an opportunity to undertake and review. A regional permit may be
(2) The comment period of the public their review without the applicant revoked by the issuing authority if ii is
notice should not extend beyond 30 biasing such review by making determined that it is no longer in the
days from the date of the notice. substantial resource commitments on public interest provided the procedures
However, if circumstances warrant, the the basis of the Army permit. In an of Sec. 325.7 of this part are followed.
district engineer may extend the unusual case, the district engineer may Following revocation, applications for
comment period up to an additional 30 decide that due to the nature or scope of future activities in areas covered by the
days. a specific proposal, it would be prudent re3ional permit shall be processed us
(3) District engineers will decide on all to defer taking final action until another applications for individual permits. No
applications not later than 60 days after agency has acted on its authorization. In re.-ional permit shall be issued for a
receipt of a complete application, unless such cases, he may advise the other period of more than five years.
(i) precluded as a matter of law or agency of his position on the Army (3) Joint Procedures. Division and
procedures required by law (see below), permit while deferring his final decision. district engineers are authorized and
(ii) the case must be referr ed to higher (5) If the applicant fails to respond encouraged to develop joint procedures
authority (see Sec. 325.8 of this part), within 45 days to any request or inquiry with states and other Federal agencies
(iii) the comment period is extended, (iv) of the district engineer, the district with ongoing permit programs for
a timely rebuttal or resolution of engineer may advise the applicant by activities also regulated by the
objections is not received from the certified letter that his application will Department of the Army. Such
applicant, (v) the processing is be considered as having been procedures may be substituted for the
suspended at the request of the withdrawn unless the applicant procedures in paragraphs (a)(1) through
applicant, or (vi) information needed by responds thereto within thirty days of (5) of this section provided that the
the district engineer for a decision on the date of the letter. substantive requirements of those
the application cannot reasonably be (e) Alternative procedures. Division sections are maintained. Division and
obtained within the 60-day period. Once and district engineers are authorized to district engineers are also encouraged to
the cause for preventing the decision use alternative procedures as follows: develop management techniques such as
from being made within the normal 60- (1) Letters ofpermission. In those joini agency review meetings to
day period has been satisfied or cases subject to Section 10 of the River expedite the decision-making process.
eliminated, the 60-day clock will start and Harbor Act of 1899 in which, in the However, in doing so, the applicant's
running again from where it was opinion of the district engineer, the rights to a full public interest review and
suspended. For example, if the comment proposed work would be minor, would independent decision by the district or
period is extended by 30 days, the not have significant individual or division engineer must be strictly
district engineer will, absent other cumulative impact on environmental observed.
restraints, decide on the application values, and should encounter no (4) Ernergencyprocedures. Division
within 90 days of receipt,of a complete appreciable opposition, the district engineers are authorized to approve
application. Certain laws (e.g., the Clean engineer may omit the publishing of a special processing procedures in
Water Act, the Coastal Zone public notice and authorize the work by emergency situations. An "emergency"
Management Act, the National a letter of permission. However, he will is a situation which would result in an
Environmental Policy Act, the National coordinate the proposal with all unacceptable hazard to life, a significant
Historic Preservation Act, the concerned fish and wildlife agencies, loss of property, or an immediate,
Preservation of Histbrical and Federal and state, as required by the unforeseen, and significant economic
Archeological Data Act, the Endangered Fish and Wildlife Coordination Act. The hardship if corrective action requiring a
Species Act, the Wild and Scenic Rivers letter of permission will not used to permit is not undertaken within a time
Act, and the Marine Protection, authorize the discharge of dredged or fill period less than the normal time needed
Research and Sanctuaries Act) require material into waters of the United States to process the application under
procedures such as state or other nor the transportation of dredged standard procedures. In emergency
Federal agency certifications, public material for purposes of dumping it in situations, the district engineer will
hearings, environmental impact ocean waters. The letter of permission explain the circumstances and
statements, consultation, special studies form is specified in � 325.5 of this part. recommend special procedures to the
and testing which may prevent district (2) Regionalpermits. Regional permits division engineer who will instruct the
engineers from being able to decide are a type of general permit as defined district engineer as to further processing
certain applications within 60 days. in 33 CFR 322.2[f) and 33 CFR 323.2(n). of the application. Even in an emergency
(4) Once the public comment period They may be issued by a division or situation, reasonable efforts will be
has closed (or, at the latest, on the district engineer after compliance with made to receive comments from
ninetieth day following the public the other procedures of this regulation. interested Federal, state, and local
notice) and the district engineer has After a regional permit has been issued, agencies and the affected public. Also,
sufficient information to make his public individual activities falling within those notice of any special procedures
interest determination, he should decide categories that are authorized by such authorized and their rationale is to be
the permit application even ihough other regional permits do Tiot have to be appropriately published as soon as
agencies which may have regulatory further authorized by the procedures of practicable.
jurisdiction have not yet granted their this regulation. The issuing authority � 325.3 Public notice.
authorizations, except where such will determine and add appropriate
authorizations are, by Federal law, a conditions to protect the public interest. (a) General. The public is the primary
prerequisite to making a decision on the When the issuing authority determines method of advising all interested parties
Army pern-Lit application. Permits on a case-by-case basis that the of the proposed activity for which a

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31820 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

permit is sought and of soliciting their views concerning the permit energy needs, safety production and, in
comments and information necessary to application; general, the needs and welfare of the people.
evaluate the probable impact on the (14) A statement that any person may (2) If the activity would involve the
public interest. The notice must request, in writing, within the comment discharge of dredged or fill material into
therefore, include sufficient information period specified in the notice, that a the waters of the United States or the
to give a clear understanding of the public hearing be held to consider the transportation of dredged material for
nature and magnitude of the activity to application. Requests for public hearings the purpose of disposing of it in ocean
generate meaningful comment. The shall state, with particularity, the waters, the public notice shall also
notice should include the following reasons for holding a public hearing-, indicate that the evaluation of the
items of information: (15) For non-Federal applications in impact on the activity of the public
(1) Applicable statutory authority or states with an approved Coastal Zone interest will include application of the
authorities; Management Plan. a statement on
awdelines promulgated by the
(2) The name and address of the compliance with the approved Plan; and @Ldministrator, EPA under authority of
applicant; (16) In addition, for Section 103 (ocean Section 404(b) of the Clean Water Act
(3) The name or title, address and dumping) activities: (40 CFR Part 230) or of the criteria
telephone number of the Corps (I) The specific location of the established under authority of Section
employee from whom additional proposed disposal site and its physical 102(a) of the Marine Protection,
information concerning the application boundaries; Research and Sanctuaries Act of 1972,
may be obtained; (ii) A statement as to whether the as amended (40 CFR Parts 220 to 229), as
(4) The location of the proposed proposed disposal site has been , appropriate. (See also 33 CFR Parts 323
activity; designated for use by the Administrator, and 324).
(5) A brief description of the proposed EPA, pursuant to Section 102(c) of the (3) In cases involving construction of
activity, its purpose and intended use, Act; artificial islands, installations and other
so as to provide sufficient information (III) If the proposed disposal site has devices on outer continental shelf lands
concerning the nature of the activity to not been designated by the which are under mineral lease from the
generate meaningful comments, Administrator, EPA, a description of the Department of the Interior, the notice
including a description of the type of characteristics of the proposed disposal will contain the following statement:
structures, if any, to be erected on fills. site and an explanation as to why no "The decision as to whether a permit
or pile or float-supported platforms, and previously designated disposal site is will be issued will be based on an
a description of the type, composition feasible; evaluation of the impact of the proposed
and quantity of materials to be (iv) A brief description of known work on navigation and national
discharged or, disposed of in the ocean; dredged material dischages at the security."
(6) A plan and- elevation drawing proposed disposal site; (c) Distribution ofpublic notices. (1)
showing the general and specific site (v) Existence and documented effects Public notices will be distributed for
location and character of all proposed of other authorized disposals that have posting in post offices or other
activities, including the size relationship been made in the disposal area (e.g., appropriate public places in the vicinity
of the proposed structures to the size of heavy metal background reading and of the site of the proposed work and will
the impacted waterway and depth of organic carbon content); be sent to the applicant, to appropriate
water in the area; (vi) An estimate of the length of time city and county officials, to adjoining
(7) If the proposed activity would during which'disposal would continue at property owners, to appropriate state
occur in the territorial seas or ocean the proposed site; and agencies, to appropriate Indian Tribes or
waters, a description of the activity's (vii) Information on the characteristics tribal represenatives, to concerned
relationship to the baseline from which and composition of the dredged Federal agencies, to local, regional and
the territorial sea is measurect material. national shipping an8 other concerned
(8) A list of other government (b) Evaluation factors. A paragraph business and conservation
authorizations obtained or requested by describing the various evaluation factors organizations, to appropriate River
on which decisions are based shall be
the applicant, including required included in every public notice. Basin Commissions, to appropriate state
certifications relative to water quality, (1) Except as provided in paragraph and areawide clearing houses as
coastal zone management, or marine (b)(3) of this section. the following Win Prescribed by OMB Circular A-95, to
sanctuaries; be included: local news media and to any other
(9) If appropriate, a statement that the interested party. Copies of public
activity is a categorical exclusion for I%e decision whether to issue a permit will notices will be sent to all parties who
purposes of the National Environmental be based on an evaluation of the probable have specifically requested copies of
Policy Act (see paragraph 7 of Appendix impact including cumulative impacts of the public notices, to the U.S. Senators and
B to 33 CFR Part 230); proposed activity on the public interest. That Representatives for the area where the
decision will reflect the national concern for
(10) A statement on endangered both protection and utilization of Important work is to be performed, the field
species (see Sec. 325.2(b)(5); resources. The benefit which reasonably may representative of the Secretary of the
(11) A statement(s) on evaluation be expected to accrue from the proposals Interior, the Regional Director of the
factors (see Sec. 325.3(b)); must be balanced against its reasonably Fish and Wildlife Service, the Regional
(12) Any other available Information foreseeable detriments. Ali factors which Director of the National Park Service,
which may assist interested parties in may be relevant to the proposal will be the Regional Administrator of the
evaluating the likely impact of the considered including the cumulative effects Environmental Protection Agency (EPA),
proposed activity, if any, on factors thereof, among those are conservation. the Regional Director of the National
affecting the public interest; economics, aesthetics, general environmental Marine Fisheries Service of the National
(13) A reasonable period of time, concerns, wetlands, cultural values, fish and Oceanic and Atmospheric
wildlife values, flood hazards, flood plain
normally thirty days but not less than values, land use, navigation, shoreline Administration (NOAA), the head of the
fifteen days from date of mailing, within erosion and accretion. recreation. water state agency responsible for fish and
which interested parties may express supply and conservation. water quality. wildlife resources, the State Historic

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31821

Preservation Officer, and the District � 325.4 Conditioning of permit& interest review procedures, Including
Commander, U.S. Coast Guard. (a) General. The decision of whether public notice and receipt of comments,
(2) In addition to the general to issue a permit is based on the public described throughout this Part. The
distribution of public notices cited interest review described in 33 CFR standard individual permit shall be
above, notices will be sent to other 320.4. In order to protect the public issued using ENG Form 1721.
addressees in appropriate cases as interest, projects may require (2) Letters ofpermission. A letter of
follows: modifications or conditions different permission will be issued where
(I) If the activity would involve from what the applicant proposes. procedures of Section 325.2(e)(1) have
structures or dredging along the shores (b) Division and district engineers are been followed. It will be in letter form
of the seas or Great Lakes, to the authorized to modify or add conditions and will identify the permittee, the
Coastal Engineering Research Center, to proposals when: authorized work and location of the
Washington, D.C. 20016. (1) they are necessary to meet a legal work, the statutory authority, any
(ii) If the activity would inv-lve requirement, limitations on the work, a construction
construction of fixed structures or (2) they serve to meet a public interest time limit and a requirement for a repot t
artificial islands on the outer continental objective, or of completed work. A copy of the
shelf or in the territorial seas, to the . (3) they will avoid or mitigate adverse general conditions form ENG Form 1721
Assistant Secretary of Defense impacts on fish and wildlife resources. will be attached and will be
(Manpower, Reserve Affairs and (c) Division and district engineers may incorporated by reference into the letter
Logistics (ASD(MRA&L)), Washington, modify or condition proposals to meet of permission.
D.C. 20310; the Director, Defense one of the objectives of 325.4(b) of this (c) Generalpermits. (1) Regional
Mapping Agency (Hydrographic Center) section when: permits. Regional permits are a type of
Washington, D.C. 20390, Attention, Code (1) there are no local, state or other general permit as defined in 33 CFR
NS12; and the Director, National Ocean Federal programs or policies to achieve 322:2[f) and 33 CFR 323.2(n). They may
Survey, NOAA, Department of the objective of the desired condition, be issued by a division or district
Commerce, Rockville, Maryland 20852, and engineer after compliance with the other
and to affected military installations (2) an agreement, enforceable at law, procedures of this regulation. If the
and activities. between the applicant and the party(ies) public interest so requires, the issuing
(III) If the activity involves the concerned with the resource use is not authority may condition the regional
construction of structures to enhance practicable. .11 permit to require a case-by-case
fish propagation (e.g., fishing reefs) (d) Division and district engineers wi reporting and acknowledgement system.
along the coasts of the United States, to ensure that any modifications or , However, no separate applications or
the Director, Office of Marine conditions imposed on an applicant s other authorization documents will be
Recreational Fisheries, National Marine proposal are:, required.
Fisheries Service. Washington, D.C. (1) directly related to the impacts of (2) Nationwide permits. Nationwide
20235. the proposal; and ermits are a type of general permit and
(iv) If the activity involves the (2) commensurate in scope and degree P
construction of structures which may with the impacts of concern; and represent Department of the Army
affect aircraft operations or for purposes (3) reasonably enforceable. authorizations that have been issued by
associated with seaplane operations, to (e) Bonds. If the District Engineer has the regulation (33 CFR Part 330) for
the Regional Director of the Federal reason to consider that the permittee certain specified activities nationwide.
Aviation Administration. might be prevented from completing If certain conditions are met, the
[v) If the activity would be in work which is necessary to protect the specified activities can take place
connection with a foreign-trade zone, to public interest, he may require the without the need for an individual or
the Executive Secretary, Foreign-Trade permittee to post a bond of sufficient regional permit.
Zones Board, Department of Commerce, amount to indemnify the government (d) Section 9permits. Permits for
Washington, D.C. 20230 and to the against any loss as a result of corrective structures under Section 9 of the River
appropriate District Director of Customs action it might take. and Harbor Act of 1899 will be drafted
as Resident Representative, Foreign- � 325.5 Forms of pernitts. at Department of the Army level.
Trade Zones Board. � 325.6 Duration of permits.
(3) It is presumed that all interested (a) General discussion. (1)
parties and agencies will wish to Department of the Army permits under (a) General. Department of the Army
respond to public notices; therefore, a this regulation will be in the form of permits may authorize both the work
lack of response will be interpreted as individual permits or general permits. and the resulting use. Permits continue
meaning that there is no objection to the The basic format shall be ENG Form in eff6ct until they automatically expire
proposed project. A copy of the public 1721, Department of the Army Permit or are modified, suspended, or revoked.
notice with the list of the addresses to (Appendix A). (b) Structures, Permits for the
whom the notice was sent will be (2) The general conditions included in existence of a structure or other activity
included in the record. If a question ENG Form 1721 are normally applicable of a permanent nature are usually for an
develops with respect to an activity for to all permits; however, some conditions indefinite duration with no expiration
which another agency has responsibility may not apply to certain permits and date cited. However, where a temporary
and that other agency has not responded may be deleted by the issuing officer. structure is authorized, or where
to the public notice, the district engine&@ Special conditions applicable to the restoration of a waterway is
may request its comments. Whenever a specific activity will be included in the contemplated, the permit will be of
response to a public notice has been permit as necessary to protect the public limited duration with a definite
received from a member of Congress, interest in accordance with J 3Z5.4 of expiration date.
either in behalf of a constitutent or this Part. (c) Works. Permits for construction
himself, the district engineer will inform (b) Individualpertnits. (1) Standard work, discharge of dredged or fill
the member of Congress of the final permits. A sfandard permit is one which material, or other activity and any
decision. has been processed through the public construction period for a structure with

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31822 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulation s

a permit of indefinite duration under 325.7 Modification, susi:wnsion or district engineer and/or a public
paragraph (b) of this section Will specify revocation of authorizations. hearing. The modification will become
time limits for completing the work or (a) General. The district engineer may effective on the date set by the district
activity. The time limits may specify a reevaluate the circumstances and engineer which shall be at least ten days
date by which the work must be started, conditions of any permit, including after receipt of the notice by the
normally one year from the date of regional permits either on his own permittee unless a hearing or meeting is
issuance, and will specify a date by motion. at the request of the permittee, requested within that period. If the
which the work must be completed. The or a third party, or as the result of permittee fails or refuses to comply with
dates will be established by the issuing periodic progress inspections, and the modification, the district engineer
official and will provide reasonable initiate action to modify, suspend, or will proceed in accordance with 33 CFR
times based on the scope and nature of revoke a permit as may be made Part 326.
the work involved. Permits issued for necessary by considerations of the (c) Suspension. The district engineer
the transport of dredged material for the public interest. In the case of regional may suspend a permit after preparing a
purpose of disposing of it in ocean permits, this reevaluation may cover written determination and finding that
waters will specify a completion date individual activities, categories of immediate suspension would be in the
for the disposal not to exceed three activities, or geographic areas. Among public interest. The district engineer will
years from the date of permit issuance. the factors to be considered are the notify the permittee in writing by the
extent of the permittee's compliance
(d) Extensions of time. An with the terms and conditions of the most expeditious means available that
authorization or construction period will the permit has been suspended with the
automatically expire if the permittee permit; whether or not circumstances reasons therefor, and order the
relating to the authorized activity have permittee to stop those activities
fails to request and receive an extension changed since the permit was issued or previously authorized by the suspended
of time. Extensions of time may be extended, and the continuing adequacy permit. The permittee will also be
granted by the district engineer. The of the permit conditions; any significant advised that following this suspension a
permittee must request the extension objections to the authorized activity
and explain the basis of the request, which were not earlier considered; decision will be made to either reinstate,
modify, or revoke the permit and that
which will be granted only if the district revisions to applicable statutory and/or he may within 10 days of receipt of
engineer determines that an extension regulatory authorities; and the extent to notice of the suspension, request a
would be in the public interest. Requests which modification, suspension, or other meeting with the district engineer and/
for extensions will be processed in action would adversely affect plans, or a public hearing to present
accordance with the regular procedures investments and actions the permittee
of � 325.2 of this Part, including issuance has reasonably made or taken in information in this matter. If a hearing is
of a public notice, except that such reliance on the permit. Significant requested, the procedures prescribed in
processing is not required where the increases in scope of a permitted 33 CFR Part 327 will be followed. After
district engineer determines that there activity will be processed as new the completion of the meeting or hearing
have been no significant changes in the applications for permits in accordance (or within a reasonable period of time
after issuance of the notice to the
attendant circumstances since the with � 325.2 of this part, and not as
authorization was issued and that the modifications under this paragraph. permittee that the permit has been
work is proceeding essentially in (b) Modification. Upon reques by the suspended if no hearing or meeting is
accordance with the approved plans and perniittee or, as a result of reeva uation requested), the district engineer will
conditions. of the circumstances and condi ' no of a take action to reinstate, modify or
(e) Maintenance dredging. If the permit, the district engineer may revoke the permit.
authorized work includes periodic determine that the public interest (d) Revocation. Following completion
maintenance dredging, an expiration requires a modification of the terms or of the suspension procedures in
date for the authorization of that conditions of the permit. In such cases, paragraph (c) of this section if
maintenance dredging will be included the district engineer will hold informal revocation of the permit is found to be in
consultations with the permittee to the public interest, the authority who
in the permit. The expiration date, which ascertain whether the terms and made the decision on the original permit
in no event is to exceed ten years from conditions can be modified by mutual may revoke it. The permittee will be
the date of issuance of the permit, will agreement. If a mutual agreement is advised in writing of the final decision.
be established by the issuing official reached on modification of the terms (e) Regional peTmits. The district
after evaluation of the proposed method and conditions of the permit, the district engineer may. by following the
of dredging and disposal of the dredged engineer will give the permittee written procedures of this section, revoke
material in accordance with the notice of the modification, which will regional permits for individual activities,
requirements of 33 CFR Parts 320 to 325. then become effective on such date as categories of activities, or geographic
In such cases, this district engineer shall the district engineer may establish. In areas. Where groups of permittees are
require notification of the maintenance the event a mutual agreement cannot be involved, such as for categories of
dredging prior to actual performance to reached by the district engineer and the activities or geographic areas, the
insure continued compliance with the permittee, the district engineer will informal discussions provided in
requirements of this regulation and 33 proceed in accordance with paragraph paragraph (b) of this section may be
CFR Parts 320-324. If the permittee (c) of this section if immediate waived and any written notification
desires to continue maintenance suspension is warranted. In cases where may be made through the general public
dredging beyond the expiration date, he immediate suspension is not warranted notice procedures of this regulation. If a
must request a new permit. The by the district engineer determines that regional permit is revoked, any
t
I
tio

permittee should be advised to apply for the permit should be modified, he will permittee may then apply for an
the new permit six months prior to the notify the permittee of the proposed individual permit which shall be
time he wishes to do the maintenance modification and reasons therefor, and processed in accordance with these
work. that he may request a meeting with the regulations.

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31823

�325.8 Authority to issue or deny permits. and to modify, suspend and revoke aware of plans being developed by
(a) GeneroL Except as otherwise permits according to the procedures of either private or public entities which
provided in this regulation, the � 325.7 of this part. District engineers might require permits for
Secretary of the Army, subject to such will refer the following applications to implementation, he should advise the
conditions as he or his authorized the division engineer for resolution: potential applicant in writing of the
representative may from time to time (1) When a referral is required by a statutory requirements and the
impose, has authorized the Chief of written agreement between the head of provisions of this regulation. Whenever
Engineers and his authorized a Federal agency and the Secretary of the district, engineer is aware of changes
representatives to issue or deny permits the Army; in Corps of Engineers regulatory
for construction or other work in or (2) When the recommended decision jurisdiction, he will issue appropriate
affecting navigable waters of the United is contrary to the written position of the public notices.
States pursuant to Section 10 of the Governor of the State in which the work Appendix A-Permit Fonn
River and Harbor Act of 1899. He also would be performed;
has authorized the Chief of Engineers (3) When there is substantial doubt as Application No.
Name of Applicant
and his authorized representatives to to authority, law, regulations, or policies Effective Date
issue or deny permits for the discharge applicable to the proposed activity; Expiration Date (if applicable)
of dredged or fill material in waters of (4) When higher authority requests the DEPARTMENT OF THE ARMY
the United States pursuant to Section application be forwarded for decision;
404 of the Clean Water Act or for the or Permit
transportation of dredged material for (5) When the district engineer is Referring to written request dated
the purpose of disposing of it into ocean precluded by law or procedures required - for a permit to:
waters pursuant to Section 103 of the by law from taking final action on the ( ) Perform work in or affecting navigable
Marine Protection, Research and ' application (e.g., Section 404(c) of the waters of the United States, upon the
Sanctuaries Act of 1972, as amended. Clean Water Act, Section 9 of the River recommendation of the Chief of Engineers,
The authority to issue or deny permits and Harbor Act of 1899, or territorial sea pursuant to Section 10 of the Rivers and
pursuant to Section 9 of the River and baseline changes). Harbors Act of March 3,1899 (33 U.S.C. 403);
Harbor Act of March 3, 1899 has not (c Division Engineers'authority. ( ) Discharge dredged or fill material into
waters of the United States upon the issuance
been delegated to the Chief of Engineers Division engineers will review and of a permit from the Secretary of the Army
or his authorized representatives. evaluate all permit applications referred acting through the Chief of Engineers
(b) District Engineers'authority. by district engineers. Division engineers pursuant to Section 404 of the Clean Wat-7
District engineers are authorized to may authorize the issuance ordenial of Act (86 Stat. 816, Pub. L. 92-500);
issue or deny permits in accordance permits pursuant to Section 10 of the ( ) Transport dredged material for the
with these regulations permits pursuant River and Harbor Act of 1899; Section purpose of disposal in ocean waters upon the
to Section 10 of the River and Harbor 404 of the Clean Water Act; and Section issuance of a permit from the Secretary of the
Act of 1899; Section 404 of the Clean 103 of the Marine Protection, Research Army acting through the Chief of Engineers
Water Act; and Section 103 of the and Sanctuaries Act of 1972, as pursuant to Section 103 of the Marine
Marine Protection, Research and amended; and the inclusion of Protection, Research and Sanctuaries Act of
Sanctuaries Act of 1972, as amended, in conditions in accordance with � 325.4 of 1972 (86 Stat. 1052; Pub. L. 92-532);
all cases not required to be referred to this Part in all cases not required to be
higher authority (see below). It is referred to the Chief of Engineers. (Here insert the full name and address of the
permi
essential to the legality of a permit that Division Engineers will refer the 'ttee.)
it contain the name of the district following applications to the Chief of is hereby authorized by the Secretary of the
engineer as the issuing officer. However, Engineers for resolution: Army:
the permit need not be signed by the (1) When a referral is required by a to
district engineer in person but may be written agreement between the head of
signed for and in behalf of him by a Federal agency and the Secretary of (Here describe the proposed structure or
whomever he designates. In cases where the Army; activity, and its intended use. In the case of
permits are denied for reasons other (2) When there is substantial doubt as an application for a fill permit, describe the
than navigation or failure to obtain to authority, law, regulations, or policies structures, if any proposed to be erected on
required local, State, or other Federal applicable to the proposed activity; . the fill. In the case of an application for the
approvals or certifications, the (3) When higher authority requests the discharge of dredged or fill material into
waters of the United States or the
Statement of Findings must conclusively application be forwarded for decision; transportation for discharge in ocean waters
justify a denial decision, District or of dredged material, describe the type and
engineers are authorized to deny (4) When the division engineer is quantity of material to be discharged.)
permits without issuing a public notice precluded by law or procedures required in
or taking other procedural steps where by law from taking final action on the
required local, state or other Federal application. (Here to be named the ocean, river, harbor, or
permits for the proposed activity have � 325.9 [Reserved.] waterway concerned.)
been denied or where he determines at
that the activity will clearly interfere � 325.10 Publicity. (Here to be named the nearest well-known
with navigation except in all cases The district engineer will establish locality-preferably a town or city and the
distance in miles and tenths from some
required to be referred to higher and maintain a program to assure that definite point in the same, stating whether
authority (see below). District engineers potential applicants for permits are above or below or giving direction by points
are also authorized to add, modify, or informed of the requirements of this of compass.)
delete special conditions in permits in regulation and of the steps required to in accordance with the plans and drawings
accordance with � 325.4 of this part, obtain permits for activities in waters Of attached hereto which are incorporated in
except for those conditions which may the United States or ocean waters. and made a part of this permit (on drawings,
have been imposed by higher authority, Whenever the district engineer becomes give file number or other definite

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31824 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

identification marks). Subject to the following structure or work authorized herein in good the District Engineer, either by the
conditions: condition and in reasonable accordance with transferee's written agreement to comply
I. General conditions: (a) That all activities the plans and drawings attached hereto. with all terms and conditions of this permit or
identified and authorized herein shall be (I) That this permit does not convey any by the transferee subscribing to this permit in
consistent with the terms and conditions of property rights, either in real estate or the space provided below and thereby
this permit; and that any activities not material, or any exclusive privileges; and that agreeing to comply with all terms and
specifically identified and authorized herein it does not authorize any injury to property or conditions of this permit. In addition, if the
shall constitute a violation of the terms and invasion of rights or any infringement of permittee transfers the interests authorized
conditions of this permit which may result in Federal, state, or local laws or regulations. herein by conveyance of realty, the deed
the modification, suspension or revocation of 6) That this permit does not obviate the shall reference this permit and the terms and
this permit, in whole or in part, as set forth requirement to obtain state or local assent conditions specified herein and this permit
more specifically in General Conditions j or k required by law for the activity authorized shall be recorded along with the deed with
hereto, and in the institution of such legal herein. the Register of Deeds or other appropriate
proceedings as the United States Government (k) That this permit may be either modified, official.
may consider appropriate, whether or not this suspended or revoked in whole or in part (u) That if the permittee during prosecution
permit has been previously modified, pursuant to the policies and procedures of 33 of the work authorized herein, encounters a
suspended or revoked in whole or in part. CFR 325.7. previously unidentified archeological or other
(b) That all activities authorized herein (1) That in issuing this permit, the
shall, if they involve, during their Government has relied on the information cultural resource that might be eligible for
construction or operation, any discharge of and data which the permittee has provided in listing in the National Register of Historic
pollutants into waters of the United States or connection with his perrrdt application. If, Places, he shall immediately notify the
ocean waters, be at all times consistent with subsequent to the issuance of this permit district engineer.
applicable water quality standards, effluent such information and data prove to be 11. Special Conditions: Here list conditions
limitations and standards of performance, materially false, materially incomplete or relating specifically to the proposed structure
prohibitions, pretreatment standards and inaccurate, this permit may be modified, or work authorized by this permit. The
management practices established pursuant suspended or revoked, in w)iole or in part, following Special Conditions will be
to the Clean Water Act of 1972 (Pub. L. 92- and or the Government may, in addition, applicable when appropriate:
500; 86 Stat. 816), the Marine Protection, institute appropriate legal proceedings. Structures In or Affecting Navigable Waters
Research and Sanctuaries Act of 1972 (Pub. L (in) That any modification, suspension, or Of the United States
92-532, 86 Stat. 1052), or pursuant to revocation of this permit shall not be the
applicable State and local law. basis for any claim for damages against the (a) That this permit does not authorize the
(c) That when the activity authorized United States. nterference with any existing or proposed
herein involves a discharge during its (n) That the permittee shall notify the Federal project and that the permittee shall
construction or operation, of any pollutant District Engineer of the time the activity not be entitled to compensation for damage or
(including dredged or fill material), into authorized herein will be commenced, as far injury to the structures or work authorized
waters of the United States, the authorized in advance of the time of commencement as herein which may be caused by or result from
activity shall, if applicable water quality the District Engineer may specify, and of any existing or future operations undertaken by
standards are revised or modified during the suspension of work, if for a period of more the United States in the public interest.
term of this permit, be modified, if necessary, than one week, resumption of work and its (b) That no attempt shall be made by the
to conform with such revised or modified completion. permittee to prevent the full and free use by
water quality standards within a months of (a) That if the activity authorized herein Is the public of all navigable waters at or
the effective date of any revision or not completed on or before - day of adjacent to the activity authorized by this
modification of water quality standards, or as -,19 , (three years from the date pern-dt.
directed by an implementation plan of issuance of this permit unless otherwise (c) That if the display of lights and signals
contained in such revised or modified specified) this permit, if not previously on any structure or work authorized herein is
standards, or within such longer period of revoked or specifically extended. shall not otherwjse provided for by law, such lights
time as the district engineer, in consultation automatically expire. and signals as may be prescribed by the
with the Regional Administrator of ithe (p) That this permit does not authorize or United States Coast Guard shall be installed
Environmental Protection Agency, may approve the construction of particular and maintained by and at the expense of the
determine to be reasonable under the structures, the authorization or approval of permittee.
circumstances. which may require authorization by the (d) That the permittee, upon receipt of a
(d) That the discharge will not destroy a Congress or other agencies of the Federal notice of revocation of this permit or upon its
threatened or endangered species as Government. expiration before completion of the
identified under the Endangered Species Act (q) That if and when the permittee desires
authorized structure or work, shall, without
or endanger the critical habitat of such to abandon the activity authorized herein, expense to th .e United States and in such time
species. unless such abandonment is part of a transfer and manner as the Secretary of the Army or
(e) That the permittee agrees to make every procedure by which the permittee is
reasonable effort to prosecute the transferring his interests herein to a third his authorized representative may direct,
construction or operation of the work party pursuant to General Condition 110 restore the waterway to its former conditions.
authorized herein in a manner so as to hereof, he must restore the area ta a If the permittee fails to comply with the
minimize any adverse impact on fish, condition satisfactory to the District direction of the Secretary of the Army or his
wildlife, and natural environmental values. Engineer. ' authorized representative, the Secretary or
(f) That the permittee agrees that it will (r) That if the recording of this permit is hii designee may restore the waterway to its
prosecute the construction or work possible under applicable state or local law, former condition, by contract or otherwise,
authorized herein in a manner so as to the permittee shall take such action as may and recover the cost thereof from the
minimize any degradation of water quality. be necessary to record this permit with the permittee.
(g) That the permittee shall allow the Register of Deeds or other appropriate official (e) Structures for Small Boats: That the
District Engineer or his authorized charged with the responsibility for permittee hereby recognizes the possibility
representative(s) or designee(s) to make maintaining records of title to and interests in that the structure permitted herein may be
periodic inspections at any time deemed real property. subject to damage by wave wash from
necessary in order to assure that the activity (s) That there shall be no unreasonable passing vessels. The issuance of this permit
being performed under authority of this Interference with navigation by the existence does not relieve the permittee from taking all
permit is in accordance with the terms and or use of the activity authorized herein. proper steps to insure the integrity of the
conditAns prescribed herein. (t) That this permit may not be transferred structure permitted herein and the safety of
0
(h) That the permittee shall maintain the to a third party without prior written notice to boats moored thereto from damage by wave

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31825

wash and the permittee shall not hold the the Army permits that are performed (2) Voluntary restoration by the
United States liable for any such damage. without prior authorization; and responsible party on the party's own
Maintenance Dredging supervision and inspection of authorized initiative shall be allowed if legal action
(a) That when the work authorized herein activities. is not otherwise necessary. However,
district engineers will advise the
includes periodic maintenance dredging, it � 326.2 Discovery of unauthorized activity' responsible party of the option of an
may be performed under this permit for -
years from the date of issuance of this permit (a) When the district engineer after-the-fact application for a permit to
(ten years unless otherwise indicated); becomes aware of any unauthorized retain the unauthorized work. No permit
(b) That the permittee will advise the activity still in progress, including a will be required when complete and
District Engineer in writing at least two violation of the terms and conditions of satisfactory restoration is accomplished.
weeks before he intends to undertake any an authorized activity, he shall (c) Acceptance of an after-the-fact
maintenance dredging. immediately issue an order prohibiting application. Upon completion of
Discharges of Dredged or Fill Material Into further work to all persons responsible appropriate remedial work, if any, the
Waters of the United States for and/or involved in the performance district engineer shall accept an
(a) That the discharge will be carried out in of the activity and may order interim application for an after-the-fact permit
conformity with the goals and objectives of protective work. If the unauthorized for all unauthorized activities unless:
the EPA Guidelines established pursuant to activity has been completed, he will (1) Civil action to enforce an order
Section 404(b) of the Clean Water Act and advise the responsible party of his issued pursuant to � 326.2 or � 326.3(b)
published in 40 CFR -Part 230; discovery.
(b) That the discharge will consist of of this part is required;
suitable material free from toxic pollutants in . (b) Where the unauthorized activity (2) Crimirial action is appropriate (see
toxic amounts. involves an American Indian (including � 326.4a(l) of this part);
(c) That the fill created by the discharge Alaskan natives, Eskimos, and Aleuts)
will be properly maintained to prevent or takes place on reservation land, (3) State local, or other federal
erosion and other non-point sources of district engineers will coordinate authorization or certification has been
pollution, and proposed cease and desist order with denied, I or a state or local enforcement
Disposal of Dredged Material Into Ocean the Assistant Chief Counsel for Indian action is pending. In the above
Waters Affairs (DAEN-CCI). situations, the District Engineer may
accept an after-the-fact permit
(a) That the disposal will be carried out in application provided he believes it
conformity with the goals, objectives, and 326.3 Administrative action. would be in the public interest and he
requirements of the EPA criteria established (a) Initial investigation. Immediately
pursuant to Section 102 of the Marine upon discovery of an unauthorized obtains approval of the next higher
Protection, Research and Sanctuaries Act of activity, the district engineer shall authority.
1972, published in 40 CFR Parts 220-228. commence an investigation to ascertain (4) In some cases, a violation of the
(b) That the permittee shall place a copy of Clean Water Act may be of such a
this permit in a conspicuous place hi the the facts surrounding the activity. In
vessel to be used for the transportation and/ making this investigation, the district nature that it is appropriate to seek a
or disposal of the dredged material as engineer should, in appropriate cases civil penalty as provided for in the act.
authorized herein. depending upon the potential impacts of These cases include knowing, flagrant,
This permit shall become effective on the the completed work solicit the views of repeated or substantial impact
date of the District Engineer's signature. the Regional Administrator of the violations.2
Permittee hereby accepts and agrees to Environmental Protection Agency, the (d) If the responsible party fails to
comply with the terms and conditions of this Regional Director of the U.S. Fish and submit an application as noted in
@Pea%'i t t e e) Wildlife Service, and the Regional paragraph (c) of this section within a
ate) Director of the National Marine reasonable time period, the district
By authority of the Secretary of the Army: Fisheries Service, and other Federal, engineer may proceed on his own
[
fstrict Engineer) state, and/or local agencies. He shall initiative with a determination of
Bate) also request the persons involved in the whether the activity is in the public
Transferee hereby agrees to comply with unauthorized activity to provide interest. The determination will be made
the terms and conditions of this permit. appropriate information on the activity in accordance with appropriate
Yansferee)
FDate) to assist him in his evaluation and in procedures described in 33 CFR Parts
determining the course of action to be 320 through 325.
Appendix B [Rose .rvedl taken. � 326.4 Legal action.
PART 326-ENFORCEMENT, (b) Remedial worA. (1) The district (a) Criminal or civil action. District
SUPERVISION AND INSPECTION engineer shall determine whether as a engineers shall be guided by the
result of the unauthorized activity, life, following policies in recommending
Sec. property or important public resources
326.1 Purpose. are in serious jeopardy and would appropriate legal action:
326.2 Discovery of unauthorized activity. require expeditious measures for I This section refers to state or local
320.3 Administrative action. protection. Such measures may range authorizations required as a matter of Federal law
326.4 Legal action. from minor modification of the existing before a Sec. 404 permit may be issued. Examples
326.5 Supervision and enforcement of
auth .orized activities. work to complete restoration of the area are Sec. 401 Water Quality Certification and Sec.
Authority: 33 U.S.C. 401 et seq.; 33 U.S.C. involved. Important public resources.are 307 Coastal Zone Management Consistency
Deteminations.
1344; 33 U.S.C. 1413. identified in 33 CFR 320.4. If the district 11n such cases, the District Engineer may, in his
engineer determines that immediate discretion, recommend to the United States
� 326.1 Purpose. remedial work is required, he shall issue Attorney that a complaint be filed. An after-the-fact
This regulation prescribes the policy, an appropriate order describing the application should not be accepted until the
practice, and procedures to be followed work, conditions and time limits enforcement action is completely resolved. This
exception to the general rule of accepting after-the-
by the Corps of Engineers in connection required to provide satisfactory fact applications should be used on a limited basis,
with activities requiring Department of protection of the resource. only for those cases which merit special treatment.

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31826 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

(1) Criminal action. Criminal action is and recommends that they be removed, (b) Alon-compliance. Where the
considered appropriate when the facts or (ii) would be in the public interest if district engineer determines that there
surrounding an unauthorized activity altered or modified but attempts to has been non-compliance with the terms
reveal the necessity for puritive action secure voluntary alteration or ' or conditions of a permit. he should first
and/or when deterrence of future modification have failed such that the contact the permittee and attempt to
unauthorized activities in the area is district engineer recommends that a resolve the problem. If a mutually
considered essential to the judicial order is necessary. agreeable resolution cannot be reached,
establishment or maintenance of a (3) Violations of Section 301 of the a written demand for compliance will be
viable regulatory program. Clean Water Act involving the made. If the permittee has not agreed to
(2) Civil action. Civil action is unauthorized discharge of dredged or fill comply within 5 days of receipt of the
considered appropriate when the material into the waters of the United demand, the district engineer will issue
evalution of the unauthorized activity States where the district engineer an immediately effective notice of
reveals that (i) enforcement of an order recommends, with the concurrence of suspension in accordance with 33 CFR
issued pursuant to � 326.2 or � 328.3 (b) the Regional Administrator, civil and/or Part 325.7(c) and consider initiation of
of this Part is required; (ii) after the criminal action pursuant to Section 309 appropriate legal action (� 326.4 of this
procedures in � 3216.3 (c) of this Part of the Clean Water Act. Part).
have been completed, the unauthorized (4) Cases for which a temporary (c) Surveillance. For purposes of
activity would be in the public interest if restraining order and/or preliminary inspectionof permitted activities and for
altered or modified but attempts to injunction is appropriate following surveillance of the waters of the United
secure voluntary alteration or noncompliance with a cease and desist States for enforcement of the permit
modification have failed such that a order. authorities the district engineer will use
judicial order is necessary, or (iii) after (d) Referral to Office, Chief of all means at his disposal. All Corps of
the procedures in � 326.3 (c) of this Part Engineers. District engineers shall Engineers employees will be instructed
have been completed, a civil penalty prepare and forward a litigation report to observe and report all unauthorized
under Section 30q of the Clean Water to the Office, Chief of Engineers, ATTN: activities in waters of the United States.
Act is warranted. DAEN-CCK, for cases not identified in The assistance of members of the public
(b) Preparation of case. If the district paragraph (c) of this section which civil and personnel of other interested
engineer determines to recommend legal and/or criminal action is considered Federal, state and local agencies to
action he shall prepare a litigation of appropriate, including cases involving: observe and report such activities will
report which shall contain an analysis
the data and information obtained (1) Significant questions of law or fact; be encouraged. To.facilitate this
during the investigation and a (2) Discharges of dredged or fill surveillance, 'the district engineer will, in
recommendation of appropriate civil material into waters of the United States appropriate cases, require a copy of
and/or criminal action. In those cases that are not interstate waters or ENG Form 4336 to be posted
where the analysis of the facts navigable waters of the United States, conspicuously at the site of authorized
developed during the investigation and/ Or part of a surface tributary system to activities and will make available to all
or the after-the-fact application these waters; interested persons information on the.
evaluation leads to the preliminary (3) Recommendations for substantial scope of authorized activities and the'
conclusion to recommend that removal or complete restoration; conditions prescribed in the
of the unauthorized activity is in the (4) Violations of Section 9 of the River authorizations. Surveillance in ocean
public interest, the district engineer shall and Harbor Act of 1899; and waters will be accomplished primarily
also recommend restoration of the area (5) Violations of the Marine by the Coast Guard pursuant to Section
to its original or comparable condition. Protection, Research and Sanctuaries 107[c) of the Marine Protection,
(c) Referral to local U.S. Attorney. Act of 1972. Research and Sanctuaries Act of 1972,
Except as provided in paragraph (d) of (6) All cases involving American as amended.
this section, district engineers are Indians, including unauthorized . (d) Inspection expenses. The expenses
authorized to refer the following cases activities on reservation lands. incurred in connection with the
to the Department of justice (DOJ) in inspection of permitted activity in
accordance with procedures established * 326.5 Supervision and enforcement of waters of the United States normally
by DO). Information copies of all letters authorized activities. will be paid by the Federal Government
of referral which go directly to a U.S. (a) Inspection and monitoring. District in accordance with the provisions of
Attorney shall be forwarded to the Chief engineers will assure tl@v. euthorized Section 6 of the River and Harbor Act of
of Engineers, ATTN: DAEN-CCK, for activities are conducted and executed in 3 March 1905 (33 U.S.C. 417) unless daily
transmittal to the Chief, Pollution conformance with approved plans and supervision or other unusual expenses
Control Section, Land and Natural other conditions of the permits. are involved. In such unusual cases, the
Resources Division, Department of Appropriate inspections should be made district engineer may require the
Justice, Washington, D.C. 20530. on timely occasicns during performance permittee to bear the expense of
(1) Unauthorized structures or work in of the activity and appropriate notices inspections in accordance with the
or affecting navigable waters of the and instructions given permittees to conditions of his permit; however, the
United States that fall exclusively insure that they 0o not depart from the permittee will not be required or
within the purview of Section 10 of the approved plans. 'Reevaluation of a permitted to pay the United States
River and Harbor Act of 1899 (see 33 permit to assure compliance with its inspector either directly or through the
CFR Part 322) for which a criminal fine purposes and conditions will be carried district engineer. The inspector will be
or penalty under Section 12 of that Act out as provided in 33*CFR Part 325.7. If paid on regular payrolls or service
(33 U.S.C. 406) is recommended. there are approved material departures vouchers. The district engineer will
(2) Civil action ifivolving small from the authorized plans, the district collect the cost from the permittee in
unauthorized structures, such as piers, engineer will require the permittee to accordance with the following:
which the district engineer determines furnish corrected plans showing the (1) At the end of each month the
are either (i) not in the public interest activity as actually performed. amount chargeable for the cost of

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31827

inspection pertaining to the permit will regulatory responsibilities and with (c) Federal project means a Corps of
be collected from the permittee and will other Federal, state and local agencies Engineers pro;ject (work or activity of
be taken up on the statement of having special interest or expertise in any nature for any purpose which is lo
accountability and deposited in a the Corps regulatory program. However, be performed by the Chief of Engineers'
designated depository to the credit of any decision to initiate legal action or to pursuant to Congressional
the Treasurer of the United States, on require any restoration or other autherizations) involving the discharge
account of reimbursement of the remedial work under Corps of Engineers of dredged or fill material into waters of
appropriation from which the expenses authority remains the independent the United States or the transportation
of the inspection were paid. responsibility of the Division or district of dredged material for the purpose of
(2) If the district engineer considers engineer. dumping it in ocean waters subject to
such a procedure necessary to insure the Section 404 of the Clean Water Act, or
United States against loss through PART 327-PUBLIC HEARINGS Section 103 of the MPRSA. See 33 CFR
possible failure of the permittee to Sec. 209.145. (This regulation supersedes all
supply the necessary funds in 3271 Purpose. references to public meetings in 33 CFR
accordance with paragraph (d)(1) of this 327@2 Applicability. 209.145).
section he may require the permittee to 327.3 Definitions.
keep on deposit with the district 327.4 General policies. � 327.4 General policies.
engineer at all times an amount equal to 327.5 Presiding officer. (a) A public hearing will be held in
the estimated cost of inspection and 327.6 Legal adviser. connection with the consideration of a
supervision for the ensuing month, such 327.7 Representation. Department of the Army permit
deposit preferably being in the form of a 327.8 Conduct of hearings. application, or a Federal project
certified check, payable to the order of 327.9 Filing of transcript of the public whenever a public hearing is needed for
Treasurer of the United States. Certified hearing. making a decision on such permit
checks so deposited will be carried in a 327.10 Powers of the presiding officer. application or Federal project. In
special deposit account (guaranty for 327.11 Public notice. addition, a public hearing may be held
inspection expenses) and upon Authority: 33 U.&C. 1344; 33 U.S.C. 1413 when it is proposed to modify or revoke
completion of the work under the permit � 327A Purpose. a permit. (See 33 CFR 325.7).
the funds will be returned to the This regulation prescribes the policy, (b) Unless the public notice specifies
permittee provided he has paid the practice and procedures to be followed that a public hearing will be held, any
actual cost of inspection. by the U.S. Army Corps of Engineers in person may request, in writing, within
(3) On completion of work under a the conduct of public hearings the comment period specified in the
permit, and the payment of expenses by conducted in the evaluation of a public notice on a Department of the
the permittee without protest, the proposed Department of the Army Army permit application or on a Federal
account will be closed, and outstanding permit action or Federal project as project, that a public hearing be held to
deposits returned to the permittee. if the defined in � 327.3 of this Part below consider the material matters in issue in
account is protested by the permittee, it including those held pursuant to Section the permit application or Federal
will be referred to the division engineer
for approval before it is closed and 404 of the Clean Water Act (33 U.S.C. project. Upon receipt of any such
before any deposits are returned to the 1344), and Section 103 of the Marine request, stating with particularity the
permittee. Protection, Research and Sanctuaries reasons for holding a public hearing, the
(e) Where the unauthorized activity is Act (MPRSA), as amended (33 U.S.C. district engineer may expeditiously
determined not to be in the public 1413). attempt to resolve the issues informally.
Otherwise, he shall promptly set a time
interest, the notification of the deni of 327.2 Applicability. and place for the public hearing and give
the permit will prescribe any correc ve
actions to be taken in connection w .h This regulation is applicable to all due notice thereof, as prescribed in
the work already accomplished, divisions and districts responsible for � 327.11 of this Part. Requests for a
including restoration of those areas the conduct of public hearings. public hearing under this paragraph
shall be granted, unless the district
subject to denial, and establish a � 327.3 Definitions. engineer determines that the issues
reasonable period of time for the (a) Public hearing means a public raised are insubstantial or there is
applicant to complete such actions. The
district engineer, after denial of the proceeding conducted for the purpose of otherwise no valid interest to be served
permit, will again consider whether to acquiring information or evidence which by a hearing. Toe district engineer win
recommend civil and/or criminal action will be considered in evaluating a make such a determination in writing,
in accordance with � 326.4 of this Part. proposed Department of the Army and communicate his reasons therefor to
(f) If the applicant declines to accept permit action, or Federal project, and all requesting parties.
the proposed permit conditions, or fails which affords to the public the (c) In case of doubt, a public hearing
to take corrective action prescribed in opportunity to present their views, shall be held. HQDA has the
the notification of denial, or if the opinions, and information on such discretionary power to require bearings
district engineer recommends legal permit actions or Federal projects. in any case.
action after denying the permit, the (b) Ptrmit action, as used herein (d) In fixing the time and place for a
matter will be referred to the Chief of means the evaluation of and decision on hearing, the convenience and necessity
Engineers, Attn.: DAEN-CCK, with an application for a permit pursuant to of the interested public will be duly
recommendations for appropriate Section 9 or 10 of the River and Harbor considered.
action. Act of 1899, Section 404 of the Clean � 327.5 Presiding officer.
(g) Division and District Engineers are Water Act, or Section 103 of the
al
ti
it

authorized and encouraged to develop MPRSA, as amended, or the (a) The district engineer, In whose
joint surveillance and Inspection modification or revocation of any district a matter arises, shall normally
procedures with other Federal, state, Department of the Army permit (see 33 serve as the Presiding Officer. When the
and local agencies with similar CFR 325.7). district engineer is unable to serve, he

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31828 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations

may -designate the deputy district purchased by any person from the Corps recessing, reconvening, and
engineer or other qualified person as of Engineers or the reporter of such adjournment thereof, and
such Presiding Officer. In cases of hearing. A copy will be available for (b) To take any other action necessary
unusual interest, the Chief of Engineers public inspection at the office of the or appropriate to the discharge of the
or the Division Engineer may appoint appropriate district engineer. duties vested in them, consistent with
such person as he deems appropriate to (f) All written statements, charts, the statutory or other authority under
serve as the Presiding Officer. tabulations, and similar data offered in which the Chief of Engineers functions,
(b) The Presiding Officer shall include evidence at the hearing shall, subject to and with the policies and directives of
in the administrative record of the exclusion by the presiding officer for the Chief of Engineers and the Secretary
permit action the request or requests for reasons of redundancy, be received in of the Army.
the hearing and any data or material evidence and shall constitute a part of
submitted in justification thereof, the record. � 327.11 Public notice.
materials submitted in opposition to or (g) The pesiding officer shall allow a (a) Public notide shall be given of any
in support of the proposed action, the period of not less than 10 days after the public hearing to be held pursuant to
hearing transcript, and such other close of the public hearing for this regulation. Such notice should
material as may be relevant or pertinent submission of written comments. normally provide for a period of not less
to the subject matter of the hearing. The (h) In appropriate cases, the district than 30 days following the date of public
administrative record shall be available
engineer may participate in joint public notice during which time interested
for public inspection with the exception hearings with other Federal or state parties may prepare themselves for the
of material exempt from disclosure gencies, provided the procedures of hearing. Notice shall also be given to all
I , a
under the Freedom of Informaiian Act. those hearings meet the requirements Of Federal agencies affected by the
327.8 Legal adviser. this regulation. In those cases in which proposed action, and to state and local
At each public hearing, the district the other Federal or state agency allows agencies and other parties having an
counsel or his designee may serve as a cross-examination in its public interest in the subject matter of the
legal advisor to the presiding officer. In hearing, the district engineer may still hearing. Notice shall be sent to all
appropriate circumstances, the district participate in the joint public hearing persons requesting a hearing and shall
engineer may waive the requirement for but shall not require cross-examination be posted in appropriate government
a legal advisor to be present. asa part of his participation. buildings and published in newspapers
� 327.7 Representation. 327.9 Filing of transcript of the public of general circulation.
At the public hearing, any person may hearing. (b) The notice shall contain time,
appear on his own behalf, or may be Where the presiding officer is the place, and nature of hearing; the legal
represented by counsel, or by other initial action authority, the transcript of authority and jurisdiction under which
representatives. the public hearing, together with all the hearing is held; and location of and
evidence introduced at the public availability of the draft environmental
327.8 Conduct of hearings. hearing, shall be made a part of the impact statement or environmental
(a) The presiding officer shall make an administrative record of the permit assessment.
opening statement outlining the purpose action or Federal project. The initial
of the hearing and prescribing the action authority shall fully consider the PART 328 [RESERVED]
general procedures to be followed. matters discussed at the public hearing PART 329-DEFINITION OF
(b) Hearings shall be conducted by the in arriving at his initial decision or
presiding officer in an orderly but recommendation and shall address, in NAVIGATION WATERS OF THE
expeditious manner. Any person shall his decision or recommendation, all UNITED STATES
be permitted to submit oral or written substantial and valid issues presented at sec.
statements concerning the subject the hearing. Where a person other than 329.1 Purpose.
matter of the hearing, to call witnesses the initial action authority serves as 329.2 Applicability.
who may present oral or written presiding officer, such person shall 329.3 General policies.
statements, and to present forward the transcript of the public 329.4 General definitions.
recommendations as to an appropriate hearing and all evidence received in 329.5 General scope of determination.
decision. Any person may present connection therewith to the initial action 329.6 interstate or foreign commerce.
written statements for the hearing authority together with a report 329.7 Intrastate or interstate nature of
record prior to the time the hearing summarizing the issues covered at the waterway.
record is closed to public submissions, hearing. The report of the presiding 329.8 Improved or natural conditions of the
and may present proposed findings and officer and the transcript of the public waterbody.
recommendations. The presiding officer hearing and evidence submitted thereat .329.9 Time at which commerce exists or
shall afford participants a reasonable shall in such cases be fully considered determination is made.
opportunity for rebuttal. by the initial action authority in his 329.10 Existence of obstructions.
(c) The presiding officer shall have decision or recommendation to higher 329.11 Geographic and jurisdiction limits of
discretion to establish reasonable limits authority as to such permit action or rivers and lakes.
upon the time allowed for statements of Federal project. 329.12 Geographic and jurisdictional limits
witnesses, for arguments of parties or � 327.10 Authority of the presiding officer. of oceanic and tidal waters.
their counsel or representatives, and 329.13 Georgraphic limits: Shifting
upon the number of rebuttals. Presiding officers shall have the boundaries.
(d) Cross-examination of witnesses following authority: 329.14 Deterraination of navigability.
shall not be permitted. (a) To regulate the course of the 329.15 Inquiries regarding determinations.
(e) All public hearings shall be hearing including the order of all 329.16 Use and maintenance of lists of
reported verbatim. Copies of the sessions and the scheduling thereof, determinations.
transcripts of prceedings may be after any initial session. and the Authority: 33 U.S.C. 401 at seq.

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31829

� 329.1 Purpose. character of the re gion, its products, and � 329.8 Improved or natural conditions of
This regulation defines the term the difficulties or dangers of navigation. the waterbody.
'.navigable waters of the United States" It is the waterbody's capability of use by Determinations are not limited to the
as it is used to define authorities of the the public for purposes of transportation natural or original condition of the
Corps of Engineers. It also prescribes of commerce which is the determinative waterbody. Navigability may also be
the policy, practice and procedure to be factor, and not the time, extent or found where artificial aids have been or
used in determining the extent of the manner of that use. As discussed in may be used to@make the waterbody
jurisdiction of the Corps of Engineers � 329.9 of this Part, it is sufficient to suitable for use in navigation.
and in answering inquiries concerning establish the potential for commercial (a) Existing improvements: artificial
"navigible waters of the United States." use at any past, present, or future time. waterbodies. (1) An artificial channel
This definition does not apply to Thus, sufficient commerce may be may often constitute a navigable water
authorities under the Clean Water Act shown by historical use of canoes, of the United States, even though it has
which definitions are described under 33 bateaux, or other frontier craft, as long been privately developed and
CFR Part 323. as that type of boat was common or maintained, or passes through private
� 329.2 Applicability. well-suited to the place and period. property. The test is generally as
This re-ulation is applicable to all Similarly, the particular items of developed above, that is, whether the
waterbody is capable of use to transport
Corps of Engineers districts and commerce may vary widely, depending, interstate commerce. Canals which
divisions having civil works again on the region and period. The connect two navigable waters of the
responsibilities. goods involved might be grain, furs, or United States and which are used for
� 329.3 General policies. other commerce of the time. Logs are a commerce clearly fall within the test,
Precise definitions of "navigable common example; transportation of logo and themselves become navigable. A
waters of the United States"; or has been a substantial and well- canal open to navigable waters of the
recognized commercial use of many United States on only one end is itself
navigability" are ultimately dependent navigable waters of the United States. navigable where it in fact supports
on judicial interpretation, and cannot be Note, however, that the mere presence interstate commerce. A canal or other
made conclusively by administrative
agencies. However, the policies and of floating logs will not of itself make artificial waterbody that is subject to
criteria contained in this regulation are the river "navigable"; the logs must have ebb and flow of the tide is also a
in close conformance with the tests used been related to a commercial venture. navigable water of the United States.
by the Federal courts and Similarly, the presence of recreational (2) The artificial waterbody may be a
determinations made under this craft may indicate that a waterbody is major portion of a river or harbor area
regulation are considered binding in capable of bearing some forms of or merely a minor backwash, slip, or
regard to the activities of the Corps of commerce, either presently, in the turning areas. (See � 329.12(b) of this
Engineers. future, or at a past point in time. Part.)
� 329.4 General defintUon. (b).Nature of commerce. interstate (3) Private ownership of the lands
and intrastate. Interstate commerce may underlying the waterbody, or of the
Navigable waters of the United States of course be existent on an intrastate lands through which it runs, does not
are those waters that are subject to the voyage which occurs only between preclude a finding of navigability.
ebb and flow of the tide and/or are Ownership does become a controlling
presently used, or have been used in the places withm* the same state. It is only factor if a privately constructed and
past, or may be susceptible for use to necessary that goods may be brought operat .ed canal is not used to tranport.
transport interstate or foreign from, or eventually be destined to go to, interstate commerce nor used by the
commerce. A determination of another state. (For purposes of this public; it is then not considered to be a
navigability, once made, applies regulation, the term "interstate navigable water of the United States.
laterally over the entire surface of the commerce" hereinafter includes "foreign However, a private waterbody, even
waterbody, and is not extinguished by commerce" as well.) though not itself navigable, may so
later actions or events which impede or affect the navigable capacity of nearby
destroy navigable capacity. � 329.7 Intrastate or Interstate nature of
waterway. waters as to nevertheless be subject to
certain regulatory authorities.
� 329.5 General scope of determination. A waterbody may be entirely within a (b) Non-existing imporvements, past
The several factors which must be state, yet still be capable of carrying orpotential. A waterbody may also be
examined when making a determination interstate cormnerce. This is especial considered navigable depending on the
whether a waterbody is a navigable clear when it physically connects wil a feasibility of use to transport interstate
water of the United States are discussed generally acknowledged avenue of commerce after the construction of
in detail below. Generally, the following interstate commerce, such as the ocean whatever "reasonable" imporvements
conditions must be satisfied: or one of the Great Lakes, and is yet may potentially be made. The
(a) Past, present, or potential presence wholly within one state. Nor is it improvements need not exist, be
of interstate or foreign commerce;
(b) Physical capabilities for use by necessary that there be a physically planned, nor even authorized; it is
commerce as in paragraph (a) of this navigable connection across a state enough that potentially they could be
section; and boundary. Where a waterbody extends made. What is a "reasonable"
(c) Defined geographic limits of the through one or more states, but improvement is always a matter of
waterbody. substantial portions, which are capable degree; there must be a balance
of bearing interstate commerce, are between cost and need at a time when
�329.6 Interstate or foreign commerce. located in only one of the states, the the improvement would be (or would
(a) Nature of commerce.- type, means, entirety of the waterway up to the head have been) useful. Thus, if an
and extent of use. The types of (upper limit) of navigation is subject to improvement were "reasonable" at a
commercial use of a waterway are Federal jurisdiction. time of past use, the water was therefore
extremely varied and will depend on the navigable in law from that time forward.

31830 Federal Register Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

The changes in engineering practices or boats had to be removed from the water by jthe ordinary low tides comprises the
the coming of new industries with in some stretches, or logs be brought coast line from which the distance of
varying classes of freight may affect the around an obstruction by means of three geographic miles is measured. The
type of the improvement; those which artificial chutes. However, the question line has significance for both domestic
may be entirely rcasonable in a thickly is ultimately a matter of degree, and it and international law (in which it is
populated, highly developed industrial must be recognized that there is some termed the "baseline"), and is subject to
region may have been entirely too costly point beyond which navigability could precise definitions. Special problems
for the same region in the days of the not be established. arise when offshore rocks, islands, or
pioneers. The determination of other bodies exist, and the line may
reasonable improvement is often similar � 329.11 Geographic and jurisdictional have to be drawn to seaward of such
to the cost analyses presently made in limits of rivers and lakes. bodies.
Corps of Engineers studies. (a) jurisdiction over entire bed (2) Shoreward limit oflurisdiction.
� 329.9 Time at which commerce exists or Federal regulatory jurisdiction, and. Regulatory jurisdiction in coastal areas
determination Is made. powers of improvement for navigation. extends to the line on the shore reached
(a) Post use. A waterbody which was extend laterally to the entire water by the plane of the mean (average) high
navigable in its natural or improved surface and bed of a navigable water. Where precise determination of
state, or which was susceptible of waterbody, which includes all the land the actual location of the line becomes
reasonable improvement (as discussed and waters below the ordinary high necessary, it must be established by
in � 329.8(b) of this Part retains its water mark. survey with reference to the available
(1) The "ordinary high water mark" on tidal datum, preferably averaged over a
character as "navigable in law" even non-tidal rivers is the line on the shore
though it is not presently used for established by the fluctuations of water period of 18.6 years. Less precise
commerce, or is presently incapable of methods, such as observation of the
such use because of changed conditions and indicated by physical "apparent shoreline" which is
characteristics such as a clear, na.tural determined by reference to physical
or the presence of obstructions. Nor line impressed on the bank; shelving;
does absence of use because of changed changes in the character of soil; markings, lines of vegetation, or changes
economic conditions affect the legal destruction of terrestrial vegetation;' the in type of vegetation, may be used only
character of the waterbody. Once presence of litter and debris; or other where an estimate is needed of the line
having attained the character of appropriate means that consider the reached by the mean high water.
"navigable in law," the Federal characteristics of the surrounding areas. . (b) Boys and estuaries. Regulatory
authority remains in existence, and (2j Ownership of a river or lake bed or jurisdiction extends to the entire surface
connot be abandoned by administrative of the lands between high and low and bed of all waterbodies subject to
officers or court action. Nor is mere water marks will vary according to state tidal action. jurisdiction thus extends to
inattention or ambiguous action by law; however, private ownership of the the edge (as determined by paragraph
Congress an abandonment of Federal underlying lands has no bearing on the (a)(2) of this section of all such
control. However, express statutory existence or extent of the dominant waterbodies, even though portions of
declarations by Congress that described Federal jurisdiction over a navigable the waterbody may be extremely
portions of a waterbody are non- waterbody. shallow, or obstructed by shoals,
navigable, or havd been abandoned, are (b) Upper Arnit of navigability. The vegetation, or other barriers.
binding upon the Department of the character of a river will, at some point Marshlands and similar areas are thus
Army. Each statute must be carefully along its length, change from navigable considered "navigable in law," but only
examined, since Congress often reserves to non-navigable. Very often that point so far as the area is subject to
the power to amend the Act, or assigns will be at a major fall or rapids, or other inundation by the mean high waters.
special duties of supervision and control place where there is a marked decrease The relevant test is therefore the
to the Secretary of the Army or Chief of in the navigable capacity of the river. presence of the mean high tidal waters,
Engineers. The upper limit will therefore often be and not the general test described
(b) Future orpotential use. the same point traditionall'y recognized above, which generally applies to inland
Navigability may also be found in a as the head of navigation, but may, rivers and lakes.
waterbody's susceptibility for use in its under some of the tests described above, N2329.13 Geographic limits: Shifting
ordinary condition or by reasonable be at some point yet farther upstream. boundaries.
improvement to transport interstate
commerce. This may be either in its � 329.12 Geographic and jurisdictional Permanent changes of the shoreline
natural or improved condition, and may limits of oceanic and tidal waters. configuration result in similar
thus be existent although there has been (a) Ocean and coastal waters. The alterations of the boundaries of the
no actual use to date. Non-use in the navigable waters of the United States navigable waters of the United States.
past therefore does not prevent over which Corps of Engineers Thus, gradual changes which are due to
recognition of the potential for future regulatory jurisdiction extends include natural causes and are perceptible only
use. all ocean and coastal waters within a over some period of time constitute
zone three geographic (nautical) miles changes in the bed of a waterbody
� 329.10 Existence of obstructions. seaward from the coast line. Wider which also change the shoreline
A stream may be navigable despite zones of three leagues (nine nautical boundaries of the navigable waters of
the existence of falls, rapids, sand bars, miles) are recognized off the coast of the United States. However, an area will
bridges portages, shifting currents, or Texas and the Gulf coast of Florida and remain "navigable in law," even though
similar obstructions. Thus, a waterway for other special regulatory powers such no longer covered with water, whenever
in its original condition might have had as those exercised over the outer the change has occurred suddenly, or
substantial obstructions which were continental shelf. was caused by artificial forces intended
overcome by frontier boats and/or (1) Coast line defined Generally, to produce that change. For example,
portages, and nevertheless be a where the shore directly contacts the shifting sand bars within a river or
"channel" or commerce, even though open sea, the line on the shore reached estuary remain part of the navigable

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations 31831

water of the United States, regardless (i) General types, extent, and period in be updated as necessitated by court
that they may be dry at a particular time: decisions, jurisdictional inquiries, or,
point in time. (ii) Documentation if necessary. other changed conditions.
(7) Potential use for interstate (b] It should be noted that the lists
� 329.14 Determination of navigability. commerce, if applicable: represent only those waterbodles for
(a) Effect on determinations. Although (i) If in natural condition: which determinations have been made;
conclusive determinations of (ii) If improved: absence from that list should not be
navigability can be made only by (8) Nature of jurisdiction known to taken as an indication that the
Federal Courts, those made by Federal have been exercised by Federal waterbody is not navigable.
agencies are nevertheless accorded agencies if any: (c) Deletions from the list are not
substantial weight by the courts. It is (9) State or Federal court decisions authorized. If a change in status of a
therefore necessary that when relating to navigability of the waterbody from navigable to non-
jurisdictional questions arise, District waterbody, if any: navigable is deemed necessary, dh
personnel carefully investigate those (10) Remarks: updated finding should be forwarded to
waters which may be subject to Federal (11) Finding of navigability (with date) the Division Engineer; changes are not
regulatory jurisdiction under guidelines and recommendation for determination: considered final until a determination
set out above, as the resulting � 329.15 Inquiries regarding has been made by the Division Engineer.
determination may have substantial determinations.
impact upon a judicial body. Official (a) Findings and determinations PART 330-NATIONWIDE PERMITS
determinations by an agency made *in should be made whenever a question Sec.
the past can be revised or reversed as arises regarding the navigability of a 330.1 General.
necessary to reflect changed rules or waterbody. Where no determination has 330.2 Definitions.
interpretations of the law. been made, a report of findings will be 330.3 Nationwide permits for activities
(b) Procedures of determination. A prepared and forwarded to the Division occuring before certain dates.
determination whether a waterbody Is a Engineer, as described above. Inquiries 330.4 Nationwide permits for discharges
navigable water of the United States may be answered by an interim reply into certain waters.
will be made by the Division Engineer, which indicates that a final agency 330.5 Nationwide permits for specific
determination must be made by the 330.6 Management practices.
and will be based on a report of findings activities.
prepared at the District level in out in Division Engineer. If a need develops for 330.7 Discretionary authority.
accordance with the criteria set an emergency determination, District 330.8 Expiration of nationwide permits,
this regulation. Each report of findings Engineers may act in reliance on a Authority: 33 U.S.C. 403; 33 U.S.C. 1344.
will be prepared by the District finding prepared as in � 329.14 of this
Engineer, accompanied by an opinion of part The report of findings should then � 330.1 General.
the District Counsel, and forwarded to be fo'rwarded to the Division Engineer The purpose of this regulation is to
the Division Engineer for final
on an expedited basis. describe the Department of the Army's
determination. Each report of findings (b) Where determinations have been nationwide periniot program and to list
will be based substantially on made by the Division Engineer, inquiries all current nationwide permits which
applicable portions of the format in regarding the navigability of specific have been issued by publication herein.
paragraph (c) of this section. portions of waterbodies covered by The two typescof general permits are
(c) Suggestedfarmat ofreport Of these determinations may be answered referred to as "nationwide permits" and
findings. (1) Name of waterbody: as follows: ..regional permits." A nationwide permit
(2) Tributary to:
(3) Physical characteristics: This Department, in the administration of is a form of general permit which
(i) Type: (river, bay, slough, estuary. the laws enacted by Congress for the authorizes a category of activities
etc.) protection and preservation of the navigable throughout the nation. The authority for
waters of the United States, has determined general permits to be issued by district
(ii) Length: that - (River) (Bay) (Lake, etc.) is engineers on a regional basis is
(iii) Approximate discharge volumes: a navigable water of the United States from
Maximum, Minimum, Mean. - to - Actions which contained in 33 CFR Part 325. Copies of
(iv) Fall per mile: modify or otherwise affect those waters are regional permits can be obtained from
(v) Extent of tidal influence: subject to the jurisdiction of this Departinent, the appropriate district engineer.
(vi) Range between ordinary high and whether such actions occur within or outside Nationwide permits are designed to
ordinary low water: the navigable areas. allow the work to occur with little, if
(vii) Description of improvements to (c) Specific inquiries regarding the any, delay or paperwork. However, the
navigation not listed in paragraph (c)(5) jurisdiction of the Corps of Engineers nationwide pern-dts are valid only if the
of this section: can be answered only after a conditions applicable to the nationwide
(4) Nature and location of significant determination whether (1) the waters permits are met. just because a
obstructions to navigation in portions Of are navigable waters of the United condition cannot be met does not
the waterbody used or potentially States or (2) if not navigable, whether necessarily mean the activity cannot be
capable of use in interestate commerce: the proposed type of activity may authorized but rather that the activity
(5) Authorized projects: nevertheless so affect the navigable will have to be authorized by an
(i) Nature, condition and location of waters of the United States that the individual or regional permit.
any improvements made under projects assertion of regulatory jurisdiction is Additionally, division engineers have
authorized by Congress: deemed necessary. the discretion, under situations and
(ii) Description of projects authorized procedures described herein, to override
but not constructed: � 329.16 Use and maintenance of Date of the nationwide permit coverage and
(iii) List of known survey documents determinations. require an individual or regional permit.
or reports describing the waterbody: (a) Tabulated lists of finel The nationwide permits are issued to
(6) Past or present interstate determinations of navigability are to be satisfy the requirements of both Section
commerce: maintained in each District office, and 10 of the River and Harbor Act of 1899

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31832 Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

and Section 404 of the Clean Water Act (2) Other non-tidal waters of the rehabilitation, or replacement does not
unless otherwise stated. These United States (see 33 CFR 323.2(a)(3)) result in a deviation 2from the plans of
nationwide permits apply only to that are not part of a surface tributary the original structure or fill, and further
Department of the Army regulatory system to interstate waters or navigable provided that the structure or fill to be
programs (other Federal agency, state waters of the United States.' maintained has not been put to uses
and local authorizations may be (b) Conditions. The following special differing from uses specified for it in any
required for the activity). conditions must be followed in order for permit authorizing its original
� 330.2 Definitions. the nationwide permits identified in construction. Maintenance dredging is
paragraph (a) of this section to be valid: not authorized by this nationwide
(a) The definitions of 33 CFR Parts (1) That the discharge will not be permit.
321-329 are applicable to the terms used located in the proximity of a public (4) Fish and wildlife harvesting
in this part. water supply intake; devices and activities such as pound
(b) Discretionary authority mean? the (2) That the discharge will not destroy nets, crab traps, eel pots, lobster traps,
authority delegated to division engineers a threatened or endangered species as duck blinds, clam and oyster digging.
in � 330.7 of this Part to override identified under the Endangered Species (5) Staff gages, tide gages, water
provisions of nationwide permits to add Act, or destroy or adversely modify the recording devices, water quality testing
regional conditions or to require critical habitat of such species. In the and improvement devices, and similar
individual permit applications. case of Federal agencies, it is the scientific structures.
� 330.3 Nationwide permits for activities agencies' responsibility to review its (6) Survey activities including core
occurring before certain dates. activities to determine if the action sampling, seismic exploratory
The following activities are permitted "may affect" any listed species or operations, and plugging of seismic shot
by a nationwide permit which was critical habitat. If so" the Federal agency holes and other exploratory-type bore
issued on 19 July 1977 and need not be must consult with the Fish and Wildlife holes.
further permitted: Service and/or the National Marine (7) Outfall structures and associated
(a) Discharges of dredged or fill Fisheries Service; intake structures 3 where the effluent
material in waters of the United States (3) That the discharge will consist of from that outfall has been permitted
outside the limits of navigable waters of suitable material free from toxic under the National Pollutant Discharge
the United States that occurred before pollutants in toxic amounts; Elimination System program (Section
the phase-in dates which began July 25, (4) That the fill created by the 402 of the Clean Water Act) (see 40 CFR
1975, and extended Section 404 discharge will be properly maintained to Part 122) provided that the individual
jurisdiction to all waters of the United prevent erosion and other non-point and cumulative adverse environmental
States. These phase-in dates are: after sources of pollution; effects of the structure itself are
July 25, 1975, discharges into navigable (5) That the discharge will not occur in minimal.
waters of the United States and a component of the National Wild and (8) Structures for the exploration,
adjacent wetlands; after September 1, Scenic River System. production, and transport of oil, gas, and
1976, discharges into navigable waters (6) That the best management minerals on the outer continental shelf
of the United States and their primary practices listed in � 330.6 of this Part within areas leased for such purposes
tributaries, including adjacent wetlands, should be followed to the maximum by the Department of Interior, Bureau of
and into natural lakes, greater than 5 extent practicable. Land Management, provided those
acres in surface area; and after July 1, � 330.5 Nationwide permits for specific structurea are not placed within the
1977, discharges into all waters of the activities. limits of any designated shipping safety
United States. (a) Authorized activities. The fairway or traffic separation scheme
(b) Structures or work completed following activities are hereby permitted (where such limits have not been
before 18 December 1968 or in provided the conditions specified in this designated or where changes are
waterbodies over which the District paragraph and listed in paragraph (b) of anticipated, District Engineers will
Engineer was not asserting jurisdiction ider recommending the
at the time the activity occurred this section are met: cons
provided, in both instances, there is no (1) The placement of afds to discretionary authority provided by
interference with navigation. navigation and regulatory markers � 330.7 of this Part), and further subject
which are approved by and installed in to the provisions of the fairway
� 330.4 Nationwide permits for discharges accordance with the requirements of the regulations in 33 CFR 209.135.
into certain waters. U.S. Coast Guard (33 CFR Part 66, (9) Structures placed within anchorage
(a) Authorized discharges. Discharges Subchapter C). or fleeting areas to facilitate moorage of
of dredge or fill material into the (2) Structures constructed in artificial vessels where such areas have been
following waters of the United States canals within principally residential established by the US Coast Guard.
are hereby permitted provided the developments where the connection of (10) Non-commercial, single-boat,
conditions listed in paragraph (b) of this the canal to a navigable water of the mooring buoys.
section below are met: United States has been previously (11) Temporary buoys and markers
(1) Non-tidal rivers, streams and their authorized (see 33 CFR 322.4(8)). placed for recreational use such as
lakes and impoundments, including (3) The repair, rehabilitation, or water skiing and boat racing provided
adjacent wetlands, that are located replacement of any previously that the buoy or marker is removed
above the headwaters.1 authorized, currently serviceable, within 30 days after its use has been
structure or fill or of any currently
Ine State of Wisconsin has denied water quality serviceable structure or fill constructed 2Minor deviations due to changes in materials or
certification pursuant to Section 401 of the Clean prior to the requirement for construction techniques and which are necessary to
Water Act for certain waters within these two make repair, rehabilitation. or replacement are
Nationwide Permit Categories. Discharges of authorization; provided such repair, permitted.
dredged or fill material into those specified waters 3 intake structures per se are not included-only
are not authorized under these two nationwide obtained from the St. Paul District Engineer, 1135 those directly associated with an outfall structure
permits. A list of the specific waters may be U.S. Post Office & Customhouse, St. Paul, MN 65101. are covered by this nationwide permit.

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Federal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 Rules and Regulations 31833

discontinued. At Corps of Engineers The crossing will require a permit from Contingency Plan provided the Regional
reservoirs, the reservoir manager must the US Coast Guard if located in Response Team which is activated
approve each buoy or marker navigable waters of the United States under the Plan concurs with the
individually, (see 33 U.S.C. 301). Some road fills may proposed containment and cleanup
(12) Discharge of material for backfill be eligible for an exemption from the action.
or bedding for utility lines including need for a Section 404 permit altogether (21) Structures, work, and discharges
outfall and intake structures provided (see 33 CFR 323.4). associated with surface coal mining
there is no change in preconstruction (15) Fill placed incidental to the activities provided they are authorized
bottom contours (excess material must construction of bridges across navigable by the Department of the Interior, Office
be removed to an upland disposal area). waters of the United States including of Surface Mining, or by states with
A "utility line" is defined as any pipe or cofferdams, abutments, foundation approved programs under Title V of the
pipeline for the transportation of any seals, piers, and temporary construction Surface Mining Control and Reclamation
gaseous, liquid, liquifiable, or slurry and access fills provided such fill has Act of 1977; the appropriate district
substance, for any purpose, and any been authorized by the US Coast Guard engineer is given the opportunity to
cable, line, or wire for the transmission under Section 9 of the River and Harbor review the Title V permit application
for any purpose of electrical energy, Act of 1899 as part of the bridge permit. and all relevant Office of Surface
telephone and telegraph messages, and Causeways and approach fills are not Mining or state (as the case may be)
radio and television communication. included in this nationwide permit and documentation prior to any decision on
(The utility line and outfall and intake will require an individual or regional that application; and the district
structures will require a Section 10 Section 404 permit. engineer makes a determination that the
permit if in navigable waters of the (16) Return water 5 from a contained individual and cumulative adverse
United States. See 33 CFR Part 322. See dredged material disposal area provided effects on the environment from such
also paragraph (a)(7) of this section.) the State has issued a certification structures, work, or discharges are
(13) Bank stabilization activities under Section 401 of the Clean Water minimal.
provided: Act (see 33 CFR 325.2(b)(1)). The (22) M inor work or temporary
(i) The bank stabilization activity is dredging itself requires a Section 10 structures required for the removal of
less than 500 feet in length; permit if located in navigable waters of wrecked, abandoned, or disabled
(ii) The activity is necessary for the United States. vessels or the removal of obstructions to
erosion prevention; (17) Fills associated with small navigation.
(iii) The activity is limited to less than hydropower projects at existing (23) Activities, work, and discharges
an average of one cubic yard per reservoirs where the project which undertaken, assisted, authorized,
running foot placed along the bank includes the fill is licensed by the regulated, funded, or financed, in whole
within waters of the United States; Department of Energy under the Federal or in part, by another Federal agency or
(iv) No material is placed in excess of Power Act of 1920, as amended; has a department where that agency or
the minimum needed for erosion total generating capacity of not more department has determined, pursuant to
protection; than 1500 kw (2,000 horsepower); the CEQ Regulation for Implementing
(v) No material is placed in any qualifies for the short-form licensing the Procedural Provisions of the
Welland area; procedures of the Department of Energy National Environmental Policy Act (40
(vi) No material is placed in any (see 18 CFR 4.61); and the individual and CFR Part 1500 et seq.), that the activity,
location or in any manner so as to cumulative adverse effects on the work, or discharge is categorically
impair surface water flow into or out of environment are minimal. excluded from environmental
any Welland area; (18) Discharges of dredged or fill documentation because it is included
(vii) Only clean material free of waste material into waters of the United States within a category of actions which
metal products, organic materials, that do not exceed ten cubic yards as neither individually nor cumulatively
unsightly debris, etc. is used; and part of a single and complete project have a significant effect on the human
(viii) The activity is a single and provided no material is placed in envirom[nent and the Office of the Chief
complete project. Welland a 67. of Engineers (ATTN: DAEN-CWO-N)
(14) Minor road crossing fills including (19) Dredging of no more than ten has been furnished notice of the agency
all attendant features both temporary cubic yards from navigable waters of or department's application for the
and permanent that are part of a single the United States as part of a single and categorical exclusion and concurs with
and complete project for crossing of a complete project.6 that determination .7
non-tidal waterbody, provided that the (20) Structures, work and discharges (24) Any activity permitted by a state
crossing is culverted, bridged or for the containment and cleanup of oil administering its own permit program
otherwise designed to prevent the and hazardous substances which are for the discharge of dredged or fill
restriction of and to withstand expected subject to the National Oil and material authorized at 33 U.S.C. 1344(g)-
high flows 4 and provided further that Hazardous Substances Pollution (1) shall be permitted pursuant to
discharges into any wetlands adjacent Section 10 of the River and Harbor Act
to the waterbody do not extend beyond *The return water or runoff from a contained of 1899 (33 U.S.C. Part 403). Those
disposal area is administratively defined as a activities which do not involve a Section
100 feet on either side of the ordinary discharge of dredged material by 33 CFR 323.2(j) 404 state permit are not included in this
high water mark of that waterbody. A even though the disposal itself occurs on the upland
"minor road crossing fill" is defined as a and thus does not require a Section 404 permit. This nationwide permit but many will be
crossing that involves the discharge of nationwide permit satisfies the technical exempted by Sec. 154 of Pub. L. 94-587.
requirement for a Section 404 for the return water (See 33 CFR 322.2(a)(2)).
less than 200 cubic yards of fill material where the quality of the return water is controlled (25) Discharge of concrete into tightly
below the plane of ordinary high water- by the state through the Section 401 certification
procedu.res. I The State of Wisconsin has denied water
4 District Engineers are authorized. where regional 67'hese nationwide permits are designed for very quality certifications pursuant to section 4oi of the
conditions indicate the need. to define the term minor dredge and fill activities such as the removal Clean Water Act for these two nationwide permits.
"expected high flows" for the purpose of of a small shoal in a boat slip; they cannot be used Consequently, the permits do not apply in
establishing applicability of this nationwide permit. for piecemeal dredge and fill activities. Wisconsin.

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31834 F.ederal Register / Vol. 47, No. 141 / Thursday, July 22, 1982 / Rules and Regulations

sealed forms or cells where the concrete discharges on the aquatic environment. to the Office of the Chief of Engineers,
is used as a structural member which Failure to comply with these practices ATTN: DAEN--CWO-N. Division and
would not otherwise be subject to Clean may be cause for the district engineer to district engineers will take appropriate
Water Act jurisdiction. recommend or the division engineer to measures to inform the public at large of
(b) Conditions. The following special take discretionary authority to regulate the additional conditions.
conditions must be followed in order for the activity on an individual or regional (b) Individual permits. In nationwide
the nationwide permits identified in basis pursuant to � 330.7 of this Part. permit cases where additional regional
paragraph (a) of this section to be valid: (1) Discharges of dredged or fill conditioning may not be sufficient or
(1) That any discharge of dredged or material into waters of the United States where there is not sufficient time to
I develop regional conditions under
fill, material will not occur in the shall be avoided or minimized through
proximity of a public water supply the use of other practical alternatives. paragraph (a) of this section, the
intake; (2) Discharges in spawning areas division engineer may require individual
(2) That any discharge of dredged or during spawning seasons shall be permit applications on a case-by-case
fill material will not occur in areas of avoided. basis. Where time is of the essence, the
concentrated shellfish production unless (3) Discharges shall not restrict or district engineer may telephonically
the discharge is directly related to a impede the movement of aquatic species recommend that the division engineer
shellfish harvesting activity authorized indigenous to the waters or the passage assert discretionary authority to require
by paragraph (a)(4) of this section. of normal or expected high flows or a .n individual permit application for a
. (3) That the activity will not cause the relocation of the water (unless specific activity. If the division engineer
jeopardize a threatened or endangered the primary purpose of the fill is to concurs, he may verbally authorize the
species as identified under the impound waters). district engineer to implement that
Endangered Species Act, or destroy or (4) If the discharge creates an authority. Both actions will be followed
adversely modify the critical habitat of impoundment of water, adverse impacts by written confirmation with copy to the
such species. In the case of Federal on the aquatic system caused by the Chief of Engineers (DAEN-CWO-N).
agencies, it is the agencies' accelerated passage of water and/or the Additionally, after notice and
responsibility to review its activities to restriction of its flow, shall be opportunity for public hearing, division
determine if the action "may affect" any minimized. engineers may recommend to the Chief
listed species or critical habitat. If so, (5) Discharge in wetlands areas shall of Engineers that individual permit
the Federal agency must consult with be avoided. applications be required for categories
the Fish and Wildlife Service and/or (6) Heavy equipment working in of activities, or. in a specific geographic
National Marine Fisheries Service; wetlands shall be placed on mats. area. The division engineer will
(4) That the activity will not (7) Discharges into breeding areas for announce the decision to persons
significantly disrupt the movement of migratory waterfowl shall be avoided. affected by the action. The district
those species of aquatic life indigenous (8) All temporary fills shall be engineer will then regulate the activity
to the waterbody (unless the primary removed in their entirety. or activities by processing an
purpose of the fill is to impound water);
(5) That any discharge of dredged or � 330.7 Discretionary Authority. application(s) for individual permit(s)
fill material will consist of suitable Division engineers on their own pursuant to 33 CFR Part 325.
material free from toxic pollutants (See initiative or upon recommendation of a (c) Discretionary authority which has
Section 307 of Clean Water Act) in toxic district engineer are authorized to been exercised under nationwide
amounts; modify nationwide permits by adding permits issued on 19 July 1977 expires
(6) That any structure or fill regional conditions or to override four months from the effective date of
authorized will be properly maintained; nationwide permits by requiring this regulation. Such authority may be
(7) That the activity will not occur in a individual permit applications on a case- extended or reinstated after appropriate
component of the National Wild and by-case basis. Discretionary authority procedures of this regulation and 33 CFR
Scenic River System; and will be based on concerns for the Parts 320 through 325 have been
(8) That the activity will not cause an aquatic environment as expressed in the followed.
unacceptable interference with guidelines published by EPA pursuant to � 330.8 Expiration of nationwide permits.
navigation. � 404(b)(1). (40 CFR Part 230)
(9) That the best management (a) Regional c6nditions. Division The Chief of Engineers will review
practices listed in � 330.6 of this Part engineers are authorized to modify nationwide permits at least every five
should be followed to the maximum nationwide permits by adding years. Based on this review, which will
extent practicable. conditions applicable to certain include public notice and opportunity
activities or specific geographic areas for public hearing through publication in
� 330.6 Management practices. within their divisions. In developing the Federal Register, he will either
(a) In addition to the conditions regional conditions, division and district modify, reissue (extend) or revoke the
specified in � � 330.4 and 330.5 of this engineers will follow standard permit permits. If a nationwide permit is not
Part, the following management processing procedures as prescribed in modified or reissued within five years of
practices should be followed, to the 33 CFR Part 325 applying the evaluation publication in the Federal Register, it
maximum extent practicable, in the criterid of 33 CFR Part 320 and automatically expires and becomes null
discharge of dredged or fill material appropriate parts of 33 CFR Parts 321, and void.
under nationwide permits in order to 322, 323, and 324. A copy of the [FR Doc- 824%W Filed 7-21-a 8:45 am]
minimize the adverse effects of these Statement of Findings will be forwarded BILUNG CODE 3710-92-M

A-56

APPENDIX B

U.S. ENVIRONMENTAL
PROTECTION AGENCY REGULATIONS

Wednesday
December 24, 1980

MRS

Lir

Part IV

Environmental
Protection Agency
Guidelines for Specification of Disposal
Sites for Dredged or Fill Material

B-2

85336 Federal Register / Vol. 45, No. 249 / Wednesday, December 24 1980 / Rules and Regulations

ENVIRONMENTAL PROTECTION the Army acting through the Chief of the Corps in working with the interim
0
AGENCY Engineers to issue permits specifying final Guidelines, have prompted a
disposal sites in accordance with the revision of the Guidelines. The proposed
40 CFR Part 230 section 404[b)(1) Guidelines. Section revision attempted to reorganize the
404(b)(2) allowed the Secretary to issue Guidelines, to make it clearer what had
(WH-FRL 1647-71 permits otherwise prohibited by the to be considered in evaluating a
Guidelines foi Specification of Guidelines, based on consideration of discharge and what weight should be
Disposal Sites for Dredged or Fill the economics of anchorage and given to such considerations. The
Material navigation. Section 404(c) authorized the proposed revision also tightened up the
Administrator of the Environmental requirements for the perrnitting
AGENCY: Environmental Protection Protection Agency to prohibit or authority's documentation of the
Agency. withdraw the specification of a site, application of the Guidelines.
ACTION: Rule. upon a determination that use of the site After extensive consultation with the
would have an unacceptable adverse Corps, the proposed revisions were put
SUMMARY: The 404(b)(1) Guidelines are effect on municipal water supplies, out for public comment (44 FR 54222,
the substantive criteria used in . shellfish beds and fishery areas September 18, 1979). EPA has reviewed,
evaluating discharges of dredged or fill (including spawning and breeding and, after additional consultation with
material under section 404 of the Clean areas), wildlife, or recreational areas. the Corps, revised the proposal in light
Water Act. These Guidelines revise and Under section 404(b)(1), the of these comments. This preamble
clarify the September 5, 1975 Interim Guidelines are to be based on criteria addresses the significant comments
final Guidelines regarding discharge of comparable to those in section 403(c) of 'received, explains the changes made in
dredged or fill material into waters of the Act, for the territorial seas, the regulation, and attempts to clear up
the United States in order to: contiguous zone, and oceans. Unlike some misunderstandin-s which were
0
(1) Reflect the 1977 Amendments of 403(c), 404 applies to all waters of the revealed by the comments. Response to
Section 404 of the Clean Water Act United States. Characteristics of waters Significant Comments
(CWA); of the United States vary greatly, both
(2) Correct inadequacies in the interim from region to region and within a Regulation Versus Guideline
final Guidelines by filling gaps in region. There is a wide range of size, A number of commenters objected to
explanations of unacceptable adverse flow, substrate, water quality, and use. the proposed Guidelines on thegrounds
impacts on aquatic ecosystems and by In addition, the materials to be that they were too "regulatory." These
requiring documentation of compliance discharged, the methods of discharge, cornmenters argued that the term
with the Guidelines; and and the activities associated with the "guidelines" which appears in section
(3) Produce a final rulemaking discharge also vary widely. These and 404(b)(1) requires a document with less
document. other variations make it unrealistic at binding effect than a regulation. EPA
EFFECTIVE DATE: These Guidelines will this time to arrive at numerical criteria disagrees. The Clean Water Act does
apply to all 404 permit decisions made or standards for toxic or hazardous not use the word "guideline" to
af @er March 23, 1981. In the case of civil substances to be applied on a distinguish advisory information from
works projects of the United States nationwide basis. The susceptibility of regulatory requirements. Section
Army Corps of Engineers involving the the aquatic ecosystem to degradation by 404(b)(2) clearly demonstrates that
discharge of dredged or fill material for purely phys' cal placement of dredged or Congress contemplated that discharges
which there is no permit application or fill material further complicates the could be "prohibited" by the Guidelines.
permit as such, these Guidelines will problem of arriving at nationwide Section 403 (which is a model for the 404
apply to all projects on which standards. As a result, the Guidelines (b)(1) Guidelines) also provides for
construction or dredging contracts are concentrate on specifying the tools to be "guidelines" which are clearly
issued, or on which dredging is initiated used in evaluating and testing the regulatory in nature. Consequently, we
for Corps operations not.performed impact of dredged or fill material have not changed the regulation to make
under contract, after October 1, 1981. In discharges on waters of the United it simply advisory. Of course, as the
the case of Federal construction projects States rather than on simply listing regulation itself makes clear, a certain
meeting the criteria in section 404(r), numerical pass-fail points. amount of flexibility is still intended.
these Guidelines will apply to all The first section 404(b)(1) Guidelines For example, while the ultimate
projects for which a final environmental were promulgated by the Administrator conditions of compliance are
impact statement is filed with EPA after in interim final form on September 5, ."regulatory", the Guidelines allow some
April 1, 1981. 1975, after consultation with the Corps room for judgment in determining what
FOR FURTHER INFORMATION CONTACT. of Engineers. Since promulgation of the must be done to arrive at a conclusion
Joseph Krivak, Director, Criteria and interim final Guidelines, the Act has that those conditions have or have not
Standards Division (WH-585), been substantially amended. The Clean been met. See, for example, � 230.6 and
Environmental Protection Agency, 401 M Water Act of 1977 established a � 230.60, and introductory sentence in
Street, S,W., Washington, D.C. 20460, procedure for transferring certain � 230.10.
telephone (202) 755--0100. permitting authorities to the states, -
SUPPLEMENTARY INFORMATION: exempted certain discharges from any Statutory Scheme and How the
Background section 404 permit requirements, and Guidelines Fit Into It
gave the Corps enforcement authority. A number of commenters with
The section 404 program for the These amendements also increased the objections appeared confused about
evaluation of permits for the discharge importance of the section 404(b)(1) EPA's role in the section 404 program.
of dredged or fill material was originally Guidelines, since some of the Some wondered why EPA was issuing
enacted as part of the Federal Waoter exemptions are based on alternative Guidelines since EPA could stop an
Pollution Control Amendments of 1972. ways of applying the Guidelines. These unacceptable discharge under section
The section authorized the Secretary of changes, plus the experience of EPA and 404(c). Others were uncertain how the

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Gu'delineg related to other section 404 site, or restrict its use, by follo'wing the of either kind of violation, although they
regulations. procedures set out in section 404(c), if he may represent the basis for particular
The Clean Water Act prohibits the determines that discharge would have permit conditions which are violated.
discharge of dredged or fill material an unacceptable adverse effect on fish Under the Corps' procedural regulations.
except in compliance with section 404. and shellfish areas (including spawning the Corps may accept an application for
Section 404 sets up a procedure for and breeding areas), municipal water an after-the-fact permit, In lieu of
issuing permits specifying discharge supplies, wildlife or recreation areas. He immediately commenring an
sites. Certain discharges (e.g. emergency may do so in advance of a planned enforcement action. Such after-the-fact
repairs, certain farm and forest roads, discharge or while a permit application permits may be issued only if they
and other discharges identified in is being evaluated or even, in unusual comply with.the 404(b)(1) Guidelines as
sections 404(f) and (r)) are exempted circumstances, after issuance of a well as other requirements set out in the
from the permit requirements. The permit. (See preamble to 40 CFR Part Corps' regulations. Criteria and
permitting authority (either the Corps of 231, 44 FR 58076, October 9, 1979.) If the procedures for exercising the Various
Engineers'or an approved State Administrator uses 404(c), he may block enforcement options are outside the
program) approves discharges at the issuance of a permit by the Corps or scope of the section 404(b)(1)
particular sites through application of a State 404 program. Where the Guidelines.
the section 404(b)(1) Guidelines, which Administrator has exercised his section Some commenters suggested that we
are the substantive criteria fordredged 404(c) authority to prohibit, withhold. or either include specific permit processing
and fill material discharges under the restrict the specification of a site for procedures or that we cross-reference
Clean Water Act The Corps also disposal. his action may not be regulations containing them. Such
conducts a Public Interest Review, overridden under section 404(b)(2). The procedures are described in 33 CFR Part
which ensures that the discharge will fact that EPA has 404(c) authority does 320-327 (Corps' procedures) and in 40
comply with, the applicable not lessen EPA's responsibility for CFR Part 122-124 (minimum State
requirements of other statutes and be in developing the 404(b)(1) Guidelines for procedures). When specific State 404
the public interest. The Corps or the use by the permitting authority. Indeed, programs are approved. their regulations
State, as the case may be, must provide if the Guidelines are properly applied,' should also be consulted.
an opportunity for a public hearing EPA will rarely have to use its 404(c) How Future Changes in the Tetsting
before making its decision whether to veto.' Provision Relate to Promulgation of This
approve or 'deny. If the Corps concludes The Clean Water Act provides for Final Rule
that the discharge does not comply with several uses of the Guidelines in The S .eptember 18,1979, proposal
the Guidelines, it may still issue the - addition to the individual permit contained testing provisions which were
permit under 404(b)t2) if it concludes -application review process described essentially the same as those in the ,
that the economics of navigation and above. For example, the Corps or an Interim Final, regulations. The Preamble
anchorage warrant. Section 404(b)(2) approved state may issue General to that proposal explained that it was
gives the Secretary a limited authority to permits for a category of similar our intention to propose changes in the
issue permits prohibited by the activities where it determines, on the testing provisions, but that a proposal
Guidelines; it does not, as some basis of the 404(b)(1) Guidelines, that was not yet ready. Consequently, while
commenters suggested, require the the activities will cause only minimal we have been revising the rest of the
Guidelines to consider the economics of adverse environmental effects both Guidelines, we have also been working
navigation and anchorage. Conversely, . individually and cumulatively (Section on a proposal for reorganizing and
because of 404(b)(2), the fact that a 404(e) and (g)(1)). In addition, some of updating the testing provisions. Now
discharge of dredged material does not the exemptions from the permit that we have. finalized the rest of the
comply with the Guidelines does not requirements involve application of the Guidelines, two options are available to
mean that it can never be permitted. The Guidelines. Section 404(r) exempts us. First, we could delay issuing any
Act recognizes the concerns of ports in discharges associated with Federal final revisions to our 1979 proposal until
section 404(b)(2), not 404(b)(1). Many construction projects where, among we could propose a revised testing
readers apparently misunderstood this other things, there is an Environmental package, consider comments on it, and
point. Impact Statement which considers the finalize the testing provisions. We could
EPA's role under section 404 is 404(b)(1) Guidelines. Section 404(f)(1)(FJ then put together the Guidelines and the
several-fold. First. EPA has the exempts discharges covered by best revised testing section in one final
responsibility for developing the management practices (BMP's) regulation. The 1975 interim final
404(b)(1) Guidelines in conjunction with approved under section 208(b)(4)(B) and Guidelines would apply in their,entirety
the Corps. Second, EPA reviews permit (c), the approval of which is based in until then. Second. we could publish the
applications and gives its comments (if part on consistency with the 404(b)(1) final Guidelines (with the 1975 testing
any) to the permitting authority. The Guidelines. provisions) and simultaneously propose
Corps may issue a permit even if EPA Several commenters asked for a changes to the testing provision. It is our
comments adversely, after consultation statement on the applicability of the present belief that proposed changes to
takes place. In the case of state Guidelines to enforcement procedures. the testing provision would not affect
programs, the State director may not Under sections 309,404(h)(1)(G), and the rest of the Guidelines. but the public
issue a permit over EPA's unresolved 404(s), EPA, approved States, and the would be allowed to comment on any
objection. Third, EPA has the Corps all play a role in enforcing the inconsistencies it saw between the rest
responsibility for approving and section 404 permit requirements. of the Guidelines and the testing
overseeing State 404 programs. In Enforcement actions are appropriate proposal. Then, when the comments to
addition, EPA has enforcement when someone is discharging dredged or the testing proposal had been
responsibilities under section 309. fill material without a required permit, considered. we would issue a new final
Finally, under either the Federal or State or violates the terms and conditions of a regulation incorporating both the
program, the Administrator may also permit. The Guidelines as such are previously promulgated final Guidelines
prohibit the specification of a discharge generally irrelevant to a determination and the final revised testing provision.

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85338 Federal Register / Vol. 45, No. 249 / Wednesday, December 24. 1980 / Rules and Regulations

We have selected the second option permits where environmental concerns Guidelines that toxic pollutants on the
because this approach ensures that make it appropriate. For example, section 307(a)(1) list are present in the
needed improvements to the Guidelines cumulative impacts may turn out to be aquatic environmen t unless
are made effective at the earliest more serious than predicted. This demonstrated not to be,-and that such
possible date, it gives the public ample regulation is not intended to establish pollutants are biologically available
opportunity to comment on the revised the procedures for issuance of General unless. demonstrated otherwise. These
testing section, and it maintains the 1975 permits. That is the responsibility of the commenters argued that rebutting these
testing requirements in effect during the permitting authority in accordance with presumptions could involve individual
interim which would be the case in any the requirementq of section 404. testing for dozens of substances every
event. Burden of Proof time a discharge is proposed, imposing
an onerous task.
Guideline Organization A number of commenters objected to The proposed regulation attempted to
Many readers objected to the length the presumption in the regulations in avoid unnecessary testing by providing
and complexity of the Guidelines. We general, and in proposed � 230.1(c) in that when the � 230.22(b) "reason to
have substantially reorganized the particular, that dredged or fill material believe" process indicated that toxics
regulation to eliminate duplicative should not be discharged unless it is were not present in the discharge
material and to provide a more logical demonstrated that the planned material, no testing was required. On
sequence. These changes should make it discharge meets the Guidelines. These the other hand, contaminants other than
easier for applicants to understand the comnienters thought that it was unfair toxics required testing if that same
criteria and for State and Corps permit and inconsistent with section 404(c) of ..reason to believe" process indicated
evaluators and the Administrator to the Act. they might be present in the discharge
apply the criteria. Throughout the We disagree with these objections, material. This is in fact a distinction
document, we have also made numerous and have retained the presumption without a difference. In practical
minor language changes to improve the against discharge and the existing application, toxic and non-toxic
clarity of the regulations, often at the burden of proof. However, the section contaminants are treated the same; if
suggestion of commenters. has been rewritten for clarity. either may be theret tests are performed
Following general introductory The Clean Water Act itself declares a to get the information for the
material and the actual compliance national goal to be the elimination of the. determinations; if it is believed they are
requirements, the regulations are now discharge of pollutants into the not present, no testing is done. Because
organized to more closely follow the navigable waters (section 101(a)(1)). the additional presumption for.toxics
steps the permitting authority will take This goal is implemented by section 301, did not actually serve a purpose, and
in arriving at his ultimate decision on which states that such discharges are because it was a possible source of
compliance with the Guidelines. unlawful except in compliance with, confusion, we have eliminated it, and
By reorganizing the Guidelines in this inter afla, section 404. Section 404 in now treat "toxics" and other
fashion, we were also able to identify turn authorizes the permitting authority contaminants alike, under the "reason to
and eliminate duplicative material. For to allow discharges of dredged or fill believe test" (� 230.60). We have
example, the proposed Guidelines listed material if they comply with the provided in � 230.3 a definition of
ways to minimize impacts in many 404(b)(i) Guidelines. The statutory %ontaminants" which encompasses the
separate sections. Since there was scheme makes it clear that discharges 307(a)(1) toxics.
substantial overlap in the specific shall not take place until they have been
methods suggested in those sections, we found acceptable. Of course, this finding Water Dependency
consolidated them into new Subpart H. may be'made through the General One of the provisions in the proposed
Other individual sections have been permit process and the statutory Guidelines which received the most
made more concise. In addition, we exemptions as well as through objections was the so-called "water
have decreased the number of individual permits. dependency test" in the proposed
cornments, moving them to the Preamble The commenters who argued that � 230.10(e). This provision imposed an
or making them part.of the Regulation, section 404(c) shifts the usual burden to additional requirement on fills in
as appropriate. the EPA Administrator misunderstood wetlands associated with non-water
General Permits the relationship between section 404(c) dependent activities, namely a showing
and the permitting process. The that the activity was "necessary." Many
When issued after proper Administrator's authority to prohibit or environmentalists objected to what they
consideration of the Guidelines, General restrict a site under section 404(c) saw as a substantial weakening of the
permits are a useful tool in protecting operates independently of the Secretary 1975 version of the water dependency
the environment with a minimum of red of the Army's permitting authority in test. Industry and development-oriented
tape and delay. We expect that their use 404(a). The Administrator may use groups, on the other hand, objected to
will expand in the future. 404(c) whether or not a permit the "necessary" requirement because it
Some commenters were confused application is pending. Conversely, the was too subjective, and to the provision
about how General permits work. A Secretary may deny a permit on the as a whole to the extent that it seemed
General permit will be issued only after basis of the Guidelines, whether or not designed to block discharges in
the permitting authority has applied the EPA initiates a 404(c) proceeding. If the wetlands automatically.
Guidelines to the class of discharges to Administrator uses his 404(c) "veto," We have reviewed the water
be covered by the permit. Therefore, then he does have the burden to justify dependency test, its original purpose,
there is no need to repeat the process at his action, but that burden does not and its relationship to the rest of the
the time a particular discharge covered come into play until he begins a 404(c) Guidelines in light of these comments.
by the permit takes place. Of course, proceeding (See 40 CFR Part 231). The original purpose, which many
under both the Corps' regulations and commenters commended, was to
EPA's regulations for State programs, Toxic Pollutants recognize the special values of wetlands
the permitting authority may suspend Many commenters objected and to avoid their unnecessary
General permits or require individual strenuously to the presumptions in the destruction, particularly when

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practicable alternatives were available In addition, the 1975 provision misunderstanding of what the proposed
in non-aquatic areas to achieve the effectively created a special, alternatives analysis required.
basic purposes of the proposal. We still irrebuttable ptesumption that Therefore, we have decided to clarify
support this goal, but we have changed alternatives to @vetlands were always the regulation, but have not changed its
the water-dependency test to.better less damaging to the aquatic ecosystem. basic thrust.
achieve it. Because our experience and the Section 403(c) clearly requires that
First, we agree with Jhe comments comments indicate that this is not alternatives be 'considered, and provides
from both sides that the "necessary" test always the case, and because there the basic legal basis for our requirement.
imposed by the 1979 proposal is not could be substantial impacts on other While the statutory provision leaves the
likely to be workable in practice, and elements of the environment and only Agency some discretion to decide how
may spawn more disputes than it settles. minor impacts on wetlands, we have alternatives are to be considered, we
However, if the "necessary" test is chosen instead to impose an explicit, but believe that the policies and goals of the
simply deleted, section 230.10(e) does rebuttable, presumption that , Act, as well as the other authorities
not provide any special recognition of or alternatives to discharges In special cited in the Preamble to the proposed
protection for wetlands, and thus aquatic sites are less damaging to the Guidelines, would be best served by the
aquatic ecosystem and are approach we .havetaken.
defeats its purpose. Furthermore, even if environmentally preferable. Of course,
the "necessary" test were retained, the First, we emphasize that the only
harges of the general requirement that impacts on alternatives which must be considered
provision applies only to disc the aquatic ecosystem not be are practicable alternatives. What is
fill material. not discharges of dredged unacceptable also applies. The practicable depends on cost, technical,
material. a distinction which lessens the legislative history of the Clean Water and logistic factors. We have changed
effectiv'eness of the provision. Thus, we Act, Executive Order 11990, and a large the word "economic" to "cost". Our
have decided, in accordance with the body of scientific information support intent is to consider those alternatives
comments, that the proposal is this presumption. which are reasonable in terms of the
unsatisfactory. Apart from the fact that it may be overall scope/cost of the proposed
We have therefore decided to focus rebutted, this second presumption project. The term economic.might be
on, round out, and strengthen the reincorporates the key elements of the construed to include consideration of
approach of the so-called "water. 1975 provision. Moreover, it strengthens the applicant's financial standing, or
dependency" provision of the 1975 it because the recognition of the special investment, or market share, a
regulation. We have rejected the environmental role of wetlands now cumbersome inquiry which is not
suggestion that we simply go back to the applies to all discharges in special necessarily material to the objectives of
1975 language, in part because it would aquatic sites, whether of dredged or fill the Guidelines. We consider it implicit
not mesh easily with the revised general material, and whether or not water that, to be practicable, an alternative
provisions of the Guidelines. Instead, dependent. At the same time, this ust be capable of achieving the basic
our revised "water dependenc presumption, like the first one described in
Y" purpose of the proposed activity.
provision creates a presumption that above, retains sufficient flexibility to Nonetheless, we have made this explicit
there are practicable alternatives to reflect the circumstances of unusual to allay widespread concern. Both
"non-water dependent" discharges cases. "internal" and "external" alternatives,
proposed for special aquatic sites. "Non- Consistent with the general burden of as described in the September 18,1979
water dependent" discharges are those proof under these Guidelines, where an Preamble, must satisfy the practicable
associated with activities which do not applicant proposes to discharge in a test. In order for an "external"
require access or proximity to or siting special aquatic site it is his alternative to be practicable, it must be
within the special aquatic site to fulfill responsibility to persuade the permitting reasonably available or obtainable.
their basic purpose. An example is a fill authority that both of these
presumptions have clearly been rebutted However, the mere fact of ownership or
to create a restaurant site, since in order to pass the alternatives portion lack thereof, does not necessarily
restaurants do not need to be in of these Guidelines. - determine reasonable availability. Some
wetlands to fulfill their basic purpose of Therefore, we believe that the new readers were apparently confused by
feeding people. In the case of such � 230.10(a)(3), which replaces proposed the Preamble to the Proposed
activities, it is reasonable to assume 230.10(e), will give special protection to Regulation, which referred to the fact
there will generally be a practicable site wetlands and other special aquatic sites the National Environmental Policy Act
available upland or in a less vulnerable egardless of material discharged, allay (NEPA) may require consideration of
part of the aquatic ecosystem. The mere dustry's concerns about the courses of action beyond the authority
in
fact that an alternative may cost "necessary" test, recognize the of the agency involved. We did not
somewhat more does not necessarily mean to suggest that the Guidelines
mean it is not practicable (see possibility of impacts on air and upland were necessarily imposing such a .
systems, and acknowledge the
� 230.10(a)(2) and discussion below). variability among aquatic sites and requirement on priv@te individuals but,
Because the applicant may rebut the discharge activities. rather, to suggest that what we were
presumption through a clear showing in requiring was well within the
a given case, no unreasonable hardship Alternatives alternatives analyses required by NEPA.
should be worked. At the same time, Some commenters objected at length Second, once these practicable
this presumption should have the effect to the scope of alternatives which the alternatives have been identified in this
of forcing a hard look at the feasibility Guidelines require to be considered. and fashion, the permitting authority should
of using environmentally preferable to the requirement that a permit be consider whether any of them, including
sites. This presumption responds to the denied unless the least harmful such land disposal options. are less
overwhelming number of commenters alternative were selected. Others wrote environmentally harmful than the
who urged us to retain a water to urge us to retain these requirements. proposed discharge project. Of course,
dependency test to discourage In our judgment, a number of the where there is no significant or easily
avoidable discharges in wetlands. objections were based on a identifiable difference in impact, the

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85340 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

alternative need not be considered to clear that where alternatives have been definition of "waters of the United
have "less adverse" impact. reviewed under another process, the States" because it was allegedly outside
Several commenters questioned the permitting authority shall consider such the scope of the Clean Water Act or of
legal basis for requiring the permitting analysis. However, if the prior analysis the Constitution or because it was not
authority to select the least damaging is not as complete as the alternatives identical to the Corps' definition. We
alternative. (The use of the term "select" analysis required under the Guidelines, have retained the proposed definition
may have been misleading. Strictly he must supplement it as needed to with a few minor changes for clarity for
speaking, the permitting authority does determine whether the proposed several reasons. First, a number of
not select anything; he denies the permit discharge complies with the Guidelines. courts have held that this basic
if the guidelines requirements have not Section 230.10(a)(4) recognizes that the definition of waters of the United States
been complied with.) As mentioned ran-e of alternatives considered in reasonably implements section-502(7) of.
above, the s ,tatute leaves to EPA's NEPA documents will be sufficient for the Clean Water Act, and that it is
discretion the exact implementation of section 404 purposes, where the Corps is constitutional (e.g., United States v.
the alternative requirement in section the permitting authority. (However, a Byrd, 609 F2d 1204, 7th Cir. 1979, Leslie
403 of the Act. In large part, the greater level of detail may be needed in Salt Company v. Froehlke, 578 F.2d 742,
approach taken by these regulations is particular cases to be adequate for the 9th Cir. 1978). Second, we agree that it is
very similar to that taken by the recent 404(b)(1) Guidelines analysis.) This @ preferable to have a uniform definition
section 403(c) regulations (45 FR 65942, distinction between the Corps and State for waters of the United States, and for
October 3, 1980). There is one difference; permitting authorities is based on the all regulations and programs under the
the Guidelines always prohibit fact that it is the Corps' policy, in CWA. We have decided to use the
discharges where there is a practicable, carrying out its own NEPA wording in the recent Consolidated
less damaging alternative, while the responsibilities, to supplement ( or Permit Regulations, 45 Fed. Reg. 33290,
section 403(c) regulations only apply this require a supplement to) a lead agency's May 19, 1980, as the standard.*
prohibition in some cases. This environmental assessment or impact Some commenters suggested that the
difference reflects the wide range of statement where such document does reference in the definition to waters
water systems subject to 404 and the not contain sufficient information. State from which fish are taken to be sold in
extreme sensitivity of many of them to permitting agencies, on the other hand, interstate commerce be expanded to
physical destruction. These waters form are not subject to NEPA in this manner. include areas where such fish spawn.
a priceless mosaic. Thus, if destruction We have moved proposed While we have not made this change
of an area of waters of the United States � 230.10(a)(1) (iii), concerning "other because we wish to maintain -
may reasonably be avoided, it should be particular volumes and concentrations consistency with the wording of the
avoided. Of course, where a category of of pollutants at other specific rates", Consolidated Permit regulations, we do
404 discharges is so minimal in its from the list of alternatives in � 230.10 to not intend to suggest that a spawning
effects that it has been placed under a Subpart H. Minimizing Adverse Effects. area may not have significance for
general permit, there is no need to because it more properly belongs there. commerce. The portion of the definition
perform a case-by@case alternatives Definitions (� 230.3) at issue lists major examples, not all the
analysis. This feature corresponds, in a A number of the terms def ways which commerce may be involved.
tried in Some reviewers questioned the
sense, to the category of discharges � 230.3 are also defined in the Corps' statement in proposed � 230.72(c) (now
under section 403 for which no regulations at 33 CFR 323.2. applicable � 230.11(h)) that activities on fast land
alternatives analysis is required. to the Corps' regulatory program. The created by a discharge of dredged or fill
Third, some commenters were Corps has recently proposed some material are considered to be in waters
concerned that the alternative revisions to those regulations and of the United States for purposes of
consideration was unduly focused on expects to receive comments on the these Guidelines. The proposed
water quality, and that a better definitions. To ensure coordination of language was misleading and we have
alternative from a water quality these two sets of regulations, we have changed it to more accurately. reflect our
standpoint might be less desirable from, decided to reserve the definitions of intent. When a portion of the Waters -of
say, an air quality point of view. This "discharge of dredged material," the United States has been legally
concern overlooks the explicit provision "discharge of fill material ... .. dredged converted to fast land by a discharge of
that the existence of an alternative material." and "fill material," which dredged or fill material, it does not
which is less damaging to the aquatic otherwise would have appeared at remain waters of the United States
ecosystem does not disqualify a � 230.3 (0, (g). (j), and (1). subject to section 301(a). The discharge
discharge if that alternative has other Although the term "waters of the may be legal because it was authorized
significant adverse environmental United States" also appears in the by a permit or because it was made
consequences. This last provision gives Corps' regulations, we have retained a before there was a permit requirement.
the permitting authority an opportunity definition here, in view of the In the case of an 41legal discharge, the
to take into account evidence of damage importance of this key jurisdictional fast land may remain subject to the
to other ecosystems in deciding whether term and the numerous comments jurisdiction of the Act until the
there is a "better" alternative. received. The definition and the government determines not to seek
Fourth, a number of commenters were comments are explained below. restoration. However, in authorizing a
concerned that the Guidelines ensure Until new definitions are published,
coordination with planning processes directly or by reference to the Corps' The Consolidated Permit Regulations exclude
under the Coastal Zone Management revised reaulations, users of these certain waste treatment systerns fropa waters of the
0
Act, � 208 of the CWA, and other Guidelines should refer to the United States. The exact terius of this exclusion are
n ergoing technical revisions and are expected to
programs. We agree that where an definitions in 33 CFR 323.2 (except in the @hange s rtly. For this reason, these Culdelines as
adequate alternatives analysis has case of state 404 programs, to which the published do not oontain the exclusion as originoally
already been developed, it would be definitions in 40 CFR 1122.3 apply.) worded in the ConsoUdated Peamit Resulations.
wasteful not to incorporate it into the When Published, the corrected exclusion wim apply
Waters of the United States: A to the Guidelines as well as the Consolidated Permit
404 process. New � 230.10(a)(5) makes it number of commenters objected to the Regulations.

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Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations 85341

discharge which will create fast lands, in jurisdictional determinations. As we imposed deadline, EPA issued final
the permitting authority should consider, develop such materials, we will make Consolidated Permit Regulations while
in addition to the direct effects of the fill them available to the public. the 404(b)(1) Guidelines rulemaking was -
inself, the effects on the aquatic Other commenters suggested that we still pending. These Consolidated Permit
environment of any reasonably expand the list of examples in the Regulations contained a new definition
foreseeable activities to be conducted second sentence of the wetland of fill material which eliminated the
on that fast land. definition. While their suggested primary purpose test and included as fill
Section 230.54 (proposed 230.41) deals additions could legally be added, we material all pollutants which have the
with impacts on parks, national and have not done so. The list is one of effect of fill, that is, which replace part
historical monuments, national sea examples only, and does not serve as a of the waters of the United States with
shores, wilderness areas, research sites, limitation on the basic definition. We dryland or which change the bottom
and similar preserves. Some readers are reluctant to start expanding the list, elevation of a water body for any
were concerned that we intended the since there are many kinds of wetlands purpose. This new definition is similar
Guidelines to apply to activities in such which could be included, and the list to the one used before 1977.
preserves whether or not the activities could become very unwieldy. During the section 404(b)(1)
took place in waters of the United In addition, we wish to avoid the ruIemaking, the Corps has raised certain
States. We intended, and we think the confusion which could result from listing questions about the implementation of
context makes it clear, that the as examples, not only areas which such a definition. Because of the
Guidelines apply only to the: generally fit the wetland definitions, but importance of making the Final
specification of discharge sites in the also areas which may or not meet the Guidelines available without further
waters of the United States, as defined definition depending on the particular delay, and because of our desire to
in � 230.3. We have included this section circumstances of a given site. In sum. if cooperate with the Corps in resolving
because the fact that a water of the an area meets the definition, it is a their concerns about fill material, we
United States may be located in one of wetland for purposes of the Clean Watei- have decided to temporarily reserve
these preserves is significant in Act. whether.or not it falls into one of � 230.3(1) pending further discussion.
evaluating the impacts of a discharge the listed examples. Of course, more This action does not affect the
into that water.. often than not, it will be one of the listed effectiveness of the Consolidated Permit
Wetlands: Many wetlands are waters examples. Regulations. Consequently, there is a
of the United States under the Clean A few commenters cited alleged discrepency between those regulations
Water Act Wetlands are also the inconsistencies between the definition and the Corps' regulations, which still
subject of Federal Executive Order No. of wetlands in � 230,3 and � 230.42. contain the old definition.
11990, and various Federal and State While we see no inconsistency, we have Therefore. to avoid any uncertainty
shortened the latter section as part of from this situation, EPA wishes to make
laws and regulations. A number of these our effort to eliminate unnecessary clear its enforcement policy for
other programs and laws have comments. unpermitted discharges of solid waste.'
developed slightly different wetlands Unvegetated Shallows: One of the EPA has authority under section 309 of
definitig' ns, in part to accommodate or special aquatic areas listed in the the CWA to issue administrative orders
emphasize specialized needs. Some of proposal was "unvegetated shallows" - a-ainst violations of section 301.
these definitions include. not only (� 230.44). Since special aquatic areas Unpermitted discharges of solid waste
wetlands as these Guidelines define are subject to the presumptions in into waters of the United States violate
them, but also mud flats and vegetated � 230.10(a)(3), it is important that they section 301.
and unvegetated shallows. Under the be clearly defined so that the permitting Under the present circumstances, EPA
Guidelines some of these other areas are authority may readily know when to plans to issue solid waste admix)istrative
grouped with wetlands as "Special apply the presumptions. We were orders with two basic elements. FirsL
Aquatic Sites" [Subpart E) and as such unable to develop, at this time, a the orders'will require the violator to
their values are given special definition for unvegetated shallows apply to the Corps of Engineers for a
recognition. (See discussion of Water which was both easy to apply and not section 404 permit within a specified
Dependency above.) We agree with the too inclusive or exclusive. Therefore, we period of time. (The Corps has agreed to
comment that the National Inventory of have decided the wiser course is to accept these applications and to hold
Wetlands prepared by the U.S. Fish and delete unvegetated shallows from the them until it resolves its position on the
Wildlife Service, while not necessarily special aquatic area classification. Of definition of fill material.)
exactly coinciding with the scope of course, as waters of the United States, Second, the order will constrain
waters of the United States under I 'he they are still subject to the rest of the further discharges by the violator. In
Clean Water Act or wetlands under -Guidelines. extreme cases, an order may require
these regulations, may help avoid . "Fill Material": We are temporarily that discharges cease immediately.
construction in wetlands, and be a reserving � 230.3(1). Both the proposed However, because we recognize that
useful long-term planning tool. Guidelines and the proposed there will be a lapse of time before
Various commenters objected to the Consolidated Permit Regulations decisions are made on this kind of
definition of wetlands in the Guidelines defined fill material as material permit application, these orders may
as too broad or too vague. This discharged for the primary purpose of expressly allow unpermitted discharges
proposed definition has been upheld by replacing an aquatic area with dryland to continue subject to specific conditions
the courts as reasonable and consistent or of changing the bottom elevation of a set forth by EPA in the order. These
with the Clean Water Act, and is being water body, reserving to the NPDES conditions will be designed to avoid
retained in the final reoulation. pro-ram discharges with the same effect further environmental damage.
However, we do agree that vegetative which are primarily for the purpose of 'Of course, these orders will not
guides and other background material disposing of waste. Both proposals influence the ultimate issuance or non-
may be helpful in applying the definition solicited comments on this distinction, issuance of a permit or determine the
in the field. EPA and the Corps are referred to as the primary purpose test. conditions that may be specified in such
pledged to work on joint research to aid On May 19,1980, acting under a court- a permit. Nor will such orders limit the

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Administrator's authority under section including the Coastal Zone Management Executive Order 12044
309(b) or the right of a citizen to bring Act. However, since some planning A number of commenters took the
suit against a violator under section 505 processes do not deal with specific position that Executive Order 12044
of the CWA. projects, their consideration of requires EPA to prepare a "regulatory
Permitting Authority: We have used alternatives may not be sufficient for the analysis" in connection with these
the new term "permitting authority," Guidelines. Where another alternative regulations. EPA disagrees. These
instead of "District Engineer," analysis is less complete than that regulations are not, strictly speaking,
throuahout these regulations, in contemplated under section 404, it may new reoulations. They do not impose
recognition of the fact that under the not be used to weaken the requirements new sta"ndards or requirements, but
1977 amendments approved States may of the Guidelines. rather substantially clarify and
also issue permits. Advanced Identification of Dredged or reorganize the existing interim final
Coastal Zone Management Plans Fill Material Disposal Sites regulations
Several commenters were concerned A large number of commenters Under EPA's criteria implementing
about the relationship between section objected to the way proposed � 230.70, Executive Order 12044, EPA will prepare
404 and approved Coastal Zone new Subpart 1, had been changed from a Regulatory Analysis for any regulation
Management (CZM) plans. Some the 1975 regulations. A few objected to which imposes additional annual costs
expressed concern that the Guidelines the section itself. Most of the commerits totalling $100 million or which will result
might authorize a discharge prohibited also revealed a misunderstanding about in a total additional cost of production
by a CZM plan; others objected to the the significance of identifying an area. of any major product or service which
fact that the Guidelines might prohibit a First, the fact that an area has been exceeds 5% of its selling price. While
discharge which was consistent with a identified as unsuitable for a potential many commenters, particularly
CZM plan. discharge site does not mean that members of the American Association
Under section 307(b) of the CZM Act someone cannot apply for and obtain a of Port Authorities (AAPA), requested a
no Federal permits may be issued until permit to discharge there as long as the regulatory analysis and claimed that the
the applicant furnishes a certification Guidehnes and other applicable regulations were too burdensome, none
that the discharge is consistent with an requirements are satisified.* Conversely, of them explained how that burden was
approved CZM plan. if there is one. and the fact that an area has been identified an additional one attributable to this
the State concurs in the certification or as a potential site does not mean that a revision. A close comparison of the new
waives review. Section 325.2(b)(2) of the permit is unnecessary or that one will regulation and the explicit and implicit
Corps' regulation. which applies to all automatically be forthcoming. The intent requirements in the interim final
Federal 404 permits, implements this of this section was to aid applicants by Guidelines reveals that there has been
requirement for section 404. Because the giving advance notice that they would very little real change in the criteria by
Corps' regulations adequately address - which discharges are to be judged or in
0 have a relatively easy or difficult time ,
the CZM consistency requirement we qualifying for a permit to use particular the tests that must be conducted;
have not duplicated � 325.2(b)(2) in the a therefore, we stand by our original
areas. Such advance notice should determination that a regulatory analysis
Guidelines. Where a State issues State facilitate applicant planning and shorten
404 permits, it may of course require permit processing time. is not required.
consistency with its CZM plan under Most of the objectors focused on Perhaps the most significant area in
State law. EPA's "abandonment" of its "authority which the regulations are more explicit
The second concern, that the 404 to identify sites. While that "authority" and arguably stricter is in the
Guidelines might be stricter than a CZM is perhaps less "authoritative" than the consideration of alternatives. However.
plan, points out a possible problem with commenters suggested (see above) we even the 1975 regulations required the
CZM plans, not with the Guidelines. permitting authority to consider "the
Under 307(f) of CZMA. all CZM plans agree that there is no reason to decrease availability of alternate sites and
must provide for compliance with EPA's role in the process. Therefore, we methods of disposal that are less
applicable requirements of the Clean have changed new � 230.80(a) to read- damaging to the environment." and to
Water Act. The Guidelines are one such "Consistent with these Guidelines, EPA avoid activities which would have
requirement. Of course, to the extent and the permitting authority on their own significant adverse effects. We do not
that a CZM plan is general and area- initiative or at the request of any other party, think that the revised Guidelines' more
wide, it may be impossible to include in and after consultation with any affected State explicit direction to avoid adverse
that is not the permitting authority, may
its development the same project- identify sites which will be considered as:'. effects that could be prevented through
specific consideration of impacts and selection of a clearly less.damaging site
alternatives required under the We have also deleted proposed or method is a change imposing a
Guidelines. Nonetheless, it cannot � 230.70(a)(3), because it did not seem o substantial new burden on the regulated
authorize or mandate a discharge of accomplish much. Consideration of the public.
dredged or fill material which fails to point at which cumulative and Because the revised regulations are
comply with the requirements of these secondary impacts become more explicit than the interim final
Guidelines. Often CZM plans contain a unacceptable and warrant emergency regulations in some respects, it is
requirement that all activities conducted action will generally be more possible that permit reviewers will do a
under it meet the permit requirements of appropriate in a permit-by-permit more thorough job evaluating proposed
the Clean Water Act. In such a ca context. Once that point has been so discharges. This may result in somewhat
cs e, determined, of course, the area can b 0
there could of course be no confli t e more carefully drawn permit conditions.
between the CZM plan and the identified as "unsuitable" under the new However, even if, for purposes of
requirements of the Guidelines. � 230.80(a)(2). argument, the possible cost of complying
We agree with commenters who urge with these conditions is considered an
that delay and duplication of effort FPA may foreclose the use of a site by
be exercising its authority under section 404(cl. The additional cost, there is no reason to
avoided by consolidating alternatives advance identification referred to in this section is believe that it alone will be anywhere
required under different statutes, not a section 404(c) probibitlon. near $100 million annually.

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We also believe that it is appropriate � 230.10, without requiring highway changed (b) to reflect our elimination of
to recognize the regulatory benefits from departments to specify in advance the the artificial distinction between the
these more carefully drafted final specific borrow sites to be used. section 307(a)(1) toxics and other
regulations. Because they are much Consultation With Fish and Wildlife contaminants. Second, we have
clearer about what should be considered Agencies eliminated proposed (f) (Biological
and documented, we expect there wi Availability), since the necessary
be fewer delays in reviewing permits, One commenter wanted us to put in a information will be provided by (d) and
and that initial decisions to issue statement that the Fish and Wildlife new (e). Proposed (f) was intended to
permits are less likely to be appealed to Coordination Act requires consultation reflect the presumption that toxics were
higher authority. These benefits are with fish and wildlife agencies. We have present and biologically available. We
expected to offset any potential cost not added new language because (1) the have modified proposed (ag), now (f), to
increase. Fish and Wildlife Act only applies to Jocus on the size of the disposal site and
Some commenters suggested that Federal permitting agencies and not to the size and shape of the mixing zone.
documentation requirements would State permitting agencies, and (2) the The specific requirement to document
generate an additional cost of Corps' regulations already provide for the site has been deleted; where such
operations. The Corps' procedural such consultation by the only Federal information is relevant, it will
regulations at 33 CFR 325.8 and 325.11 404 permitting agency, However,. we automatically be considered in making
already require extensive agree with the commenter that Federal the other determinations. We have also
documentation for individual permits and State fish and wildlife agencies may. deleted proposed (h) (Special
bein denied or being referred to higher often provide valuable assistance in Determinations) since it did not provide
auth'ority for resolution of a conflict evaluating the impacts of discharges of any useful information which would not
between agencies. dredged or fill material. already be considered in making the
Economic Factors The Importance of Appropriate other factual determinations.
Documentation Finally, in response to many
A number of commenters asked EPA comments, we have moved the
to include consideration of economic Specific documentation is important provisions on cumulative and secondary
factors in the Guidelines. We believe to ensure an understanding of the basis impact to the Factual Determination
that the regulation already recognizes for each decision to allow, condition, or section to give them further emphasis.
economic factors to the extent prohibit a,discharge through application We agree that such impacts are an
contemplated by the statute. First. the of the Guidelines. Documentation of important consideration in evaluating
Guidelines explicitly include the concep t information is required for. (1) facts and the acceptability of a discharge site.
of "practicability" in connection with data gathered in the evaluation and Water Quality Standards
both alternatives and steps to minimize testing of the extraction site, the
impacts. If an alleged alternative is material to be discharged, and the One commenter was concerned that
unreasonably expensive to the disposal site; (2) factual determinations the reference � 230.10(b) to water
applicant, the alternative is not regarding changes that can be expected quality standards and criteria
"practicable." In addition, the at the disposal site if the discharge is "approved or promulgated under section
Guidelines also consider economics made as proposed; and (3) findings 1303" might encourage permit authorities
indirectly in that they are structured to regarding compliance with � 230.10 to ignore other water quality
avoid the expense of unnecessary conditions. This documentation provides requirements. Under section 303, all
testing through the "reason-to-believe- a record of actions taken that can be State water quality standards are to be
test." Second, the statute expressly evaluated for adequacy and accuracy submitted to EPA for approval. If the
provides that the economics of and ensures consideration of all submitted standards are incomplete or
anchorage and navigation maybe important impacts in the evaluation of a insufficiently stringent, EPA may
considered, but only after application of proposed discharge of.dredged or fill promulgate standards to replace or
the section 404(b)(1) Guidelines. (See material. supplant the State standards.
section 404(b)(2).) The specific informatior documented Disapproved standards remain in effect
Borrow Sites under (1) and (2) above in any given until replaced. Therefore, to refer to
case depends on the level of "EPA approved or promulgated
A number of highway departments investigation necessary to provide for a standards" is to ignore those State
objected because they felt the reasonable understanding of the impact standards which have been neither
Guidelines would require them to on the aquatic ecosystems. We approved nor replaced. We have
identify specific borrow sites at the time anticipate that a number of individual ther6fore changed the wording of this
of application, which would disrupt their -and most General permit applications requirement as follows: " * * any
normal contracting process and increase will be for routine, minor activities with applicable State water quality
cost. These objections were based on a little potential for significant adverse standard." We have also dropped the
misunderstanding of the Guideline's environmental impaocts. In such cases, reference to "criteria", to be consistent
requirements. Under those Guidelines, the permitting authority will not have to with the Agency's general position that
the actual borrow sites need not be require extensive testing or analysis to water quality criteria are not regulatory.
identified, if the application and the make his findings of compliance. The
permit specify that the discharge level of documentation should reflect Other Requirements for Discharge
material must come from clean upland the significance and complexity of the Section 230.10(c) provides that
sites which are removed from sources of proposed discharge activity. discharges are not permitted if they will
contamination and otherwise satisfy the have "significantly" adverse effects on
reason-to-believe test. A condition that Factual Determinations various aquatic resources. In this
the material come from such a site Proposed section 230.20, "Factual context, .'significant" and "signiFicantly"
would enable the permitting authority to Determinations" (now � 230.11) has mean more than "trivial", that is,
make his determinations and find been significantly reorganized in . significant in a conceptual rather than a
compliance with the conditions of response to comments. First, we have statistical sense. Not all effects which

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85344 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

are statistically significant in the . achievement of which is attempted by applicable water quality standards in
laboratory are significantly adverse in manipulating design and implementation order to maintain the desired improved
the field. of the activity. This model or standard - water quality.
Section 320.10(d) uses the term should be based on characteristics of a (5) When a significant ecological
minimize" to indicate that all natural ecosystem in the vicinity of a change in the aquatic environment is
reasonable reduction in impacts be proposed activity. Such use of a natural proposed by the discharge of dredged or
obtained. As indicated by' the ecosystem ensures that the developed or fill material, the permitting authority
.,appropriate and practicable" provision, restored area, once established, will be should consider the ecosystem that will
steps which would be unreasonably nourished and maintained physically, be lost as well as the environmental
costly or would be infeasible or which chemically and biologically by natural benefits of the new system.
would accomplish only inconsequential processes. Some examples of natural Dated: December 12, 1980.'
reductions in impact need not be taken. ecosystems include, but are not limited
flabitat Development and Restoratlon of to, the following: salt marsh, cattail Douglas M. Costle,
marsh, turtle grass bed. small island, etc. Administrotor Environmental Protection
Water Bodies Habitat development and restoration, Agency.
Habitat development and restoration by definition, should have Part 230 is revised to read as follows:
involve changes in open water and environmental enhancement and
wetlands that minimize adverse effects maintenance as their initial purpose. PART 230-SECTION 404(b)(1)
of proposed changes or that neut tralize Human uses may benefit but they are GUIDELINES FOR SPECIFICATION OR
or reverse the effects of past changes on not the primary purpose. Where such DISPOSAL SITES FOR DREDGED OF
the ecosystem. Development may projects are not founded on the FILL MATERIAL
produce a new or modified ecological objectives of maintaining ecosystem
a Subpart A-General
state by displacement of some or all of function and integrity, some values may
the existing environmental be favored at the expense of others. Tfie Sec.
characteristics. Restoration has the ecosystem affected must be considered M11 Purpo@se and policy.
potential to return degraded in order to achieve the desired result of 230.2 Applicability.
environments to their former ecological development and restoration. In the 230.3 Definitions.
state. final analysis, selection of the 230.4 Organization.
Habitat development and restoration ecosystem to be emulated is of critical 230.5 General procedures to be followed.
230.6 Adaptability.
can contribute to the maintenance and importance and a loss of value can 230.7 General permits.
enhancement of a viable aquatic occur if the wrong model or an
ecosystem at the discharge site. From an incomplete model is selected. Of equal Subpart B-Compliance With the Guidelines
environmental point of view, a project importance is the planning and 230.10 Restrictions on discharge.
involving the discharge of dredged and management of habitat development 230.11 Factual determinations.
fill material should be designed and and restoration on a case-by-case basis. 230.12 Findings of compliance or non-
managed to emulate a natural Specific measures to minimize compliance with the restrictions on
ecosystem. Research, demonstration impacts on the aquatic ecosystem by discharge.
projects, and full scale implementation enhancement and restoration projects Subpart C-Potential Impacts on Physical
have been done in many categories of include but are not limited to: and Chernical Characteristics of the
development and restoration. The U.S. (1) Selecting the nearest similar Aquatic Ecosystem
Fish and Wildlife Service has programs natural ecosystem as the model in the 230.20 Substrate.
to develop and restore habitat. The U.S. implementation of the activity. 230.21 Suspended particulates/turbidity.'
Army Engineer Waterways Experiment Obviously degraded or significantly 230.22 Water.
Station has published guidelines for less productive habitats may be 230.23 Current patterns and water
using dredged material to develop corisidered prime candidates for habitat circulation.
wetland habitat, for establishing marsh restoration. One viable habitat. 230.24 Normal water fluctuations.
vegetation, and for building islands that however, should not be sacrificed in an 230.25 Salinity gradients.
attract colonies of nesting birds. The attempt to create another, i.e., a Subpart D-Potential Impacts on Biological
EPA has a Clean Lakes prograinwhich productive vegetated shallow water Characteristics of the Aquatic Ecosystem
supplies funds to States and localities to area should not be destroyed in an 230.30 Threatened and endangered species,
enhance or restore degraded lakes. This attempt to create a wetland in its place. 230.31 Fish, crustaceans, mollusks, and
may involve dredging nutrient-laden (2) Using development and restoration other aquatic organisms in the food web.
sediments from a lake and ensuring 1hat techniques that have been demonstrated 230.32 Other wildlife.
nutrient inflows to the lake are to be effective in circumstances similar Subpart E-Pote'ntial Impacts on Special
controlled. Restoration and habitat to those under consideration wherever Aquatic Sites
development techniques can be used to possible. 230.40 Sanctuaries and refuges.
minimize adverse impacts and (3) Where development and 230.41 Wetlands.
compensate for destroyed habitat. restoration techniques proposed for use 230.42 Mud flats.
Restoration and habitat development have not yet advanced to the pilot 230.43 Vegetated shallows.
may also provide secondary benefits demonstration or implementation stage, 230.44 Coral reefs.
such as improved opportunities for initiate their use on a small scale to 230.45 Riffle and pool complexes.
outdoor recreation and positive use for allow corrective action if unanticipated Subpart F-Potential Effects on Human Use
dredged materials. adverse impacts occur. Characteristics
The development and restoration of (4) Where Federal funds are spent to 230.50 Municipal and private water
viable habitats in water bodies requires clean up waters of the U.S. through supplies.
planning and construction practices that dredging, scientifically defensible levels 230.51 Recreational and commercial
integrate the new or improved habitat of pollutant concentration in the return fisheries.
into the existing environment. Planning discharge should be agreed upon with 230.52 Water-related recreation.
requires a model or standard, the the funding authority in addition to any 230.53 Aesthetics.

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Sec. � 230.2 Applicability. Pub. L. 92-500, as amended by Pub. L
230.54 Parks. national and historic (a) These Guidelines have been 95-217, 33 U.S.C. 1251, et seq.
monuments, national seashores, developed by the Administrator of the (b) The term "adjacent"means
wilderness areas, research sites and Environmental Protection Agency in bordering, contiguous, or neighboring.
similar preserves. conjunction with the Secretary of the Wetlands separated from other waters
Subpa 'rt G-Evaluation and Testing Army acting through the Chief of of the United States by man-made dikes
230.80 General evaluation of dredged or fill Engineers under section 404(b)(1) of the or barriers, natural river berms, beach
material. Clean Water Act (33 U.S.C. 1344). The dunes, and the like are "adjacent
230.61 Chemical, biological, and physical Guidelines are applicable to the wetlands."
evaluation and testing. specification of disposal sites for (c) The terms "aquatic environment"
Subpart H-Actions to Minimize Adverse discharges of dredged or fill material and "aquatic ecosystem" mean waters
Effects into waters of the United States. Sites of the United States, including wetlands,
230.70 Actions concerning the location of may be specified through: that serve as habitat for interrelated and
the discharge. (1) The regulatory program of the U.S. interacting communities and populations
230.71 Actions concerning the material to be Army Corps of Engineers under sections of plants and animals.
discharged. 404(a) and (a) of the Act (see. 33 CFR (d) The term "carrier of contaminant"
230.72 Actions controlling the material after 320, 323 and 325); means dredged or fill material that
discharge. (2) The civil works program of the U.S. contains contaminants.
230.73 Actions affecting the method of Army Corps of Engineers (see 33 CFR (e) The term "contaminant" means a
dispersion. .209.145 and section 150 of Pub. L. 94-587, chemical or biological substance in a
.230.74 Actions related to technology. Water Resources Development Act of form that can be incorporated into, onto
Z30.75 Actions affecting plant and animal 1976); or be ingested by and that harms
populations. (3) Permit programs of States aquatic organisms, consumers of aquatic
230.76 Actions affecting human use. approved by the Administrator of the organisms, or users of the aquatic
230.77 Other actions. Environmental Protection Agency in environment, and includes but is not
Subpart I-Planning To Shorten Permit accordance with sections 404(g) and (h) limited to the substances on the
Processing Time of the Act (see 40 CFR 122, 123 and 124); 307(a)(1) list of toxic pollutants
230.80 Advanced identification of disposal (4) Statewide dredged or fill material promulgated on January 31,1978 (43 FR
areas. regulatory programi with best 4109).
Authority: This regulation is issued under management practices approved under (f) [Reserved]
authority of Sections 404(b) and 501(a) of the section 208(b)(4)(B) and (C) of the Act (g) [Reserved]
Clean Water Act of 1977,33 U.S.C. I 1344(b) (see 40 CFR 35.1560); (h) The term "discharge point" means
and � 1361 (a). (5) Federal construction projects the point within the disposal site at
which meet criteria specified in section which the dredged or fill material is
Subpart A-General 404(r) of the Act. released.
� 23.1 Purpose and policy. (b) These Guidelines will be applied (I) The term "disposal site" means
(a) The purpose of these Guidelines is in the review of proposed discharges of that portion of the "waters of the United
to restore and maintain the chemical, dredged or fill material into navigable States" where specific disposal
physical, and biological integrity, of waters which lie inside the baseline activities are permitted and consist of a
waters of the United States through the from which the territorial sea Is bottom surface area and any overlying
control of discharges of dredged or fill measured, and the discharge of fill volume of water. In the case of wetlands
material. material into the territorial sea, pursuant on which surface water is not present,
(b) Con-ress has expressed a number to the procedures referred to in the disposal site consists of the wetland
a paragraphs (a)(1) and (a)(2) above. The surface area.
of policies in the Clean Water Act. discharge of dredged material into the (j) [Reserved]
These Guidelines are intended to be territorial sea is governed by the Marine (k) The term "extraction site" means
consistent with and to implement those Protection, Research, and,Sanctuaries the place from whicli the dredged or fill
policies. Act of 1972, Pub. L. 92-532, and material proposed for discharge is to be
(c) Fundamental to these Guidelines' removed.
Is regulations and criteria issued pursuant
the precept that dredged or fill material thereto (40 CFR Part 220-228). (1) [Reserved]
should not be discharged into the (c) Guidance on interpreting and (m) The term "mixing zone" means a
aquatic ecosystem, unless it can be im lementing these Guidelines may be limited volume of water serving as a
demonstrated that such a discharge will -, p
prepared jointly by EPA and the Corps zone of initial dilution in the immediate
not have an unacceptable adverse at the national or regional level from vicinity of a discharge point where
impact either individually or in time to time. No modifications to the receiving water quality may not meet
combination with known and/or basic application, meaning, or intent of quality standards or other requirements
probable impacts of other activities these Guidelines will be made without otherwise applicable to the receiving
affecting the ecosystems of concern. rulemaking by the Administrator under water. The mixino zone should be
(d) From a national perspective, the the Administrative Procedure Act (5 considered as a place where wastes and
degradation or destruction of special U.S.C. 551 et seq.). water mix and not as a place where
aquatic sites, such as filling operations effluents are treated.
in wetlands, is considered to be among � 230.3 Definitions. (n) The term "permitting authority"
the most severe environmental impacts For purposes of this Part, the means the District Engineer of the U.S.
covered by these Guidelines. The following terms shall have the meanings Army Corps of Engineers or such other
guiding principle shouldbe that indicated: individual as may be designated by the
degradation or destruction of special (a) the term "Act" means the Clean Secretary of the Army to issue or deny
sites may represent an irreversible loss Water Act (also known as the Federal permits under section 404 of the Act; or
of valuable aquatic resources. Water Pollution Control Act or FWPCA) the State Director of a permit program

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65346 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

approved by EPA under � 404(g) and (3) All other waters such as intrastate values due to discharges of dredged or
� 404(h) or his delegated representative. lakes, rivers. streams (including fill material. Subpart G prescribes a
(o) The term "pollutant" means intermittent streams), mudflats, number of physical, chemical, and
dredged spoil, solid waste, incinerator sandflats, wetlands, sloughs, prairie biological evaluations and testing
residue, sewage, garbage, sewage potholes, wet meadows, playa lakes, or procedures to be used in reaching the
sludge, munitions, chemical wastes, natural ponds, the use, degradation or required factual determinations. Subpart
biolocical materials, -radioactive destruction of which could affect H details the means to prevent or
materials not covered by the Atomic interstate or foreign commerce including mimimize adverse effects. Subpart I
Energy Act, heat, wrecked or discarded any such waters: concerns advanced identification of
equipment, rock, sand, cellar dirt, and (i) Which are or could be used by disposal areas.
industrial, municipal, and agricultural interstate or foreign travelers for
waste discharged into water. The recreational or other purposes; or 230.5 General procedures to be
legislative history of the Act reflects that (ii) From which fish or shellfish are or followed.
"radioactive materials" as included could be taken and sold in interstate or In evaluating whether a particular
within the definition of "pollutant" in foreign commerce; or discharge site may be specified, the
section 502 pf the Act means only (iii) Which are used or could be used permitting authority should use these
radioactive materials which are not for industrial purposes by industries in Guidelines in the following sequence:
encompassed in the definition of source, interstate commerce, (a) In order to obtain an oveirview of
byproduct, or special nuclear materials (4) All impoundments of waters the principal regulatory provisions of the
as defined by the Atomic Energy Act of otherwise defined as waters of the Guidelines, review the restrictions on
1954, as amended, and regulated under United States under this definition. discharge in � 230.10(a)-(d), the
the Atomic Energy Act. Examples of , (5) Tributaries of waters identified in measures to mimimize adverse impact of
radioactive materials not covered by the paragraphs (1)-(4) of this section; Subpart H, and the required factual
Atomic Energy Act and, therefore, (6) The territorial sea; determinations of � 230.11.
included within the term "pollutant". are (7) Wetlands adjacent to waters (b) Determine if a General permit
radium and accelerator produced (other than waters that are themselves (� 230.7) is applicable, if so, the
isotopes. See Train v. Colorado Public wetlands) identified in paragraphs (s) applicant needs merely to comply with
Interest Research Group, Inc., 4265 U.S. 1 (1)-(6) of this section; waste treatment its terms, and no further action by the
(1976). systems, including treatment ponds or permitting authority is necessary.
(p) The term "pollution" means the lagoons designed to rneet the Special conditions for evaluation of
man-made or man-induced alteration of requirements of CWA (other than proposed General permits are contained
the chemical, physical, biological or cooling ponds as derinedin 40 CFR in � 230.7. If the discharge is not covered
radiological integrity of an aquatic I 423.11(m) which also meet the criteria by a General permit:
ecosystem. of this definition) are not waters of the (c) Examine practicable alternatives
(q) The term "practicable" means United States. to the proposed discharge, that is, not
available and capable of being done (t) The term "wetlands" means those discharging into the waters of the U.S. or
after taking into consideration cost, areas that are inundated or saturated by discharging into an alternative aquatic
existing technology, and logistics in light surface or ground water at a frequency site with potentially less damaging
of overall project purposes. and duration sufficient to support, and consequences (� 230.10(a)).
(q-1) "Special aquatic sites" means that under normal circumstances do (d) Delineate the candidate disposal
those sites identified in Subpart E. They support. a prevalence of vegetation site consistent with the criteria and
are geographic areAs, large or small. typically adapted for life in saturated evaluations of � 230.11(f).
possessing special ecological soil conditions. Wetlands generally (e) Evaluate the various physical and
characteristics of productivity, habitat, include swamps, marshes, bogs and chemical components which
wildlife protection, or other important similar areas.
and easily disrupted ecological values. characterize the non-living environment
These areas are generally recognized as 230.4 Organization. of the candidate site, the substrate and
significantly influencing or positively The Guidelines are divided into eight the water including its dynamic
contributing to the general overall subparts. Subpart A presents those characteristics (Subpart C).
environmental health or vitality of the provisions of general applicability, such (f) Identify and evaluate any special
entire ecosystem of a region. (See as purpose and definitions. Subpart B or critical characteristics of the
230.10(a)(3)) establishes the four conditions which candidate disposal site, and surrounding
(r) The term "territorial sea" megns -must be satisfied in order to make a areas which might be affected by use of
the belt of the sea measured from the finding that a- proposed discharge of such site, related to their living
baseline-as determined in accordance dredged or fill material complies with communities or human uses (Subparts D.
with the Conventon on the Territorial the Guidelines. Section 230.11 of Subpart E, and F).
Sea and the Contiguous Zone and B, sets forth factual determinations (g) Review Factual Determinations in
extending seaward a distance of three which are to be considered in* � 230.11 to determine whether the
miles. determining whether or not a proposed information in the project file is
(s) The term "waters of the united discharge satisfies the Subpart B sufficient to provide the documentation
States" means: conditions of compliance. Subpart C required by � 230.11 or to perform the
(1) All waters which are currently describes the physical and chemical pre-testing evaluation described in
used, or were used in the past, or may components of a site and provides � 230.60, or other information is
be susceptible to use in interstate or guidance as to how proposed discharges necessary.
foreign commerce, including all waters of dredged or fill material may affect (h) Evaluate the material to be
which are subject to the ebb and flow of these components. Subparts D-F detail discharged to determine the possibility
the tide-, the special characteristics of particular of chemical contamination or physical
(2) All interstate waters including aquatic ecosystems in terms of their incompatibility of the material to be
interstate wetlands; values. and the possible loss of these discharged (� 230-60).

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Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations 85347

(i) If there is a reasonable probability implementing the Guidelines, must shall set forth in writing an evaluation of
of chemical contamination, conduct the recognize the different levels of effort the potential individual and cumulative
appropriate tests according to the that should be associated with varying impacts of the category of activities to
section on Evaluation and TesUng degrees of impact and require or prepare be regulated under the General permit.
(� 230.61). commensurate documentation. The level While some of the information
(j) Identify appropriate and of documentation should reflect the necessary for this evaluation can be
practicable changes to the project plan significance and complexity of the obtained from potential permittees and
to minimize the environmental impact of discharge activity. others through the proposal of General
the discharge, based upon the (c) An essential part of the evaluation permits for public review, the evaluation
specialized methods of minimization of process involves making determinations must be completed before any General
impacts in Subpart H. as to the relevance of any portion(s) of permit is issued, and the results must be
(k) Make and document Factual the Guidelines and conducting further
Determinations in � 230.11. evaluation only as needed. However, published with the final-permit.
(1) Make and document Findings of where portions of the Guidelines review - (1) This evaluation shall be based
Compliance (� 230.12) by comparing procedure are "short form" evaluations, upon consideration of the prohibitions
Factual Determinations with the there still must be sufficient information listed in � 230.io(b) and the factors
requirements for discharge of � 230.10. (including consideration of both listed in � 230.10(c), and shall include
This outline of the steps to follow in individual and cumulative impacts) to documented information supporting
using the Guidelines is simplified for support the decision of whether to each factual determination in � 230.11 of
purposes of illustration. The actual specify the site for disposal of dredged the Guidelines (consideration of
process followed may be iterative, with or fill material and to support the alternatives in � 230.10(a) are not
the results of one step leading to a decision to curtail or abbreviate the directly apph .cable to General permits);
reexamination of previous steps. The evaluation process. The presumption (2) The evaluation shall include a
permitting authority must address all of against the discharge in � 230.1 applies precise description of the activities to be
the relevant provisions of the Guidelines to this decision-making.
in reaching a Finding of Compliance in (d) In the case of activities covered by permitted under the General permit,
explaining why they are sufficiently
an. individual case. General permits or 208(b)(4)(B) and (C) simi ar
Best Management Practices, the analysis 'I' in nature and in environmental
� 230.6 Adaptability. and documentation required by the impact to warrant regulation under a
(a) The manner in which these Guidelines will be performed at the time single General permit based on Subparts
Guidelines are used depends on the of General permit issuance or C-F of the Guidelines. Allowable
physical, biological, and chemical nature 208(b)(4)(B) and (C) Best Management differences between activities which
of the proposed extraction site, the Practices promulgation and will not be will be regulated under the same
material to be discharged, and the repeated when activities are conducted General permit shall be specified.
candidate disposal site, including any under a General permit or 208(b)(4)(B) Activities otherwise similar in nature
other important components of the and-(C) Best Management Practices may differ in environmental impact due
ecosystem being evaluated. control. These Guidelines do not require to their location in or near ecologically
Documentation to demonstrate reporting or formal written sensitive areas, areas with unique
knowledge about the extraction site, communication at the time individual chemical or physical characteristics,
materials to be extracted; and the activities are initiated under a General areas containing concentrations of toxic
candidate disposal site is an essential permit or 208(b)(4)(B) and (C) Best substances, or areas reoulated for
component of guideline application. Management Practices. However, a specific human uses orly specific land
These Guidelines allow evaluation and particular General permit may require or water management plans (e.g., areas
documentation for a variety of activities, appropriate reporting. regulated under an approved Coastal
ranging from those with large, complex � 230.7 General permits.
impacts on the aquatic environment to Zone Management Plan). If there are
those for which the impact is likely to be (a) Conditions for the issuance of specific geographic areas within th7e
innocuous. It is unlikely that the Generalpermits. A General permit for a Purview of a proposed General permit
Guidelines will apply in their entirety to category of activities involving the (called a draft General permit under a
any one activity, no matter how discharge of dredged or fill material State 404 program), which are more
complex. It is anticipated that complies with the Guidelines if it meets appropriately regulated by individual
substantial numbers of permit the applicable restrictions on the permit due to the considerations cited in
applications will be for minor, routine discharge in � 230-10 and if the this paragraph, they shall be clearly
activities that have little, if any, permitting authority determines that: delineated in the evaluation and -
potential for significant degradation of @ (1) The activities in such category are excluded from the permit. In addition,
the aquatic environment. It generally is similar in nature and similar in their the permitting authority may require an
not intended or expected that extensive impact upon water quality and the individual permit for any proposed
testing, evaluation or analysis will be aquatic environment; activity under a General permit where
needed to make findings of compliance (2) The activities in such category will the nature or location of the activity
in such routine cases. Where the have only minimal adverse effects when makes an individual permit more
conditions for General permits are met, performed separately; and appropriate.
and where numerous applications for (3) The activities in such category will (3) To predict cumulative effects, the
similar activities are likely, the use of have only minimal cumulative adverse 1
evaluation shall include the number of
General permits will eliminate repetitive effects on water quality and the aquatic individual discharge activities likely to
evaluation and documentation for environment.
individual discharges. (b) Evaluation process. To reach the be regulated under a General permit
(b) The Guidelines user, including the determinations required in paragraph (a) until its expiration, including repetitions
agency or agencies responsible for of this section, the permitting authority of individual discharge activities at a
single location.

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85348 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules' and Regulations

Subpart B-Compliance With the (4) For actions subject to NEPA, Subparts B and G, after consideration of
Guidelines where the Corps of Engineers is the Subparts C-F, with special emphasis on
permitting agency, the analysis of' the persistence and permanence of the
� 230.10 Restrictions on discharge. alternatives required for NEPA effects outlined in those subparts. Under-
Note.-Because other laws may apply to environmental documents, including these Guidelines, effects contributing to
particular discharges and because the Corps supplemental Corps NEPA documents, significant degradation considered
of Engineers or State 404 agency may have will in most cases provide the individually or collectively, include:
additional procedural and substantive information for the evaluation of (1) Significantly adverse effects of the
requirements, a discharge complying with the alternatives under these Guidelines. On discharge of pollutants on human health
requirement of these Guidelines will not
automatically receive a permit. occasion, these NEPA documents may or welfare, including but not limited to
address a broader range of alternatives effects on municipal water supplies,
Although all requirements in � 230.10 than required to be considered under plankton, fish. shellfish, wildlife, and
must be met, the compliance evaluation this paragraph or may not have special aquatic sites.
procedures will vary to reflect the considered the alternatives in sufficient (2) Significantly adverse effects of the
seriousness of the potential for adverse detail to respond to the requirements of discharge of pollutants on life stages of
impacts on the aquatic ecosystems these Guidelines. In the latter case, it aquatic life and other wildlife dependent
posed by specific dredged or fill may be necessary to supplement these on aquatic ecosystems, including the
material discharge activities. NEPA documents with this additional transfer, concentration, and spread of
(a) Except as provided under information. pollutants or their byproducts outside of
� 404(b)(2), no discharge of dredged or (5) To the extent that practicable the disposal site through biological,
fill material shall be permitted if there is alternatives have been identified and physical, and chemical processes,
a practicable alternative to the proposed evaluated under a Coastal Zone (3) Significantly adverse effects of the
discharge which would have less Management program, a � 208 program, discharge of pollutants on aquatic
adverse impact on the aquatic or other planning process, such ecosystem diversity, productivity, and
ecosystem, so long as the alternative evaluation shall be considered by the stability. Such effects may include, but
does not have other sionificant adverse permitting authority as part of the are not limited to, loss of fish and
environmental consequences. consideration of alternatives under the wildlife habitat or loss of the capacity of
(1) For the purpose of this Guidelines. Where such evaluation is a wetland to assimilate nutrients, purify
requirement, practicable alternatives less complete than that contemplated water, or reduce wave energy; or
include, but are not limited to: under this subsection, it must be (4) Significantly adverse effects of
(i) Activities which do not involve a supplemented accordingly. discharge of pollutants on recreational,
discharge of dredged or fill material into (b) No discharge of dredged or fill aesthetic, and economic values.
the waters of the United States or ocean material shall be permitted if it: (d) Except as p@ovided under
waters; (1) Causes or contributes, after 404(b)(2), no discharge of dredged or
(ii) Discharges of dredged or fill consideration of disposal site dilution fill material shall be permitted unless
material at other locations in waters of and dispersion, to violations of any appropriate and practicable steps have
the United States or ocean waters; applicable State water quality standard; been taken which will minimize
(2) Violates any applicable toxic potential adverse impacts of the.
(2) An alternative is practicable if it is effluent standard or prohibition under discharge on the aquatic ecosystem.
available and capable of being done tion 307 of the Act; Subpart H identifies such possible steps.
0 sec
after taking into consideration cost, 1`3) jeopardizes the continued
existina technology, and logistics in light t � 230.11 Factual determinations.
a existence of species listed as
of overall project purposes. If it is endangered or threatened under the The permitting authority shall
otherwise a practicable alternative, an Endangered Species Act of 19'73, as determine in writing the potential short-
area not presently owned by the amended, or results in likelihood of the term or long-term effects of a proposed
applicant which could reasonably be destruction or adverse modification of a discharge of dredged or fill material on
obtainbd, utilized, expanded or managed habitat which is determined by the the physical. chemical, and biological
in order to fulfill the basic purpose of Secretary of Interior or Commerce, as components of the aquatic environment
the proposed activity may be appropriate, to be a critical habitat in light of Subparts C-F. Such factual
considered. under the Endan-ered Species Act of determinations shall be used in � 230.12
(3) Where the activity associated with 1973, as amended. If an exemption has in making findings of compliance or non-
a discharge which is proposed for a been granted by the Endangered Species compliance with the restrictions on
special aquatic site (as defined in. Committee, the terms of such exemption discharge in � 230.10. The evaluation
Subpart E) does not require access or shall apply in lieu of this subparagraph; and testing procedures described in
proximity to or siting within the special (4) Violates any requirement imposed � 230.60 and � 230.61 of Subpart G shall
aquatic site in question to fulfill its basic by the Secretary of Commerce to protect be used as necessary to make, and shall
purpose (i.e., is not "water dependent"), any marine sanctuary designated under be described in, such determination. The
practicable alternatives that do not Title III of the Marine Protection, determinations of effects of each
involve special aquatic sites are Research. and Sanctuaries Act of 1972. proposed discharge shall includethe
presumed to be Available. unless clearly (c) Except as provided under following:
demonstrated otherwise. In addition, � 404(b)(2), no discharge of dredged or (a) Physical substrate determinations.
where a discharge is proposed for a fill material shall be permitted which Determine the nature and degree of
special aquatic site, all practicable will cause or contribute to significant effect that the proposed discharge will
alternatives to the proposed discharge degradation of the waters of the United have, individually and cumulatively, on
which do not involve a discharge into a States. Findings of significant the characteristics of the substrate at
special aquatic site are presumed to degradation related to the proposed the proposed disposal site.
have less adverse impact on the aquatic discharge shall be based upon Consideration shall be given to the
ecosystem, unless clearly demostrated appropriate factual determinations, similarity in particle size, shape, and
otherwise. evaluations, and tests required by degree of compaction of the material

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Feawal Register / Vol. 45, No. 249 / Wednesday, December -24, 1980 / Rules and Regulations 85349

proposed for discharge and the material Consideration should also be given to (ii) Current velocity, direction, and
constituting the substrate at the disposal the possible loss of environmental variability at the disposal site;
site, and any potential changes in values (� 230.21) and to actions for (III) Degree of turbulence;.
substrate elevation and bottom minimizing impacts (Subpart H). (iv) Stratification attributable to
contours, including changes outside of Consideration shall include the causes such as obstructions, salinity or
the disposal site which may occur as a proposed method, volume, location, and density profiles at the disposal site;
result of erosion, slumpage, or other rate of discharge, as well as the (v) Discharge vessel speed and
movement of the discharged material. individual and combined effects of direction, if appropriate;
The duration and physical extent of current patterns, water circulation and (vi) Rate of discharge;
substrate changes shall also be fluctuations, wind and wave action, and (vii) Ambient concentration of
considered. The possible loss of other physical factors on the movement constituents of interest;
environmental values (� 230.20) and of suspended particulates. (viii) Dredged material characteristics,
actions to minimize impact (Subpart H) (d) Contaminant determinaiions. particularly concentrations of .
shall also be considered in making these Determine the degree to which the constituents, amount of mat "erial, type of
determinations. Potential changes in material proposed for discharge will material (sand, silt, clay, etc.) and
substrate elevation and bottom contours introduce, relocate, or increase settling velocities;
shall be predicted on the basis of the contaminants. This determination shall (ix) Number of discharge actions per
proposed method, volume, location. and consider the material to be discharged, unit of time;
rate of discharge. as well as on the the aquatic environment at the proposed (x) Other factors of the disposal site
individual and combined effects of disposal site, and the availability of that affect the rates and patterns of
current patterns, water circulation, wind contaminants. mixing.
and wave action, and other physical (e) Aquatic ecosystem and organism (g) Determination of cumulative
factors that may affect the movement of determinations. Determine the nature effects on the aquatic ecosystem. (1)
the discharged material. and degree of effect that the proposed Cumulative impacts are the changes in
(b) Water circulation, fluctuati .on, and discharge will have, both individually an aquatic ecosystem that are
salinity determinations, Determine the and cumulatively, on the structure and attributable to the Collective effect of a
nature and degree of effect that the function of the aquatic ecosystem and number of individual discharges of
proposed discharge will have organisms. Consideration shall be given dredged or fill material. Although the
individually and cumulatively on water, to the effect at the proposed disposal impact of a particular discharge may
current patterns, circulation including site of potential changes in substrate constitute a minor change in itself. the
characteristics and elevation, water or cumulative effect of numerous such
downstream flows, and normal water
substrate chemistry, nutrients. currents, piecemeal changes can result in a major
fluctuation. Consideration shall be given
to water chemistry, salinity, clarity, circulation, fluctuation, and salinity, on impairment of the water resources and
color, odor, taste, dissolved gas levels, the recolonization and existence of interfere with the productivity and
temperature, nutrients, and Indigenous aquatic organisms or water quality of existing aquatic
eutrophication plus other appropriate communities. Possible loss of ecosystems
characteristics. Consideration shall also environmental values (� 230.31), and (2) Cumaative effects attributable to
be given to the potential diversion or actions to minimize impacts (Subpart H) the discharge of dredged or fill material
obstruction of flow, alterations of shall be examined. Tests as described in in waters of the United States should be
bottom contours, or other' significant � 230.61 (Evaluation and Testing), may predicted to the extent reasonable and
changes in the hydrologic regime. be required to provide information an practical. The permitting authority shall
the effect of the discharge material on collect information and solicit
Additional consideration of the possible information from other sources about
loss of environmental values 0 230.23- communities or populations of the cumulative impacts on the aquatic
.25) and actions to minimize impacts organisms expected to be exposed to it.
(Subpart H). shall be used 'in making (f) Proposed disposal site ' ecosystem. This information shall be
these determinations. Potential determinations. (1) Each disposal site --documented and considered during the
shall be specified through the decision-making process concerning the
si-nificant effects on the current application of these Guidelines. The evaluation of individual permit
0
patterns, water circulation. normal
mixing zone shall be confined to the applications, the issuance of a General
water fluctuation and salinity shall be smallest practicable zone within each permit, and monitoring and enforcement
evaluated on the basis of the proposed specified disposal site that is consistent of existing permits.
method, volume, location, and rate of with the type of dispersion determined (h) Determination of secondary
discharge. to be appropriate by the application of effects on the aquatic ecosystem. (1)
(c) Suspendedparticulatelturbidity these Guidelines. In a few special cases Secondary effects are effects on an
determinations. Determine the nature tinder unique environmental conditions, aquatic ecosystem that are associated
and degree of effect that the proposed where there is adequate justification to with a discharge of dredged or fill
discharge will have. individually and show that widespread dispersion by materials, but do not result from the
cumulatively, in terms of potential natural means will result in no actual placement of the dredged or fill
changes in the kinds and concentrations significantly adverse environmental material. Information about secondary
of suspended particulate/ turbidity in the effects, the discharged material may be effects on aquatic ecosystems shall be
vicinity of the disposal site. intended to be spread naturally in a very considered prior to the time final section
Consideration shall be given to the grain thin layer over a large area of the 404 actionis taken by permitting
size of the material proposed for substrate rather than be contained authorities.
discharge, the shape and size of the within the disposal site. (2) Some examples of secondary
plume of suspended particulates, the (2) The permitting authority and the effects on an aquatic ecosystem are
duration of the discharge and resulting Regional Administrator shall consider fluctuating water levels in an
plume and whether or not the potential the following factors in determining the impoundment and downstream
changes will cause violations of acceptability of a proposed mixing zone: associated with the operation of a dam,
applicable water quality standards. (i) Depth of water at the disposal site; septic tank leaching and surface runoff

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85350 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

from residential or commercial factual determinations and the findings of last long enough. Sight-dependent
developments on fill, and leachate and compliance or non-compliance in Subpart B. species may suffer reduced feeding
runoff from a sanitary landfill located in � 230.20 Substrate. ability leading to limited growth and
waters of the U,S. Activities to be (a) The substrate of the aquatic lowered resistance to disease if high
conducted on fast land created by the ecosystem underlies open waters of the levels of suspended particulates persist.
discharge of dredged or fill material in United States and constitutes the The biological and the chemical content
waters of the United Stites may have of the suspended material may react
secondary impacts within those waters surface of wetlands. It consists of with the dissolved oxygen in the water,
which should be considered in organic and inorganic solid materials which can result in oxygen depletion.
evaluating the impact of creating those and includes water and other liquids or Toxic metals and organics, pathogens,
fast lands. gases that fill the spaces between solid and viruses absorbed or adsorbed to
particles. fine-grained particulates in the material
� 230.12 Findings of compliance or non- (b) Possible loss of environmental may become biologically available to
compliance with the restrictions on characteristics and values: The organisms either in the water column or
discharge. discharge of dredged or fill material can on the substrate. Significant increases in
(a) On the basis of these Guidelines result in varying degrees of change in suspended particulate levels create
(Subparts C through G) the proposed the complex physical, chemical, and turbid plumes which are highly visible
disposal sites for the discharge of biological characteristics of the and aesthetically displeasing. The
dredged or fill material must be: substrate. Discharges which alter extent and persistence of these adverse
(1) Specified as complying with the substrate elevation or contours can impacts caused by discharges depend
requirements of these Guidelines, or result in changes in water circulation, upon the relative increase in suspended
(2) Specified as complying with the depth, current pattern, water fluctuation particulates above the amount occurring
requirements of these Guidelines with and water temperature. Discharges may naturally, the duration of the higher
the inclusion of appropriate and adversely affect bottom-dwelling levels, the current patterns, water level,
practicable discharge conditions (see organisms at the site by smothering and fluctuations present when such
Subpart H) to minimize pollution or immobile forms or forcina mobile forms discharges occur, the volume, rate, and
adverse effects to the affected aquatic to migrate. Benthic forms'present prior duration of the discharge, particulate
ecosystems; or to a discharge are unlikely to recolonize deposition, and the seasonal timing of
(3) Specified as failing to comply with on the discharged material if it is very the discharge.
the requirements of these Guidelines dissimilar from that of the discharge
where: site. Erosion, slumping. or lateral � 230.22 Water.
(I) There is a practicable alternative to displacement of surrounding bottom of (a) Water is the part of the aquatic
the proposed discharge that would have
a such deposits can adversely affect areas ecosystem In which organic and
less adverse effect on the aquatic of the substrate outside the perimeters inorganic constituents are dissolved and
ecosystem, so long as such alternative of the disposal site by changing or suspended. It constitutes part of the"
does not have other significant adverse destroying habitat. The bulk and liquid phase and is contained by the
environmental consequences; or composition of the discharged material substrate. Water forms part of a
(ii) The proposed discharge will result and the location. method. and timing of dynamic aquatic life-supporting system.
in significant degradation of the aquatic discharges may all influence the degree Water clarity, nutrients and chemical
ecosystem under � 230.10(b) or (c); or of impact on the substrate. content, physical and biological content.
(III) The proposed discharge does not dissolved gas levels, pH, and
include all appropriate and practicable � 230.21 Suspended particulates/turbidity. temperature contribute to its life-
measures to minimize potential harm to (a) Suspended particulates in the sustaining capabilities.
the aquatic ecosystem; or aquatic ecosystem consist of fine- (b) Possible loss of environmental
(iv) There does not exist sufficient grained mineral particles, usually characteristics and values: The
information to make a reasonable smaller than silt, and organic particles. discharge of dredged or fill material can
judgment as to whether the proposed Suspended particulates may enter water change the chemistry and the physical
discharge will comply with these bodies as a result of land runoff, characteristics of the receiving water at
Guidelines. flooding, vegetative and planktonic a disposal site through the introduction
(b) Findings under this section shall breakdown, resuspension of bottom of chemical constituents in suspended or
be set forth in writing by the permitting sediments, and man's activities dissolved form. Changes in the clarity,
authority for each proposed discharge including dredging and filling. color, odor, and taste of water and the
0
and made available to the permit Particulates may remain suspended in addition of contaminants can reduce or
applicant. These findings shall include the'. water column for variable periods of eliminate the suitability of water bodies
the factual determinations required by time as a result of such factors as for populations of aquatic organisms,
� 230.11, and a brief explanation of any agitation of the water mass, particulate and for human consumption, recreation.
adaptation of these Guidelines to the specific gravity, particle shape. and and aesthetics. The introduction of
activity under consideration. In the case physical and chemical properties of nutrients or organic material to the
of a General permit, such findings shall particle surfaces. water column as a result of the
be prepared at the time of issuance of (b) Possible loss of environmental discharge can lead to a high biochemical
that permit rather than for each characteristics and values: The oxygen demand (BOD), which in turn
subsequent discharge under the discharge of dredged or fill material can can lead to reduced dissolved oxygen,
authority of that permit. result in -really elevated levels of thereby potentially affecting the survival
Subpart C-Potential Impacts on suspended particulates in the water of many aquatic organisms. Increases in
column for varying lengths of time. nutrients can favor one group of
Physical and Chemical Characteristics a
These new levels may reduce light organisms such as algae to the detriment
of the Aquatic Ecosystem 0
penetration and lower the rate of of other more desirable types such as
Note.-The effects described in this photosynthesis and the primary submerged aquatic vegetation,
0
suboart should be considered in making the liroductivity of an aquatic area if they potentially causing adverse health

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Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations 85351

effects, objectionable tastes and odors, � 230.25 Salinity gradients. (b) Possible loss of values: The major
and other problems. (a) Salinity gradients form where salt potential impacts on threatened or
water from the ocean meets and mixes endangered species from the discha@,@e
� 230.23 Current patterns and water with fresh water from land. of dredged or fill material include-
circulation. (b) Possible loss of environmental , (1) Covering or otherwise directly
.(a) Current patterns and water characteristics and values: Obstructions killing species;
circulation are the physical movements which divert or restrict flow of either (2) The impairment or destruction of
of water in the aquatic ecosystem. fresh or salt water may change existing habitat to which these species are
Currents and circulation respond to salinity gradients. For example, partial limited. Elements of the aquatic habitat
which are particularly crucial to the
natural forces as modified by basin blocking of the entrance to an estuary or continued survfi@al of some threatened
shape and cover, physical and chemica .I river mouth that significantly restricts or endangered species include adequate
characteristics of water strata and the movement of the salt water into and
masses, and energy dissipating factors. out of that area can effectively lower the good quality water, spawning and
(b) Possible loss of environmental volume of salt water available for maturation areas, nesting areas,
mixing within that estuary. The protective cover, adequate and reliable
characteristics and values: The food supply, and resting areas for
discharge of dredged or fill material can downstream migration of the salinity
gradient can occur, displacing the migratory species. Each of these
modify current patterns and water maximum sedimentation zone and elements can be adversely affected by
circulation by obstructing flow, changing requiring salinity-dependent aquatic changes in either the normal water -
the direction or velocity of water flow, conditions for clarity, c1fernical content,
changing the direction or velocity of biota to adjust to the new conditions, nutrient balance, dissolved oxygen, pH,
move to new locations if possiblei or
water flow and circulation, or otherwise temperature, salinity, current patterns,
changing the dimensions of a water pensh.-In the freshwater zone, discharge circulation and fluctuation, or the
body. As a result, adverse changes can operations in the upstream regions can physical removal of habitat; and
have equally adverse impacts. A
occur in: location, structure, and significant reduction in the volume of (3) Facilitating incompatible activities.
dynamics of aquatic communities; (c) Where consultation with the
fresh water moving into an estuary Secretary of the Interibr occurs under
shoreline and substrate erosion and below that which is considered normal Section 7 of the Endangered Species
depositon rates; the deposition of can affect the location and type of Act, the conclusions of the Secretary
suspended particulates; the rate and mixing thereby changing the concerning the impact(s) of the
extent of mixing of dissolved and characteristic salinity patterns. The discharge on threatened and endangered
suspended components of the water resulting changed circulation pattern species and their habitat shall be
body; and water stratification. can cause the upstream migration of the considered final.
� 230.24 Normal water fluctuations. salinity gradient displacing the maximim
sedimentation zone. This migration may � 230.31 Fish, crustaceans, mollusks and
(a) Normal water fluctuations in a affect those organisms that are adaoted other aquatic organisms in the food web.
natural aquatic system consist of daily, to freshwater environments. It may also (a) Aquatic organisms in the food web
seasonal, and annual tidal and flood affect municipal water supplies. include. but are not limited to, finfish.
fluctuations in water level. Biological Note@Possible actions to minimize crustaceans, mollusks, insects, annelids,
and physical components of.such a adverse impacts regarding site characteristics planktonic organisms, and the plants
system are either attuned to or can be found in Subpart H. and animals on which they feed and
characterized by these periodic water depend upon for their needs. All forms
fluctuations. Subpart D-Potential Impacts on and life stages of an organism,
(b) Possible loss of environmental Biological Characteristics of the throughout its geographic range, are
characteristics and values: The Aquatic Ecosystem included in this category.
discharge of dredged or fill material can Note.-The impacts described in this (b) Possible loss of values: The
discharge of dredged or fill material can
alter the normal water-level fluctuation subpart should be considered in making the
pattern of an area, resulting in factual determinations and the findings of variously affect populations of fish,
prolonged periods of inundation, compliance or non-compliance in Subpart B. crustaceans, mollusks and other food
web organisms through the release of
exaggerated extremes of high and low 9 230.30 Threatened and endangered contaminants which adversely affect
water, or a static, nonfluctuating water species. adults. juveniles, larvae, or eggs, or
level. Such water level modifications (a) An endangc -id species is a plant result in the establishment or
may change salinity patterns, alter or animal in danger of extinction proliferation of an undesirable
erosion or sedimentation rates, throughout all or a significant portion of competitive spec'ies of plant or animal at
aggravate water temperature extremes, its range. A threatened species is one in the expense of the desired resident
and upset the nutrient and dissolved danger of becoming an endangered species. Suspended particulates settling
oxygen balance of the aquatic species in the foreseeable future on attached or buried eggs can smother
ecosystem. In addition. these throughout all or a significant portion of the eggs by limiting or sealing off their
modifications can alter or destroy its range. Ustings of threatened and exposure to oxygenated water.
communities and populations of aquatic endangered species as well as critical Discharge of dredged and fill material
animals and vegetation. induce habitats are maintained by some may result in the debilitation or death of
populations of nuisance organisms, individual States and by the U.S. Fish sedentary organisms by smothering,
modify habitat, reduce food supplies, and Wildlife Service of the Department exposure to chemical contaminants in
restrict movement of aquatic fauna, of the Interior (codified annually at 50 dissolved or suspended form, exposure
destroy spawning areas, and change CFR � 17.11). The Department of to high levels of suspended particulates,
adjacent, upstream, and downstream Conunerce has authority over some reduction in food supply, or alteration of
areas. threatened and endangered marine the substrate upon which they are
mammals. fish and reptiles. dependent. Mollusks are particularly

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85352 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

sensitive to the discharge of material Subpart E-Potential Impacts on (3) Wetland vegetation consists of
during periods of reproduction and Special Aquatic Sites plants that require saturated soils to
growth and development due primarily survive (obligate wetland plants) as well
to their limited mobility. They can be Note.-The impacts described in this as plants, including certain trees, that
rendered unfit for human consumption subpart should be considered in making the ain a competitive advantage over
factual determinations and the findings of 9
by tainting, by production and compliance or non-compliance in Subparf B. others because they can tolerate
accumulation of-toxins, or by ingestion prolonged wet soil conditions and their
0 The definition of special aquatic sites is
and retention of pathogenic organisms, found in � 230.3(q-1). competitors cannot. In addition to plant
viruses, heavy metals or persistent populations and communities, wetlands
� 230.40 Sanctuaries and refuges. are delimited by hydrological and
synthetic organic chemicals. The
discharge of dredged or fill material can (a) Sanctuaries and refuges consist of physical characteristics of the
redirect, delay, or stop the reproductive areas designated under State and environment. These characteristics
and feeding movements of some species Federal laws or local ordinances to be should be considered when information
of fish and crustacea, thus preventing managed principally for the preservation about them is needed to supplement
their aggregation in accustomed places and use of fish and wildlife resources. information available about veaetation.
(b) Possible loss of values:
such as spawning or nursery grounds or where wetland vegetation has been
and potentially leading to reduced Sanctuaries and refuges may be affected removed or is dormant.
populations. Reduction of detrital by discharges of dredged or fill material (b) Possible loss of values: The
feeding species or other representatives which will: discharge of dredged-or fill material in
of lower trophic levets can impair the (1) Disrupt the breeding, spawning, wetlands is likely to, damage or destroy
flow of energy from primary consumers migratory movements or other critical habitat and adversely affect the
to higher trophic levels. The reduction of life requirements of resident or transient biological productivity of wetlands
potential elimination of food chain fish and wildlife resources; ecosystems by smothering, by
organism populations decreases the (2) Create unplanned, easy and dewaterinoo, by permanently flooding, or
by altering substrate elevation or
overall productivity and nutrient export incompatible human access to remote
capability of the ecosystem. aquatic areas; periodicity of water movement. The
(3) Create the need for frequent addition of dredged or fill material may
� 230.32 Other wildlife. maintenance activity; destroy wetland vegetation or result in
(a) Wildlife associated with aquatic (4) Result in the establishment of advancement of successio n to dry land
ecosystems are resident and transient undesirable competitive species of species. It may reduce or eliminate
nutrient exchange by a reduction of the
mammals, birds, reptiles, and plants and animals; system's productivity. or by altering
amphibians. (5) Change the balance of water and current patterns and velocities.
(b) PossibI6 loss of values: The land areas needed to provide cover, Disruption or elimination of the wetland
discharge of dredged or fill material can food, and other fish and wildlife habitat system can degrade water quality by
result in the loss or change of breeding requirements in a way that modifies obstructing circulation patterns that
and nestina areas, escape cover, travel sanctuary or refuge management flush large expanses of wetland
corridors, and preferred food sources for practices-, systems, by interfering with the
resident and transient wildlife species . (6) Result in any of the other adverse filtration function of wetlands, or by
associated with the aquatic ecosystem. impacts discussed in Subparts C and D changing the aquifer recharge capability
These adverse impacts upon wildlife as they relate to a particular sanctuary -of a wetland. Discharges can also
habitat may result from changes in or refuge. change the wetland habitat value for
water levels, water flow and circulation, � 230.41 Wetlands. fish and wildlife as discussed in Subpart
salinity, chemical content. and substrate (a)(1) Wetlands consist of areas that D. When disruptions in flow and
characteristics and elevation. Increased are inundated or saturated by surface or circulation patterns occur, apparently
water turbidity can adversely affect ground water at a frequency and minor loss of wetland acreage may
wildlife species which rely upon sight to- result in major losses through secondary
o duration' sufficient to support, and that impacts. Discharging fill material in
feed, and disrupt the respiration and under normal circumstances do support, wetlands as part of municipal, industrial
feeding of certain aquatic wildlife and a prevalence of vegetation typically or recreational development may modify
food chain organisms. The availability adapted for life in saturated soil the capacity of wetlands to retain and
of contaminants from the discharge of conditions.
dredged or fill material may lead to the store floodwaters and to serve as a
bioaccumulation of such contaminants (2) Where wetlands are adjacent to buffer zone shielding upland areas from
in wildlife. Changes in such physical open water, they generally constitute the wave actions, storm damage and
transition to upland. The margin erosion.
and chemical factors of the environment between wetland and open water can
may favor the introduction of best be established by specialists � 230.42 Mud flats
undesirable plant and animal species at familiar with the local environment, . (a) Mud flats are broad flat areas
the expense of resident species and particularly where emergent vegetation alon- the sea coast and in coastal rivers
communities. In some aquatic merges with submerged vegetation over to thoe head of tidal influence and in
environments lowering plant and animal a broad area in such places' as the inland lakes. ponds, and riverine
species diversity may disrupt the normal lateral margins of open water, systems. When mud flats are inundated.
functions of the ecosystem and lead to headwaters, rainwater catch basins, and wind and wave action may resuspend
reductions in overall biological groundwater seeps. The landward bottom sediments. Coastal mud flats are
productivity. margin of wetlands also can best be exposed at extremely low tides and
Note-Possible actions to minimize identified by specialists familiar with inundated at high tides with the water
adverse impacts regarding characteristics of the local environment when vegetation table at or near the surface of the
biological components of the aquatic from the two re-ions merges over a substrate. The substrate of mud flats
0
ecosystem can be found in Subpart 11. broad area. contains organic material and particles

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:
maller in size than sand. They are increasing the level of suspended Subpart F-Potential Effects on
ither unvegetated or vegetated only by particulates. Coral organisms are Human Use Characteristics
algal mats. extremely sensitive to even slight -
(b) Possible loss of values: The reductions in light penetration or Note.-Tbe effects described in this
discharge of dredged or fill material can increases in suspended particulates. subpart should be considered in making the
cause changes in water circulation These adverse effects will cause a loss factual determinations and the findings of
patterns which may permanently flood of productive colonies which in turn compliance or non-compliance in Subpart B.
or dewater the mud flat or disrupt provide habitat for many species of � 230.50 Municipal and private water
periodic inundation, resulting in an highly specialized aquatic organisms. supplies.
increase in the rate of erosion or
accretion. Such changes can deplete or � 230.45 Riffle and pool complexes. (a) Municipal and private water
eliminate mud flat biota, foraging areas, (a) Steep gradient sections of streams supplies consist of surface water or
and nursery areas. Changes in are sometimes characterized by riffle ground water which is directed to the
inundation patterns can affect the intake of a municipal or private water
chemical and biological exchange and and pool complexes. Such stream supply system,
decomposition process occurring on the sections are recognizable by their (b) Possible loss of values: Discharges
mud flat and change the deposition of hydraulic characteristics. The rapid can affect the quality of water supplies
suspended material affecting the movement of water over a coarse with respect to color, taste, odor,
productivity of the area. Changes may substrate in riffles results in a rough chemical content and suspended
reduce the mud flat's capacity to flow, a turbulent surface, and high particulate concentration, in such a way
dissipate storm surge runoff. dissolved oxygen levels in the water. as to reduce the fitness of the water for
� 230.43 Vegetated shallows. Pools are deeper areas associated with consumption. Water can be rendered
riffles. Pools are characterized by a unpalatable or unhealthy by the
(a) Vegetated shallows are slower stream velocity, a steaming flow, addition of suspended particulates,
permanently inundated areas that under a smooth surface, and a finer substrate. viruses and pathogenic organisms, and
normal circumstances support Riffle and pool complexes are dissolved materials. The expense of
communities of rooted aquatic particularly valuable habitat for fish and. removing such substances before the
vegetation, such as turtle grass and wildlife. water is delivered for consumption can
eelgrass in estuarine or marine systems be high. Discharges may also affect the
as well as a number of freshwater (b) Possible losi of values: Discharge
species in rivers and lakes. of dredged or fill material can eliminate quantity of water available for
(b) Possible loss of values: The riffle and pool areas by displacement, municipal and private water supplies. In
discharge of dredged or fill material can hydrologic modification, or addition, certain commonly used water
smother vegetation and benthic sedimentation. Activities which affect treatment chemicals have the potential
organisms. It may also create unsuitable riffle and pool areas and especially for combining with some suspended or
conditions for their continued vigor by- riffle/pool ratios, may reduce the dissolved substances from dredged or
(1) changing water circulation patterns; aeration and filtration capabilities at the fill material to form other products that
(2) releasing nutrients that increase discharge site and downstream, may can have a toxic effect on consumers.
undesirable algal populations; (3) reduce stream habitat diversity, and � 230.51 Recreational and commercial
releasing chemicals that adversely ma 'y retard repopulation of the disposal fisheries.
affect plants and animals; (4) increasing site and downstream waters through (a) Recreational and commercial
turbidity levels, thereby reducing light sedimentation and the creation of fisheries consist of harvestable fish,
penetration and hence photosynthesis; unsuitable habitat. The discharge of crustaceans, shellfish, and other aquatic
and (5) changing the capacity of a dredged or fill material which alters organisms used by man.
vegetated shallow to stabilize bottom stream hydrology may cause scouring or
materials and decrease channel sedimentation of riffles and pools. (b) Possible loss of values: The
shoaling. The discharge of dredged or I. discharge of dredged or fill materials
Sedimentation induced through can affect the suitability of recreational
fill material may reduce.the value of hydrological modification or as a direct and commercial fishing groundsas
vegetated shallows as nesting, result of the deposition of habitat for populations of consumable
spawning, nursery, cover, and forage unconsolidated dredged or fill material aquatic organisms. Discharges can result
areas, as well as their value in may clog riffle and pool areas, destroy in the chemical contamination of
protecting shorelines from erosion and habitats, and create anaerobic recreational or commercial fisheries.
wave actions. It may also encourage the conditions. Eliminating pools a nd They may also interfere with the
growth of nuisance vegetation. meanders by the discharge of dredged or reproductive success of recreational and
� 230.44 Coral reels. "ill material can reduce water holding commercially important aquatic species
(a) Coral reefs consist of the skeletal ..ipacity of streams and cause rapid through disruption of migration and
deposit, usually of calcareous or runoff from a watershed. Rapid runoff spawning areas. The introduction of
silicaceous materials, produced by the can deliver large quantities of flood pollutants at critical times in their life
vital activities of anthozoan polyps or water in a short time to downstream cycle may directly reduce populations of
other invertebrate organisms present in areas resulting in the destruction of commercially important aquatic
growing portions of the reef. natural habitat, high property loss, and organisms or indirectly reduce them by
(b) Possible loss of values: The the need for further hydraulic reducing organisms upon which they
discharge of dredged or fill material can modification. depend for food. Any of these impacts
adversely affect colonies of reef building can be of short duration or prolonged,
organisms by burying them, by releasing Note.-Possible actions to minimize- depending upon the physical and
contaminants such as hydrocarbons into adverse impacts on site or material chemical impacts of the discharge and
the water column, by reducing light characteristics can be found in Subpart H. the biological availability of
penetration through the water, and by contaminants to aquatic organisms.

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85354 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

� 230.52 Water-related recreation. educational, historical, recreational . (2) Pertinent results from tests
(a) Water-related recreation and/or scientific qualities thereby previously carried out on the material at
encompasses activities undertaken for reducing or eliminating the uses for the extraction site, or carried out on
amusement and relaxation. Activities which such sites are set aside and similar material for other permitted
encompass two broad categories of use: manag ed. projects in the vicinity. Materials shall
0 be considered similar if the sources of
consumptive, e.g., harvesting resources Note.-Possible actions to minimize
by hunting and fishing; and non- adverse impacts regarding site or material contamination, -the physical
comsumptive, e.g. canoeing and sight- characteristics can be found in Subpart H. configuration of the sites and the
seeing. sediment composition of the materials
(b) Possible loss of values: One of the Subpart G-Evaluation and Testing are comparable, in light of water
more important direct impacts of � 230.60 General evaluation of dredged or circulation and stratification, sediment
dredged or fill disposal is to impair or fill material. accumulation and general sediment
destroy the resources which support characteristics. Tests from other sites
recreation activities. The disposal of The purpose of these evaluation may be relied on only if no changes
dredged or fill material may adversely procedures and the chemical and have occurred at the extraction sites to
modify or destroy water use for biological testing sequence outlined in render the results irrelevant.
recreation by changing turbidity, � 230.61 is to provide information to (3) Any potential for significant
suspended particulates, temperature, reach the determinations required by introduction of persistent pesticides
dissolved oxygen, dissolved materials, � 230.11. Where the results of prior from land runoff or percolation;
toxic materials, pathogenic organisms, evaluations, chemical and biological (4) Any records of spills or disposal of
quality of habitat, and the aesthetic tests, scientific research, and experience petroleum products or substances
qualities of sight, taste, odor, and color. can provide information helpful in designated as hazardous under section
making a determination, these should be 311 of the Clean Water Act (See 40 CFR
230.53 Aesthetics. used. Such prior results may make new 116);
(a) Aesthetics associated with the testing unneces_sary. The information (5) Information in Federal, State and
aquatic ecosystem consist of the used shall be documented. Where the local records indicating significant
perception of beauty by one or a same information applies to more than introduction of pollutants from
combination of the senses of sight, one determination, it may be industries, municipalities, or other
hearing, touch, and smell. Aesthetics of documented once and referenced in sources, including types and amounts of
aquatic ecosystems apply to the quality later determinations. waste materials discharged along the
of life enjoyed by the general public and (a) If the evaluation under paragraph potential routes of contaminants to the
property owners. (b) indicates the dredged or fill material extraction site; and
(b) Possible loss of values: The is not a carrier of contaminants, then the (6) Any possibility of the presence of
discharge of dredged or fill material can required determinations pertaining to substantial natural deposits of minerals
mar the beauty of natural aquatic the presence and effects of or other substances which could be
ecosystems by degrading water quality, contaminants can be made without released to the aquatic environment in
creating distracting disposal sites, testing. Dredged or fill material is most harmful quantities by man-induced
inducing inappropriate development, likely to be free from chemical, discharge activities.
encouraging unplanned.and biological, or other pollutants where it is (c) To reach the determinations in
incompatible human access, and by composed primarily of sand, gravel, or � 230.11 involving potential effects of the
discharge onthe tharacteristics of the
destroying vital elements that contribute. other naturally occurring inert material.
to the compositional harmony or unity, Dredged material so composed is disposal site, the narrative guidance in
visual distinctiveness, or diversity of an generally found in areas of high current Subparts C-F shall be used along with
area. The discharge of dredged or fill or wave energy such as streams with the general evaluation procedure ift
material can adversely affect the large bed loads or coastal areas with � 230.60 and, if necessary, the chemical
particular features, traits, or shifting bars and channels. However, and biological testing sequence in
characteristics of an aquatic area which when such material is discolored or � 230.61. Where the discharge site is
make it valuable to property owners. contains other indications that adjacent to the extraction site and
Activities which degrade water quality, contaminants may be present, further subject to the same sources of
disrupt natural substrate and inquiry should be made. contaminants, and materials at the two
sites are substantially similar, the fact
vegetational characteristics, deny (b) The extraction site shall be that the material to be discharged may
access to or visibility of the resource, or examined in order to assess whether it be a carrier of contaminants is not likely
result in changes in odor, air qualfty, or is sufficiently removed from sources of to result in degradation of the disposal
noise levels may reduce the value of an @pollution to provide reasonable site. In such circumstances, when
aquatic area to private property owners. assurance that the proposed discharge dissolved material and suspended
� 230.54 Parks, national and historical material is not a carrier of particulates can be controlled to prevent
monuments, national seashores, wilderness contaminantp. Factors to be considered carrying pollutants to, less contaminated
areas, research sites, and similar include but are not limited to: areas, testing will not be required.
preserves. . (1) Potential routes of contaminants or (d) Even if the � 230.60(b) evaluation
(a) These preserves consist of areas contaminated sediments to the (previous tests, the presence of polluting
designated under Federal and State extraction site, based on hydrographic industries and information about their
laws or local ordinances to be managed or other maps, aerial photography, or discharge or runoff into waters of the
for their aesthetic, educational, other materials that show watercourses, U.S., bioiriventories, etc.) leads to the
historical, recreational. or scientific surface relief, proximity to tidal conclusion that there is a high
value. . - movement, private and public roads, probability that the material proposed
(b) Possible loss of values: The location of buildings, municipal and for discharge is a carrier of
discharge of dredged or fill material into industrial areas, and agricultural or contaminants, testing may not be
such areas may modify the aesthetic, forest lands. necessary if constraints are available to

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Federal Register / Vol. 45, No. 249 Wednesday, December 24, 1980 / Rules and Regulations 85355

reduce contamination to acceptable obtained from bioassays in lieu of representing community components.
levels within the disposal site and to chemical tests. colonizing various substrate types
prevent contaminants from being (2) Water column effects. (I) within the sites should be identified as
transported beyond the boundaries of Sediments normally contain constituents possible bioassay organisms if tests for
the disposal site, if such constraints are that exist in various chemical forms and toxicity are required. Community
acceptable to the permitting authority in various concentrations in several structure studies should be performed
and the Regional Administrator, and if locations within the sediment. An only when they will be of value in
the potential discharger is willing and elutriate test may be used-to predict the determining discharge conditions. This
able to implement such constraints. effect on water quality due to release of is particularly applicable to large
However, even if tests are not contaminants from the sediment to the quantities of dredged material known to
performed, the permitting authority must water column. However, in the case of contain adverse quantities of toxic
still determine the probable impact of fill material originating on land which materials. Community studies should
the operation on the receiving aquatic may be a carrier of contaminants, a Include benthic organisms such as
ecosystem. Any decision not to test water leachate test is appropriate. microbiota and harvestable shellfish
must be explained in the determinations (ii) Major constituents to be analyzed and finfish. Abundance, diversity, and
made under � 230.11. in the elutriate are those deemed critical distribution should be documented and
by the permitting authority, after correlated with substrate type and other
1230.61 Chemical, biological, and physical evaluating and considering any appropriate physical and chemical
ivaluation and testing. . comments received from the Regional environmental characteristics.
Note-The Agency is today proposing Administrator, and considering results (d) Physical tests and evaluation. .The
evised testing guidelines. The evaluation and of the evaluation in � 230.60. Elutriate effect of a discharge of dredged or fill
esting procedures in this section are based concentrations should be compared to material on physical substrate
-n the 1975 � 404(b)(1) interim final concentrations of the same constituents characteristics at the disposal site, as
,uidelines and shall remain in effect until the.
evised testing guidelines are published as in water from the disposal site. Results well as on the water circulation,
inal regulations. should be evaluated in light of the fluctuation, salinity, and suspended
volume and rate of the intended particulates content there, is important
(a) No single test or approach can be discharge, the type of discharge, the in making factual determinations in
pplied in all cases to evaluate the hydrodynamic regime at the disposal. � 230.11. Where information on such
ffects of proposed discharges of site, and other information relevant to effects is not other@vise a@ailable to
redged or fill materials. This section the impact on water quality. The make these factual determinations, the
rovides some guidance in determining permitting authority should consider the permitting authority shall require
rhich test and/or evaluation procedures mixing zone in evaluating water column appropriaote physical tests and
re appropriate in a given case. Interim effects. The permitting authority may evaluations as are justified and deemed
aidance to applicants concerning the specify bioassays when such procedures necessary. Such tests may include sieve
pplicability of specific approaches or will be of value. tests, settleability tests, compaction
rocedures will be furnished by the (3) Effects on benthos. The permitting
armitting authority. authority may use an appropriate tests, mixing zone and suspended
(b) Chernical-biological interactive benthic bioassay (including particulate plume determinations, and
Yects. The principal concerns of bioaccumulation tests) when such site assessments of water flow,
ischarge of dredged or fill material that procedures will be of value in assessing circulation, and salinity characteristics.
)ntain contaminants are the potential ecological effects and in establishing Subpart H-Actions To Minimize
fects on the water column and on discharge conditions. Adverse Effects
immunities of aquatic organisms. (c) Procedure for comparison of sites.
(1) Evaluation of chemical-bio]0&01 (1) When an inventory of the total Note.-There are many actions which can
teractive effects. Dredged or fill concentration of contaminants would be be undertaken in response to � 203.10(d) to
aterial may be excluded from the of value in comparing sediment at the minimize the adverse effects of discharges of
,aluation procedures specified in dredging site with sediment at the dredged or fill material. Some of these,*
grouped by type of activity, are listed in this
tragraphs (b)(2) and (3) of this section disposal site, the permitting authority subpart.
it is determined, on the basis of the may require a sediment chemical
aluation in � 230.6o, that the analysis. Markedly different � 230.70 Actions concerning the location
:elihood of contamination by concentrations of contaminants between of the discharge.
ntaminants is acceptably low, unless the excavation and disposal sites may The effects of the discharge can be
e permitting authority, after evaluating aid in making an environmental ' . minimized by the choice of the disposal
id considering any comments received asspssment of the proposed disposal site. Some of the ways to accomplish
)in the Regional Administrator, operation. Such differences should be this are by:
Itermines that these procedures are interpreted in terms of the potential for (a) Locating and confining the
!cessary. The Regional Administrator harm as supported by any pertinent discharae to minimize smothering of
ay require, on a case-by-case basis, scientific literature. organisms;
sting approaches and procedures by (2) When an analysis of biological (b) Designing the discharge to avoid a
ating what additional information is community structure will be of value to disruption of periodic water inundation
!eded through further analyses and assess the potential for adverse patterns;
)w the results of the analyses will be environmental impact at the proposed (c) Selecting a disposal site that has
.value in evaluating potential disposal site, a comparison of the been used previously for dredged
ivironmental effects. biological characteristics between the material discharge-,
If the General Evaluation indicates the excavation and disposal sites may be (d) Selecting a disposal site at which
,esence of a sufficiently large number required by the permitting authority. the substrate is composed of material
chemicals to render impractical the Biological indicator species may be similar to that being discharged, such as
entification of all contaminants by useful in evaluating the existing degree discharging sand on sand or mud on
iemical testing, information may be of stress at both sites. Sensitive species mud;

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85356 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Rules and Regulations

(e) Selecting the disposal site. the (a) Where environmentally desirable, (e) Employing appropriate machinery
discharge point. and the method of distributina the dredged material widely and methods of transport of the material
discharge to minimize the extent of any in a thin layer at the disposal site to for discharge.
plume; maintain natural substrate contours and
(f) Designing the discharge of dredged elevation; � 2.30.75 Actions affecting plant and
or fill material to minimize or prevent . (b) Orienting a dredged or fill material animal populations.
the creation of standing bodies of water mound to minimize undesirable Minimization of adverse effects an
in areas of normally fluctuating water obstruction to the water current or populations of plants and animals can
levels, and minimize or prevent the circulation pattern, and utilizing natural be achieved by:
drainage of areas subject to such bottom contours to minimize thce' size of (a) Avoiding changes in water current
fluctuations. the mound; and circulation patterns which would
� 230.71 Actions concerning the material (c) Using silt screens or other interfere with the movement of animals;
. (b) Selecting sites or managing
to be discharged. appropriate methods to confine discharges to prevent or avoid creating
The effects of a discharge can be suspended particulate /turbidity to a habitat conducive to the development of
minimized by treatment of, or small area where settling or removal can undesirable predators or species which
limitations on the material itself, such occur; have a competitive edge ecologically
as: (d) Making use of currents and over indigenous plants or animals;
(a) Disposal of dredged material in circulation patterns to mix, disperse and (c),Avoiding sites having unique
such a manner that physiochemical dilute the discharge-, habitat or othoer value, including habitat
conditions are maintained and the (e) Minimizing water column turbidity of threatened or endangered species;
potency and availability of pollutants by using a submerged diffuser system. A (d) Using planning and construction
are reduced. similar effect can be accomplished by practices to institute habitat
(b) Limiting the solid, liquid, and submerging pipeline discharges or development and restoration to produce
gaseous components of material to be otherwise releasing materials near the a new or modified environmental state
discharged at a particular site-, bottom: of higher ecological value by
(c) Adding treatment substances to (f) Selecting sites or managing displacement of some or all of the
the discharge material; discharges to confine and minimize the existing environmental characteristics.
(d) Utilizing chemical flocculants to release of suspended particulates to give Habitat development and restoration
enhance the deposition of suspended decreased turbidity levels and to techniques can be used to minimize
particulates in diked disposal areas. maintain liIght penetration for organisms; adverse impacts and to compensate for
� 230.72 Actions controlling the material (g) Setting limitations on the amount destroyed habitat. Use techniques that
after discharge. of material to be discharged per unit of have been demonstrated to be effective
The effects of the dredged or fill time or volume of receiving water. in circumstances similar to those under
material after discharge may be consideration wherever possible. Where
controlled by: � 230.74 Actions related to technology. proposed development and restoration
(a) Selecting discharge methods and Discharge technology should be techniques have not yet advanced to the
disposal sites where the potential for adapted to the needs of each site. In pilot demonstration stage, initiate their
erosion, slumping or leaching of determining whether the discharge use on a small scale to allow corrective
materials into the surrounding aquatic operation sufficiently minin-Lizes adverse action if unanticipated adverse impacts
ecosystem will be reduced. These sites environmental impacts, the applicant occur.
or methods include, but are not limited should consider: (e) Timing discharge to avoid
to: (a) Using appropriate equipment or spawning or migration seasons and
(1) Using containment levees, sediment machinery, including protective devices. other biologically critical time periods:
basins, and cover crops to reduce and the use of such equipment or (f) Avoiding the destruction of
erosion; machinery in activities related to the remnant natural sites within areas
(2) Using lined containment areas to discharge of dredged or fill material; already affected by development.
reduce leaching where leaching of " propriate
I (b) Employing ap �230.76 Actions affecting human use.
chemical constituents from the maintenance and operation on Minimization of adverse effects on
discharged material is expected to be a equipment or machinery, including human use potential may be achieved
problem; adequate training, staffing, and working by:
(b) Capping in-place contaminated procedures; 0 (a) Selecting discharge sites and
material with clean material or (c) Using machinery and techniques following discharge procedures to
selectively discharging the most 0
that are especially designed to red ce prevent or minimize any potential
contaminated material first to be capped damage to wetlands. This may incluude damage to the aesthetically pleasing
with the remaining material; . machines equipped with devices that features of the aquatic site (e.g.
(c) Maintaining and containing
discharged material properly to prevent scatter rather than mound excavated viewscapes), particularly with respect to
point and nonpoint sources of pollution; materials, machines with specially water quality;
(d) Timing the discharge to minimize designed wheels or tracks. and the use (b) Selecting disposal sites which are
impact, for instance during periods of of mats under heavy machines to reduce not valuable as natural aquatic areas;
unusual high water flows, wind, wave, wetland surface compaction and rutting: (c) Timing the discharge to avoid the
and tidal actions. (d) Designing access roads and seasons or periods when human
channel spanning structures using recreational activity associated with the
� 230.73 Actions affecting the method of culverts, open channels, and diversions aquatic site is most important;
dispersion. that will pass both low and high water (d) Following discharge procedures
The effects of a discharge can be flows, accommodate fluctuatino water which avoid or minimize the disturbance
minimized by the manner in which it is levels, and maintain circulation and of aesthetic features of an aquatic site or
dispersed, such as: faunal movement: ecosystem.

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!Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 Rules and Regulations 85357

(e) Selecting sites that will not be (d) To provide the basis for advanced
detrimental or increase incompatible identification of disposal areas, and
human activity, *or require the need for areas unsuitable for disposal, EPA and
frequent dredge or fill maintenance the permitting authority shall consider
activity in remote fish and wildlife the likelihood that use of the area in
areas; question for dredged or fill material
(f) Locating the disposal site outside disposal will comply with these
of the vicinity of a publfc water supply Guidelines. To facilitate this analysis,
intaic.e. EPA and the permitting authority should
review available water resources
� 230.77 Other actions. man a*gement data including data
(a) In the case of fills, controlling available from the public, other Federal
runoff and other discharges from and State agencies, and information
activities to be conducted on the fill; from approved Coastal Zone
(b) In the case of dams, designing Management programs and River Basin
water releases to accommodate the Plans.
needs of fish and wildlife. (e) The permitting authority should
(c) In dredging projecti funded by - maintain a public record of the
Federal agencies other than the Corps of identified areas and a written statement
Engineers, maintain desired water of the basis for identification,
quality of the return discharge through [FR D@ 80-4M1 Filed 12-23-ft 8A5 aml
agreement with the Federal funding BILLING CODE SSW-01-M
authority on scientifically defensible
pollutant concentration levels in
addition to any applicable water quality
standards.
(d) When a significant ecological
change in the aquatic environment is
proposed by the discharge of dredged or
fill material, the permitting authority
should consider the ecosystem that will
be lost as well as the environmental
benefits of the new system.
Subpart I-Planning To Shorten Permit
Processing Time

� 230.80 Advanced identification of
disposal areas.
(a) Consistent with these Guidelines,
EPA and the permitting authority, on
their own initiative or at the request of
any other party and after consultation
with any affected State that is not the
permitting authority, may identify sites
which will be considered as:
(1) Possible future disposal sites,
including existing disposal sites and
non-sensitive areas; or
.(2) Areas generally unsuitable for
disposal site specification;
(b) The identification of any area as a
possible future disposal site. should not
be deemed to constitute a permit for the
discharge of dredged or fill material
within such area or a specification of a
disposal site. The identification of areas
that generally will not be available for
disposal site specification should not be
deemed as prohibiting applications for
permits to discharge dredged or fill
material in such areas. Either type of
identification constitutes information to
facilitate individual or General permit
application and processing.
(c) An appropriate public notice of the
proposed identification of such areas
shall be issued;

B-24

Wednesday
December 24, 1980

Part V

Envir*onmental
Protection Agency
Testing Requirements for the
Specification of Disposal Sites for
Dredged or Fill. Material

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85360 Federal Register / Vol. 45, No. 249 / Wednesday, December 24,1980 / Proposed Rules

ENVIRONMENTAL PROTECTION discharge of dredged or fill material. must consider the factors set out in the
AGENCY Sites are to be specified through the Guidelines, in light of the particular
application of guidelines developed by facts involved. The testing procedures
40 CFR Part 230 EPA in conjunction with the Secretary are designed -to provide some of the
(the 404(b)(1) Guidelines). information to be used in making
[WH-FRL 1647-61 EPA published Interim Final 404(b)(1) determinations concerning the potential
Guidelines on September 5,1975, which, impacts of a particular proposed
Testing Requirements for the inter alia, provided for certain testing discharge. Where the circumstances
Specification of Disposal Sites for procedures to provide information to be indicate that testing is not likely to
Dredged or Fill Material used in the permit decision. Since then, provide useful information, the
AGENCY: Environmental Protection both the passage of the 1977 regulation allows the permit decision to
Agency. Amendments to the FWPCA and the be made without testing. We have
ACTION: Proposed rule. experience of EPA and the Corps of attempted in this way to reconcile our
Engineers in applying the Guidelines desire for simplicity and ease of
SUMMARY: This proposed rule revises prompted EPA to develop proposed application of the testing procedures on
the testing requirements in the section revisions to the Guidelines, which were the one hand with the need for sufficient
404(b)(1) Guidelines for the Specification published in the Federal Register an information to identify potential adverse
of Disposal Sites for Dredged and Fill September 18, 1979. Because EPA and effects on the other hand.
Material under section 404 of the Clean the Corps had not at that time
Water Act. completed revisions to the testing Section-by-Section Summary*
The testing requirements in the portions of the Cuidelines, but did not Proposed � 230.60 explains the
Guidelines are being revised because on want to delay revisions to the rest of the purpose of testing and sets out general
September 18,1979, when the Guidelines Guidelines, the September 18, 1979 information pertaining to testing. It is
were proposed, EPA and the Corps of proposal retained the 1975 testing our intent to minimize the testing
Engineers had not completed revisions provisions (with certain non-substantive burden, consistent with the need for, the
on the testing portion and sought editing changes) and sought comments permitting authority to make an .
comments on the remainder of the on the remainder of the Guidelines only. informed judgment about the potential
Guidelines only at that time. A final rule reflecting public comments impacts of a discharge. Thus, this
The revised testing section is intended but retaining the old testing provisions section provides that results of previous
to reconcile the need for simplicity and (now appearing in � � 230.60 and 230.61) tests may be used in appropriate
ease of application of the testing is being published elsewhere in today's circumstances.
procedures on the one hand with the Federal Register. In addition, under -� 230.61, tests to
need for sufficient information to EPA and the Corps have now evaluate the impacts of contaminants
identify potential adverse effects on the completed a proposed testing package. are required only when there is reason
environment on the other hand. After the comment period, we will to believe that contaminants are
DATE: All comments received on or consider the comments and make present. We have proposed that the
before February 0, 1981, will be appropriate changes in the testing trigger be the presence of such
considered. provisions. Then final testing provisions contaminants "above background
ADDRESSES: Send written comments to: will replace � � 230.60 and 230.61 as they levels." Section 230.61(a) identifies
Joseph Krivak, Criteria and Standards appear in today's final section 404(b)(1) factors which should be considered in
Division, Office of Water and Waste Guidelines. We are not planning any this "reason to believe" test (or "initial
Management, (WH-585), U.S. other changes in the Guidelines apart evaluation," as it is sometimes called).
Environmental Protection Agency 401 M from those necessary to accommodate Comments are sought on the adequacy
the new testing package. While we of this list of factors.
Street, S.W., Washington, D.C. 20460. believe that it will not be necessary to Section 230.62 sets out specific testing
Each person submitting a comment change the regulations substantively to requirements. These requirements are
should include his or her name and accommodate the new testing organized by "category" of discharge. In
address and give reasons for any procedures, we solicit comments on this order to determine which requirements
recommendations. A copy of all public point. apply to particular discharges. we have
comments will be available for The Corps of Engineers has played a constructed categories of discharges,
inspection and copying at the EPA major role in developing today's based on the initial evaluation, to reflect
Public Information Reference Unit, proposed rule. This draft was revised to different potentials for adverse impacts
Room 2922 (EPA Library), 401 M Street, reflect the comments of Corps and EPA on the aquatic ecosystem. Comments
S.W., Washington, D.C. 20460. -employees with experience sith the are sought on the appropriateness of the
FOR FURTHER INFORMATION CONTACT: permitting process and with the proposed categories for this purpose.
Joseph Krivak, 202-755-0100. technical and scientific issues involved. The specific tests required for particular
SUPPLEMENTARY INF .ORMATION: Purpose and Content of the Revised categories are based on the severity of
Background Testin- Section potential impacts.
a When there is no reason to believe
The section 404 program was Under the 404(b)(1) Guidelines, a that dredged material is contaminated, it
established by the Federal Water discharge may not take place if the falls into Category 1, and no
Pollution Control Act of 1972 (FWPCA) permitting authority finds, among other contaminant-related testing is required.
to regulate the discharge of dredged or things, that the discharge will have Category 2 includes dredged material
fill material into waters of the United unacceptable adverse effects or that which, while possibly contaminated,
States. The Secretary of the Army, practical steps have not been taken to probably is not significantly more
acting through the Chief of Engineers, minimize adverse impacts (� 230.10). In contaminated than the discharge site.
and States with programs which have order to determine whether these
been approved by EPA are authorized to requirements have been met in a *The definitions in 1230.3 of the final Guidelines
issue permits specifying sites for the particular case, the permitting authority apply to these testing revisions.

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Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Proposed Rules 85361

Tests are specified to verify that the acceptability. Where the calculated not constitute a major regulation
material is not more contaminated, and, mixing zone violates a water quality requiring preparation of an economic
if it is, to provide information to be used standard (either because the standard impact statement under Executive Order
in assessing its potential for harm. prohibits mixing zones or because the 12044.
Comments are solicited on the calculated mixing zone is outside that The Waterways Experiment Station of
appropriateness of the proposed tests allowed under the standard), the the Corps of Engineers has prepared a
for this purpose. discharge will fail to satisfy the background document in support of this
Category 3 includes dficharges of requirements of � 230.10(b)(1). Even proposed rule, based on input from both
apparently contaminated dredged where the mixing zone meets water our agencies. Copies are availabe for
material which is to be discharged into quality standards, it may nonetheless review in EPA Headquarters Library
contained or confined disposal areas. In contribute to the impact on the (Public Information Reference Unit).
this situation, testing is concerned only environment, and should be weighed Room 2404, Waterside Mall, 401 M
with the return flow. Where the with all the other available information Street, SW., Washington, D.C. 20460.
contained site Is itself located in waters in making the determination of I
of the United States, discharges within it significant degradation under Dated: December 12,1980.
will automatically destroy or dislocate � 230.10(c). Douglas M. Costle,
the life there.'whether or not the Where there are numerical water Administrator, Environmental Protection
discharged material is contaminated. quality standards for the contaminant Agency.
Thus, there is no need to test the involved, the edge of the mixing zone is 40 CFR Part 230 is proposed to be
contamination of the material which will based on the place where the discharged amended by revising Subpart G to read
remain in the site. The tests for Category material is sufficiently diluted to meet as follows:
3 are designed to compare the runoff ambient water quality standards. Where (1) The authority citation for Part 230
with the receiving water, and, if no numerical water quality exists, the reads as follows:
significant differences are discovered, to mixing zone perimeter will. be calculated Authority: Secs. 404, 501 of ihe Clean
assess the potential for harm. Again, based on the results of the water column Water Act of 1977, 33 U.S.C. 1344(b), 1361(ai I.
comments are sought on the bioassay. Comments are solicited on the (2) Subpart G is revised to read-as
appropriateness of the proposed tests. propriety of these two methods for follows-
Category 4 includes dredged material calculating the mixing zone perimeter.
which, on the basis 'of the The proposal also calls for bioassay Subpart G-Evaluation and Testing
precategorization evaluation, appears to tests where the contaminant levels in Sec.
be more contaminated than the the elutriate exceed those of the 230.60 Purpose of testing and general
discharge site (e.g., not to fall into receiving waters and contaminant levels approach.
Category 2) and which will not be in the receiving water already exceed 230.61 Initial evaluation of dredged or fill
confined or contained (e.g., is not in applicable standards or criteria, making material.
Category 3), and hence presents a dilution to those standards impossible. 230.62 Detailed evaluation, including
potential for environmental harm. Comments are solicited on whether such possible testing of dredged material.
230.63 Detailed evaluation, including"
Biological tests are prescribed to tests are necessary or whether such possible testing of fill material.
provide information on the likelihood circumstances alone clearly establish 230.64 Mixing zone determinations.
and extent of harm. Comments are the likelihood of significant degradation. Authority: Secs. 404, 501 of the Clean
solicited on the appropriateness of the Other points Water Act of 1977 (33 U.S.C. 1344(b), 1361(a).
prescribed tests to provide the
information needed to evaluate the It is our present intention to'have Subpart G-Evaluation and Testing
potential adverse impacts of such these revised testing provisions go into
discharges. effect 90 days after their publication as 230.60 Purpose of testing and general
Under � 230.63, Categories 5 and 6 a final rule (probably by the summer of approach.
apply to fill material. If the material is 1981). While the required tests are quite (a) Purpose. The purpose of the testing
not believed to be contaminated (or the similar to those required under the 1975 procedures in this Subpart is to provide
contaminants will not leach out), no regulation, and while we have the permitting authority with technical
testing is required. If there is potential endeavored to keep to a minimum the information required to assess the
for environmental contamination, the occasions when tests will be conducted, potential chemical and biological effects
prescribed tests are conducted. When we are interested in any comments on of the discharge of dredged or fill
dredged material is used for fill, it the appropriateness of this date. material into waters of the United
should be placed in Categories I through Under the revised section 404(b)(1) States. The permitting authority must
4, not 5 or 6. Comments are solicited on Guidelines, the permitting authority may interpret this technical information in
the appropriateness of the categories for c6oose to conduct the tests itself, light of the specific characteristics of the
fill and the adequacy of the tests for instead of requiring the applicant to do proposed discharge under evaluation.
Category 6 for all contaminated, non- so. We anticipate this happening when The technical information and
dredged fill material, particularly in light several similar discharges are proposed interpretation should be used in making
of the definition of fill material in the for a single area, for example. the factual determinations in � 230.11.
Guidelines published today (4o CFR 230 Commenters should bear this in mind in (1) Because the testing procedures in
[FRL 1647-71) and in the Consolidated commenting on the potential burden of this Subpart are done primarily in the
Permit Regulations (40 CFR 122.3,45 FR testing. laboratory, rather than in the field, and
33421, May 19,1980). Comments objecting to the particular because the tests are only generally
Section 230.64 provides a 'Procedure tests specified or suggesting nev@ tests predictive of what may actually take
for calculating a mixing zone from the will be more helpful to us if they include place at the discharge site. test results
information obtained from testing in reference to (or copies on pertinent shall not be considered as a sole
� 230.62. Section 230-64 is concerned literature. determinant in making the required
with the calculation of the mixing zone, The Environmental Protection Agency Findings of Compliance in � 230.12.
not on the evaluation of its has determined that this document does Therefore, all test results, including

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85362 Federal Register I Vol. 45, No. 249 Wednesday, December 24, 1980 / Proposed Rules

those that describe sediments wi I a be fully explained and documented in occurred to render the comparisons
high potential for significant degradation the Section 404(b)(1) evaluation. inappropriate.
on aquatic organisms, must be related to (2) The persistence, stability, and (3) The probability of past substantial
other pertinent factors in factual solubility in water and/or other solvents introduction of contaminants from land
determinations (� 230.11) before of contaminants as well as the duration runoff (e.g., pesticides).
Findings of Compliance are made. and rates of introduction of (4) Spills of toxic substances or
(2) Subpart C addresses only those contaminants and rates of dilution and substances designated as hazardous
tests designed to determine the chemical dispersion after introduction are under Section 311 of the Clean Water
and biological degradation caused by important considerationi in selecting Act (see 40 CFR Part 116).
contaminants (specific pollutants appropriate chemical and biological (5) Substantial introduction of
designated by the authority of Sections tests and interpreting the test results. pollutants from industries.
307(a) and 311 of the Clean Water Act (3) Tests in this section may be (6) Source and previous use of
(CWA) and other potentially toxic or performed on several alternative materials proposed for discharge as fi
hazardous pollutants, referred to in discharge sites concurrently, if this will P) Substantial natural deposits of
� 230.3(g)), which are believed to be in aid in obtaining necessary information minerals and other natural substances.
dredged or fill material. To assess the for making the factual determinations - (b) Before the permitting authorhy
potential effects of the discharge in the for contaminants. concludes that there is no reason to
factual determinations, it may be (4) A technical implementation believe that contaminants are present in
necessary to conduct other analyses manual containing acceptable and the discharge material above
(e.g., coliform, BOD, COD, etc.) or to recommended procedures for - background levels, he should consider
consider physical effects such as burial, implementing the testing requirements of all relevant, reasonably ava@flable
turbidity,. etc., as discussed in Subpart B. this subpart will be developed and information which might indicate its
(3) Where the results of prior approved jointly by the Administrator, presence. However, if there is no
evaluations, chemical and biological EPA, and the Chief of Engineers. The information indicating the likelihood of
tests, and scientific research can manual will be reviewed periodically such contamination. the permitting
provide information helpful in reaching and revised as necessary. authority may conclude that
a determination, those should be used. contaminants are not present above
Such prior results may make new testing � 230-61 Mal evaluation of dredged or fin background levels. Examples of
unnecessary. The information used to material. documents and records in which data on
reach each determination shall be (a) An initial evaluation shall be contaminants may be obtained are:
documented, except that where the conducted and documented to determine (1) Report of Pollution Caused Fish
same information is applicable to more if there is reason to believe that any , Kills (U.S. EPA) '
than one determination, it may be dredged or fill material to be discharged (2) Selected Chemical Spill Listing
documented in one instance and into waters of the United States (U.S. EPA)
referenced in later determinations.* contains any contaminant above (3) Pollution Incident Reporting
(b) Ceneral approach. Chemical and background level. This initial evaluation System (U.S. CG)
biological testing requirements of this will be used in assigning the-proposed (4) Surface Impoundment Assessment
!ection are designed to provide discharge to a category for testing. This (U.S. EPA)
information for the factual evaluation should be accomplished with (5) Identification of In-Place Pollutants
determinations and ecological existing data on file with or readily and Priorities for Removal (U.S. EPA)
evaluations and to assist in determining available to the permitting authority. . (6) Revised Status Report-Hazardous
the compatibility of the proposed Regional Administrator, EPA, and o&r Waste Sites (U.S. EPA)
discharge of dredged or fill material public and private sources, as (7) Hazardous Waste Management
with applicable water quality standards. appropriate. Factors which may be Facilities in the United States-1977
Except for " other analyses" as stated in considered for the extraction site and, if (U.S. EPA)
� 230.60(a)(2), the permitting authority appropriate, the disposal site, include, (8] Corps of Engineers Studies of
will require tests only in those cases but are not limited to, the following: Sediment Pollution
where there is reason to believe that (1) Potential routes of introduction of " (9) Sediment Tests for Previously
Permitted Activities (U.S. CE/District
contaminants are present in forms and specific contaminants. These may Engineers)
amounts that are likely to degrade the identified by examining maps, aeri I . (10) Pesticide Spill Reporting System
aquatic environment, including potential photographs, and other graphic (U.S. EPA)
availability to organisms in toxic materials that show watercourses, (11) STORET (U.S. EPA)
amounts. This "reason tc. believe" surface relief, proxin-dty to tidal (12) Past 404(b)(1) Evaluations
determination will be made by the movement. private and public roads,
0 location of buildings, agricultural land,
permittin authority in the initial 113) USGS Water and Sediment Data
evaluation process of � 230.61. municipal and industrial sewage and on Major Tributaries
Categories have been established to storm outfalls, etc., or by making field (14) Pertinent and Applicable
Research Reports
provide the permitting authority with inspections. (15) NPDES Permit Records
guidance on when testing is needed and (2) Previous tests on. the material at
what tests can be considered sufficient the extraction site or on samples from � 230.62 Detailed evaluation, Including
for the application of the Guidelines. other similar projects in the vicinity, possible testing of dredged material.
(1) Permitting authorities and/or U.S. when there are similarities of sources (a) Based on the outcome of the initial
EPA Regional administrators may and types of contaminants. water evaluation made pursuant to � 230.61.
approve modifications of these circulation and stratification. dredged material proposed for discharge
procedures or require additional tests to accumulation of sediments, general will be assigned to one of four
obtain needed information for the sediment characteristics, and potential categories for its detailed technical
determination for a specific situation. impact on the aquatic environment, as evaluation. Figure 1 illustrates how
The reasons for such modifications shall long as no known changes have evaluation under these categories leads

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Federal Register / Vol. 45, No. 249 Wednesday, December 24, 1980 Proposed Rules 85363

to factual determinations required under,
� 230.11. The following paragraphs
describe the categories, the testing (if
any) required under each, and how this
evaluation leads to the factual
determinations.
(b) Category 1: Discharge Without
Potentialfar Environmental
Contamination. (1) Dredged material
falls into Category 1 when the initial
evaluation does not indicate the
presence of contaminants in the dredgea
material above background levels.
Consequently, the only concern is the
direct physical effects of the material to
be discharged, and there is no need to
compare this material chemically to
sediments at the proposed disposal site.
Dredged material which is composed
predominantly of sand, gravel, shell or
other naturally occurring sedimentary
material with particle sizes
predominantly larger than silt is likely
to, but does not always, qualify for
inclusion under Category 1. Generally,
these materials are characteristic of
areas of high current or wave energy,
such as streams with large bedloads or
coastal areas with shifting bars and
channels. However, noncontaminated
fine-grained materials may also be
shown by the precategarization
elevation to meet the conditions of
Category 1. No chemical or biological
testing is required to make the factual
determinations.

BILLING COM SV60-2"

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85364 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 Proposed Rules

Fig. 1. Testing Flow Chart

t-tkAM-L Evaluation
Cates

jUncontaminat Potentially
LContaminated

Aquatic and Flowback from Aquatic
Non-Aquatic lContained Site@s Disposal
isposal

Category I Category 3 Category 2 Category 4
Physical Impacts Potential Contaminant Contaminants In e ged Dredged Material
Only Impacts On Receiving Wa Material Pote tially Potentially More
ter nDr d
milar To Discharge Site Contaminated Than
Discharge Site

utriate Compa d FDredging And-Disposa
r I
Receiving Watrje Site Sediment Extr t
[To Criteria Comparison

water column Bioassay c Bioassay/Bioaccumul
F@ Test

Fmixing Zone considerations

Factual-Determinations

N.B. Follow every line out of a box, and if a line branches, follow one or the other branch.

BILLING CODE 6560-29-C

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Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Proposed Rules 85365

contaminants identified during the sediment to be discharged are
(c) Category 2. Open Water Discharge � 230-61 evaluation are substantively substantively greater than
with Level of Contamination Similar to greater in the dredged material than in concentrations in the composite sample
the Discharge Site. Discharges should be the disposal site sediment. of the receiving water and either the
assigned to Category 2 when the initial (ii) Need for additional testing. calculation of a mixing zone using the
evaluation indicates that contaminants Further testing of the impact of appropriate water quality standards or
may be present in the dredged material contaminants on the benthic component criteria does not provide sufficient
above background levels, but will not be of the environment is required for the information to make an assessment of
more available than the same factual determinations only when the water-column impacts or the receiving
contaminants at the disposal site. If this above comparative analysis indicates water concentration exceeds the .
initial evaluation is confirmed by the substantively greater concentrations of standard or criterion, making dilution to
evaluation described below, the contaminants in the sediments to be this standard or criterion impossible.
permitting authority may conclude that discharged than in the disposal site Such further testing for water-column
the discharge will not cause substantive sediments. In such cases. the proposed effects will consist of a water-column
harmful effects to the resident aquatic dredged material will be evaluated bioassay conducted according to
community other than the physical further using the benthic assessment � 230.62(f). No further testing.for
effects caused by placement of the protocol for Category 4 under contaminants is required to make the
material. The Category 2 evaluation � 230.62(e)(1). For all other situations no factual determinations for all other
must consider possible effects on both further testing for contaminants is situations, except as provided in
the benthic component of the aquatic required to make the factual I 230.60(b](1).
environment under J 230.62(c)(1) and the determinations of � 230.11 relating to (d) Category 3. Contained, Confined,
water-column component under chemical contamination of sediments. or Other Disposal Operations of
M-64c)(2). (2) Water-column assessment The Material with Potential for . ,
(1) Sodiment assessment. Chemical potential for short-term water-column Contamination of the Water Column
extraction tests are used in Category 2 impacts is assessed in Category 2 by the -Only. Discharge of dredged material
to assess similarities in the potential for standard elutriate test or,under the should be -assigned to Category 3 when
long-term leaching and bioavailability of special circumstance described below, all but the return water, including
contaminants from the dredged material by a water-column bioassay. Generally, suspended particles, Is confined or
and discharge site sediments. Research the appropriate test is a chemical contained sufficiently to prevent the
generally indicates that only the comparison of the concentration of long-term availability of contaminants
fractions of inorganic contaminants contaminants in the elutriate of the to the aquatic community, and there is
which are dissolved in the interstitial proposed dredged material with the reason to believe the concentration of
water and loosely associated with concentration in the receiving water contaminants in the return water are
sediment particles are available to (See paragraph (c)(1)(i) of this section). above ambient levels in the receiving
organisms. Since these fractions are These concentration values are then water. The Category 3 evaluation
measured in a water extract, the used with the appropriate water quality consists of consideration of possible
standard or criterion to calculate a
appropriate extractant for inorganic mixing zone. impacts to the receiving water column.
contaminants in Category 2 sediment (I) Chemical comparison protocol. (1) Water-column assessment. The
assessments is water. For some organic -term water-colurrin
Chemical analyses shall be conducted potential for short
contaminants, however, extraction with on the receiving water and on the impacts is assessed in Category 3 by an
a solvent other than water may be elutriate of the dredged material. The elutriate test, or under the special
appropriate. Analysis of organic location and number of sampling circumstance described below, by a
chemicals in sediments,is a rapidly stations and replicates shall be designed water-column bioassay. Generally, the
advancing field. Analytical methods are specifically for the dredging and appropriate test is a chemical
being developed for compounds for disposal sites being evaluated. Test comparison of the concentration of
which none now exist and methods results shall be used to determine' contaminants in the elutriate of the
which do exist are subject to rapid whether. after consideration of mixing, proposed dredged material with the
obsolescence. Therefore, sediment the discharge will substantively increase concentration in the receiving water.
extraction techniques must be selected concentrations of those contaminants These concentration values are then
for the specific contaminants of concern identified during the � 320.61 evaluation used with the appropriate water quality
at the time the need arises. The in solution at the disposal site. standards or criteria to calculate a
appropriate extractant for comparing the (h) Mixing zone determination. The mixing zone. Where retention time
availability of organic contaminants to size of the mixing zone will be within the containment area will be of
organisms from the dredged material calculated pursuant to � 230.64 for the short duration, the standard elutriate
and discharge site sediment is a polar or contaminant requiring the greatest test can be used to estimate the
non-polar solvent that effectively dilution volume, as determined from the concentration of those contaminants
extracts the contaminant of concern elutriate analyses, to meet applicable that will be released in the effluent.
from the sediment in a reproducible water quality standards, or, if none, Where the containment area is managed
manner. Federal water quality criteria for maximum solids retention and,
(I) Testing protocol, Chemical established by EPA. The selected consequently, the liquid is retained for
analyses shall be conducted on the standard or criteria shall define the long periods, a modified elutriate test
extracts of the sediment at the dredging perimeter of the mixing zone. should be used. considering biological,
and disposal sites. The location and (III) Need for additional testing. chemical and physical changes that may
number of sampling stations and Further testing for contaminants in occur in the containment area.
replicates shall be designed specifically relation to the water-column component Settleability tests should be conducted
for the sites being evaluated. Test of the environment may be required to to simulate the actual retention time.
results shall be used to determine make the factual determinations when (2) Chemical comparison protocol.
whether the concentrations of those concentrations in the elutriate of the Chemical analyses shall be conducted

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85366 Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Proposed Rules

on the receiving water and on the authority may find that such tests or discharge in making the factual
elutriate of the dredged material. The scientific literature for interpretation of determinations.
location and number of sampling results have not been defined in the (A) A comparative field assessment
stations and replicates shall be designed Corps/EPA implementation manual for will be used when dredged material, -
specifically for the dredging and specific contaminants. In such cases, the from the dredging site in question has
disposal sites being evaluated. Test permitting authority may waive the been discharged at the proposed
results shall be used to determine requirement for bioaccumulation tests disposal site during previous activities
whether, after consideration of mixing, for these specific contaminants, and the � 230.61 evaluation indicates
the discharge will substantively increase provided he notifies the Regional that the dredged material has not
concentrations of those contaminants Administrator prior to making the become more contaminated since the.
identified during the � 230.61 evaluation factual determinations. last disposal operation;'or
in solution at the disposal site. (i) Selection of appropriately sensitive (B) When such a field assessment is
(3) Mixing zone determination. The organisms. The sensitivity of these not practicable. assessment will be
size of the mixi 'ng zone will be procedures is dependent primarily on performed using animals exposed in the
calculated pursuant to � 230.64 for the the selection of appropriate species. The laboratory bioassay protocol of
contaminant'requiring the greatest species should be selected from � 230.62(e)(1)(ii).
dilution volume as determin ed from the appropriately sensitive aquatic (iv) Need for additional testing. No
elutriate analyses,to meet applicable organisms as determined by the further benthic bioassay or
water quality standards or, if none, permitting authority. A minimum of one bioaccumulation potential testing is
Federal water quality criteria benthic and one epibenthic species shall required to make the factual
established by EPA. The selected be used for bioassays. At least one determinations.
standard or criteria shall define the benthic or epibenthic species of . (2) Water-column assessment. The
perimeter of the mixing zone. sufficient size with limited mobility, and required test is a water-column bioassay
(4) Needfor additional testing. Further with a propensity for accumulating the under � 230-62(f). The mixing zone must
testing for contaminants in relation to identified contaminants, shall be used in be considered in interpreting the test
the water-column component of the bioaccumulation tests if any are results and making the factual
environment may be required to make conducted. The species designated for determinations.
the factual determinations when bioaccumulation tests may be one or (f) Water-column bioassayprotocoL
concentrations in the elutriate of the more of those used in the bioassay. An ccute bioassay will be used to
ediment to be discharged are (ii) Benthic bioassay protocol. Results compare survival in the unfiltered
:ubstantively greater than of a benthic bioassay will be used to eluiriate from the material to be dredged
concentrations in the composite sample compare survival in sediment from the with survival in an unfiltered composite
of the receiving water and either the dredging site with survival in a sample representing the entire water-
calculation of a mixing zone using the sedimentologically similar reference column at the disposal site. The location
appropriate water quality standards or substrate from within or near the and number of sampling stations and
criteria does not provide sufficient disposal site. If survival of the test replicates shall be designed specifically
information to make an assessment of organisms is similar, then no increased for the dredging and disposal sites being
water-column impacts or the receiving toxic effects to the benthic community evaluated. Test results shall be used to
water concentration exceeds the should result from the discharge. Should determine whether, after consideration
standard or criterion, making dilution to statistically significant decreases in of mixing, the discharge will cause a
this standard or criterion impossible. survival in the dredged material be substantive increase in toxic effects in
Such further testing for water-column observed, then the permitting authority the water-column at the disposal site. If
effects will consist of a water-column will assess thesubstantive effects of the the survival of test organisms is similar
bioassay conducted according to contaminated discharge in making the in the elutriate and receiving water, then
� 230.62(f). No further testing for
contaminants is required to make the factual determinations. increased toxic effects in the water-
factual determinations for all other (iii) Bioaccumulation protocol, The column should not result from the
situations, except as provided in bioaccumulation potential of those discharge. Should statistically
230.60(b)(1). contaminants identified in the initial significant decreases in survival in the
(e) Category 4. Open Water Discharge evaluation procedures of � 230.61 or in elutriate be observed, then the mixing
With Potential for Harm. Uncontained previous tests shall be assessed by zone will be calculated based on the 96-
or unconfined dredged material will be comparing the -concentrations in the hour LC 50 of the elutriate from the
assigned to Category 4 when the initial tissues of the designated organism bioassay results.
evaluation indicates the dredged exposed to the sediments to be dredged (1) Selection of appropriately
material contains biologically available with the concentrations in the tissues in sensitive organisms. The sensitivity of
contaminants in amounts which have the same species exposed to a the water-column bioassay is dependent
the potential for substantive sedimentologically similar reference primarily on the selection of appropriate
environmental harm. The Category 4 substrate from within or near the species. Test species should be
evaluation considers possible effects on disposal site. Bioaccumulation potential representative of animals in the aquatic
both the benthic and water-column is indicated when the concentrations of community at the site of the proposed
components of the aquatic environment. the contaminants in the tissue of the discharge. Test organisms should be
(1) Benthic assessment. The required organisms exposed to the sediments to selected from appropriately sensitive
tests are a benthic bioassay and an be discharged are significantly greater aquatic species. A minimum of one
investigation of bioaccumulation statistically than those concentrations in vertebrate and one invertebrate aquatic
potential. Due to the infant state-of-the- the tissues of the organisms exposed to species shall be used.
art in bioaccumulation procedures and the reference substrate. Where there is (2) Mixing zone determination. The
the technical uncertainty in the bioaccumulation potential, the size of the mixing zone will be
ecological interpretation of permitting authority must assess the calculated pursuant to �230.64 such that
bioaccurnulation data, the permitting substantive effects of the contaminated the perimeter is defined by 0.01 of the

B-32

Federal Register / Vol. 45, No. 249 / Wednesday, December 24, 1980 / Proposed Rules 85367

lowest 96-hour LC 50 observed in the the mixing zone, limitations must be obstructions, salinity, or density profiles
bioassay. placed on its size, shape, and location. at the disposal site,
(3) Need for additional testing. No Also, factors that will contribute to (v) Discharge vessel speed and
further testing for contaminants in water degradation other than direction if appropriate;
relation to the water-column component unacceptable levels of contaminants (vi) Time to empty vessel or length of
of the environment is required to make must be limited, The permitting discharge;
the factual determinations, except as authority shall consider each (vii) Ambient concentration of
provided in � 230-60tb)(1). contaminant identified as present within contaminants;
the dredged material in light of its (viii) Dredged material characteristics,
� 230.63 Detailed evaluation, Including potential effect upon any element of particularly concentrations of
possible testing, of fill material. water quality prescribed in applicable constituents, amount of material, types
Based on the outcome of the initial water quality standards or criteria. Such of material (sand, silt, clay, etc.), and
evaluation made pursuant to � 230.61, standards or criteria may establish settling velocities;
natural or man-made material from specific numerical limitations upon the (ix) Rate of discharge;
upland sources proposed for discharge permissible concentration of the (x) Number of discharge actions per
as fill will be assigned to one of two contaminant itself and/or upon the unit of time; and
categories for technical evaluation. extent to which the discharge may Iter (xi) Other characteristics of the
Dredged material used as fill will be a specified parameter of water qua ity disposal site that affect the rates and
evaluated under � 230.62. after interaction of the contamin t with patterns of mixing.
(a) Category 5.- Discharge without ambient water (for example, BO or (FIR Doc. 80-40002 Filed 12-23-80; 8:45 aml
Potentialfor Environmental DO). BILLING CODE 6560-29-M
Contamination. Discharge of fill (a) Mixing zone calculations. The
material falls into Category 5 when the perimeter of the mixing zone shall be
initial evaluation does not indicate the defined by the applicable water quality
presence of contaminants in the fill standard of the contaminant requiring
material above background levels or the- greatest dilution volume, or by 0.01
when such contaminants will be of the lowest 96-hour LC 50 when a
adequately contained to prevent water-column bioassay has been
leaching and/or erosion. No chemical or conducted.
biological testing is required to make the (1) One of the following methods
factual determinations. (provided in order of preference) shall
(b) Category 6: Discharge of Fill be used to determine the volume and
Material with Potential for conformation of the zone required to
Environmental Contamination. achieve dilution and dispersal of
Discharge of fill material falls into contaminants to numerical limitations
Category 6 when the � 230.61 initial specified in Federal or State water
evaluation indicates contaminants may quality standards or to 0.01 of the lowest
be present in the fill material above 96-hour LC 50, as indicated above. *
background levels and the permitting (i) When field data on the proposed
authority determines that there is a discharge are adequate to predict the
potential for leaching. The water initial dispersion and diffusion of the
leachate test is appropriate. discharge plume, such data shall be
(1) TestingprotocoL Samples of the used; or
fill material will be subjected to a water (ii) When field data orr the dispersion
leachate test. From this testing the and diffusion of a discharge with similar
permitting authority shall determine characteristics are available, these data
whether the concentration of each shall be used in conjunction with an
contaminant identified during the appropriate mathematical model
� 230.61 evaluation is substantially (acceptable to the permitting authority)
greater than the appropriate existing to make the required determination; or
Federal or State water quality standard. (iii) When the above methods are
No dilution factor or mixing zone impractical, due to inadequate field data
determination shall be considered. or the unavailability of an appropriate
(2) Needfor additional testing. No mathematical model, the zone of dilution
further testing for contaminants of and dispersion may be estimated by
concern is required to make the factual assuming particular geometrical shapes
determinations, except as provided in for the disposal plume.
� 230.60(b)(1). (2) Factors important in determining
� 230.64 Mixing zone determinations. the shape and trajectory of the
discharge plume and the volume of the
A limited mixing zone, serving as a zone of dilution and dispersal include
zone of initial dilution and dispersion in the following:
the imnfediate vicinity of the discharge (i) Surfare area and water depth at
point for dredged material, is allowed the disposal site-,
unless specifically prohibited by (ii) Current velocity, direction and
applicable water quality standards. variability at the disposal site;
Because water quality standards (iii) Degree of turbulence;
regarding concentrations of (iv) Stratification attributable to
contaminants may be exceeded within causes including but not limited to

B-33

Monday
May 191 1980

Part,x

Environmentat'-
'Protection Agen
Consolidated Pemdf-IROulaffahi
@

B-34

Ma W Rule and Re9dations
'L 0. 08 T'Vbnft@-
Fed6M Regist6i@ Vo -45i.N' s 33377
PART 123-STATE PROGRAM pursuant 'to State laviflie exception. substantially modified shi6 these
REQUIR]MUNM discussed below. concerns the statutory programs would have no "track-record."
requirement under RC,RA that State Moreover. past performance is not as
A VMat Does Thto Pbd W
hazardous waste programs, be important to EPA as expected future
This Part establishes the req *=n@ "consistent" with other approved State performance. The Agency -does not -
for State RCRA. UIQ,NPDES, arnd programs and with the Federal intend to disapprove all State programs
programs and the process for approval. program.) - which have had problems in the past. It
revision. and withdrawaLof these State @ Many of the comments EPA received views the decision whether or not to
programs. It also establishes guideliner on proposed'Part 173 objected to this approve a State.program as being
for EPA overview of these programs." scheme of setting ininimunt forward looking: the Agency is primarily
including the requirement for a - requirements forState programs and concerned that the program be effective
Memorandum'of Agreement between - allowing States: flexibility to implement in the future.4
EPA and the State. Although State , those requirement& Some commenters Finally. all three of the statutes
programs are established and operated felt.that the requirements for State- authorizing the State programs covered
under State law, approved State RCRA. program were too detailed and-, by this Part contemplate specific criteria
UIC.;NPDES, and 404 programs also inflexible and that EPA should simply for State programs (see CWA section
Implement Federal law and operate in approve "effective" State programs.' On 101(e), 402(b), 404(h), and 304(ik, RCRA
lieu of Federally admini tered programs. the other hand. many national sections 3006(a) and 7004(b), and SDWA
A permit issued by a State under State, companies favored nationally uniform section 1421). There is a growing body of
law after its program has been approved requirements and raised objections to case law which suggests that in the
satisfies the Federal permit requi e allowing flexibility among the States. absence of specific requirements EPA
Under the CWA., EPA retains th t to After careful consideration. EPA rejects would not be able to deny a State's
object to ("veto-) NPDES and 404 both the suggestiodthat State program request for approval.
permits proposed to be issued by requirements should be totally flexible On the other hand. EPA rejects the
approved- States. Part 123 contains the and the suggestion that they be much suggesti.on that State programs be
procedures for EPA objection to these more rigid.. nationally uniform (i.e., that they should
permits. EPA believes that numerous problems meet all the requirements of Parts 122
.- - Part-in is divided. into a general would occurif it were to simply approve and 124). The Agency he& carefully
subpart (Subpart A) and five program ..effective@' State programs without analyzed each of the Part 122 and Part
specific subparts (Subparts B-F). Unless setting minimum requirements. First, 124 requirements to determine which are
expressly indicated. the requirements of since many States are presently working essential to State programs.. In
Subpart A are generally applicable to all on developing programs, setting specific evaluating which requirements the State
of the State Programs covered by this minimum requirements enables these should adopt, EPA employed the
Part. except State RCRA programs under States to know with certainty whether fouowu*ig an'teria:
interim authorization; their requirements their program will be approvable. For (1) Is the requirement necessary to
are contained solely in Subpart F. example, State A-is working on a. protect public health and the
Subparts B, C, D and'E provide program- hazardous waste statute. A enviropment?,
specific requirements additional to those coniroversial aspect of this legislation Is (2) Is there a need for national
of Subpart A for the RCRA final the level of penalties and fines for uniformity with respect to the
authorization. UIC, NPDES, and 404 program violations. By specifically req re nt?,'. ,
rograw ., respectively, establishing the minimum levels of fines ui Is m9e requirement necessary to
p C3)
The procedures for issuing, permits, as, for State programs in Part 123, EPA has promote a programmatic goal? (e.g- to
well as the minimum technical % given clear guidance. A requirement pro-mote public. participation): and
requirements for such permits, are only. of "effectiveness," which is subject (4) Is the requirement necessary under
incorporated Into the requirements for to multiple interpretitions, would Federallaw for State progiams? (e.g., 5-
State program by.cross-references to subject the State to the risk of year permit.terms for NPDES- and 404
other provisions of EPA regulations. Fol disapproval by EPA unless it enacted permits).
example. many of the permit : . legislation identical ip the Federal law. Many of the procedures'of Parts 122
requirements contained in Part 122. It would be most difficult for the- and 124 do not meet these criteria,. and
which is applicable in full. to EPA- Agency to approve pTograms based on therefore have not beenz made'
..administered permit programs, M !.effectiveness." To generate a record applicable to State programs. For.
applicable to State program through that a State program is "effective" example, while*the Agency'believes that.
cross-references in Part 123. Because which would withstand judicial fact sheets, draft permits, and 30 day
EPA does not issue Section 404 permits scrutiny, EPA would have to look mu public comment periods are necessary
(these are issued by the Corps of - @ - Ibeyond, the State's submission for to ensure the opportunity forpublic
Engineers in the absence of an approved] *approval. Moreover, unless EPA participat Iion (an explicit goal of Federal
State program), Part 122 does not established standards on which to judge environmental programs), it does not
.contain a subpart devoted solely to 404 whether the program was effective, it
permitting. Instead. Part 123t Subpart E -would be difficult to justify approving in this regard. them was one place in the
@contains the additional permit one State's program and denying proposed regulations where the Agency suggested
processing requirements applicable to anothees. These regulations establish that past performance in enforcement would be a
- State 404 programs. the specific criteria which are needed In factor in evaluating State RCMA programs ("a the
Coniment after proposed I 123-34(d)). This Pfovision
With one major exception, the irder to make and justify these'approval was strongly criticized by a large number of
requirements of Part 123 represent the- decisions. commenters who felt that past performance is not a
rem nt,,
e rin

-atinimum requirements which States in addition. because decisionmaking relevant factor in evaluating a State program, While
.must meet to qualify for approval. States based on effectiveness relies primarily EPA believes that past performance can be that the
sm, it considered. it agrees with the commenters
;are allowed some flexibility in how they bri-ilie past performance of a progr decision whether or not to approve a State program
Implement these requirements and are would be particuldrly difficult to judge is forward looking and that past performance
fie@e to impose more stringent controls. State programs which are new or should not be the only or prime decision factor.

B-35

33378 Federal Register VoL 45 No.98 Monday May19, 1980 Rules and Regulations.

believe that the process for.
administrative appeals,of permits,need.
to be uniform. Indeed most States have
their own administrative procedures
acts and there were no comments
suggesting that these were inadequate.

B-36

STATE 404 PROGRAMS -PERMIT APPLICATION REVIEW. PROCESS
2'0 30 so 90 days

Receipt of complete permit application fdraft permit where required) by E.P.A.
(also sent to F.W.S., C.O.E., N.M.F.S.).

Deadline for C.O.E., F.W.S., N.M.F.S., notice to E. P.A. of intent to
comment.

V
Notice from E.P.A. to State of intent to,comment, or of reser ation
of rioht to.object. (Request for preparation of draft nermit or@ additional information),
004 Deadline for C.O.E., F.W.S., N.M.F.S., to submit
written comments to E.P.A.- - (may be a 30 day extension).

Deadline for lt.O.A. to submit written
0
comments to State# State reviews z
E.P.A. comments. P
to

If an objection has been submitted by EPA if no objection has been submitted by EPA

state process (approved St.-k 404 or

EPA public hearing (request within 90 days of objection) No request for public hearing'

State does not resubmit a State resubmit$ application to meet State does not resubmit application State resubmit$ application to meet
P fA
to most EPA objectiont wi EPA objections within 30 days after to meet EPA objections within 90 EPA objections within 90 days
days after EPA decision ZPA deciiion days of objection of objection r6
plication
thin 30

Corps of Engineers itai6 process JvI4 approved state 404 program I
(Federal 404 process)

DENY

33404 Federal Register / Vol. 45, No. 98 / Monday, May 19,1980 Rules and Regulations

404 PROGRAM SUBMISSION AND APPROVAL PROCESS

RECEIPT OF STATE SECTION
404 PROGRAM SUBMISSION

SUBMISSION MUST CONTAIN 3 COPIES OF THE FOLLOWING

� LETTER FROM THE GOVERNOR REQUESTING PROGRAM APPROVAL
� COMPLETE PROGRAM DESCRIPTION
ATTORNEY GENERALt STATEMENT
� MEMORANDUM OF AGREEMENT WITH THE REGIONAL ADMINISTRATOR
� MEMORANDUM OF AGREEMENT WITH THE SECRETARY
COPIES OF STATE STATUTES AND REGULATIONS

ADMINISTRATOR PROVIDES COPIES OF STATE'S
SUBMISSION TOC.O.E., F.W.S.,N.KF.&
WITHIN 10 DAYS OF RECEIPT

NOTI FIES STATE WITHIN 30 DAYS OF RECEIPT
.F WHETHER SUBMISSION IS COMPLETE

ONCE COMPLETED SUBMISSION IS RECEIVED F-P.A.
PUBLISHES PUBLIC NOTICE OF STATE'S APPLICATION

NOTICE MUST INCLUDE

COST OF OBTAINING A COPY OF STATE'S SUBMISSION
WHEN AND WHERE STATE'S SUBMISSION MAY BE REVIEWED
BY THE PUBLIC
WHO THE PUBLIC SHOULD CONTACT WITH QUESTIONS
OUTLINE OF FUNDAMENTAL ASPECTS OF STATE'S PROPOSED
PROGRAM AND E.P.A. 's REVIEW AND DECISION PROCESS
NOTICE OF PUBLIC HEARING, AND 45 DAY COMMENT PERIOD
t
F
PUBLIC HEARING

HELD NO LESS THAN
30 DAYS AFTER NOTICE
-f -

45 DAYS AFTER NOTICE
IF STATE SUBMISSION IS COMMENT PERIOD OF NO LESS T
CHANGED, REVIEW PE I
BEGINS UPON RECE STATE AND E.P.A. MAY
OF REVISED SUBMI I N EXTEND REVIEW PERIOD
ADMINISTRATOR APPROVES OR
DISAPPROVES OF PROGRAM WITHIN 120 DAYS
OF RECEIPT OF COMPLETE PROGRAM SUBMISSION

DISAPPROVES APPROVES
0" 101-.11

NOTIFY STATE OF REASONS FOR ADMINISTRATOR NOTIFIES STATE AND
DISAPPROVAL AND ANY MODIFICATIONS PUBUSHES NOTICE IN THE FEDERAL REGISTEVIRIk
OR CHANGES NECESSARY FOR APPROVAL

ISLUNG Com &W"I-c

B-38

33418 Federal: Register /Vol. 45,No. 98/ Monday,May 19 1980/ Rules and Regulations
Subpart C-Additonal Requirements for (i) The Hazardous Waste
Underground Injection Control Programs. Management (HWM) Program under
Underthe Safe Drinking Walter Act Subtitle C of the Solid Waste Disposal
Sec. Act, as amended by the Resource
122.31 Purpose and scope of Subpart C. Conservation and Recovery act of 1978
I22.32 Classification of injection wells.
I22.33 Prohibition of unauthorized injection. (RCRA Pub. L 94-580, as amended by
122-34 Prohibition of movement of fluid into Pub. L 95-609 42 U.S.C. 6901 et seq.)
derground sources of drinking water. (ii) The Underground Injection Control
I22.35 Identification of underground sources (UIC) Program under Part C of the Safe
of drinking water and exempted aquifers, Drinking Water Act (SDWA) (Pub. L
122.36 Elimination of certain Class IV wells. 905-523, as amended by Pub. L 95-190;42
137 Authorization of underground
injection by rule. U.S.C. � 300f et seq
122.38 Application for a permit; (iii) The National Pollutant Discharge
authorization by permit. Elimination System [NPDES) Program-
12239 Area permits. under sections 318,402 and 405(a) of the,
122.40 Emergency permits Clean Water Act [CWA) Pub. L 92-500
122.41 Additional conditions applicable to as amended by Pub. L 95-217 and Pub
all UIC permits. L95-576;33U.S-C.� 1251 et seq.
122-42 Establishing UIC permit conditions. (iv) The Dredge or Fil1 (404) Program,
122.43 Waiver of requirements by Director. under section 404 of the. clean Water:
122.44 Corrective action Act and
122.45 Requirements for wells injecting
hazardous waste. (v) The Prevention of Significant
PART 122q-EPA ADMINISTERED Subpart D-Additional Requirements for Deterioration (PSD) Program under
PERMIT PROGRAMS: THE NATIONAL National Pollutant Discharge Elimination regulations implementing section 165 of
POLLUTANT DISCHARGE - System Programs under the Clean Water the Clean Air Apt [CAA), as amended.
ELIMINATION SYSTEM; THE Act (Pub. L 88-206 as amended: 42 U.S.C.
HAZARDOUS WASTE PERMIT 122-51 Purpose and scope of Subpart D 7401 et seq.) -
PROGRAM; AND THE UNDERGROUND 122.52 Prohibitions. (2) For the RCRA, UIC, and NPDES
INJECTION CONTROL PROGRAM 122.53 Application for a permit programs, these regulations cover basic
122.54 Concentrated animal feeding EPA permitting requirements (Part 122).
Subpart A-Definitions and General operations. what a State must do to obtain approval
Program Requirements 122.55 Concentrated aquatic animal to operate its program in lieu of a
production facilities. Federal program and minimum
Sec. 122.56 Aquaculture projects.
122.1 What are the consolidated permit 122.57 Separate storm sewers. requirements for administering the
regulations? 122.58 Silvicultural activities. approved State program (Part 123). and-
122.2 Purpose. and scope of. Part 122_ 122.59 General permits. procedures for EPA processing of permit
122.3 Definitions. 122.60 Additional conditions applicable to applications and appeals (Part 122). For
122.4 Application for a permit all NPDES permits. the 404 program, these regulations
122.5 Continuation of expiring permits. 122.61 Additional conditions applicable to include only the requirements which
122.6 Signatories to permit applications and specified 'categories of NPDES permits. must be met for a State to administer its,
reports. - 122.62 Establishing NPDES permit own program in lieu of the US. Army,
122.7 Conditions applicable to all permits. conditions. Corps of Engineers in -State -regulated
122._8 Establishing permit conditions. 122.63 Calculating NPDES permit
122.9 Duration of permits. conditions. waters," and provisions for EPA vetoes
122.10 Schedules of compliance. 122.64 Duration of certain NPDES permits. of State issued 404 permits. For I *he PSD
122.11 Requirements for recording and 122.65 Disposal of pollutants into wells, into program, these regulations cover only
reporting of monitoring results. publicly owned treatment works or-by procedures for EPA processing of PSD
122.12 Considerations under Federal law. land application. permits in Part 124.
122.13 Effect of a permit 122.66 New sources and new dischargers. (b) Structure. (1) Coverage of Parts.
122.14 Transfer of permits.
122.15 Modification or revocation and Appendix A to Part 122-NPDES Primary These consolidated permit regulations
reissuence of permits. Industry Categories. are incorporated into three Parts of Title
122.16 Termination of permits. Appendix B to Part 122-NPDES Criteria for 40 of the Code of Federal Regulations.
122.17 Minor modifications of permits. Determining a Concentrated Animal (i) Part 122. This Part contains
122.18 Noncompliance and program Feeding Operation (122.54). definitions for all of the programs except
reporting by the Director. Appendix C to Part 122-NPDES Criteria for PSD. It also contains basic permitting
122.19 Confidentiality of information. Determining a Concentrated Aquatic requirements for EPA-administered
Animal Production Facility (1122-55).
Subpart B-Additional Requirements for Appendix D to Part 122-NPDES Permit RCRA. UIC, and NTDES programs, such
Hazardous Waste Programs Under the Application Testing Requirements as application requirements. standard,.-
Resource Conservation and Recovery Act 122.53). permit conditions, and-monitoring and.
122.21 Purpose and scope of Subpart B. Authority- Resource- Conservation and reporting requirements. -
122.22 Application for a permit. Recovery Act. 42 U.S.C.6901 et seq.; Safe (ii) Part 123. This Part describes what
122.23Interim status. Drinking Water Act 42 U.S.C. I 300f et seq.; States must do to obtain EPA approval
122.24 Contents of Part A of the RCRA and Clean Water Act, 33 U.S.C. 11251 et seq. of their RCRA. UICL NPDES, or 404
permit application. programs. It also sets forth the minimum.
122.25 Contents of Part B of the RCRA Subpart A-Definitions and General requirements for administering these
permit application. Program Requirements permit programs after approval.
122.26 Permits by rule. (iii) Part 124. This Part establishes the,
122.27 Emergency permits. 122.1 What are the consolidated permit procedures for EPA issuance of RCRA.
122.28 Additional conditions applicable to regulations? UIC, NPDES, and PSD permits. It also
all RCRA permits.
122.29 Establishin RCRA permit (a) Coverage. (1) These consolidated establishes the procedures for
conditions. permit regulations include provisions for administrative appeals of EPA permit
122.30 Interim permits for UIC well& five permit programs: decisions

B-39

Federal Register / Vol. 4s. No- 98 1 Monday, May 19, 1980 Rules and Regulations 33419

(2) Subparts. Parts 122 123, and 124 signaled by the following words at the State RCRA programs under final
are each organized into subparts. Each end of the section or paragraph heading: authorization be consistent with the
Part has a general Subpart A which (applicable to State programs, see Federal program and other State
contains requirements that apply to all 123.7). If these words are absent the programs)-
the programs covered by that Part. section (or paragraph) applies only to 122.2 Purpose and scope of Part 122.
Additional subparts supplement these EPA-administered permits. (a) Subpart A of Part 122 contains
general provisions with requirements (4) The structure and coverage of definitions (� 122.31 and basic permitting
which apply to one or more specified these regulations by program is requirements ( 122.4 through 122.19).
.programs. In case of any inconsistency indicated in the following chart. A Definitions are given for the RCRA, UIC,
between Subpart A and any program- permit applicant or permittee that is NPDES, and State 404 programs.
specific subpart, the program-specific interested in finding out about only one Definitions for EPA processing of PSD
.subpart is controlling, of the programs covered by these permits are in Part 124, Subpart C. The
(3) Certain requirements set forth in regulations can use this chart to permitting requirements apply to EPA
Parts 122 and 124 are made applicable to determine which regulations to read. If a administered RCRA. UIC, and NPDES
approved State programs, including State is the permitting authority, the programs. (Permit program requirements
State 404 programs. by reference in Part applicant or permittee should read the for the Federal 404 program
123. These references are set forth in State laws and program regulations administered by the Corps of Engineers
6 123.7. If a section or paragraph of Parts which implement the requirements of do not appear in these regulations but
2 or 124 is applicable to. States, Part 123 for the relevant program. are found in 33 CFR Parts 320-327.) In
through reference in 123.7. that fact is addition. the permitting requirements
apply to State-administered RCRA. UIC,
Program coverage NPDES, and 404 programs to the extent
Part 122 Part 123 Part 124 specified by cross-reference in � 123.7.
(b) Subparts A C, and D contain
RCRA Subparts A and B Subparts A,B.E, . and F Subparts A,B,E and F. additional requirements for RCRA. UIC
UNC Subparts A and C Subpart A and C Subpart " A and F.
NPOES Subparts A and D Subpart A and D Subparts A. D, E_ and F. and NPDES permitting, respectively.
Subpart A and E Subpart A They apply to EPA. and to approved.
Subparts A, C, F. States to the extent specified by cross-
reference in 1123.7.
(c) Relation to other requirements(1) these consolidated permit regulations 122.3 Definttions.

Consolidated permit application forms.- each have separate additional The following definitions. apply to
.Applicants for EPA issued RCRA Part regulations that contain technical Parts I22 123, and 124, except Part 124
A. UIC NPDES. or PSD permits and requirements for those program These coverage of the PSD program (see
persons seeking interim status under separate regulations are used by permit- 124.2). Terms not defined in this
RCRA must submit their applications on issuing authorities to determine what section have the meaning given by the
EPA: consolidated permit application requirements -must be placed in permits appropriate Act When a defined term
forms when available. (There will be no if they are issued. These separate appears in a definition. the defined term
form for RCRA Part B applications and regulations are located as follows:. is sometimes placed within quotation
therefore EPA application form is RCRA. 40 CFR parts 280-266 marks as an aid to readers. When a
.used. See I 122.25) These forms, like UIC- 40 CFR Mark 146.
NPDES_ 40 CFR Parts 125 129, 133, 136. definition applies primarily to one or
these consolidated regulations. contain 40 CFR Sub&chapter N (Parts 400-480 more programs.. those programs appear
a general form covering all programs 404 40 CFR Part 236
PSD-.- 40 CFR Part 52 in parentheses after the defined term.
.Plus several program-specific forms. Acidizing UIC means the injection of
Although application forms have been (d) Authority. The consolidation of acid through the borehole or well" into
.consolidated. they, like permits, have these permit programs into one, set of a formation" to increase permeability
been coordinated without losing their regulations is authorized by sections and porosity by dissolving the acid-
separate legal identities. There is no 101(f) and 501(a) of CWA. sections 1006 soluble portion of the rock constituents
consolidated permit," Each permit and and-2002 of RCRA. section1450 of the. Admistrator means the
application under a program is a SDWA. and section 301 of the CAA. Administrator of the United States
separate document Mast of the, (a) Public participation This rule Environmental Protection Agency, or an
Information requested on these establishes the requirements for public authorized representative.
application form (other then Form S for participation EPA and State permit Applicable standards and limitations
PSD) is required by these regulations. issance enforcement, and related- NPDES meansc all State interstate, and
The essential informnation required in variance proceedings and in the Federal standards and limitations to
the general form (Form l is listed in *approval of State RCRA. UIC, NPDES. which a -discharge" or a related activity
122.4 The additional information and 404 program& These requirements is subject under the CWA. including
;required for RCRA Part A applications carry out the purposes of the public "effluent limitations," water quality
form 3) is listed in 122.24 for UIC participation requirements of 40 CFR standards, standards of performance,
applications (Form 4) in 122.37. and for Part 25 (Public Participation), and foxic effluent standards or prohibitions,
NPDES applications (Forms 2a-d) in supersede the reqiurements of that Pad "best management practices," and
122.53 Applicants for State-issued as they apply. to actions covered, under pretreatment standards under sections.
permits must use State forms which Parts 122, 123. and 124. 301. 302 303. 304, 306 307, 308 403. and

must require at a minimum the (f) State authorities. No thing in Parts 405 of CWA.
information listed in these sections. All 122,123, or 124 precludes more stringent Application means the EPA standard
information requirements for State regulation of any activity covered national forms for applying for a permit.
State 404 permit applications appear. In by these regulations, whether or not including any additions, revisions or
123.94 under an approved State program, modifications to the forms; or forms
(2)Technical regulations. The Five except as provided for the, RCRA approved by EPA for use In -approved
permit programs which are covered in program In 123.33 (requirement that States." including any approved

33420 Federal Register-/ Vol. 45, No. 98- Monday,- May 19, 1980 Rules and Regulations

modifi cations or revisions. For RCRA, Management facility" pursuant to the of the United States" from any "point.
application also includes the requirements of 40 CFR Part 264. source,.. or
information required by the Director Contaminant CUIC) means any (2) Any addition of any pollutant-ot
under 1122.25 (contents of Part B of the physical, chemical, biological, or combination of pollutants to the waterg
RCRA application). - radiological substance or matter in of the "contiguous zone" or the ocean:
Appropriate Act and regulations water. from any point source other than a
means the Clean Water Act (CWA); the Contiguous zone [NPDES) means the vessel or other floating craft which is
Solid Waste Disposal Act, as amended entire zone established by the United being used as a means of transportation.
by the Resource Conservation and States under Article 24 of the (b) This definition includes additions-
Recovery Act (RCRA); or Safe Drinking Convention on the Territorial Sea and of pollutants into waters of the United -
Water Act (SDWA). whichever is the Contiguous Zone. States from: surface runoff which is
applicable; and applicable regulations Continuous discharge (NPDES) means collected or channelled by man;
promulgated under those statutes. In the a "discharge" which occurs without discharges through pipes. sewers, or
case of an "approved State program" interruption throughout the operating other conveyances owned by a State,
appropriate Act and regulations hours of the facility, except for municipality, or other person which do
includes State program requirements. infrequent shutdowns for maintenance, not lead to a treatment works, and
Approvedprogram or approved State process changes, or other similar discharges through pipes, sewers, or
means a State or interstate program activities. other conveyances leading into privately
which has been approved or authorized CWA means the Clean Water Act owned treatrnent works.
by EPA under Part 123. - (formerly referred to as the Federal . This term does not include an addition
Aquifer (RCRA and UIC) means a Water Pollution Control, Actor Federal of pollutants by any "indirect.
geological."formation,". group of * Water Pollution Control Act . @ discharger."
formations, or part of a formation that Is Amendments of 1972) Pub. L 92-500, as Dischaige MonitorkgReport
capable of yieldinga significant amount amended by Pub. L 95-217 and Pub. L ("DMR") (NPDES) means the EPA
of water to a well or spring. 95-576; 33 U.S.C. 11251 et seq. uniform national form including any
. Area of reviw (UIC) means the'area' Daily discharge (NPDS) means. the subsequent additions, revisions, or
surrounding an 'injection well" "discharge of a pollutant" meansured modifications, for the reporting of self-
described according td.the @Aterla set during a calendar day or any 24-hour monitoring results by permitees. DIARi
forth in-I iam. period that reasonably represents the must be used by "approved States" as..
A verage monthly discharge limitation calendar day for purposes of sampling. well as by EPA. EPA will supply DMRs
LNPDES) means the highest allowable For pollutants with limitations to any approved State upon request. The
average of "daily discharges" over a expressed in units of mass, the '@daily EPA national forms may be modified to
calendar month. calculated as the sum discharge" is calculated as the total substitute the State Agency name,
of all daily discharges measured during mass of the pollutant discharged over address, logo, and other similar @
a calendar month divided by the number 'the'day. For pollutants with- limitations. information, as appropriate, in place of
.-of daily discharges measured during that expressed in other units of EPA's.
month. measurement, the "daily discharge" is Dischorgeof &vdged material (404).
A verage weekly &scha'rse Limitation calculated as the average measurement means any addition from any "point
(NTDES) means the highest allowable of the pollutant over the day. source" of "dredged material" into.
average - oV'dailydischarges" overa Direct discharge. (NPDES) means the "waters of the United Statei.- 71w term'
calendar week. calculated as the sum of "discharge of a pollutant.". . includes the addition of dredged - -
all daily discharges measured during a Director means the Regional material into waters of the United' States
calendar week divided by the number of Administrator or the State Director, as and the runoff or overflow from a
daily discharges measured during that the context requires, or an authorized contained land or water dredged
week. representative. When there is *no material disposal area. Discharges of
Best monogement practices ("BMPs") ."approved State program," and there is pollutants into waters of the United
(NPDES and 404) means schedules of an EPA administered program, States resulting from the subsequent
activities. prohibitions of practices., "Directoe' means the Regional onshore processing of dredged material
maintenance procedures, and other Administrator.- When there is an are not included within this term and
management practices to prevent or approved State program, "Directoe' aib subject to the NPDES program even
reduce the pollution of "waters of the normally means the State Director. In though the extraction and deposit of .
United States." For NPDES, BMPs also some circumstances, however, EPA such material may also require a-permit-
include treatment requirements, . -retains the authority to take certain from the Corps of Engineers or theState
operating procedures, and practices to actions even when there is an approved section 404 prograrn.
control plant site runoff, spillage or State program. (For example, when EPA JPi-_ Discharge offill material (404) means
leaks, sludge or waste disposal, or has issued an NPDES permit prior to the the addition from any "point source" of
drainage from isw material storage.*For approval of a State program. EPA may- "fill material" into "waters of the United
State 404 programs, BMPs also include retain jurisdiction over that permit after States."The term Includes the following:
methods, measures, practices, or design program approvaL- "am I mn.) In such activities in waters of the United'Stater. @
and perfor-MaTice standards, which. r" m eans the placement of flU that is necessazy%for Ibi
cases, the term "Directo
facilitate compliance with section Regional Administrator mind not the construction of 7any structure: the-
400)(1) environmental guidelines (40 S.tate-Director. building of any structure or
CFR Part 23p), effluent limitation's or .,- Discharge (NPDES) when used Impoundment requiring rock. sand. dirt,
prohibitions under section 307(a). and without qualification means the or other materials for its conshWfiom_ -
applicable water quality standards. "discharge of a pollutant." - site-development fills for reareationaL 4
BMPs (NPDES and 404) means "best DischaMe of a pollutant [NPDES) industriaL commerciaL residenW.LL an&..;
management practices." means: other us@c causeways or road ffils;
Closure (RCRA) means the act of . (a)(IL) Any addition of anyz"PollutanV. dams and dikes;- artificial JsLwds;
securing a "Hazardous Waste or combination of p4atentsto -waters property protection,and/or reclamation,,

B-41

Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33421

devices such as riprap. groins, seawalls, Effluents (404) means "dredged Final authorization (RCRA) means
breakwaters, and revetments; beach 71 Imaterial" or "fill material," including approval by EPA of a State program
nourishment; levees-, fill for structures return flow from confined sites. which has met the requirements of
such as sewage treatment facilities. Emergency permit means a RCRA. � 3006(b) of RCRA and the applicable
intake and outfall pipes associated with UIC, or State 404 "permit" issued in requirements of Part 123, Subparts A
power plants and subaqueous utility accordance with � � 122.27, 122.40 or and B.
lines; and artificial reefs. 123.96, respectively. Fluid (UIC) means any material or
Disposal (RCRA) means the Environmental Notection Agency substance which flows or moves
discharge, deposit injection, dumping. ("EPA") means the United States whether in a semisolid, liquid. sludge,
spilling. leaking, or placing of any Environmental Protection Agency. gas, or any other form or state.
"hazardous waste" into or on any land EPA means the United States Formation (UIC) means a body of rock
or water so that stich hazardous waste "Environmental Protection Agency." characterized by a- degree of lithologic
or any constituent thereof may enter the Exempted aquifer (UIC) means an homogeneity which is prevailingly, but
environment or be emitted into the air or "aquifer" or its portion that meets the not necessarily, tabular and is mappable
discharged into any waters, including criteria in the definition of "underground on the earth's surface or traceable in the
ground water. source of drinking water" but which has subsurface. '
Disposal facility (RCRA) means a been exempted according to the Formation fluid (UIC) means "fluid"
facility or part of a facility at which procedures in � 122.35(b). present in a "formation" under natural
"hazardous waste" is intentionally Existing HWMfacility (RCRA) means conditionis as opposed to introduced
placed into or on the land or water, and a facility which was in operation or for fluids, such as "drilling mud."
at which hazardous waste will remain which construction had commenced, on Generalperrnit (NPDES and 404)
after closure. or before October 21, 1976. Construction means an NPDES or 404 "permit"
Disposal site (404) means that portion had commenced if-
of the "waters of the United States" authorizing a category of discharges
enclosed within fixed boundaries (a) The owner or operator had under the CWA within a geographical
obtained all necessary Federal, State, area. For NPDES, a general permit
consisting of a bottom surface area and and local preconstruction approvals or
any overlaying volume of water. In the permits; and means a permit issued under I lZ2.59.
case of "wetland" on which water is not For 404, a general permit means a permit
present. the disposal si .te consists of the (b)(1) A continuous physical, on-site issued under 1123.95.
wetland surface area. Fixed boundaries construction program had begun, jor Generator (RCRAJ means any person.
may consist of fixed geographic point(s) (2) The owner or operator had entered by site location. whose act or process
and associated dimensions, or of a into contractual obligations-Which produces "hazardous waste" identified
discharge point and specific associated cannot be cancelled or modified without or listed in 40 CFR Part 261.
dimensions. substantial loss-for construction of the Ground water (RCRA and UIC) means
DMR (NPDES) means "Discharge facility to be completed within a water below the land surface in a zone
reasonable time.
Monitoring ReporV of saturation.
Draft permit means a document [Note.-This definition reflects the literal Hazardous substance ('NPDES) means
prepared under 1124.6 indicating the language of the statute. However, EPA any substance designated under 40 CFR
Director's tentative decision to issue or believes that amendments to RCRA now in
deny, modify. revoke and reissue, conference will shortly be enacted and will Part 116 pursuant to section 311 of
terminate. or reissue a "Permit" A change the date for determining when a CWA_
facility is an "existing facility" to one no Hazardous waste (RCRA and UIC)
notice of intent to terminate a permit. earlier than May of 198Q indications are that means a hazardous waste as defined in
and a notice of intent to deny a permit, the conferees are considering October 30. 40 CFR � 261.3.
as discussed in 1124.5, are types of 1980. Accordingly, EPA encourages every Hazardous Waste Management
"draft permits." A denial of Er request for owner or operator of a facility which was facility ("HWM facility'l means all
modification, revocation and reissuance, built or under physical construction as of the contiguous land. and structures. other
or termination. as discussed in 1124.5, is promulgation date of these regulations to file
not a "draft permit." A "proposed Pan A of its permit application so that it can appurtenances, and improvements on
permit" is not a "draft permit." be quickly processed for interim status when the land, used for treating, storing. or
the change in the law takes effect. When disposing of "hazardous waste." A
DHIJing mud (UIC) means a heavy
suspension used in drilling an "injection those amendments are enacted, EPA wiR, -facility may consist of several
well." introduced down the drill pipe amend this definitton.] "treatment" "storage," or "disposal-
and through the drill bit. Exisbng injection well (UIC) means operational units (for example, one or
Dredged moterial.(404) means an "injection well" other than a "new more landfills, surface impoundments.
materiat that is excavated or dredged injection well." or combinations of them).
from "waters of the United States." '. Facility or activity means any "HWM HWMfacillty (RCRA) means
Effluent limitation (NPDES) means facility," UIC "injection well." NPDES "Hazardous Waste Management
@any restriction imposed by the Director "point source," or State 404 dredge or fill facility-"
on quantities. discharge rates, and activity, or any other facility or activity Indirect dischaiger (NPDES1 means a
concentrations of "pollutants" which are (including land or appurtenances nondomestic discharger introducing
"discharged" from "point sources" into thereto) that is subject to regulation 44 pollutants" to a "publicly owned,
@"waters of the United States," the under the RCRA..UIC,,NLPDESi or 404 treatment works."
waters of the "contiguous zone," or the programs. . Injection well (RCRA and UIC) means
ocean. . Fill material (404) means any a "well" into which "fluids" are being
Effluent limitations guidelines "pollutant" which replaces portions of injected.
(NPDES) means a regulation published the "waters of the United States". with Injection zone (MC) means a
.by the Administrator under section dry land or which changes the bottom geological "formation," group of
IN(b) of CWA to adopt -or revise elevation of a water body for any formations. or part of a formation
"effluent llmltations.!@' purpose. receiving fluids through a "well."

Federal Register,,/ Vol. 45. No 98/ Monday May 19,1980/ Rules and Regulations
In operation (RCRA) means a facility mobile point source such as an offshore Permit by rule (RCRA means a
which is treaing. storing, or disposing of oil drilling rig, seafood processing rig. provision of these regulations stating
"hazardous waste." seafood processing vessel. or aggregate that a "facility or activity" is deemed to
Interim authorization (RCRA) means plant, that begins discharging at a have a RCRA permit if it meets the
approval by EPA of a State hazardous location far which it does not have an requirements of the provision.
waste program which has met the existing permit. Person means an individual,
requirements of 3000(c) of RCRA and New HWM facility (RCRA)means a association, partnership, corporate
applicable requirements of Part 123. "Hazardous Waste Management municipality, State or Federal agency, or,
Subpart F. facility" which began operation or for an agent or employee thereof.
interstate agency means an agency of which construction commenced after Phase I (RCRA) means that phase of
two or more States established by or October 21 1978 the Federal hazardous waste
under an agreement or compact New injection well (UIC) means a management program commencing on
approved by the Congress,- or any other "well" which began injection after a UIC the effective date of the last of the
agency of two or mom States having program for the State applicable to the following to be initially promulgated: 40
substantial powers or duties pertaining well is approved- CFR Parts 122,123,260,261,262,263
to the control of pollution as determined New source (NPDES) means any and 265. Promulgation of Phase I refers
and approved by the Administrator building. structure facility, or to promulgation of the regulations
under the "appropriate Act anti installation from which there is or may necessary for Phase I to begin
regulations." be a "discharge of pollutants." the Phase II (RCRA) means :at phase of
Major facility means any RCRA UIC construction. of which commenced- Federal hazardous waste management
NPDES, or 404 "facility or activity" (a) After promulgation 'of standard of program commencing on the effective
classified as such by the Regional performance under section 306 of CWA date of the first Subpart of 40 CFR Part.
Administrator, or, in the case of which am applicable to such source or 264 Subparts F through R to be initially
"approved State programs the (b) After proposal of standards of promulgated. Promilgation of Phase II
Regional Administrator in conjunction performance in, accordance with section refers to promulgation of the regulations
with the State Director. 306 of CWA which are applicable - necessary for Phase II to begin.
Manifest (RCRA and UIC) means such source, but. only if the standards Physical construction(RCRA) means.
shipping document originated and are promulgatd in accordance with excavation. movement of earth. erection
signed by the "generatce' which section 306 within 120 days of their of forms or structures. or similar activity
contains the information required by proposal to prepare an "HWM facility to accept,
Subpart B of"40 CPR Part 262 NPDES means "National Pollutant. "hazardous waste
Maximum daily discharge limitation Plugging (UIC) meant the act or
(NPDES) means the highest allowable Discharge Elimination System" process of stooping the flow 0f water.
"daily discharge." Off-site (RCR.A4 means, any site. which oil, or gas in "formations" penetrated by.
Municipality (NP2qUES) means a city. is not "on-site." a borehole or "well
town. borough, county, parish, district, On-site (RCRA) means on the same or Point source (NPDES and 404) means
association, or other public body geographically contiguous property any discernible confined, and discrete
created by or under State law and which may be divided by public or conveyance, including but not limited to
having jurisdiction over disposal or private right-of-way. provided the any pipe, ditch. channel tunnel. conduit
sewage.industrial wastes, or other entrance and exit between the well, discrete fissure, container. rolling
wastes, or an Indian tribe or an properties is at a cross&roads , stock, concentrated animal leading
authorized Indian tribal organization,* or intersection. and access is by crossing operation, vessel or other floating ask
a designated and approved management as opposed to going along, the right(s)- from which pollutants are or my. be
agency under section .208 of CWA. of-way. Non-contiguous properties discharged. This term does not include
National Pollutant Discharge owned by the same person but return flow& from irrigated agriculture.
Elimination System means the national connected by a right-of-way which the Pollutant (NPDES and 404) means
program for issuing, modifying, revoking Person controls and to which the public dredged spoil. solid waste. incinerator
does not have access, is also considered residue, filter backwash, sewage,
and reissuing, terminating, monitoring
and enforcing permits, and imposing and garbage, sewage sludge, munitions,
enforcing pretreatment requirements, Owner or operator means the owner chemical wastes. biological materials.
under sections 307, 4O2 318, and 405 of or operator of any "facility or activity" radioactive materials [except those
CWA. The term. includes an "approved subject to regulation under the RCRA. regulated under the Atomic Energy Act
program" UIC, NPDES, or 404 programs. of 1954, as amended (42 U.S.C_ I 2011 et
New discharger (NPDES) means any ,Permit means an authorization. seq.)), heat, wrecked or discarded
building, structure. facility, or license, or equivalent control document -equipment. rock. sand. cellar dirt and
installation: issued by EPA or an "approved State" to industrial, munictpal and agricultural
(a)(1) From which there is or may be a implement the. requirements of this Part waste discharged into water. It does.not
new or additional "discharge of and Parts 123 and 124. "Permit" includes mean:
Pollutants" at a site' at which on RCRA "permit by rule" (I22.26). UIC (a) Sewage from vessels; or
October 18, 1972 it had never discharged area permit (122.39. NPDES or 404 (b) Water. gas, or other material
pollutants; and general permit" (122.59 and 123.59). which is injected into a well to facilitate
(2) Which has never received a finally and RCRA. UIC, or 404 "emergency production of oil or gas, or water
effective NPDES "permit" for discharges permit" (�� 122.27, 122.4o, and 122.96) derived in association with oil and gas
at that site; and Permit does not include RCRA interim production and disposed of in a well, if
(3) Which is not a "new source." status (122.23 ), UIC authorization by the well used either to facilitate
(b) This definition includes and rule (122.37). or any permit which has production or for disposal purposes is
"indirect discharger" which commences not yet been-the subject of final agency approved by authority of the State in
discharging into "waters of the United action, such as a "draft permit" or a which the well is located. and if the
States." It also includes any existing "proposed permit." State determines that the injection or

B-43

Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations 33423

disposal will not result in the Regional Administrator means the .'approved program," or the delegated
degradation of ground or surface water Regional Administrator of the representative of the State Director. if
resources.. appropriate Regional Office of the responsibility is divided among two or
[Note,-Radioactive materials covered by Environmental Protection Agency or the. more State or interstate agencies, "State
the Atomic EnerV Act are those authorized representative of the Director" means the chief administrative
encompassed in its definition of source. Regional Administrator. officer of the State or interstate agency
byproduct. or special nuclear materials. . Schedule of compliance means. a authorized to perform the particular
Examples of materials not covered include schedule of remedial measures included procedure or function to which reference
radium and accelerat6r-produced isotopes. In a "permit," including an enforceable is made.
See 7h7in v. Worado Public. interest sequence of interim requirements (for StatelF-PA Agreement means an
Rejearch CrouA hw, 428 US 1 (1976).] example, actions, operations, or agreement between the Regional
P07W means "publicly owned milestone events) leading to compliance Administrator and the State which
treatment works." I. with the "appropriate Act and coordinates EPA and State activities,
Primary industry category MDES) regulations." responsibilities and programs including
means any industry category listed-in SDWA means the Safe Drinking those under the RCRA. SDWA. and
the NRDC settlement agreement Water Act (Pub. L 95-5Z3. as amended CWA programs. i
(Natural Resources Defense Council et by Pub. L 95-19M, 42 U.S.C. � 300f et State regulated waters (4041 means
a]. v. Train, 8 E.R-C. 2120 (D.D.C. 1976), seq.). those "waters of the United States" in
"modified 12 E.R.C. 1833 (D.D.C. 1979); . Secondary industry category (NPDES) whichthe Corps of Engineers suspends
also listed in Appendix A of Part 122. means any industry category which is the issuance of section 404 permits upon
P@ivctely owned treatment works not a "primary industry category." approval of a State's section 404 permit
(NPDES) means any device or system Secretary (NPDES and 404) means the program by the Administrator under
which is (a) used to treat wastes from Secretary of the Army, acting through section 404(h). These waters shall be,
any facility whose operator is not the the Chief of Engineers. identified in the program description as
operator of the treatment works and (b) Section 404program or State 404 required by I 123.4(h)(1). The Secretary
not a "POTW." program or 404 means an "approved shall retain jurisdiction over the
Process wastewater (NPDES) means - State program!' to regulate the following waters (see CWA section
any water which, during manufacturing -discharge of &edged material" and the 404(g)(1))-
or processing, comes into direct contact "discharge of fill material" under section (a) Waters which are subject to the
with or results from the production or 404 of the Clean Water Act in "State ebb and flow of the tide;
use of any raw material, intermediate regulated waters." (b) Waters which are presently used,
product. finished product byproduct, or, Sewage from vessels (NPDES) means or are susceptible to use in their natural
waste product. human body wastes and the wastes condition or by reasonable improvement
Proposedpetmit (NPDES) means a from toilets and other receptacles as a means to transport interstate or
State NPDES "peanit" prepared after intended to receive or retain body foreign commerce shoreward to their
the close of the public comment period wastes that are discharged from vessels ordinary high water mark; and
(and, when applicable, any public ap@ regulated under section 312 of @ (c)."Wetlands" adjacent tG waters in
hearing and administrative appeals) CW& except that with respect to (a) and (b). @
which is sent to EPA for review before commercial vessels.on the Crest Lakes Storage (RCRA) means the holding- of
final issuance by the State. A "proposed this term includes graywater. For the "hazardous waste" for a temporary
permit" is not a "draft permit.. purposes of this definition. "graywater" period, at the end of which the
Publicly owhed treatment works means galley, bath. and shower water. hazardous waste is treated, disposed. or
("POTW') mean.9 any device or system Sewage sludge (NPDES) means the. stored elsewhere.
used in the treatment {including solids, residues, and precipitate Stratum (plural strata) (UIC) means a
recycling and reclamation) of municipal separated from or created in sewage by single sedimentary bed or 14yer,
sewage or industrial wastes of a liquid the unit processes of a "publicly owned regardless of thickness, that consists of
nature which Is owned by a "State" or treatment works." "Sewage" as used in generally the same kind of rock
"municipality:' This definition includes this definition means any wastes, material.
sewers, pipes, or other conveyances including wastes from humans, Total dissolved solids (UIC and
only if they convey wastewater to 6 households, commercial establishments, NPDES) means the total dissolved..
POTW providing treatment. industries, and storm water runoff, that (filterable) solids as determined by use:
Radfoactive waste (UIC) means any are discharged to or otherwise enter a of the method specified in 40 CFR Part -
waste which contains radioactive publicly owned treatment works. IX
material in concentrations which exceed Site means the land or water area Toxi6pollutant (NPDES and 4o4)
those listed in 10 CFR Part ZA Appendix where any "facility or activity" is means any pollutant listed as toxic-
I@ Table Z Column Z or exceed the physically located or conducled. under section 307(a)(1) of CWA@
"Criteria for Identifying and Applying including adjacent land used in Transporter (RCRA) means. a person
Characteristics of Hazardous Waste and connection with the facility or activity. engaged in the off-site traruiportation of
for Listing Hazardous Waste" in 40 CFR State means any of the 50 States, the "hazardous waste" by air, rail. highway
Part 261. whichever is applicable. District of Columbia, Guam, the or water.
RCRA means the Solid Waste Commonwealth of Puerto Rico, the Treatment (RCRA) means any
Disposal Act as amended by the Virgin Islands, American Samoa, the method, technique, or process, including
Resource Conservation and Recovery Trust Territory of the Pacific Islands neutralization, designed to change the
Act of 1976 (Pub. L 94-5W, as amended (except in the case of RCRA]. and the physical. chemical, or biological
bY Pub. L 95-M. 42 U.S.C. � WM et Commonwealth Northern Mariana character or composition of any
seq.). Islands (except in the case of CWA). "hazardous waste" so as to neutralize
Recommencing discharger (NPDES) State Director means the chief such wastes, or so as to recover energy
means a source which recommences administrative officer of any State or or material resources from the waste. or
discharge after terminating operations. interstate agency operating an so as to render such waste non-

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33424 Federal Register/ Vol. 45, No 88 / Monday, May 19,1989 / Rules and Regulations

hazardous. or less hzardous: safer,to. wetlands adjacent to water
transport. store or dispose: of or. (other mid waters that are themselves
amenable for recovery,amenable for, wetlands) identified in paragraphs a)-_
storage. or reduced in volume. (f) of this definition.
UIC means the Underground injection Waste treatment systems, Including
Control program under Part C of the treatment ponds or lagoons designed to
Safe Drinking Water Act, including an, meet the requirements of CWA other
approved program." than cooling ponds as defined in 40,CFR
Underground injection (UIC) means a 423.11(m) which also meet the criteria
well injection." of this definition) are not waters of the
Underground source of drinking water United States. This exclusion applies
(USDW) (RCRA and UIC) means an
only to manmade bodies of water which -
aquifer" or its portion: ter neither were-originally created in waters
(a)(1) Which supplies drinking water water of the United States (suchas a disposal
for human consumption; or area in wetlands) nor resulted from the
(2) In which the ground water impoundment of waters of the United
contains fewer than 10,000 mg/1 total States;
dissolved solids" and - - Well UIC means a bored. drilled or
(b) Which is not an "exempted driven shaft. or a dug hole. whose depth,
aquiffer. is greater than the largest surface
USDW(RCRA and UIC means
dimension
underground source of drinking water Well injecition (UIC) means the
Variance NPDES means any
on. under sections subsurface emplacement of fluids"
mechanism or provisi through a bored or drilled or driven
301 or 316 of CWA or under 40 CFR Part well" or through a dug well. where the
1Z5, or in the applicable "effluent depth of the dug well is greater than the
limitations guidelines" which allows. largest surface dimension-
modification to or waiver of the. Wetlands means those areas that are
generally applicable efflentlimitation

requirements or time deadlines of CWA& fnundated or'saturated by surface or
Tbis includes provisions which allow. ground water a frequency and
the establishment of alternative duration sufficient to support and -that
limitations based an fundamentally under normal circumstances do support
different factors or on sections 301(c). a prevalence of vegetation typically
, 301(g) 301(i), or 316(a) of CWA. adapted for-fife in saturated soil
Waters of the United States or Waters condition& Wetlands generally include
swamps. marshes. bogs, and similar
of the U.S. means:
(a) AM waters which are currently areas.
used, 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;
(b) AD interstate waters, including
interstate "wetlands;'
(c) All other waters such as intrastate
lakes rivers, streams (including.
intermittent streams), mudflats.
sandflats, "wetlands:' sloughs. Prairie
potholes, wet meadows. playa lakes, or
natural ponds the use, degradation, or
destruction of which would affect or
could affect interstate or foreign
commerce including any such waters
(1) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes;
(2) From which fish or shellfish am or
could be taken and sold in interstate or
foreign commerce or'
(3) Which are used or could be used
for industrial purposes by industries in
interstate commerce:
(d) All impoundments of waters
otherwise defined as waters of the
United States under this definition:
(a) Tributaries of waters identified in
paragraphs (1)-(4) of this definition;
(f)The territorial sea and

B-45

33456 Federal Register Vol 45. No'. 66 Monday May. 19,1980/Rules and regulation
Emma
PART 123-STATE PROGRAM 123.97 Additional condition applicable to Part"do not refer to hazardous waste
REQUIREMENTS all 404 permits. programs operating under interim
123.98 Establishing 49% permit conditions. authorization.) Subpart A includes the
Subpart A General Program Requirements 123.99 Memorandum of Agrerement with the elements which must be part of
Secretary. submissions to EPA for program
123.100 Transmission of information to EPA
123.1 Purpose and scope. and other Federal agencies. approval, the substantive provisions
123.2 Definitions. 123.101 EPA review of and objections to which must.be present in State programs,
123.3 Elements of a program submission. - State permits. for them to be approved and the
123.4 Program description 123.1O2 Coordination requirements, procedures EPA will follow in
123.5 Attorney Generars statement. 123.103 Enforcement authority approving, revising, and withdrawing
123.6 Memorandum of Agreement with 123.104 Approval proms. State program . Subpart B contains'.
Regional Administrator.
123.7 Requirements for permitting. -Subpart F-Requirement for Interian additional requirements for States.
123.8 Requirements for compliance Authorization of State Hazardous Waste seeking final authorization under RCRA.
evaluation programs. Programs Subpart C contains additional
123.9 Requirements for enforcement 123.121 Purpose and scope. requirements for State UIC programs.
authority. 123.122 Schedule. Subpart D specifies additional -
123.10 Sharing of information. 123.123 Elements of a program submission. requirements for-State NPDES programs
123.11 Coordination with other programs- 123.124 Program description. Subpart E specifies additional -
123.12 -Approval -process. 123.125 Attorney General's statement
123.13 Procedures for revision of State requirements for State section,404
programs. 123.126. Memorandum of agreement programs
123.127 Authorization plan.
123.14 Criteria for withdrawal of State 123.128 Program requirements for interim. (c) State submissions for program
programs. authorization for Phase L approval must be made in accordance
123.15 Procedures for withdrawal of State 123.129 Additional program requirements with the procedures setout in Subpart A,
programs. for interim authorization for Phase II and. in the case of State 404 programs
Subpart B-Additional Requirerment for 123.130 Interstate movement of harzardous with the procedures set out in Subpart E
State Hazardous Waste Programs waste. (Submissions for interim authorization
123.31 Purpose and scope. 123.131 Progress reports. shall be made in accordance with
123.32 Consistency- 122.132 Sharing of information. Subpart F.) This includes developing
123.33 Coordination with other programs
123.33 Requirements for identification And 123.134 EPA review of State permits. and submitting to EPA a program
listing of hazardous wastes. 123.135 Approval process. description (123.41 an Attorney
123.34 Requirements for generators. of 123.136 Withdrawal of State programs General's statement (123.4, a
hazardous wastes. 123.137 Reversion, of State programs. Memorandum of Agreement with the
123.35 Requirements -for transporters of
. hazardous wastes. Authority: Resource Conservation and Regional Administrator (qf 123.6) and
123.36 Requirements for hazardous waste Recovery Act, 42 U.S.C. 6901 et seq.: Safe with the Secretary in the caw of section.
management facilities. Drinking Water Act 42 U.S.C. 3002(f) seq- 404 programs (123.99).
123.37 Requirements with respect to permits, clean.Water Act, 33 U.S.C. I251 et seq (d) The substantive provisions
and permit -applications. Subpart A General Program must be included in State I-Programs for
123.38M EPA review of State permits
123.39 Approval process. Requirements them to be approved include
requirements for permitting,compliance
SubpartC-Additional Requirements for 123.1 Purpose and scope. evaluation. enforcement, public
state UIC Programs (a) This part specifies the procedures participation, and sharing of
123.51 Purpose and scope. EPA will follow in approving, revising, information. The requirements are found,
I23.52 Requirement to obtain a permit. and withdrawing State programs under both in Subpart A (123.7 to 123.71
123.53 Progress reports. the following statutes and the and in the program specific subparts.
123.54 Approval process. Many of the requirements for State
123.55 Procedures for withdrawal of State. requirements State programs must meet
UIC programs. approved by the Administrator programs are made applicable to States
under by cross-referencing other EPA -
Subpart D-Aditiomal Requirments for (I Section 3006(b) (hazardous waste- regulatios. In particular. many of do
State Programs Under the National final authorization) and section 3006(c) provisions of Parts 122 and 124 are made
Pollutant Discharge Elimination System
[hazardous wasteinterim authorization) applicable to States by the references
123.71 Purpose and scope. of RCRA, contained in 123.7.
123.72 Control of disposal of pollutants into (2) Section 1422 (underground (e) Upon submission of a complete
wells. injection control-UIC of SDWA, program, EPA will conduct a public
123.73 Receipt and use of Federal (3) Sections 318, 402, and 405 bearing, if interest is shown. and
information. (National Pollutant Discharge determine whether to approve or
123.74 Transmission of information to EPA.
123.75 EPA review objections to, Elimination System-NPDES of CWA: disapprove the program taking into
State permit and consideration the requirements of of this
123.76 Prohibition. (4) Section 404 (dredged or fill Part, the appropriate Act and any
123.77 Approval process. material) of CWA. comments received.
Subpart E-Additional Requirements for (b) Subpart A contains requirements (f) The Administrator shall approve
State Programs Under Section 404 of the applicable to all programs listed in State programs which conform to the
Clean Water Act paragraph (a) except hazardous waste applicable requirements of this Part-
123.91 Purpose and scope. programs operating under interim (g) Upon approval of a State program,
123.92 Activities not requiring permits authorization. All requirements the Administrator (or the Secretary in
123.93 Probibitions applicable to hazardous waste programs the case of section 404 programs) shall"
1M.94 Permit application. operating under interim authorization suspend the issuance of Federal permits
123.95 General permits are contained in Subpart F. (References for those activities subject to the
123.96 Emergency permits, in this subpart to "programs under this approved State program.

2qB-46

'Federal ~2p~~i~i~t~~i I V~L~: 4~r~ No.-OIL t- Ma~inday~~ May~ 1~9. ~qn~qW~ R~t~f~les and Regulations 334~57

(h) Any State ~qpro~qgra~r~n approved by. ~q6~q1~4q= ~qE~4qW~qw~rt~s~o~ql~apr~ogr~a~m~b' ~qt~qh~e i~nfix~qm~i~s~2qdo~qm ~qH~sted`bel~o~f~@w~. ~0qN more
th~Administr~ator shall at alltime~s be. ~subm~qi~e~s~qk~qm than one agency is responsible for
co~ductec~qrin accordance withA~qh~e- (&)Any State. ~qth~e~q& seek& ~qt~qoadm~qi~ni~8q"a~r a~qd~qm~qf~qi~0q*tr~a~qd~or~t of a program, each
r~qum~me~nt~g~4~qt~q1~qhi~qs~-Part a ~qp~ro~qgram~ande th~qi~s~qPar~qkshal~qlsu~qb~m~2qA~qt~- agency must have statewide jurisdiction
~p~~p~States an encouraged to: - to the Administrator at least thr~e~s, ~~, over a class of activities. ~qT'he
consolidate their permitting act~qi~v~qi~qdes~i copies of ~& program ~su~ql~uni~qs~si~qm The respons~qibil~qit~qh~qm at each agency must be
While approval of State programs, wider subm~qission~s~qha~ql~ql~ontain~,t~qh~e~qiD~qUowia~2qg delineated, ~qlb~ei~rp~ro~cedures far
this Part will f~qktc~0qf~0qf~0qitate~-~qs~@~qich~- ~- _ - ~2p~2p~ ~q(1~q1 A letter from the Governor of the coordination set forth, and an agency
consolidation. ~qt~qhes~qere~qgulati~on~s d~qon~a~qt~. State -~2q"esting, pro~qg~8qf~8qtm~ approval~; m~2qw lie designated ~a~s~'a -lead agency" to
require con~solidation-Eac~qi~r of the ~qf~q= ~q(~q2~q) A complete Program description~. facil~qit~a~4qf~4qtc~or~r~omm~qicati~on~s between EPA
program under this Part may be applied as requi~qke~4qd~-by ~qJ 123A. describing how av~0qAt~qh~eSt~at~e a~qge~n~2qde~&fiavin~qg program
I~n the case of State
for and approved separately. th~e~q:~qSt~a~qte~. intend~s-~qto~qva~r~ry~, ou~qL~qA~& ~r~esp~a~qm ~'~4q&~q&d~es~qi~qgnat~qio~rr~qi~s
~f~l) Partial State programs are nor re~sp~on~s~qt~qbilldes. under this Part;, RCI~qtA~-p~r~o~qgr~a~qm~s~; ~s~u
allowed under NPDES. 4D4~,or ~6qRC~qE~qL~0qk ~6qMA~nAttorneyGene~ral~qsst~atame~n~qt mandatory (see paragraph- M~q(4) of this
~(~f~~r programs oper atin~qgund~er~-~qf~qi~na~ql~- as required by ~qJ 123.~q5~; section). When the State proposes to
authozizat~qi~o~n~qy~.-How~e~v~er~, in many cases (4) A. Memorandum of A~qg~ree~n~qw~qm~qt, administer a program of greater scope of
States will lack authority ~qt~qb regulate with the Regional Administrator as cove~v~e~qg~e~@ than is required by Federal
activities o~u.~qI~n~qd~qian lands, This laek of required by ~qf 123.~q6, and. in the case of law, the information provided under this
auth~~~ity does not imp* a State!* State section 40~q4 pro~qgrams~7~.a ~ paragraph~, shag indicate, the resources
ability to obtain f~t~0qf~0qf~0ql program approval Memorandum of Agreement wit~qE~L the dedicated to a~qdmini tering the Federally
in accordance with this Part, L~e.~, ~ ~. Secretary as required by ~qJ ~q1~4qM~.~4qW~, required portion of the program.
inabi~f~ity~,of ~qa State to regulate activities~, (5~q) Copies of all applicable State (1) A description of 'the State agency
on Indian-lands does not constitute a. statute& and regulations, including those staff who will carry ~out the State
partial program. Similarly, a State can ~qg~Overmng State a~c~qt~T~qhini ~trative program, including the n~qimber~.
assume primary enforcement procedures.. occu~qp~ati~o~qm~, and general dudes of the
responsibility for the UIC program, (~q6) The~, show~qing~requ~qir~ed by employees. The State need not submit
notwithstanding I 123.~q51(e)~, when die ~qf 123.3~q9(~c~ql ~q(RCRA programs only) ~qa~nd complete job description& for every
Stat~p~r~o~qgra~qm ~qi~&unabl~e't~o regulate ~qJ 123.~q54~qCb~q) ~q(~6qU~qIC-p~ro~qgram~s ~onl~qy~ql of the. empl~aye~a~rcar~qr~4qf~4qi~ngoutt~qhe State
activities on Indian lands within the State's public participation activities progra~n~L
State. EPA, or in the case of section 40~q4 prior to program submission. (2) ~6qA~r~r~6qH~qo~ur~qf~r~ati~on of the estimated
programs the Secretary, will adm~qirustep~- ~q(b) Within,. 30 days'ofrece~qipt by EPA. costs of establishing and a~qdr~ai~ni teri~n~qg.
the program on Indian lands if the Sta~qte~@ of a State program submission. EPA~~qi~4qf~4qf the program for the first two. years after
does not seek this authority, notify the State whether its submission appr~ova~qL including cost of the personnel
~(N~~~q"ta~t~e~s ~are advised to contact the is complete.. If EPA finds that a Stat~e~q!~v listed in paragraph (~qb)(1~q1o~qfthis~section.
United States Department of the interior~. submission is complete, the statutory - cost of administrative support. and ~c~n~st
Burea~sof Indian Affair& c~oncerni~qr~t~qg review period (Le.. the period of time of technical ~supp~or~qL
authority over Indian land~&~qJ allotted for formal EPA review of a ~-~q(3).A~n Itemization of the sources and
proposed State program under the amounts of funding, includi~n~qg~;~a~qm~
~t~k~@Except as pr~q6vided~'in ~qJ.123.~q32~, appropriate Act) shall be deemed to estimate. of Federal grant money*.
nothing ~qi~qm this Part precludes a State have begun on the date of receipt ~o~qfth~e available to the State D~i~r~-ect~qor for- the.
from: State's submission. If EPA finds that a first t~8qwo years after approval to meet
(~1) Adopting or enforcing stringent Stat~i~2qC~k submission is incornp~qle~qt~e~@~. the- the.costs, listed in paragraph ~q[~qb~q)(~q2~q) of
requirements which are more statutory review per~qiod~'shal~qf not be& this section~, identifying any. restrictions
or. more extensive than those required, until all the necessary information i~s or ~0qInita~r~don~qs upon this ~qf~hadin~qg. ~ ~-
unde~ t~qf~qi~qi~s~,~qPart~;.~' received, by EPA. Cc) A descript~qio~i~t of applicable State.
(2) Operating. a program with a ~qgreate~t ~q(~c~qy If the State's submission is procedures, including permitting
~~~~p~@~~ of coverage. than, that required materially changed during the statutory ~qRro~cedure~a~a~n~0qda~n~qyS~tate~~dm~in~* trat~qiv~e.
under this ~qPa~rt_Wher~e~an approved revie~qwperiod. the ~StaLU~2q"
State ~pro~qg~q= has,& greater scope. of ~-u~qd~qi ~ql~qa~ql~-
period sh~all~'begin again ~e~8qw~n receipt of or 1 ~c ~-~r~avl~aw
coverage thanrequh~red by Federal, law the revised submission., (dJ Copies ofth~e permit f~0~qim~qc~a~qt
th~-~ddi~qtio~nalcover~agei~snot artofth~e~. application ~qf~qd~rr~n(s~qY~.~.~rep~o~r~qf~qi~6qW~qf~qbrm(~s)~.
Federally approved pr~ogra~n~@~.. ~qp ~q(d~qJ The State and EPA m~qay extend the and manifest format. the State intend& to
~-~qgtat~utory review period by agreement employ in.i~qts program, Forms used by
~[Not~~,~-4~q?~br~vxa~qmpIe~. whe~n~:a State requires States need not be identical to the forms
p~r~~~lt~ for discharges into pub~qf~qic~ql~qy~@~ow~ned- ~12~q3~.~q* Program d~e~s~cr~qipt~ql~o~qm~.
treatment works.. these permits ar~er not Any State that seek~g~r-t~o administer a used by EPA but-should require the
N~PDES permit& Also, State assumption. of ~8qf~8qf~8qi~4q@ program under this., part-shall~q, submit a same basic. information. except that
section 404 pr~qogr~qamis limited to certain description. of the program it proposes Us~q- State NPDES programs are required to
waters, as pr~qov~qidec~8qtin.~0q1 I~qZ3.~q91(c~0q). The administer in lieu of the Federal use ~0qptandard Discharge Monitoring
Federal program ~qo~qper~qate~q-~4q&~20qTy~8q-~16qMe~q'~24qt~qorps of program under State law, or under an Reports (I)~08qM~16qR)~q. The State -need not
En~qg~[neers continues to apply to th~qc remaining interstate compact. ~2qT~16qhe program provide copies of uniform national forms,
waters in the State even after pr~qo~00qmm
~app~qm~va~8qL However, t~4qf~qd~qo does n~qa~qtre~qstr~0qict description shall include.- it i~qn~0qte~qnd~qa t~4qd use but should, note its
State@ from regulating discharges ~qo~4qfdre~8qdged (a) A description. in narr~qe tiv~qe form of intention to, use such forms. State
or ~qf~qilt materials into tho~2qwwat~qer~qs over whi~qc~8qb the scope, structure. coverage and section 404, application forms must
the Secr~8qat~qary retains- section 40~q4 ~4qjurisd~qictio~qn~q.1 processes of the State program. include the information required by
~4q(~0qb~6qJ A description (including ~8q1-123.94 and State section 40~4q4 permit
12~q12 Def~0qtn~0qi~qt~qfon~0q& organization charts) of the organization forms must include the Information~q, and
The definitions, in Part ~04qn~4q2 apply to all~q. and structure of the-State agency or conditions required by ~0q1 ~4q1~04q=~4q97.
subparts of this Par~qf-inc~6qlud~8qing Subpart- agencies which will have responsibility [N~qo~8qf~8qtState~qs are encouraged t~8qaus~qe:
~qP. fo~qlt administering the program.. including uniform national forms established by the -

B-47

33458 Federal Register] Vol. 45, No. 98 'Monday, @May IQ, -1980 /-Rules ana Regulations

Administrator. If uniform national forms are required by this paragraph shall require maintenance of farm roads, forest roadr
used, they may be modified to include the applications to be filed as soon as or temporary roads for moving mining
State Agency's name, address, logo, and possible,'but not later than four years equipment
other similar information. as appropriate, In. after program approval for all injection (5) A description of how the State
place of EPKs.1 wells requiring a permit section 404 agency(ies) will interact with
(e) A complete description of the (5) A description of any rule under other State and local,agencies.
State's compliance tracking and which the Director proposes to authorize (6) A description of how the State will.
enforcement program. injections. including the text of the rule; coordinate its enforcement strategy with,
(0 State RCRA programs only. In the (6) For any existing enhanced that of the Corps of Engineers and EPA.
case of State RCRA program, the recovery and hydrocarbon storage wells (7) Where more than one agency
program description shall also include: which the Director proposes to authorize within a State has responsibility for
(1) A description of the State manifest by rule, a description of the procedure administering the State program:
tracking system, and of the procedures for reviewing the wells for compliance (I) A memorandum of understanding
the'State will use to coordinate with applicable monitoring, reporting, among all the responsible State agenda&"'
information with other approved State construction, and financial which establishes:
programs and the Federal program responsibility requirements of If (A) Procedures,for obtaining and
regarding interstate and international and 122.o,4 and 40 CFR Part 146; exchanging information necessary for
shipments. (7) A description ofand schedule for each agency to determine and -assess the'
(2) An estimate of the number of the the State's program to establish and cumula#ve impacts of all activities
following- maintain a current inventory of injection authorized under the State program-
(I) Generators; wells which must be permitted under (B) Common reporting. requirements;
(ii) Transportem State law, and
(iii) On- and off-site storage. treatment . (8) Where the Director has designated [C) Any otherappropriate p'rocedures
and disposal facilities, and a brief underground sources of drinkir* water -not inconsistent with section 404 of
description of the types of facilities and -in accordance with I lZ2.35(a), CWA or these regulations;
a
an indication of the permit status of description and identification of all such (ii) A description of procedures for
these facilitiet designated sources in the State: coordinating compliance monitoring and
(3) If availa le, an estimate of the (9) A description of aquifers. or parts enforcement distributing among the
annual quantities of hazardous wastes: thereof, which the Director has responsible agencies information
(i) Generated within the State: identified under J 122.35(b) as exempted received from applicants -and permittees,
(1i) Transporters; and aquifers, and a summary of supporting and issuing reports required by section
State; and data. , ..404 of CWA or these regulations.
(iii) Stored. treated, or disposed of (10) Adescription of and schedule for (8) Where several State 4D4 permits
within the State: the State's program to ban Class IV are required for a single project, a
(A) on-site; and wells prohibited under � 122.36; and description of procedures for
(B) off-site.- (11) A description of and schedule for (i) Ensuring that all the necessary
(4) When more than one. agency the Staties program to establish -an State 404 permits are issued before any,
within a State has responsibility for of the permits go into effect and
administering the State program. an inventory of Class V wells and to assess .(I!) Concurr -ent processing and. where
identification of a -lead agency"and a the need for a program to.regulate Cass appropriate, joint processing of all of the
V wells.
description of how the State agencies necessary State 404 permits.
will coordinate their activities. @ (h) State 404 programs only. In the
(g) State MCprograms only. In the case of a submission for approval of a � 123.5 Attomey Generars statenmit.
case of a submission for approval of a section 404 program the State's program (a) Any State that seeks to adminfiter"
State UIC program the States program description shall also include: a program under this Part shall submita'
description shall also include: (1) AAescription of State regulated statement from the State Attorney
(1) A schedule for issuing permits waters. General (or the attorney for those State
within five years after program approval [Note.-States should obtain"from the or interstate agencies which'bave
to all injection wells within the State Secretary an identification of those waters of independent legal counsel) that the laws
which are required to have permits the U.S. within the State over which the of the State, or an interstate compact
under this Part and Part IZZ;@ Corps of Engineers retains authority under provide adequate authority to carry out
(2) The priorities (according to criteria section 404(g) of CWA.] . ' the program described under I im.4 and-
set forth in 40 CFR 1148.09) for Issuing (2) A categorization, by type and to meet the requirements of this Part.
permits, including the number of permits quantity, of discharges within the State, This statement shall inElude citations to
in each class of injection well which will and an estimate of the number of the specific statutes, admin strative
be issued each year during the first five discharges within each category for@ regulations, and, where appropriate,
years of program operation: - which the discharger must Me for a IJudicial decisions'which dem@6nstriW-
(3) A description of how the Director permit adequate authori ;.State statutes and
will Implement the mechanical integrity (3) An estimate-of the number-and regulations. cited by the State Attorney
testing requirements of 40 CFR 1146.08. percent of activities within each - I @General 'or independent legal counsel ..
including theIrequency of testing that, category for which the State has already ishall be In the form of lawfully.adopted
will be required and the number of tests issued a State permit regulating the Statp4tatutes and regulations at-the-
that will be reviewed by the Director discharge. time the statement is signed and shall bi
each year, (4) In accordance with I 12=4a)(B), a fully effective by the time-the program*
(4) A description of the procedure description of the specific best - approved. To qualify as -independent
ters, 61

er
']d

whereby the Director will notify owners management practices requirements legal counsel" the attorney signing the'.
and operators of injection wells of the proposed to be used to satisfy the statement -required by @" section must
requirement that they apply for and exemption provisions of section have full authority to independently
obtain a permit. The notification 404(f)(1)(E) of CWA for construction or represent the State agency in court on

B-48

Federal Register Vol, 45~ No- 98 ~J. Monday. ~~~i~y 1~9~ ~1~9~8a R~~les. and Regulations 33459

all matters pertaining to the State already in the possession of the State required) to considers" to ~c~o~o~sdina~t~e ~o~r
program Director (e.g., support file& ~qf~q6~u~qpe~rm it consolidate their own- permit p~r~qq~p~am~s and
(Note-EPA will supply Sta te~& ~qw~it~qh~L a~rr ~. issuance. com~qp~4qganc~e reports, etc.),,.. activ~it~qle~s.~q1
Attorney Generars statement format. on, When e~x~qisti~n~qgpe~r~qmits are tra~n~s~6qQ~q=~qJ (6) Provisions for m~odif~qicati~o~qu of the
request) from EPA t~o~r the State ~qfor Memorandum o~qLA~qi~r~q"men~qt~qi~n
(~qb) When a S~qta to seeks aut~qh~e~ri~ty aver a~qd~8qm~qf~n strati~q@n~. t~qhe Memorandum of. accordance with this, Par~qL
activities on Indian lands, the statement Agreement shalt contain p~rovi~6qd~a~n~g~6 -~ (c) The-Memorandum of A~qgmen~te~n~t~.
shall~. contain an appropriate analysis of specifying a proc~e~qd~qw~e for transferring the annual program grant and the S~0qwe/
the State's authority. the administration of these pe~r~n~qf~qf~4qf~4qt~- If aEPA Agreement should be consistent- ~q1~q6
State lacks- t~qh~e~,~authority to d~qire~e~0qdy the StateJEPA Agreement i~nd~qica~t~qa~* that
(~c) S~qta~qt~-~a~qA~6qW~2qE~0qSp~r~o~qg~r~am~e only. ~qL~z the administer ~qper~s~qki~qt~s issued by the ~6qFed~qor~al a change is needed !a t~qhe~.Mem~o~ra~nd~u~qm
cam of S~qt~a~qt~qeNPD~qES programs, the
Attorney G~e~ne~r~4qa~s~sta~qtemen~qt s~qhalf government a- procedure. may be of-Agreement. the Memorandum of
cert~6qW that the State has adequate legal established to ~qt~r~ansfer~resp~ons~qibi~0ql~-~qt~qy ~qr~q6~r Agreement may be amended through the
authority to issue and enforce general the~s~e~,permits. procedures, set forth in t~qh~qi~spa~r~0qL The-
permits if the State seeks to implement ~q[N~o~t~e~,~q-~qF~o~r example, EPA and the State S~qtate~q/EPA.Agreement may not. ~o~v~errid~ql~e
the general permit program~n~qde~s and the pe~rmitt~e~e coul~8q& agree that the S~t~a~qf~qt the Memorandu~n~x of Agireemen~8qL
~~J 122-5~q1~qL Mould issue a p~e~r~qmit~q(~s) identical to the ~qP~l~at~e-De~t~e~qde~8qdpro~gram pr~iorit~ie~r and
outstanding Federal permit-which would specific arrangements for EPA support of the
~q(d~q)~* State section 4~U4 programs only. simultaneously ~qb~q"~rm~inated~qj State program will change and are ~qU~s~eref~qdre,
~q(~q1) In the. case of State section 404~, more appropriately negotiated in the context
programs the State Attorney Ceneral~'s (~q2) Provisions specifying cl~ass~q6~9 and of annual agreement& rather than in the
statement shall~, contain an analysis. of categories of permit applications. draft maA. However. it may still be appropriate to
State law regardin~8q&the prohibition on permits. andprop~osed permits th~0q& the specify in the MOA the basis f~qor such
taking private property w~qithou~qt~qi~ms~qt State wi~qR se~n~0q& t~a the Regional ~. detailed agreements, e.g- a provision in the-
compensation. including any applicable Administrator for review. comment a~n~2q4 MOA spe~cifyin~g~1hat EPA will se~qlec~rfa~dl~i~t~ies
~juc~qitcial.i~nterpretat~qio~ns~. and an where appl~qi~ca~qb~ql~qi~, objection~- in the State for inspection annually as part of
assessment of the effect such ~qla~4qw will [N~ate,-Th~e mature a~ndb~as~i~s of E~P~qA~ the ~qS~b~qf~qt~q/~4qW~qA a~qgreem~e~nt.~q1
have ~o~n~qt~qhe successful implementation rev~ie~qwof State permits and permit (d) ~6qS~2qf~2qt~qt~e ~2qA~6qC~2qRA pr~o~i~qg~r~a~qm only. ~qL~a t be
~~f~4qf~4qf~4qi~qw~S~qt~6qs ~2qe~qs~@ r~o~qg~0qdat~qi~qo~n~. of the discharge applications d~2qf~2qfem among th~e programs case of State ~6qRCRA~,~qp~r~o~qgr~a~qm~s the
of dredged or fill mater~qia~qL governed by this Pl~ar~t.~ See ~qf~q1~.~1~q=~9 (RCRA~q) Memorandum ofA~qgr~eement shall a~qt~s~Q
(2) In the. case o~qfStat~e se~c~d~on 404~, 1~2~2~.~7~5 ~4qP~0qW~4qM~qIa~nd ~qM~f~O~r ~4q"~qt~2p~ pr~ov~qi~6q& that. ~, ~.
pro~qg~ra~i~n~s~,where more ~0qf~0qf~0qia~n one agency (3~q1 Provisions specifying the, frequency ~q(~q1) EPA m~qay conduct compliance.
has responsibility for ~admi~n~qlsteri~n~q& the and content of ~qf~qt~qp~o~rts~I- ~qd~G~qc~u~qments~, and inspections of a~ql~ql generators.
State program, the Attorney, Ge~n~e~rar~s other information wh~qic~qh~i the S~qt~a~qt~q&~qi~qs transporters. ~qi~an~qd HV~q4M facilities in
Statement shall include certification that required tG su~qb~u~qnt to ~qE~qP~I~2qA~L The State- each year for which the State is
each agency has fu~0qU authority to. shall a~ql~ql~ow EPA to routinely review operating under final autho~r~qizat~qio~i~x The
administer the program within ~its State r~ec~o~r~qds~,~.reporta~. and fi~qles~,~r~4qde~v~a~nt Regional Administrator and the State
category of ~6qWris~qdiction- and that the to the a~d~iminist~r~a n and ~- enforcement DirectoB may agree to ~0qf~0qf~0qi~6qd~qtat~ql~o~ns on
State as a whole has full authority to of the approveclpro~qg~ra~ur-Stat~&~-report~s compliance inspections of ~qgener~ato~qm
administer a complete State section ~8qW4 may be combined with grant reports~, transporters.- and non~-ma~'jor HWM
program. where appropriate. These procedures facilities.
shall imp~qjemen~qt the requirements of ~(2) No lim~qi~qt~qa~2qf~2qfo~ns, on EPA compliance
~0qM~qG ~- Memorandum ~o~qtA~qgr~eeme~nt wttt~v ~qf 123.74. ~qP~2qVDES program only) and inspections ofgenerators~. transporters.
the Regional A~cl~i~x~t~in~istrat~o~r- 123.100 (404 program on~2qW. or non-major HWM facilities under
(of Any State that seeR~v t~2q& adr~6q@st~qer ~q(4~qJ Provision& on the- State~q!~s~. para~2qgaph ~q(d)~q(~q1~q) of this ~0q"ctio~n shall
a program under this Part shall' submit a' c ~~qL restrict EPA's ~r~qi~qght~qlo. ~qi~n~sp~qd~c~t any
ompliance monitoring and ~e~nf~qorc~e~n~t~e~n ~,
Memorandum ofA~qgreement~; The, program. E~nc~qru~qdi~qh~qs~2p~ generator. transporter;- or ~2qRW~'M facility
Memorandum ~o~qfAg~reement shall be ~q(~qi~ql~qp~t~o~v~qi~si~qd~n~e for ~c~o~or~qd~qi~na~t~i~o~qn~o~qf whichitha~a cause to believe is not ~qim
execu~qted~qb~qy the State. Direct= and the ~c~o~qmpli~q@~qm~ce~qi~n~a~ni~qfor~qf~qi~a~8q&ac~qtiv~qiti~e~&~'~qby compliance with~.RCRA~; however, before
Regional Administrator and shal~qk State and by ~6qBrA. These ~6qm~ay specify Gond~qdct~qing such an ~qinspectio~8qm EPA wi~qU
bec~ome,e~8qf~8qf~e~ct~qi~v~e,whe~qn approved, bY ~q1~q11~q0 the bads on w~qh~qr~c~8qh.~q1he R~eg~qi~qbnar norma~4qf~4qf~6qy allow the State a reasonable
A~,~k~n~i~n~i-t~r~at~i~qm~.~q1~m addition t~o~-~qmee~qf~qi~n~qg Administrator will select ~qfaci~qn~ql~qie~so~r opportunity t~i~m conduct a-compliance
the requirements o~q9pa~ragr~ap~4qk (by of thi~t activities within the State f~qo~r EPA. eva~ql~quation~sin~spe~c~qti~on.
~~ ~qd~qX~1 Mem~qm~a~nd~qb~qW Of Agreement inspection. The Regional Administrator' ~6qP~qIThe ~0qS~qt~a~t~0qi~6qDirec~qt~qo~z s~qha~ql~qL promptly
~may~,i~n~c~0qhde-o~t~qhe~r~qf~erm~s~, ~c~o~nd~qit~qio~n~w~, or will normally notify the~t~qS~qt~a~0qf~0qt at lea~a~Z7~ f~qb~rward t~o~-E~qP~2qP-~c~op~qle~s of-draft permits
agreements- c~ans~qf~9~qte~n~qt-W~4qf~4qt thi~&~0q7ar~qt and! days be~qfor~qa any such inspection~q;~q, an~qc~qL~q, and permit applications for a~ql~ql major
re~0qlev~qan~8qt~4qi~8qb the a~4qdm~qi~qn~qi trati~qon and ~0qU~2ql) Procedures to assu~qr~qe~q,co~qordinat~8qio~qn~q, HW`M facilities f~0qb~qc review and
enforcement of ~0qt~0qhe State~q's regulatory. of enforcement ~qactiviti~4qm ~- ~ com~4qme~qnt.The-Reg~2qi~qnnal Administrator~q-
program. The Administrator shall not (~8q5~6q1 When. appropriate~q.:~8qp~qr~qov~8qi~qn~qi~qo~qn~qs~-~4qto~qr and the State Director may agree to -
approve ~qen~12qr~2ql~16qW~6qem~qoran~0qdu~qn~qr of joint processing of permits by.the Sta~00qf~00qt limitations regarding review. of and.
A~2qgreeme~qntw~0qbic~20qh contains-provisions and~0qEPA~q. for facilities or activities - comment on draft permits and/or permit
Which restrict ~2qKP~16qK~qs statutory oversight which re~8qq~qu~ql~0qm~q'~8qperm~2qits ~0qf~qr~qo~qn~qk~q' bo~6qd~qr EPA applications for non-major HWM
~q"SP~qOns~2qi~4qbi~52qf~52qt~q. ~. ~q* and the State under, different programs facilities. The~q.State Director shall supply
*-The Mem~qorandu~20qm~qofA~2qgreemen~4qt See t~q- 1~0q24.4. ~32qXPA copies of final permits for a~6ql~6ql major
-shall Include t~0qh~0q&~0qf~qa~0qll~qow~6qin~2qg~q: ~2qiNot~qe.~4q-T~qap~qro~0qm~qat~qi~qrefficiencyanc~8qil~qu~qrav~qoic~0qk HWM facilities.
(~4q1) ~6qP~qt~qa~qv~2qf~12qd~8qo~4qw for ~4qth~6qi prompt transfer duplication and i~qnc~qo~qn~qs~qi~qsten~qc~0qy~qj States are ~6q(4~0q)~~q-The Regional Administrator shall
~0qbom~, EPA to. the State of pending permit encouraged to enter intG joint processing. promptly forward to the- State Director
applications and any other information agreements with EPA fi~qm permit ~0qissuan~qo~qm information, obtained prior to program
~:~re~8ql~qev~qe~qn~4qt to pr~qagra~qn~qL~qoper~qat~0qi~6qm not Li~qk~qewise~qj Stat~qe~qs~qt~qar~qe encouraged ~2qLbu~4q@ ~qn~qo~qt appr~qov~qar-inn~qotific~qa~qt~qi~qon provided under

~t~m~eo ~qT~~d~ral~ Re~q&t~r I VOL 4~5~- N~~~2p~~~~1~1p~p~p~2p~p~~p~2p~~ ~qA~~les and Regulations
section ~q3~0qM~qG~q(~qi) of RCR~0q& 'Me Regional. Federal review of certain 'Classes or (4) ~qJ 122~.~q8~-~qL~q[~8qEstabl~qis~qh~qin~qg permit
~~qAdministrator and the State Director categories" of permits, ~n~qo waiver m~qI~qX~' conditions);
shall agree~on procedures for the be granted for the foll ~s~: ~q(5) ~q1 1~4q=~qL~0q4~q1~q3uratio~n~q@
assignment of EPA ~qident~qi~qf~qic~qa~qt~qi~o ~n~q: .(A) Discharges which may affect the ~q(~q6) 1~q22.1~q0~q[a~q)-~q-~q(~qS~chedu~ql~qes~'of~~1
numbers for new generators, waters of a State~" other than the one in compliance);
transporters, treatment storage, and which the discharge originates; (7) ~q1 1~q7~q2.11~-~-~q(Mo~qb~qitori~ng
disposal facilities. W ~q(B) Major discharges; requirements);
(5) The State Director shall review all ~~t
(C) Discharges into ~qm~qit~ql~q6a~ql areas (~q8) ~q1 1~8q=~q1~q3 (a) and (~qb)~-~0q4Eff~ect of
permits Issued under State law prior to ~4qv~p
established under State or Federal law permit);
the date of program approval. and including fish and wildlife sanctuaries (~q9) 1 12~q2.14~--~q(~qPer~r~a~qlt transfer);,
modify or revoke and reissue them to or refuges, National and historical ~q(~q10~q) ~q1~~q1~4q=15~-~-~q(~qPerm~qit modif~qication~qk~.~'
require compliance with the monuments, wild~qim~q6ss areas and (11) ~q1 12~q2.1~q0-~q4Pe~rmit~.t~ermi~natio~n~q@
requirements of this Part The Regional preserves, National and State parks, ~0qJ12) ~qJ ~q1~4q=~q1~q8~-~-(No~nco~qmpliance
Administrator and the State Director components of the National Wild and reporting);
shall establish a time within whi~ch~'this Scenic Rivers system, the designated ~8qJ~q23~q) ~q1 ~2q=1~q9 ~q(b)-~q(d)--~q(Confidential
review must take place. critical habitat of threatened or information);
(~e) State N~6qP~6qD~6qES~6qpr~o~2qgra~qm~8 onl~qy~.~2p~ t~qhe endangered species, and~s~qite~s identified (14) ~qJ 124~.~q3~q(a)-~q(App~ql~qi~c~at~qi~qon ~qf ~b~@r~. a ~-
case of State NPDES programs the or proposed under the National. Historic permit):
Memorandum of Agreement ~shall-a~ql~s~o- Preservation Act;' (~q1~q5~q11 INS (a), (c~q), (~qd~q@ and
.specify the extent to which EPA Vill W ~q(D) Discharges proposed to be (Modification of perm~qlts~q@ except as
waive ~'its right to review, object to, or regulated by general pe~qii~qn~qits, or' provided in I ~4q=~q100(b~q)(2~q) ~2qG~r State-
comment upon State-issued permits ~q(E) Discharges known~'or suspected to section 404 programs*
under sections 402(d)(3). ~q(e) or (~qf) of contain toxic ~qpollutants~'~qIn toxic ~2p~2p~~q) 1124.~q6 (a), (c)~,~q(d). and ~q(e~qJ~-~-~q(Dr~qi~&~qQ
CWA.~ While the Regio ~'nal Administrator amounts under section 307(a)~q(~q1) of CWA permit), except as provided in
and the State may agree to waive EPA ~, or hazardous substances In reportable I 123.100~q(b)~q(2) for State section 404
rev ~qiew of certain "classes or categories' quantities under section ~q311 of CWA~. programs;
of permits, no waiver of review may ~qbe (~qi~qi) A definition of m~aj~o~r~'dis~c~q@~qhar~qges- (17) ~q1 ~q!~4qU~8qS--(Fac~qt sheets), e~qj~c~q6ept as
granted for the following -discharges'
(~q1) Discharges into the terr~qito~n~ia~ql~,~q;ea~- (2) In the~case of State section 404 provided in I ~8qu~8qm~8qw(b)~q(2) for~,State
programs, where more than one agency section 40~q4 ~ ~-
(2) Discharges which may affect the programs;
waters of a State other than the one in within a State has responsibility for ~q(~1~q8) ~q124-10 (a)~q(~q1)~q(i~qi). ~q(a)~q(1)~q(~qi~qii),
which the discharge originates; administering the program, ~q@11 of the (a)~q(~q1)~q(v), (~qb~q), (~c~q). ~q1d~q), and (e)~-~4q@~qPubl~qic
(3) Discharges proposed to be respo~4qa~qlb~qle agencies shall be parties to notice);
regulated by general perm~qits~'(see the Memorandum of Agreement ~' ~q(~q1~q9) ~qJ ~q124.~q1~q1~-~-~q(Public ~comments and
122.5~q9)~. (g) State ~6qXPD~0qE~qS and Section 40~q4 requests for hearings);
programs o~n~,~q@~r~. Whenever a waiver is (20~q) ~q1 124.~q12~q(a)--~q(Public hearings~q)~,
~J~0qQ Discharges from publicly owned ~0qr~l~2qm
treatm~qOnt works with ~a~'d~i~a~6qAy average granted under paragraphs (e) 'or ~q(f)~q(1~q) of, and
discharge exceeding I million gallons this section, the Memorandum of ~q(2~q1) ~q1124.~q17 (a) and ~q[~v~q)~q@~-(R~e~s~qpo~n~s~e ~qt~q@~l
per day; Agreement shall contain. -comments).
(~q5)~.D~qischar~qS~es of uncontaminated ~q(~q1) -A ~q6tateme~nt that the Regional [N~o~;~te~.~q-States need ~not~l~u~np~qlement,
cooling water with a daily average- Administrator retains the right to provisions identical to the above li~ste'd
discharge exceeding 500 million gallons. terminate the waiver as-to~-~qfuture permit provisions o~r~ot~qhe-provision~s Wed in I 1 ~1~'~qW~q@
per day, actions, in whole or in part at any time (~qb~q)~_~q[d~q). Implemented provisions mu~st~.~,~1~
(6) Discharges from any major' by sending the State Director written' however, establish requirements at least as
discharger or from any discharger within notice of~termination; and stringent as the corresponding listed ~' ,
any of the 21 industrial categories listed ~4q4~v~o (2) A statement t~qh~at the State shall provisions. While States may impose more
in Appendix A to. Part 1~q2~q2~q: supply EPA and, i~n the case of State ~s~h~qingent~~requ~qirements, they may no~qt make
one requirement more lenient as a ~U~Ad~eo~qf~qf
(7) Discharges from other sources with section 40~q4 programs.~'the Corps of
for making another requirement more
a daily average discharge exceeding 0.5 Engineers, the U.S. Fish and Wildlife stringent for example. by requiring that
(one-half) million gallons per day, Service, and the National Marine public hearings be held pri~arto Issuing any
except that EPA review of permits for Fisheries Serv~cie (unless -receipt is permit while reducing the amount of advance-
discharges of non-process wastewater~' waived in writing). with copies of final notice of such a hearing.
may be waived regardless of flow. permits. State programs may. if they have adequate
(f) State section 40~q4 programs only. (~q1) legal authority. implement any of the - ~*
In the case of State section 40~q4 ~q112~3.~q7 Requ~ir~em~ent~s~qf~a~cp~erm~qf~qt~t~8qf~8qt. provisions of Parts ~4q= and ~qM~. See. for
programs, -the Memorandum' of (a) A~ql~ql State programs -under this Part e~qm~qm~qple~q. I ~1~q=~5~q1d~q) (continuation of ~qperm~qi~t~a~qi
Agreement with the Reg~2qi must have legal authority to implement and ~6q� ~q12~qA.4 (consolidation ofp~qerm~0qit
anal
Administrator shall also spe~qcif~16qr.~q, each of the following provisions, and Processing~8q)~q.
~6q(~2qI) The categ~0qdries (including any ~2qcla~44q"~q. must be -administered ~6qI~qri ~qc~qo~36qdorma~qn~2qq~4q@ (~4qb) State ~q-~20qA~24qC~16qR~04qA ~16qp~12qmr~qam~qe ~8qO~52qW~48q@~2qy
type,' or size within such categor~2qles~2qt~0qp~0qi with ~qm~6qich: except that St~8qdt~6q0~qs ~q- are~q.~qnd~40qt State hazardous waste pr~qo~6qgram-s~8qhall
discharges for which EPA will waive precluded from omitting ~6qd~4qi-r~6q6od~2qif~8qying have. legal ~4qi~6qith~4q6r~6qity to ~6q!~48qZleme~2qnt each,
review of State-issued permi~8qf any provisions to impose ~q,man stringent of the foll~qaw~6qb~24qN~8qpro~6qi~6ql~qsi and -must be
applications, draft permits; and dr~qa~8qf~60qC - r~qequirem~qi~qe~qn~0qt~qs~0q! ~q- administered In c~6qi~qanf~qorm~qs~~2qm~qo~qe~8qv~qr~8qith each.
general permits. While the Regional _~qj ~6q(~4qI~4qL~4q) I ~0q1~0q7~4q2~44q4~q--~0q(Applicat~qion for a perm~4qit~0qi, except tha~8qtStat~4qes are not, pre~44q*~6qded
Administrators and the State, after except in the case of I ~4q2~8q2~8q2~08qA~0q[d~4q) for~56qState from om~2qit~2qf~2qi~qn~2qg~q'~qo~4qr modifying ant'.
consultation with the Corps -of section 40~2q4 programs: provisions to. impose more ~qs~8qtri~qn~0qg~qe~qt~qit
Engineers, t~8qhe U.S. Fish and Wildlife (2) ~6q1 ~08q=.~44q"Si~6qj~6q@~qnatorie~6qi~2qk, requirements:
Service, and the National Marine (~8q3) 1 122.7~2q-~08q4Appll~qcabl~6qi permit (2) ~6q1 ~12qU~4qZ~16qZ~4qJ~4qd~4q)~0qJ~8q2~8q)~q-~44q4~4qSpe~qc~28qf~28qf~28qic
Fisheries Service, may agree to w~8qd~6ql~qve conditions); Inclusions~4q)~q,

B-50

Federal Register / Vol. 45, No. 98 / Monday, May 19.. 1980 / Rules and Regulations 33461

(2) 1 122.22-(Applica tion for a to implement the general permit program "directly or indirectly from'permit
permit); under 1122.59 need not do so; holders or applicants for a permit" when
(3) 1 122.24-(Contents of Part A); (9) J 122.60--(Conditions applicable to it is derived from mutual fund payments,
(4) 1 122.25--(Contents of Part B); all permits); or from other diversified investments for
(Note.-States need not use a two part .(10) 1 122.61--(Conditions applicable which the recipient does not know the
permit application process. The State to specified categories of permits); identity of the primary sources of
application process must however, require (11) � 122.62--(Establishing permit income.
information In sufficient detail to satisfy the conditions);
requirements of I J 122.24 and 122.25.1 (12) � 122.&3-4Calculating N .PUIES 123.8 Requirements for compliance
(5) 1 122.26-4Perntit by rule); conditions); evaluation programs.
(6) 1 122.27--{Emergency permits); (13) � 122.84--(Duration of permit); (a) State programs shall have
(7) 1 122.28-(Additional permit (14) � 122.015--(Disposal into wells); procedures for receipt, evaluation.
conditions); (15) � 124.58--(Fact sheets); retention and investigation for possible
(8) � 122.29-4Establishing permit' (16) � 124.57(a)-4Pubfic notice); enforcement of all notices and reports
conditions); and (17) � 124.59-{Cornments from required of permittees and other
(9) � 122.30-(Interim permits for UIC government agencies); regulated persons (and for investigation
wells). (18) Subparts A, B, C, D, H, L J. K and for possible enforcement of failure to
-(c) State =programs only. State L of Part 125; and submit these notices and reports).
UIC programs shall have legal authority (19) 40 CFR Parts 129. 133, and . (b) State programs shall have
to implement each of the following Subchapter N. inspection and surveillance procedures
provisions and must be administered in to determine, independent of
[Note@For example. a State may Impose information supplied by regulated
conformance with each; except that more stringent requirements in an NPDES persons, compliance or noncompliance
States are not precluded from omitting program by omitting the upset provision of
or modifying any provisions to impose � 122.60 or by requiring more prompt notice with applicable program requirements.
more stringent requirements: of an upset.) The State shall maintain:
(i) I 122.32--(Classification of (1) A program which is capable of
injection wells); (e) State NPDES and 404 programs making comprehensive surveys of all
(2).� 122.33--(Prohibition of only. (1) State NPDES and 404 permit facilities and activities subject to the
unauthorized injection); programs'shall have an approved State Director's authority to identify
(3) � 122.34--(Prohibition-of continuing planning process under 40 persons subject to regulation who have
movinient of fluids into underground CFR � 35.1500 and shall assure that the failed to comply with permit application
sources of dri nking water); approved planning process is at all or other program requirements. Any
(4) � 122.35--(Identification of times consistent with CWA. compilation, index, or inventory of such
underground sources of drinking water (2) State NPDES and 404 programs facilities and activities shall be made
and exempted aquifers); shall ensure that any board or body available to the Regional Administrator
(5) � 1=6-(Elimination of Class IV which approves all or portions of upon request;
wells); permits shall not include as a member (2) A program for periodic inspections
(6) J 122.37-4Au Ithorization by rule); any person who receives, or has during of the-facilities and activities subject to.
the previous 2 years received, a regulation. These inspections shall be
(7) � 122.38-(Authorization by
permit); significant portion of income directly or- conducted in a manner designed to:
(81 � 122.39--(Area permits); indirectly from permit holders or (i) Determine compliance or
(9) 1 122.41-4Additional permit applicants for a permit. noncompliance with issued permit
conditions); (i) For the purposes of this paragraph. conditions'and other program
(101 � 122.4Z-(Establishing permit (A) "Board or body" includes any requirements;
conditions); individual, including the Director, who . (H) Verify the accuracy of information
(11) 1 122.44--(Corrective action); and has or shares authority to approve all or submitted by permittees iind other
(12) � 122.45-(Requirem;ents for wells portions of permits either in the first regulated persons in reporting forms and
managing hazardous wastes). instance, as modified or reissued, or on other forms supplying monitoring data,.
(d) State AMESprograms Only. State appeal. and ,
NPDES programs shall.have legal ... (B) "Significant portion of income@' (iii) Verify the adequacy of sampling,
authority to implement each of the means 10 percent or more of gross monitoring, and other methods used by
following provisions and must be personal income for a calendar.year, permittees and other regulated persons
administered in. conformance with each: except that it means 50 percent or more to develop that information;
except that States are not precluded of gross personal. income for d calendar (3) A program for investigating
from, o'nu*tting or modifying any ' year if the recipient is over 60 years of information obtained regarding
provisions to impose more stringent age and is receiving that portion under violations of applicable program and
requirements: retirement pension. or similar permit requirements; and
(1) 1 122.5Z-(Prohibitions); arrangement. (4) Procedures for receiving and
,(2) � 122.53 (a). (dHg) and (I)-(k)- (C) "Permit holders or applicants for a ensuring proper consideration of
(Application for a permit); - permit!' does not include any information submitted by the public
(3) � 122.54-(Concentrated animal department or agency of a State about violations. Public effort in
feeding operations); ' government, such as a Department of reporting violations shall be encouraged.
(411 12?.5&-(Concentmted'aquatic Parks or a Department of Fish and and the State Director shall make
animal production facilities); Wildlife. available information-on reporting
(5) �1 " 6-(Aquaculture projects); (D) "Income" includes retirement- procedures.
(8) J 122.57--(Sepamte storm sewers); benefits; consultant fees, and- stock (c) The State Director and State
(7) 1 122_%@(Silviculture); dividends. officers engaged in compliance
(a) � 122-59-(Generat permitB@ (ii) For the purposes of this evaluation shall have authority to enter
provided that'States.which.do not seek subparagraph, income is.not received any aite@or premises subject to

B 5.r-

Ely~
`~1~4~~1p~1p~p~ Rules ~I~te~qo~~ifi~~~
334~62 ~qF~~de~i~al Register~~ I ~qN~ol. 4~1~1~;~ ~qV~8 :M~~d~~y~~~

~6q0~q1~2qT
regulation or in which records ~x1~qe~qle~v~a~n~t ~'~q6~4~"~a~s~~e~s ~'~Or~'~sue to ~re~o~w~ver in c~o~ur NPDES or section 4~0~4 ~qfo~r~qm~qi~n-~a~ny
to program operation are kept in ~ard~er: civil pen ~'a~qlt~qie~s~qi~6qL~qt~o seek criminal notice or report required by an NP~6qOE~qS
to copy any records.. inspect. monitor or remedies, ~qi~n~c~qlu~0q&~qmg fines, as ~qf~e~ql~o~qw~~s~~: -or section ~4q0~q4 permit, or who ~qS~qm~qa~qw~qin~qg~ql~qy
otherwise investigate tamp] with ~--~q[i)~:S~qt~ateRC~2qRA programs only- (A) renders inaccurate any ~qm~o~qitoring device
the State program including c~omp~qUance Civil penalties shall be recoverable for or method required to be maintained by
with permit conditions and other ...- ~- any program violation ~qin~at ~0qk~qist the the Director. Such fines shall be -
program requirements. States whose law am~ou~nt~of~4q$~q1~q0~,~q0~q0~q0 per day. recoverable in at least the amount of
requires a search warrant bef~ore~entry ~q(B) Criminal remedies shall -be- ~q$5,000 for each insta~nce~of violation.
conform with this requirement. obtainable against any person who ~q[Not~e.~-~q4~n many States the State Director
(d) Investigatory inspections shall be knowingly transports any hazardous will be represented in State ~c~m~irt~s by the
conducted, samples shall be taken and waste to an u~npermitted facility; who State Attorney Ce~neral or other appropriate
other information shall be gathered in a treats, stoma. or disposes of hazardous legal ~o~qf~qricer. Although the State Director need
manner [e.g., using proper "chain of ~- waste without a permit; ~o~r who makes not appear in co~ar~t~acti~qo~n~s he or she should
custody" procedures) that will produce any false ~statement~or representation in have power to request that~A~ny of the above
evidence admissible in an enforcement any application. label. manifest. record, actions be brought.~q1
proceeding or in court~. report. perm~qit~or other document filed,
(e) State A~q7~8qPD~8qES ~qp~i~qo~qg~r~a~z~u~s o~z~qd~qy- State maintained. ~or used for purposes of (~qb)(1) The maximum civil penalty or
~qNPDES compliance evaluation programs program compliance. Criminal fines criminal fine {as provided in paragraph
shall have procedures and ability for. - shallb~e~recovera~qb~qle~qin~et~qlea~st~-t~qhe ~q1~a)~q(3) of this section) shall be assessable
for each inst~s~0qi~ce of violation and, if the
(1) Maintaining a comprehensive amount of $10,000 per day for each
inventory of all sources covered by- violation. and imprisonment for at least violation is continuous, shall be
N~qPDES permits and a schedule of, six ~inon~qths shall be ava~qi~qh~8qNe. assessable up to ~qt~qhe maximum ~qi~im~oun~qt'
reports required to be submitted -by ~4qp~qi~q) State ~qr~,~q7C p~z~o~qgrams only. (A) For for eacl~id~ay of violation.
permittees to the State agency; a~ql~ql wells except Class ~qH wel~qls,civil ~q[2) The burden of proof and degree of
(2) Initial screening ~qf~qi.e.~, pre- penalties shall be recoverable.for any knowledge or intent required under
[email protected] evaluation) of a~ql~ql per~a~t~qi~qt or program violation in at least t~qhe~amoun~qt '-State law for establishing violations
grant-related compliance information to of $~qZ~.~q5~8qW per day. For Class ~6qR wells, civil under paragraph (a~q)~q[3) ~of this section.
identify violations and to establish penalties shall be recov~era~4qWe for any shall be no great& than the burden of
priorities for further substantive program violation in at least the amount proof or degree of knowledge or intent
technical evaluation: of SLOW per day. EPA must provide, when it brings an
(3) When warranted. conducting a . (B) Criminal fines shall be recoverable action under the appropriate Act.
~9~ubst~anti~ve technical evaluation .. ~i~n at least the a- u~nt of $5,000 per day [Note.--For example, this r~e~quir~e~qm~'~qw~A is
following the initial screening of all, against any person who willfully no~l met if State low includes mental ~e~t~a~t~e as
permit or grant-related compliance violates any program requirement. or, an element of proof for~vivil ~v~8qWat~i~o~qm~qi
information to determine the for Class ~qH wells. pipeline (production) (c) Any civil penalty assessed, sought
severance shall be imposable against
appr~opriate~a~qgency re~spon~qw~, any person who willfully violates any or agreed upon by the State Director
(4) Maintaining a manageme~qf~qit program requirement. under paragraph (~qq~q)(3) of this section
information system which supports the ~q(~2qW~qJ State ~6qN~8qP~4qD~2qES and section 4o~q4 shall be appropriate to the violation~. A
compliance evaluation activities of this pr~q6~qgra~n~t~s only. (A) Civil penalties shall civil penalty agreed upon by the State
Part; and ~0qr~qp Director in settlement of a~timi~ni ~qU~l~a~qti~v~e
be recoverable for the violation o~qf any
(5) Inspecting the facilities of all major NPDES or section 404 permit condition; or Judicial litigation ~4qmay be adjusted b~qj
dischargers at least annually. any N~qPDES or section 404 filing a percentage which represents ~qT~qhe -~, -
~1123.9 R~e~qu~i~qm~qm~ent~s for enforcement requirement any duty to allow or carry likelihood of success in establishing the
auth~o out inspection, entry -or monitoring underlying violation(~s) in-suchli~qf~qi~qg~a~qt~qion.
activities: or any regulation ~cr~order~s If such civil penalty, together, with
(a) Amy State agency administering a is~qwed by the State Director. Such costs of expeditious compliance. would
program shall have available the penalties shall be assessable in at least be so severely disproportionate to the
following remedies for violations ~of the amount of ~q$~q5~,000 per da~qk for each resources of the violator as to jeopardize
State program requirements: violati~o~a~L continuance in business. the payment of
(1) To restrain immediately and (B) Criminal fines shall ~qbe recoverable the penalty may be deferred or the
effectively any person by order or ~qb~y against any person who willfully or penalty maybe forgiven in whole or
suit in State court from engaging in a~ny negligently violates any app~ql~qicab~qie part, as circumstances warrant~. In the,
unauthorized activity which is standards or limitations: airy NPD~qES or case of a penalty for a failure to mee~qt~*a
endangering or causing damage to section 40~4q4 permit condition~q; or any statutory or final permit compliance
public health or the environment~q; NPDES or section 404 filing requirement deadline, -appropriate to the violation:'
~8q(No~qte~q,~4q-T~8qhis paragraph requires that States Such fines shall be assessable in at least as used in this paragraph~q. means a
have a mechanism (eg., an administrative the amount of $~0q10~q,O~00qW per day for each penalty which is equal to-'
cease and desist order or the ability to seek a violation. (~4q1) An amount appropriate to redress
temporary restraining order) to ~qstop~6qazy the harm or risk to public health or the
unauthorized activity endangering public [No~qt~qe--Stat~qe~qs w~4qRich provide criminal environment; plus
health or the environment.) remedies based on "criminal negligence,~q"
"gross ne~qg~4qh~qgence~q"~q,~qor strict liability satisfy (2) An amount appropriate to remove
(~0q2) To sue in courts of competent the requirement of paragraph (a)(3)(ii~qi)~0q(B) of the economic benefit gained or to be
jurisdiction to enjoin any threatened or this section.] gained from delayed compliance; plus
continuing violation of any program ~6q(C) Criminal fines shall be recoverable ~0qf3) An amount appropriate as a
requirement. including permit , ~q- . against any person who knowingly penalty for the violator's degree of
conditions, without the ~qnec~qe~qw~6qd~4ql~2qy of a makes any false statement recalcitrance, defiance, or indifference
prior revocation of the permit: representation or certification in a~6qny to requirements of the law-. plus

B-52

Federal Register / Vol. 45, No. 98,1 Monday, May 19, 1980 / Rules. -and Regulations 33463-

(4) An amount appropriate to recover submit that claim to EPA when (2) Whenever EPA determines that the
unusual or extraordinary enforcement providing information under this section. proposed program revision is
costs-thrust upon the public; milnus Any information obtained from a State substantial, EPA shall issue public
(5) An amount, if any, appropriate to and subject to a claim of confidentiality notice and provide an opportunity to
reflect any part of the noncompliance will be treated in accordance with the comment for a period of at least 30 days.
attributable to the government itself, regulations in 40 CFR Part 2. If EPA The public notice shall be mailed to
and minus obtains from a State information that is interested persons and shall be
(6) An amount appropriate to reflect not claimed to be confidential. EPA may published in the Federal Register and in
any part of the noncompliance caused rn.ake that information available to the enoughof the largest newspapers in the
by factors completely beyond the public without further notice. State to provide Statewide coverage.
violator's -control (eg., floods, fires). (b) EPA shall furnish to States with The public notice shall summarize the
[NobL-4n addition to the requirements of approved programs the information in proposed revisions and provide for the
this paragraph. the'State may have other its files hot submitted under a claim of opportunity to request a public hearing.
:nforcement remedies. The following confidentiality which the State needs to Such a hearing will be held if there is
nforcement options. while not mandatory, implement its approved program EPA significant public interest based on
are highly recommended: shall furnish to States with approved requests received.
Procedures for assessment by the State of programs information submitted to EPA (3) The Administrator shall approve or
the costs of investigations. inspections. or under a claim of confidentiality, which disapprove program revisions based on
monitoring surveys which lead to the the State needs to implement its the requirements of this Part and of the
establishment of violations; approved program subject to the appropriate Act.
Procedures which enable the State to conditions in 40 CFR Part 2. (4) A program revision shall become
assess or to sue any persons responsible for effective upon the approval of the
unauthorized activities for any expenses 123.11 Coordination with other Administrator. Notice of approval of any
incurred by the State in removing, correcting, programs. substantial revision shall be published
or terminating any adverse effects upon
human health and the envirorunent resulting (a) Issuance of State permits under in the Federal Register. Notice of
from the unauthorized activity, whether or this Part may be coordinated with. ' approval of non-substantial program
not accidentak issuance of RCRA UIQ NPDES, and 404 revisions may be given by a letter from
Procedures which enable the State to sue permits whether they are controlled by the Administrator to the State Governor
for compensation for any loss or destruction the State. EPA. or the Corps of or his designee.
of'wildlife, fish or aquatic life, or thet*r* Engineers. See J 124.4. (c) States with approved programs
habitat. and for any other damages caused by (b) The State Director of any shall notify EPA whenever they propose
unauthorized activity. either to the State or to approved program which may affect the to transfer all or part of any program
any residents of the State who are directly planning for and development of from the approved State agency to any
aggrieved by the unauthorized activity. or
both: and hazardous waste management facilities other State agency. and shall identify
Procedures for the administrative and practices shall consult and any new division of responsibilities
assessment of penalties by the Director.] coordinate with agencies designated among the agencies-involved. The new
,(d) Amy State administering a program under section '400e(b) of RCRA (40 CFR agency is not authorized to administer
shall provide for public participation in Part 255) as responsible for the . the program until approved by the
the State enforcement pr6cess by development and, implementation of Administrator under paragraph (b) of
providing either. State solid waste management plans this section. Organizational charts.
(1) Authority which allows under sectionz )02(b) of RCRA (40 CFR required under J lZ3.4(b) shall be
intervention as of right in any civil or Part 256). revised and resubmittecL
administrative action to obtain remedies (d) Whenever the Administrator has
specified in paragraphs (a) (1). (2) or (3) 1123.12 Approval process. reason to believe that circumstances
of this section by any citizen having an The process for EPA approval of State have changed with respecl to a State
interest which is or. may be adversely programs is set out in 11123.39 (RCRA), program. he may request. and the State
affecteck or 123.54 (UIC), 123.77 (NPDESJ, and shall provide, a supplemental Attorney
(2) Assurance that the State agency or 123.104 (404). General's statement, program
enforcement authority, -will- I I.23.13. Proc -edures for revision of State description, or such other documents or
(i) Investigate and provide written programs. information as ire necessary.
responses to all citizen complaints (a) State RCRA programs only. All
I @ (a) Either EPA,or the approved State
submitted pursuant to the procedures new programs must comply with these
specified in I 123.8(b)(4); _ may initiate program revision. Program regulations immediately upon approval.
(ii) Not oppose intervention by 'any revision may bft necessary when the Any approved program which requires
citizen when permissive intervention controlling Federal or State statutory or revision because of a modification to
may be authorized by statute, rule. or regulatory authority is modified or this Part or.to 40 CFR Parts 122, 124. 2K
regulation; and supplemented.. The State shall keep EPA 261, 26Z 263, 264, 265 or 266 shall be so
. (W) Polish notice of and provide at fully informed of any proposed revised within one year of the date of
least 30 days for public comment on any modifications to its basic statutory or promulgation of such regulation, unless
proposed settlement of a State regulatory authority, its forms, a State must amend or enact a statute in
enforcement action. procedures. or priorities. order to make the required revision in
(b) Revision of a State program shall which case such revision shall take
� 12110 Sharing of Inton. ation. be accomplished as follows: . I place within two years.
(a) Any information obtained or used (1) The State shall-submit a modified (f) State 0Cprpgrams only. The State
in the administration of a State program Program description. Attorney General's shall submit the information required
shall be available to EPA upon request statement. Memorandum of Agreement under paragraph (b)(1) of this section
without restriction. If the information or such other documents as EPA within170 days of any amendment to
has been submitted to the State under a determines to be necessary under the this Part or 40 CFR Parts 122, 124, or 146
claim of-confidentiality.- the State must. circumstances, which revises or adds any requirement

8--a53

3~464 Federal Register Vol. 45~ No. ~98 Monday, May ~19~ ~1~9~qM Rules ~~i~i~d'Re~i~R~dat~ions

respecting an approved State ~2qUIC (Ili) Failure to com~qp~q)~qy with the public ~q(~q1) O~rde~r.'~0qMe Administrator may
program. participation requirements of this Part order the~commencement of withdrawal
(g) State A~r~2qPDES~'p~qm~qg~r~am~s only. All (3) When the State's enforcement proceedings an his or her own initiative
new programs must comply with these program falls to comply with the or in response to a petition from an
regulations immediately upon approval~. requirements of this PartJ interested person alleging ~0qMure of t~qhe
~V a ~S~_ ~.~0~- ~qS
Any approved State section 402 permit (~qI) Failure to act on v~qiolat~qi tate to comply with the requirements of
program which requires revision to permits or other program requ~qi~qtem~e~nt~s; this Part as set forth in ~q1123.14. Ile
conform to this Part shall be so revised (ii) Failure to seek adequate ` ~, Administrator shall respond in writing~'
within one year of the date of enforcement penalties or to collect Ao any petition to commence withdrawal
promulgation of these regulation& administrative fines when imposed; or proceedings. He may conduct an
unless a State must amend or enact a ~q(III~q) Failure to inspect and monitor informal investigation of the allegations
statute in order to make the required activities subject to regulation.. in the petition to determine whether
revision -in -which case such revision (4) Whenthe State program falls to cause exists to commence proceedings
shall take place within 2 ye~am except comply with the terms of the - under this paragraph. ~q7~1~he
that revision of State programs to Memorandum of Agreement required Administrator's order c~on~ime~nci~n~qg
implement the requirements of 40 CFR under I I~4qM~4qA. proceedings under this paragraphsha~qll
Part 403 (pretreatment) shall be fix a ~qf~qirne and p~qla~qm for the
accomplished as provided in 40 CF~6qR �~q1~q2~q3~L~qI~qS ~qPro~c~e~qd~i~qm~qmforw~qi~qd~u~qk~aw~0qW~a~ql commencement of the hewing and shall
~� 403.10. In addition. approved States State programs~. specify t~q@e allegations against the State
shall submit. within 6 months, copies of (a) A State-,wit~qh a program a ~v~'~wu which are to be considered at the
their permit forum for EPA review and under this Part may voluntarily transfer hearing. Within So clays the State ~s~8qL~8qX
approval. Approved States shall also program responsibilities required by admit or deny ~qfh~a~se allegations Ina.
assure that permit applicants, other than Federal law to EPA (or to the Secretary Written~ answer- ~ql~ql~k~qiPartY seeking
POTW~s, either (1) whose permits e~2qn~qlre in the case of 404 programs) by taking withdrawal of the State's program shall
after November ~6qX 1~qQ~2qW or (2) whose the following actions, or in such other have the burden of coming forward with.
permits expi~qie before November 31~q1 ~qI~8qM manner as may be agreed upon with the the-evidence in a hearing under this
and who have not reapplied for a permit Administrator. paragraph.
prior to April ~q30~, 1~q9~q80~. submit. as pad of ~q(~q1) *Me State shall give the ~q(2) De~2qf~2qt~n~qi~qf~qf~qm~qm f~qb~r purposes of ~q1~4q%s
their application, the information Administrator (and the Secretary i~qn the paragraph the definitions of --Act,:" ~,
required under ~q�~qJ 1~q22.4[d) and 122-53 (d) case -of section 40~q4 programs) ~q1~q8D days .'Administrative ~6qU~qw judge "Hearin&"
or (e), as appropriate. . notice of the proposed transfer and shall ~q7~0q1l~earing Clark~- and "Presiding Officer-
~q[h) State section 4~4qN only. submit a plan for t~qf~qie orderly ~4qh~qan~8qder of In 40 CF~0qR I ~4q=~8qM apply in addition ~qtD
~6qp~r~o~qg~y~qw~qm the following~;
~7~~e Regional Administrator shall all relevant program information not in (~qI) "Party" means the Petitioner~, the
consult with the Corps of Engineers. the the possession of EPA (or the Secretary State, the Agency. and any other person
U.S. Fish and Wildlife Service, and the in the case of section 404 programs) whose request to participate as a party
National Marine Fisheries Service (such as permits. permit ~8qVes~. -
regarding any substantial program.. compliance file~a. reports. permit ~2~8 granted-
revision~, and shall consider their applications) which are necessary for . ~q(i~qi) ~"Pers~on~"m~eans the Agency, the
recommendations prior to approval of - EPA (or the Secretary In the case of State and any individual or organization
any such revision. section ~4qW~_ programs) to administer the having an interest in'the subject matter
program of the proceeding.
~1123~.14 Criteria for w~qf~qthdr~aw~al of ~q@~qS~t~s~t~* (2) Within So days of receiving the (~qI~ql~qi) "Petitioner" means any person
programs., ~- whose petition for commencement of
notice and transfer plan~, the withdrawal proceedings has been
(a) The Administrator may withdraw Administrator (and the Secretary in the
program approval when a State program granted by the A~qdministr~a~qt~q=
case of section 40~q1 programs) shall (3) Procedures. The ~qI~0qd~qiowi~ng
no longer complies with the evaluate the State's transfer plan and
requirements of this Part. and the State shall identify any additional information provisions of 40 CFR Part ~q2~q2
falls to take corrective action. Suc~qb (Consolidated Rules of Practice) are
needed by the Federal government for applicable to proceedings under this
circumstances Include the following-. program administration and/or identify para~qgra h.
(1) When the State's legal authority no any other deficiencies in the p~qla~r~L ~qP
longer meets the requirements of this . ~q(~qI) I ~4q=02~-~-~q(u~se of ~number~q/~qge~nder~ql~-
(3) Al least 30 days before the transfer (~qi~qi) I 2~q2-0~q4~q(c)-~4q4authorit~qies of
Part, including. is to occur the Administrator shall Presiding Officer);
(~qI) Failure of the State to promulgate publish notice of the transfer in the ~qDii) I 2~q2~-0~q&~-4~qf~qi~qlin~qg/service of rulings
or enact new authorities when Federal Rooster and in enough of the and order~s~q@~.
necessary-. ~qo~qr largest newspapers In the State ti~qD (iv) I ~8q2~0q2~04qM~0qIa) and ~4qfb)~8q-~8q@~8qept that.
~4q(~2qI~2q!) Action by a State le~2qg~6ql~qa~20qkture or provide Statewide coverage, and shall the time for commencement of the: ~q.
court striking down or limiting State mail notice to ~qa~0ql~0ql permit holders, permit hearing shall not be extended beyond
authorities. ~qapplic~qe~qnt~qs, other regulated pers~qans and the date set in the Admini~qstratoe~qs order
~0q(2) When the operation of the State other interested pers~qon~qs~qo~qn appropriate without approval of the Administrator-
program falls to comply with the EPA and State ~2qm~qe~08qf~08qf~08qin lists. (~qcomputatio~qn/extens~6qionof time);
requirements of this Part. including: ~48qD) ~0q7~q-~qhe following p~qr~qocec~4qh~qu~qr~qe~qs apply (v) I ~4q7~08qI~04qM~8q-how~qe~qv~qe~qr, substitute,
(~2q1) Failure to exercise control over when the Administrator orders the "order commencing proceedings- for
activities required t~2qb be regulated under COMMA of proceedings to ~q"o~qornpla~8qint~q"-~q-~0q(~2qE~qx Porto ~qc~qon~4qt~qect~qs)~q,
this Part. including failure to issue determine whether to withdraw - I ~0qJv~0qQ I ~4qZ~4qZ~04qM~q-~48q4ex~qamina~8qtion of Mod
permits;.. approval of a State-p~qr~qo~2qgram~q.~q,ot~4qh~qer ~4qt~qhan docu~qcnent~0qe~4q@~q,
(11) Repeated issuance of p~qer~qi~qn~6qi~04qb. a UIC program~q. 7~0qb~q* process for ~4q(~qvi~6ql~4q) J Z~08qLII(a~2ql ~6q(~qc~8q) and ~2q(~56q4 ~8qh~qow~8qf~8qf w~q,
which do not conform to the withdrawing approval of State LUC motions to inter~qv~qan~qe mud be filed ~q- ~,
requirements of ~8qt~4qhis Part; or programs is set out In I ~2q1~12q=~q.~2qS~12qL within 25 days from the date ~28q*~q9 ~qs~qod~qoe

~28qB-54

Federal Register / Vol. 4~6~~ No. ~9a / Monday. May 19~ 198~0 / Rules and Regulations ~3~34~6~6

of the Administrator's order is first the issues within such limits and on supplementary order withdrawing
publishe~6qd~-4intervention); such conditions as may be fixed by the approval of the State program. If the
(viii) ~q122.1~q6 except that~, service shall Presiding Officer, but he/she may not State takes appropriate corrective
be in accordance with paragraph (b)~q(4) otherwise participate in the proceeding~, actio~r~u the Administrator shall issue a
of this section. the first sentence in, ~q(~q6~q) Rights o~qf~qpa~r~8qdes. A~ql~ql parties to th~e. supplementary order stating that
I 22.1~q6~q(c~ql shall be deleted, and, the word proceeding may: approval-of authority is not withdrawn.
"recommended- shall be substituted for (i) Appear by counsel or other ~q(vii) The Administrator's
the word ~"~qInitiar, in I z2.1~q6~q(~c~q)~q- representative in all hearing and pre- supplementary order shall constitute
(mot~qions~qk. hearing proceedings-- final Agency action, writhin, the meaning
, fix) I ~qZ~qZ19(a~ql, (bj and (c)--~q(prehea~ring (i~qi) Agree to st~qip~qZ~qd~qations of facts of 5 U.S~.C. ~qj 704.~.
conference): whic1~L shall be made a part of the (c~q) Withdrawal of authorization under
~q(x) I ~q2~q2~8q=~-~-4evidence~qy~, record. this section and the appropriate. Act.
~6qW~q1~q1~-~4qM~q23-~q(o~qbject~qi~on~s/offersof ~q(7~q1~2qRec~qw~n~qmendeddec~qi~qsi~o~i~r. ~q(~qi~qlWit~qhi~n' does. not relieve any person from
~p~r~o~of~qy. 30 ~0qd~ays~'after the filing of~'proposed~' complying with the requirement& of
~q(xi~qi) ~qj 22~4q2~q5~--(filing the tran~sc~ript~qy, findings and conclusions, and reply State law, nor does it affect the validity
and briefs, the Presiding Officer shall~' of actions by the State prior to
~q(xii~qi~qj I ~qZ~qZ~0qI~4qA~q-~q(fin~qdin~qg~s/~conclus~qion~s). evaluate the record before him/her, the withdrawal.
(4~q)~6qA~ac~ard of proceedings. (i~q) The proposed findings and conclusions and
he~'ari~n~qg shall be either stenographically any briefs filed by the parties and shall
reported verbatim or tape recorded, and, prepare a recommended decision, and
thereupon transcribed by an o~6qf~6qf~6qi~efal shall certify the entire record. including
reporter designated by the Presiding the r~1~qecommended decision, to the
Officer, I Administrator.
(ii) All orders issued by the Presiding fill Copies of the recommended
O~6qf~6qf~6qic~er-tra~nscripts of testimony. written decision shall be. served upon all parties.
statements of position. stipulations.. (~qI~qii) Within 20 days after the
exhibits. m~ot~qio~ns~.briefs, and other certification and filing. of the record and
written material of any kind submitted recom ~-mended decision, all parties may
in the hearing shall be a part. of the file with the Administrator exceptions to
record and shall be available for the recommended decision and a
inspection or copying in the Office of the supporting brie~qL
Hearing Clerk. upon payment of costs. (a) Decision by A dm~qi~n~qis~qt~r~a~qto~n ~q0~q1
Inquiries may be made at the Office of Within~.~q6~q0 days after the certification of'
the Administrative Law judges, Hearing the record and filing of the Presiding
Clerk. 401 M Street. S.W~, Washin~qgto~qm Officer's recommended decis~qi~o~qm the
D.~0qC~_ ~4qW460~;. Administrator shall review the record
(iii) Upon notice to. A parties. the before him and issue. his own deci~siom
Presiding Officer may authorize (ii~q) If the Administrator concludes that
corre~c~q6~on~s to the transcript which the. State has administered the program
involve matters of substance:. irr con~qf~orm~qit~2qy-with the appr~op~rfate~-Act
(~qlv~qj An origi~qna~qt and tw~c~r (2) copies of a~nd regulations his decision shall
all written submissions- to the hearing const ~'~qItute~. ~"~qf~qfn~a~qf agency action- w~qfth~qf~qi~r
shall be filed with the~'Heari~n~qg Clerk-, the meaning ~qof S U.S.~6qQ 1704.
~qfv~q) A copy of each such submission ~q(iii~q) If the Administrator co~qf~qi~c~qludes
shall be ser~v~e~0qd~qby ~qt~he person making that the State has not admini~s~qtered'the.
the submission upon the Presiding program ~qir~r conformity with the-
Of~0qf~0qf~q= and each party of record. Service appropriate Act and; re~qg~a~qf~qat~qf~or~ts he shalt
under ~6qWs paragraph shall take place by list the- defi~cfenc~qf~es ~qin the program and
-mail or personal delivery, provide the State a- rea~s~on~ab~ql~e~r ~t~qr~8qm~qc nor
~q(vi) Every subm~qi ~s~-~S~2qI~qM shall~, be to, exceed go days, try take such
accomp~ar~qde~4qd by an a~c~qimowled~qgemen~qt appropriate corrective action as the.
of service by the person, served or proof A~qAr~r~ii~ni~stra~qtor dete~qnni~ne~s~. necessary-
~f~se~r~v~qf~b~qe~qh~i~L the ~qfor~nr of& statement of ~0qf~0qt~qj Within the t~qhne prescribed by the
the date. ti~qm~e~@ and manner of service Administrator the State. shall, take such
and the names of the, ~serve~8q4 appropriate corrective action as ~@ - ~
~cer~qf~qi~6qf~6qfe~qd by t~qh~qe~qrpe~qr~0qa~0qn who made requ~qiredbyth~eA~qc~qirn ~s~trat~or-ands~qhal~ql'
service. and We with the Administrator and all'
(Vill ~6q7~6q1~8qM~q. Hearing Clerk shall maintain parties a statement certified by th~qe~q-Sta~qt~qe
and furnish~q. to any person upon request. Director that appropriate corrective
~q:
list c~qo~quta~2qi~qni~qn~12qg~20q&~q-~q_ name. service action has, been. taken.
~;76;84qes~qs~q. and te~6ql~qeph~qon~0qa~qnu~0qmber of al~0qk ~0q(~qy~6qj The A~16qAministrato~qr may require a
parties and th~qa~12qk~qe~0qtt~qor~qn~qe~8qy~qs~q- or duly further s~0qhowin~12qgi~qn addi~0qti~qc~qm~qv ~0qt~qQ~q-th~q& L
authorized representatives~q, ~q. ~ certi~0qf~0qiec~6qk statement. that corrective a~qa~8qf~8qi~4qm
(~4q5) P~8qh~qc~08qd~qa~8qi~8qp~qo~12qd~0qm by ape~qr~qso~qw~qa~qo~qr~6qa has Been taken,
p~qo~qr~qt~4qy~q@~q. Ap~qe~qrso~qi~qLwh~qi~qsi~qonot. a party may. ~0q(v~2qil ~2qI~4qf~q'the State fails t~4qa take
at the discretion of the Presiding Officer. appropriate corrective action ~qa~qndf~2qil~0qa~qa~q-
be ~8qpe~qr~4qm~2qitt~qe~20qdt~qo~6qi~6q-~qa~ql~0qk~qs~q, al~2qimit~qed c~qer~20q0~qod~qs~0qtat~qer~qn~qe~qg~qitt~4qb~qer~qe~qa~6qLw~8qi~6qd~8qd~0qath~qI~qL
app~qea~4qm~qn~qcw by ~qn~qza~4qt~48qf~48qt an oral or time. ~8qOresc~12qdbed by t~6qh~qeAd~qu~2qd~qui~qs~00qb~qa~0qt~4qm
Wr~4qitt~6qf~6qt~q*~q4~qf~qat~qe~6qm~qe~qo~0qt ~4q6~6qf~6qb~24qf~24qi~40qaer ~2qV~6qM~q-~08q&~0q" oft th~qeAdm~qin ~qb~0q=~qU~qws~2qh~qa~2ql~2ql~4qi~qsa~qm~qea~q.

~8q1~q-55

334~72 ~qT~deral ~l~ke~q&t~r Vol. 45, No. ~q9~8 1 Monday. May 1~1~3~@ ~i~9~s~o / Rules and Regulations

limited under section 404~q(g)(~q1~q1 of CWA forest, or ranch land. but does not
to coverage of such State regulated include the construction of fi~q= forest.
waters. See the definition of -State or ranch roads.
regulated -waters" in ~qJ I= (C)(1) M~qi~no~rD~qmin~a~qge means: ~6qX
(d) Under section 40~4q0)(5) of CWA~, (J~q) The discharge or dredged ~or~1p~ll
States are entitled. after program material incidental to connecting upland
approval. to administer and enforce drainage facilities to waters of the
general permits issued by the-Secretar~qY~- United States, adequate to- effect the
If the State chooses not to~-admi~ni ter- removal of excess soil moisture from
and enforce these permits, the Secretary upland cropla~nds. (Construction and
retains jurisdiction until, they expire. If mainte~0qiance of upland ~q(d~ry~qland)
the Secretary has retained jurisdiction facilities, such as ditching and tiling.
and if a permit appeal or modification incidental to the planting~, cultivating~.
request is not finally resolved when the protecting, or harvesting of crops,
Federally issued permit expires, the involve no discharge of dredged or fill
Secretary, upon agreement ~v~oith the material into waters of the United
State, ~qMa~qy continue t~o retain jurisdiction States, and as such never require a
~;640qr
the matter is resolved. section 40~q4 permit.);
1123.92 - Act~iv~qI~t~i~e~s not requiring ~q(~qh~q) The discharge of dredged or fill
(a) Ex~cept~q-a~qs~"~2qZ~4qO~6qM~2qS ~4qf~4qt~0qo material for the purpose of installing
(~qb) and ~q(c) of this section. any discharge ditching or other such water control
of dredged or fill material that may facilities incidental to planting~.
result from any of the following ~c~u~qltiva~qOn~qg, protecting, ~arharve~st~qi~ng of
activities is not prohibited by or rice. cranberries or other wetland crop
otherwise subje~c~qLto regulation under species, where these activities and the
this subpart: discharge occur in waters of the United
~qIr (1)(i) Normal farming. silviculture and States which are in established use for
ranching activities such as plowing, such agricultural and ~a~qd~v~qicultural
seeding, cultivating~, minor drainage, a~nd wetland crop production: ~-
harvesting for the production of food. Uhl The discharge of dredged or fill
fiber, and forest products, or upland soil material for the purpose of manipulating
and water conservation practices, as the water levels of, or regulating the.
defined in paragraph (a~q)~q(1)~q(i~ql~qf) of this flow or distribution of water within.
section~. existing impoundments which have been
(ii~q) To fall~ under this exemption. the constructed in accordance with.
activities specified in paragraph ~qf~a)(1)~q(~q1) applicable requirements of CWA~. and
of this section mast be part of-an which are in established ~u~s~e for the -
established (Le~. on-going) fami~6qM~i, production of rice. cranberries~. or o~4qf~4qf~4qi~er
Subpart ~q6~-~-Add~8qMonal Requirements silviculture, or ranching operation. ~qwetland crop species;
for State programs Under ~qS~q~8qf~8qt~qo~n 4~q04 Activities on areas lying fallow as part ~qR~4~o~t~e~.~q-The provisions of paragraph*..
of the Clean Water Act Of a conventional rotational cycle am ~q(~0q0~1~q)~q(iii~q)~q(C~q)~q(~1~q9~qh~q) and ~4qW~I~q) of ~8q&~qb section'.
part-of an established operation. apply to areas that are in established ~O~qW~.
~J 123.~91 Purpose and scope. Activities which bring an area into exclusively for we~t~qla~z~id crop production as
(a) This Subpart describes additional farming, silviculture, or ranching use are well as areas in established we for
requirements, both procedural and [not part of an established operation. A~n conventional wetland/no~n-we~qda~nd crop.
substantive, for State permit programs operation ceases to be established when ro4~at~qi~o~n ~qJe~qg, ~6q*~e rotations of rice and
under section 404 of CWA ~q(regulating the area on which it was conducted ha~s soybeans) where each rotation results in the
discharges of dredged or fill m~e~4qk~n~2qU~ql). been c~ov~erted to another u~se~or has lain cyclical or ~qt~o~ter~a~d~ne~a~t temporary ~qdew~a~qf~qt~ring
cause EPA does not operate the idle so km~qg ~qt~hat modifications to the of. such areas.)
section 40~q4 program the permit ydrolo~qgical regime are necessary to (~qiv) The discharge of dredged or ~8q0'
requirements in Parts ~0q= and= are resume operations. If an activity takes' material incidental to the emergency
relevant to section 404 programs only to place outside the waters of the United removal of ~s~and~qbars. gravel bars, or
the extent they am made applicable to States, or if it does not involve a other similar blockages which an
tate section 40~q4 pr~o~2qgam~s in ~qk~4qL~2q"~-~q7~q(a). discharge. -it does not need a section 404 formed during flood flows -or other
Additional permit application and permit, whether or not it is part of an events, where such blockages close or
processing requirements applicable to ~qstabli~qshed fanning, s~6qilv~2qicu~24qbur~qe. or ~28q6~qu~qs~0qt~qr~2qi~qc~4qt previously existing
State 404 programs am set out in this' ranching oper~qati~qo~0qm ~q- d~qrai~qnageway~qs and, tf mot promptly.
Subpart~q; ~q- - ~q' ~0qti~qu)~6q(A) C~8qu~20qW~qv~qu~0qt~16qA~16qW meow physical removed. would result I ~q,n damage to or
~4q(b) The~qv~qequ~2qimment~qs ~4qf~8q9~qr State section methods of soil treatment employed less of existing crops or w~qo~quldimpa~0qt~qr~0qa~6qr
40~4q4 programs are promulgated under the within established ~0qfar~qn~16qf~16qt~16q& ranching prevent the plowing, seeding,
authority of sections 1~4q0~4q1~0q(e) and 5~08qM~0q(a~0q) of and silviculture lands an ~0qfarn~qi, ~qT~qa~qnc~0qh~q, or or cultivating of crops on
CWA. foram amps to aid and im~2qim~4qme their established. ~4q=~qa for ~qV~8q=~12qm~12qm on.
(c) No partial section 40~0q4 program; growth. quality or yield~q. Such removal does not include enlarging
~0

he
~q1~0
r
~128qJ~q123~qj
a

of
~qp
~0qE
lied)
for

so
~qEt~qMh~o
~qP
~q@~qSd ~r
~qP sear

~q)~4qH~6qY
to ~qo~qr
e
~84q=~q'~q0~q@
r
~12qM

wi~6qL~0ql be approved by EPA. Except as (~2q13) Harvesting means ~12qVhy~qsic~qsl or extending the dimensions of, or
provided in I ~08q=~04q2~4q2, the State program measures employed directly upon ~0qh~qu~qm~q36 clanging the bottom elevations A the
must regulate a~4ql~0ql discharges ~0qof dredged forest. or ranch crops ~qas~04qab~6ql~8qi~qsh~qed affected dr~qa~2qina~2qg~qaway ~qa~qs ft ~qe~qyd~qet~4qa~4qd p~qrk~qir
or fill material into, State regulated ~qO~16qv~2qi~8qv~20qA~4qt~qu~qn~4qd and s~8qf~8qi~4qv~2qi~qc~qu~4ql~04qk~qa~24qg~4qh~qoW~0qls~q. ~8q1~4q6~q, ~8qI~qo ~4qIh~qe ~24qf~24qt~8qu~qa~8ql~2ql~qonof ~4qd~4qwb~8qi~qo~32q&ag~qs.
waters. State ~qa~qect~6qi~qo~qn 40~8q4 program we brir~4qi~2qga~4qb~qo~qdt~qf~0qb~qv~2qkr~8q@~qo~qv ~4qf~8qm~4qm~24qbr~qu~6q@~q- R~qem~qo~qv~qa~0ql~4qm~qi~0qi~4qS~4qt~0qI~4qm ~qoocomp~0qf~0qi~0qshed~q.

B-56

~qf~a~d~r~~t Roister ~/~~qV~~qL 4~q4 No. ~9~8~~1p~ Monday. ~qM~y 1~9. ~I~qM / Rules and Regulations ~q=~473

one year of ~qim~imat~qi~o~n of such blockages occurs In ~order~qto qualify f~o~q@ this ~q(~qi~qi) A~ql~ql wads. tampon". or
in o~rd~qw~t~qm be ~e~6qf~6qt~ible for exemption~. i ~- ~8qW permanent~, shall be located s~uffici~qe~ntlY
~pexempt~qi~o~n~.
~q(2~q) ~qt~0qa~n~o~qr ~4q&~,~q@~in~n in waters of the - ~2qV (31 Construction or maintenance of far ham streams or other water bodies
U~4qS~q@ i~qsli~6qm~qit~ed to drainage within areas ~8q4ar~qf~a ~q;~q@ stock ponds or ~. ~. ditches, ~q(~qex~c~ep~qC ~qf~o~r portions of such road& w~qb~ql~qe~qh
that ~qa~e~-~q�art ~c~q1~an ~e~sia~2q@~qi~shed farming 'or the maintenance ~qf~qbut not. . . must cruse water bodies) to minimize
or, ~O~4qf~4qt~c~u~ql~qt~ure operation ~~. It does not of drainage ditches. A discharges of dredged or fill material
~InC~ql~ad~e~1p~~r~&~qi~n~a~qge associated with ~8q&~a -simple connection of an irrigation return into waters of the U~-S~@
~i~mz~qde~8q&~ate or gradual convers~qim of a at supply ditch to waters of the U.S, and ~qJ~6q0~q1 The road fill shall be -bridged
wet~qla~.~nd to a ~n~o~qn~-w~qe~qll~and ~qCe~qf~qf~. wetland related bank stab~qil~qizat~qio~u~t measures are culver~qted. or otherwise designed to
species to upland ~sp~aIpies not typically included ~4qwitb~qi~qhthis exemption~. Where a prevent the restriction of expected flood
adapted to I~8qf~8qfe in saturated soil trap, weir. ~6qVoi~n. walk jetty or other flows;
conditions). ~2qd~r.c~qon~qvers~qion from one structure w~qf~qth~qln~@wat~er~s of the, U.S... (~qiv) The fill shall be properly
~~m~qda~nd am to another (for example. which will ~re~s~qilt In significant stabilized and maintained during and
silviculture to fanning). In addition~. d~qi~s~cernable a~qlter~at~qio~qw to flow or following construction to prevent
~m~i~qf~qi~qdr drainage does not include the ~circulati~qm 1~9 constructed as part of the erosion;
~~n~at~iuct~qion of any canal. ditch, dike or connection, such co~ustructi~on requires a ~q(v~q) Discharges of dredged or fill
other waterway or structure which 40~q4 perm~qi~qL a~qte~ri into waters of the United State~t
~q4~00 In al
dr~a~ql or otherwise significantly (4) Construction of temporary to ~qdo~n~s~qA~r~uct a road fill shall be made in
modifies a stream. lake, swamp, bog or edimentatio~n basins on a construction a manner that minimizes the
any~other wetland or aquatic area ~q:ite which does not include placement of encroachment of trucks, tractors,
constituting waters of the United States. fill material into waters of the U.~6q& The bulldozers. or other heavy equipment
~qA~y discharge of dredged or All material term "construction site" refers to any within waters of the United States
into the waters of the United States site involving the erection of buildings~, ~q(Including adjacent wetlands) that lie
incidental to the c~ons~qt~-~ac~qti~o~n of any roads. and other discrete structures and outside the lateral boundaries of the fill
the installation of support facilities i~qt~sel~qt
~u~qc~qh~~st~n tu or waterway requires a necessary for construction and (v~qi~q) In designing. constructing and
permit~.
~q(~6qD~q) -Plowing, means a~ql~ql forms ~qof ~6qZ utilization of such structures, The term maintaining roads, vegetative
primary ~qd1l~qa~qge, including moldboard, also includes: any other land areas disturbance in the waters ~of the U.S,
~qw~qhich~k~iwo~qlve ~qI~qmu~ql-distur~qb~u~i~l~qg shall be kept to a minimum;
~h~qis~a~qL or wide-blade, plow~qi~2q4 di~qicing~.~ ~' excavation acti~vit~qi~a~s, including
~ha~qa~qw~2qM~n~qg~. and similar physical means ~q(vii~qj ~qT~qhe design~. construction and"
utilized on farm forest or ranch land for. quarrying or other mining activ~qit~ie~& maintenance of the road crossing ~ah~qa~q@~qf~ql
the breaking up, cutting. turning over, or where an increase in the runoff of not disrupt the migration or other
stirring of sod to prepare it for the sediment is controlled through the use of movement of those species of aquatic
planting of crops. The te~z does not temporary sedimentation basins~. life inhabiting the water body-,
include the redistribution of spoil~, rock, (5) Any activity with respect to which ~q(~v~qiii~q) Borrow material ~sh~a~6qf~6qte taken
sand. or other surfic~qtal~inaterials ~qi~n a a State has an approved program under from upland sources whenever feasible..
manner which changes any area of the section 20~q8~q(b~q)~q(4) of ~6qGWA which meets (~qix~qIThe discharge ~shall.n~o~tt~6qA~qb~. or
waters of the United States to dry land. the requirements o~qfsec~ti~on~s 2~8qW~qb)(4~q1 jeopardize the continued existence of, a
For example, the redistribution of (B) and (C~q@ threatened or endangered species as
surface materials by bladi~qng~. grading, or (~q6) Construction or maintenance of defined under ~qt~qhe Endangered Species
~. ~arm roads, forest roads. or temporary
other means to fill in wetla~nd areas is roads for moving mini equipment, Act. or adversely modify or destroy the
n~t plowing. Rock crushing ac~qt~8qm~qt~qie~s where such-roads are constructed and critical habitat of such species;
which result in the loss of natural maintained in accordance with best ~q(x) Discharges into breeding and.,
drainage characteristics~, the reduction management practices (BMPs) to assure nesting areas for migratory waterfowl~.
of water storage and recharge' that flow and circulation patterns a~nd~. ~8P~Iwn~8q"~q8 areas, and wetlands shall be
capabilities, or t~qh~e~'o~-ver~qburden of chemical and biological characteristics avoided if Practical alternatives exist
natural water filtration capacities do not of waters of the United States are not ~ ~qJx~qi~q) The discharge shall not be located
constitute plowing. Plowing will never impaired. that he Mach of the w~a~t~e~qn of in the proximity of a public water supply
involve a discharge of dredged or fill. the United States -is not reduced. and intake;
material. that any adverse effect on the aquatic ~q(xii) The discharge shall not occur in
(By See~qd~qY~ng means the sowing of seed environment will be otherwise areas of concentrated shellfish
~n~qd~'pl~acement of seedlings to. produce minimized. These B~2qM~qps which must be production;
farm ranch. or forest crops and includes applied to satisfy this provision shall (xiii) The discharge shall n~o~qt occur in
the placement of soil beds for seeds or -include thosed~etailedBMP~s~-described a component of the National Wild and
seedlings on established farm and forest in the State's approved program Scenic River System;
lands. description pur~qa~ql~ql~qent to the requirements ~4q(xiv) The discharge of material shall'
(~8q2) Maintenance. including emergency/ of I 123A~0q(h)(4), and shall also include consist of suitable material free from
reconstruction of recently damaged the following baseline provisions-. toxic pollutants in toxic amounts. and
parts, of currently serviceable structures (i~0q) Permanent roads (for farming or ~0q(xv) A~0ql~0ql temporary fills shall be
such as dikes, d~qam~qa, levees, groins, forestry ac~0qtivitie~qs~0q@ temporary access removed in their entirety and the area
riprap~q.~q. breakwaters. causeways, bridge roads (for mia~2qi~qn~12q& forestry, or farm restored to its original elevation.
abutments or approaches. and purposes) and skid trails (for logging) in ~0qJ~88qk~8qJ~6qIf any discharge of dredged or fill
transportation structures. Maintenance waters of the U.S. shall be held to the material resulting from the activities
does not. include any modification that minimum feasible number, width. and listed. in paragraphs (a) (1)~q-~0q(6) of this
changes the character, scope, or size of total length consistent with the purpose section contau~q'~qis any toxic ~qV0l~6qIU~qLta~qXIL~8q_~q_~q.~q..~q,
the original fill design. Emergency ~qo~0qf specific farming~q, silv~8qi~qcultural or listed uader section 307 ~q5~8qT~32qZW~32qK~-s~qu~qch
reconstruction must occur within a mini operations. and local topographic discharge shall be subject to any ~q-
reasonable period of time after damage and climatic co~quditions; applicable toxic effluent standard or

B-57

-33474 Federal Rnister I-Vol.-45, No. 98-/ Monday$ Mqy,19, 19W*./ Rules,and jkegtfli@ons

prohibition, and shall require a permit Administrator's actions under that (1) A description of-known
under the State program. authority. alternatives to the proposed discharge,
_WLAny discharge of dredged o: V@ including alternative disposal sites...,
r fill [email protected] Perinit applicatiom
m7aerial into waters of the United States construction methods, methods of
Incidental to any of the activities I (a). Publicity and preapplicodon discharge, and reasons for rejecting the
identified in paragraphi (a) (IH6) of consultation. The State Director shall alternatives;
this sectioiri must have a permit if it is maintain a program to inform to the (ii) A description of special aquatic
part of an activity whose purpose is to extent possible, potential applicants for sites, public use areas, wildlife refuies,
convert an area of the waters of the permits of the requirements of the State and public water supply intakes in the
'Vnited States into a use to which it was program and of the steps required to affected or adjacent areas that may
pot previously subject, where the flow obtain permits for activities in State require special protection or
or circulation of waters of the United regulated waters. The State Director is. preservation;
States may be impaired or the riach of encouraged to include preapplication (W) Plants, fish, shellfish. and wildlife
such waters reducedL Where the consultation as part of this program to in the disposal site which may be
proposed discharge will result in assist applicants in understanding the dependent on -water quality and
significant discernible alterations to requirements of the environmental quanti1v
flow or circulation. the presumption is guidelines issued under section 404(b)(1) (iv) Uses of the disposal site which
that flow or circulation may be impaired of CWA (40 CFR Part 230),and in might affect human health and welfare.
.by such alteration. fulfilling permit application and
requirements. {vJ A description of technologies.or,
JNote.-For example, a'permit will be (b) Application forparmit. Except management practices by which the
required for the c9nversion of a cypress when an activity Is authorized by a applicant proposes to minimize adverse
swamp to some other use or the conversion of general permit under 1123.95 or Is - environmental effects of the discharge.
a wetland from silvicultural to agricultural exempt from the requirement to obtain a Guidelines for minin-dzing the adverse
use when there is a discharge of dredged or
fill materials into waters of the United States permit under J 123.92, any-person who effects of disclarges of dredged or fill
in conjunction with construction of dikes. proposes to discharge dredged or fill material are found in 40 CFR Part
drainage ditches or other works or structures material into State regulated waters.
used to effect such conversion. A discharge shall complete, sign and submit an . [Note.-The State shall provide permit
which elevates the bottom of waters of the application to the State Director. State applicants with guidance. either througb the
application form or on an individual basis.
United States without converting it to dry application forms are subject to EPA regarding the level of detail of information
land,does not thereby reduce the reach ot, review and approval and documentation required wider this
Ca t p
but may alter the flow or circulation of, (c) n ent of A plication. A complete paragraph. The level of detail shall be
Waters of the United States.] application shall include the following reasonably commensurate with the typi and
(d) Federal projects which qualify information. size of discharge. proximity to critical areas.
under the criteria contained in section (i) A complete description of the likelihood of presence of long-lived toxic
404(r) of CWA (Federal projects proposed activity includincr chemical substances, and degree of
authorized by Congress where an EIS [I) Name, address, iL@_d_Aone number environmental degradation.)
has been"-submitted to Congress prior to of the applicant: the names, addresses. (3) One original set of drawings and
authorization or an appropriation) are and phone numbers of owners of maps. or one set of drawings and map,*
exempt from State section 404 permit properties adjacent to the site; and. -if of reproducible quality, including:, -
requirements. but may.be subject to appropriate, the location and *(I) A map showing the following in
other State or Federal requirements. dimensions of adjacent strtictures: plan view-
� 123.93 Prohlbitions. (H) A description of the source of the (A) Location of the activity site
dredged or fill material and method of including latitude, longitude, and river
No permit shall be issued by the State dredging used. if any-, a description of mile, if known:
Director in the following circumstances: the type, composition and quantity of (B) Name of waterway;
(a) When the conditions of the permit the material; the proposed method of (C) All applicable political (eg.,
do not comply with the requirements of transportation and disposal of the county, borough. town, city, etc.)
CWA. or regulations and guidelines material, including the type of boundary lines;
implementing CWA. including the equipment to be used, and the extent (in (D) Names of all major roads in the
section 404(b)(1) environmental acres) of the area of waters of the vicinity of the site including the road
guidelines (40 CFR Part 230)- United States to be filled or used for providing the close st practicable a
fb) When the Regional Administrator disposal;- to the site-,
has objected to issuance of the permit (III) The purpose and intended use of (E) North arrow-,
tmder section 4040) of CWA and the the proposed activity (including whether M Arrows showing flow and
objection has not been resolved. it is water-dependent); -a description of circulation patterns;
(c) When. in the Judgment of the the use of any structures to be erected - (G) Existing shorelines or ordinary
Secretary of the Army acting through the on the filh and a schedule for the high watermark.
Chief of Engineers. anchorage and proposed activjt3r, (H) Location of known wedwids;
navigation in or on any of the waters of (iv) A list of the approvals required1by (1) Water depths and bottorn' '
the United States would be substantially other Federal. interstate, State and local configuration around thi project;
impaired by the discharge. agencies for the activity. including,all (1) Delineation of disposal site,
Jd) When the proposed discharge- approvals -or denials received. and (K) Size-relationship between the
would'be into a'defined ama for which (v) A vicinity map identifying the proposed disposal site and affected'-
'e:nh
a
elll

specification as a disposal site has been proposed disposal site and the -local waters (eg., a 'A acre fill in a 15-sr. V
prohibited. restricted. denied, or jurisdiction closest to the'disposal site. wetlarift
withdrawn by the Administrator under (2) Information about the disposal site (L) Location of previously used
section 404(c) of CWA. and the needed to evaluate compliance with 40 dredged material disposal sites with
discharge would fail to comply with the CFR Part 23o, including the following- remaining capacity in the vicinity of the

B-58

Federal R~g~qW~m 4~5~@~~qW~&~~1p~2p~p~1p~~~~ ~1~6~q6~qY 19~ 1~9~qM /,'Rules. and R~eg~ula~qd~~f~i~s, 3~@475

~qO~e~qj~e~8qa The map must indicate retention (2) A~r~ea~r~-~4qA~-p~r~ecise-des~cr~qipt~qion of the applicable requi~re~qme~nts~.~o~qt I ~qI ~qI~4qV~-~q7~,~.
levees. weirs, and any ~other~8qAevic~es for geographic area 'to which the general: - 123.97 and I~4qM.~qg~0q& ~~. ~
-retaining dredged ~-~o~r-fill~-mate~iials~qf and.. per~init applies. Including, when ~ (2) Any ~lemer~qgenc~qy permit shall be
~6qM Location bit ~st~q@~ictu~qi~e~qi~, ~qi~qr~a~n~8qy~. ~qt~l~qi~_ ~- appropriate. limitations ~o~n~,the~:~ql~qyp~ie~s of l~qin~8q@ed in duration to the time required
wat~4qm~o~qtthe U~nite~qdS~qia~qt~es' immediately wa~qtem or w~ed~ands where operations to complete the. authorized emergency
adj~qii~6qan~qi to t~0qhe ~qp~r~q6p~qosed~'~qa~' ~qt~qiv~qit ` t~qh~e~@ action, not to exceed-go day&
~c may be ~c~qb~qod~ucte~6qA to ensure that
including permit ~nu~qm~qbers~qif known. ~qmquirem~e~nts of ~qOar~a~qg~r~ap~qh (a) of this ~q(~q3) ~2qT~qh~qe emergency permit must hav~e-a
~h~qi~m~qi~qtif~qy~. purposes of a~0q1~s~4qt~l~uc~qtu~r~v~i ~q& section are sa~6qf~6qt~qf~qied.~. condition requiring restoration of the
~ ~qJ~8q* A cr~oss-~secti~o~nal~i~ew of the (3) ~6qNo~0q6~c~qw~"~'Th~e permit sha~qn~qd~ont~a~qi~n a disposal site (for example. removal of
proposed project ~6qA~qaw~qi~ng the f~qo~ql~ql~ow~ql~r~6qW ~qmquirement that ~qM activity Is. ~4qM, step~qk tar p~qmvent ero~sio~n~q@ If more
authorized under the ~qgenera~ql~.perm~qit
~qJ~0qA~2qM~ater elevations;' ~* ~@ than 90 days from issuance- Is -necessary
iWater depths. at wate~rward face of unless the Director receives notice at to complete r~est~am~qdon the permit may'
ptoposed -work, or if dredging is- least ~8qs~qy days in advance of the date be extended for this p~i~q;~q;~4q@ose only.
~p~qnp~qi~wed~q@ showing d~qm~6q*in~qg grade: when the proposed activity is to
(C~q) Cr~o~qwsection of fill; commence. The Director may. require ~q(4) The emergency permit may be oral
~q(D~q) Elevation of spoil a~re~a~x any information in the notice necessary or ~.~v~qw~qitten- If oral. it must be followed'
(~qE~q) Location of wetlands; and to determine whether the candid within five days ~qby a written emergency
~8qV~q) Delineation of disposal site. the general permit will be ~sat~qi~s if permit
(~q1~qd) Notes on a~ql~ql maps or drawings within IS days of the date of submission ~q(~q5~q) Notice of the emergency permit
~su~qb~qm~qf~qt~4qw~2qA i~ncludi~n~2qc. ~, of the notice the owner or opemtor has shall be published and public comments
I.- (A) A list of names of adjacent not been informed by the State Director received in accordance with applicable
p~i~operty owners whose property also of his or her intent to require an requirements of If 124.10 and 124.11 as
adjoins the water and who are not individual permit application, the owner soon as possible but no later than 10
shown in the plan view; or operator ~qmay commence operations daysafter the issuance date.
~'~q1~q1~q3) A title block for each sheet under the ~qgene~nd permit (6) The emergency permit may be
submitted identifying the proposed (~c) Requiring an ~qind~qividua~qlpe~qn~ni~0qV terminated at any time. without process
activity and cont~a~ini~n the name of the ~q(~q1~q) Upon receiving notice under if the State Director determines that
b~o~qd~qY of water, river mile, if applicable: paragraph- (~qb)(3) of this section. the State termination is appropriate to protect
name of c~oun~ity. State and nearest Director may require, at his discretion. human health, or the e~nv~6qkonment.
~l~~qw~6qqx~wated municipality-. name of that the owner or operator apply for an-
a~. t~: number of the sheet and the individual permit. Cases where an 112~0q&9~q7 Additional conditions applicable.
total -number of sheets ~*~i~n set; and date individual permit may be required to all 404 p~e~qm~.~0q*~q&
the drawing was prepared;- and include: The following conditions.- in addition
~~-(C~q) C~raphic or numerical scale. (~qi) The activity has more than to those set forth in 112~q2.7~. apply to all
~9~q1~q2~4q&9~q5 ~qGene~ra~qlp~e~rm~qit~s. minimal adverse environmental effect, 404 permits.
(~qii) The cumulative effects on the (a) T~qh~e permittee need~;~0qnot comply
~2qJa) ~-C~ov~er~ug~qm The State Director may environment of the autho~qe~q=d activities with~*~qthe conditions of this p~qe~rmit~~qt~o t~qh~e
issue a~'ge~nera~ql per~n~q@~qit for-similar are more than ~qwinima~qh or extent and fo~qi the duration that such
activities as specified In paragraph (ii~qi~q) The discharger is not i~n ~n~i~anc~o~qmp~qh~qi~nce is authorized in an
(~b~q)~qt~qI~q) of this section within a defined co~r~ap~qh~e~qince with the conditions of. the emergency permi~qL (S~qie I~* 1~4q=9~q6~.)
~geog~qmphic area as specified~qm~i general perm~qi~qL
paragraph (~qb)(2~q) of this section. if he o ~q(b) Activities are not conducted under
(2) When the State Director notifies the authority of this, permit if they are
she determines that the regulated the owner or' ~ope~qmtor within IS days of not specifically identified and
~c~qt~qi~v~qities will cause only minimal receipt of-notice under par~a~qg~qmph (b)~q(3) authorized In this permit.
~:~qd~ve~r~qw environmental effects when of this section that an individual permit
application is required for that~activ~qity,
performed separately and will have ~l~qon~qlY (c) The permittee shall ~qh~ma~qint~ain the
minimal cumulative adverse effects on. the activity. shall not be authorized by authorized work area in good condition
the environment. the general permit and ~qi~n accordance with the
~~qb) Cond~qi~6qdon~s. In addition to ~q1~q11~2q&7 (3) The Director may require any - requirements conta~ql~qped in this permit~.
and 123.97, and the applicable person authorized under a general (d) If any applicable water qua~ql~qit~qy--
r~~qquire~2qments of ~q1 123~.~4qW each geneml permit to apply for an i~ndiv~qid~ua~ql~-permi~qt st ~*andard~s.ar~e revised or mo~id~qi~qf~qied. or if
permit shall contain conditions as a toxic effluent standard or prohibition
follows: 1~q123.96 ~qEmer~qoe~incy permits. under CWA section 307(a) is established
~q(1) A~c~6qd~v~6qf~6qti~qe~s. A specific de iption of (a) Coverage. Notwithstanding any for a pollutant present in the perm~qit~qt~ee's,
~a
the type(~s) of activitie~s~.whic~qh~i~2qtr other provision of this Part or Part 124~. discharge and is more stringent ~qf~ql~q= any
authorized, including limitations for any the State Director may temporarily limitation in the permit the permit shall
single operation. to ensure that the permit a specific dredge or fill~q, a~qc~4qj~4qi~qv~2qity ~6qi~0qf~q: be promptly modified to conform to the
requirements of paragraph (a) of this (1) An ~qlin~qac~qceptable hazard-to life or standard, limitation or~08qprohibition.
section are satisfied. At a minimum, severe los~qs,ofproperty will occur if an
these limitations 'Shall include: emergency permit is not granted;- and 1123.98 Estab~0qAs~00qM~04qV 404 pe~qrm~0qf~0qt
~0q(~2qI) The maximum quantity of material (2) The anticipated threat or loss may conditions.
that may be discharged; ~ occur before a permit can be issued or In addition to the conditions
(ii) ~6qT~20qhe type~4q(s) of material that may modified under the procedures established under I 1~0q2~q2~q_8~6q(a~6q@ each 404
be discharged: otherwise required by this Part a~qnd Part permit shall include conditions meeting
~0q(Iii) The depth of fill permitted; 124. the following requirements, when
~qt~6q@~a~qy
~lt~08q@~qly

~4qOv) The maximum extent to which an ~0q(~4qb) ~16qRequ~0qL~qremen~0qts for issuance- ~0q(1~0q) The applicable:
area may be modified. and emergency permit shall incorporate. to (a) ~2qIdenti~52qr~qica~0qt~6qion. A specific
~ ~0q(~qv) The size and type of structures that the extent possible and not inconsistent identification and de~qs~qc~qz~8qiption ~qof the
may be con~qs~qt~0qucte~qc~12qL with the emergency situation, all -authorized activity, ~4qin~0qtludin~8qg. ~q-

B-59

S3476 Federal Register / Vol. 45, No. 98 / Monday, May 19, 1980 / Rules and Regulations

(1) The name and address of the Memorandum of Agreement shall j 123.100 Transmission of Information to
permittee and the permit application include: EPA and other Federal agencies.
identification number, (a) A description of State regulated (a) The Memorandum of Agreement
(2) the use or purpose of the waters, as identified by the Secretary. under 1123.6 shall provide for the
discharge; (b) Where an agreement is reached, following-.
(3) The type and quantity of *the procedures for joint processing of (1) Prompt transmission to the
materials to lie discharged;- permits for activities which require both Regional Administrator (by certified
(4) Any structures proposed to be a section 404 permit from the State and mail) and to the Corps of Engineers, the
erected on fill material; and a section 9 or 10 permit from the U.S. Fish and Wildlife Service. and the
(5) The location and boundaries of the Secretary under the Rivers and Harbors National Marine Fisheries Service of a
discharge site(s). including a detailed Act of 1899, provided such procedures copy of all complete permit applications
-satisfy the requirements of this Part received by the State Director, except
sketch and the name and a description (c) An identification of those general those for which permit review has been
of affected State regulated waters. permits, if any, issued by the Secretary. waived under J 123.6(f)(1)(i). The State
(b) Environmental guidelines. the terms and conditions of which the shall supply EPA, the Corps of
Provisions 'ensuring that the discharge State intends to administer and enforce Engineers, the U.S. Fish and Wildlife
will be conducted in compliance with upon receiving approval of its program Service, and the National Marine
the environmental guidelines issued and a plan for transferring responsibility Fisheries Service with copies of permit
under section 404(b)(1) of CWA (40 CFR for these permits to the State, including applications for which permit reivew
Part 230), including conditions to ensure ceduresfor the prompt transmission has been waived whenever requested
that the discharge will be conducted in a Pro
manner which minimizes adverse from the Secretary to the State Director by such agencies. Where State law
impacts upon the physicaL chemical. of relevant information not already in requires preparation of an
and biological integrity of the waters of the pos session of the State Director environmental impact statement CEIS) or
the United States, such as requirements including support files for permit similar document. and such EIS or other
for restoration or mitigation. ispuance, compliance reports and document is available, the EIS or other
(c) Water quality standards. Any records of enforcement actions. In many document shall accompany the permit
requirements necessary to comply with instances States will lack the authority application when transmitted to the
water quality standards established to directly administer permits issued by Regional Administrator.
under applicable Federal or State law. If the Federal government. However. (2) Prompt transmission to the
an applicable water quality standard is procedures authorized under State law Regional Administrator (by certified
promuigated after the permit is issuecL it may be 'established to transfer mail) and to the Corps of Engineers, the
shall be modified as provided in ;ponsibility for these permits. U.S. Fish and Wildlife Service, and the
I 123.97(d). (d) Procedures whereby the Secretary National Marine Fisheries Service of
(d) Toxic effluen t guidelines -or will, upon program approval. transfer to notice of every action taken by the State
prohibitions, Rqquirements necessary to the State pending section 404 permit agency related to the consideration of
comply with any applicable to)dc applications and other relevant any permit application. a copy
information. not already in the
effluent standard or prohibition under possession of the State Director. of each draft permit prepared, and any
section 307(a) of CWA or applicable conditions, requirements, or documents
(e) Procedures to ensure that the State which are related to the draft permit or
State or local law. If an applicable to)dc Director will not issue a permit on the which affect the authorization of the
effluent standard or prohibition is basis of any application received from draft permit. A draft permit shall be
promulgated after the permit is issued, it the Secretary which the Secretary has prepared by the State and transmitted to
shall be modified as provided in identified as incomplete or otherwise EPA:
I 123.97(d). deficient until the State Director (i) At the time of transmission of the
(e) Best Management Practices. receives information sufficient to correct complete permit application, for.
Applicable BMPs approved by a the deficiency. discharges listed in I 123-6(f)(1)(Q(A)-
Statewide CWA section 208(b)(4) (f) A provision that the State shall not
agency as provided in the agreement issue any section 404 permit for a
described in J 123AM(a)(1). -discharge which. in the judgment of the (ii) Upon request of EPA in
(0 Generalpermits. Any conditions Secretary after consultation with the accordance with I 223AM(e)(3), for
necessary for general permits as Secretary of the Department in which discharges -not listed in
required under 1123.95. the Coast Guard is operating,,would I 123-6(f)(1%)(A)-n unless EPA has
(g) Commencement of work A substantially impair anchorage or waived review under I
specific date -on which the permit shall navigation. (3) Prompt transmission to the
automatically expire. unless previously (g) Those classes or categories, if any, Regional Administrator, the Corps of
revoked and reissued or modified or of proposed State permits for which the Engineers, the U.S. Fish and WildWe
continued. if the authorized work has Secretary waives the right to review. Service, and the National Marine
not been commenced. (h) Other,matters not inconsistent Fisheries Service of a copy of each di-aft
1123.119 Memorandurn of Agreement with with this Part that the Secretary and 1he general permit. A draft general permit
the Secretary. State deem-appropriate. shall be prepared by the State Whenever.
the State intends to issue a general
Before a State program is approved [Note.-For example, where a State permit permit.
under this Part, the State shall enter Into program includes coverage of those (4) Transmission to the Regional
a Memorandum of Agreement with the traditionally navigable watersl.u which only Administrator. the Corps of Engineers,
Secretary. Where more than one agency the Secretary may Issue sectionANI permits the U.S. Fish, and Wildlife Service, and
within a State has,responsibihty for (by virtue of section 404(g)(1) of CWA), the thet National Marine Fisheries Service of
administering the State program, all of State Is strongly encouraged to establish in a copy of every issued permit following
this MOA procedures for joint processing of
the responsible agencies shall be parties Federal and State permits, including Joint issuance, along with any and all
to the Memorandum of Agreement. The public notices and public hearings.) conditionsand requirements.

B-60

Federal Register / Vol. 45, No. 98, Monday, May 19., 19W / Rules and Regulations 33477

(b)(1) State section 404 programs, shall (c) When the State Director has (1) Shall consider all data transmitted
comply with the draft permit received an objection to a permit pursuant to If 123.100 and 123.102.
requirements of I I 12A.6 (a). fc@ (d), and application, draft permit. or draft (2) Shall. if the information provided
(e) and 12A.8 for those discharges which general permit under this section and is inadequate to determine whether the
require a draft permit under paragraph has taken the steps required by the permit application. draft permit. or draft
(a)(2) of this section and for those Regional Administrator to eliminate the general permit meets the guidelines and
discharges to be regulated by general objection. a revised permit shall be requirements ofCWA. request the State
permits; For discharges which require a prepared and transmitted to the Director to transmit to the Regional
draft permit under paragraph (a)(2) of Regional Admin strator for review. If no Administrator the complete record of
this section. public review and EPA further objection is received from the the permit proceedings before the State,
review, under 1123.101. shall be based Regional Administrator within 15 days or any portions of the record, or other
on the permit application and the draft of the receipt of the revised permit, the information. including a supplemented
permit. For discharges to be regulated Director may Issue the permit. application, that the Regional
by general permits, public review and (d) Any objection under this sectiort Administrator determines are necessary
EPA review shall be based on the draft must be based upon one or more of the for review. This request shall be made
general permit. following grounds: within 30 days of receipt of the State
(2) For all other discharges, public (1) The permit application. draft submittal under 1123.100. it shall
review and EPA review, if not waived permit or draft general permit falls to constitute an interim objection to the
under I shall be'based on apply, or to ensure compliance with. any issuan@ce of the permit. and the period of
the permit application. For these applicable requirement of this Part: time spedifled in the Memorandum of
discharges. States need not comply with (2) In the case of any permit Agreement for the Regional
I I 12CO (a@ (c), (d), and (e) or 124.& application for which notification to the Administrator's review shall be
1123.101 EPA review of anci objections to Administrator is required under section suspended from the date of the request
State pennits. 404(h)(1)(E) of CWA. the wTitten and shall resume when the Regional
recomraendatioiqs of an affected State Administrator has received such record
(a) 11w Memorandum of Agreement have not been accepted by the
,shall provide that the Regional or other information requested.
permitting State and the Regional (3) May, in the case of discharges for
Admini trator may comment upon. Administrator finds the reasons for which a draft permit is not
object toi or make recornmendations rejecting the recommendations are automatically required under
with respect to permit applications, draft inadequate (see I 123.102(c)); I 123.100(a)(2)(i), request within 30 days
.permits (if prepared under 1123.100), or (3) The procedures followed in of receipt of the permit application that
draft general permits within go days of connection with processing the permit the State Director prepare a draft permit
rewlpt It the Regional Administrator failed in a material respect to comply under I 123.100(a)(2)(ii). The draft
intends to comment upon, object to, or with procedures required by CWA.- by permit shall be submitted to EPA and
make recommendations with respect to this Part, by other regulations and other Federal agencies, as required
-a permit application. draft permlL or guidelines thereunder, or by the under I 1M.100(a)(2). When a draft
draft general permit, he or she shall Memorandum of Agreement: permit is prepared under'this
notify the State Director of his or her (4) Any finding made by the State subparagraph. Federal and public
intent within 30 days of receipt. The Director in connection with the draft review shall-recoinm6nce under
Regional Administrator may notify the permit or draft general permit I 123.100(b)(1@ The Regional
State wf thin 30 daysof receipt that there misinterprets CWA or any guidelines or Admin, trat s period for review shall
is no comment but reserve the right to regulations thereunder, or misapplies begin upon receipt of the draft permit
object within go days of receipt, based them to the facts;
on any new Information brought out by (5) Any provisions of the permit [Note@lt is anticipated that draft permits
the public during the comment period or application. draft permit. or draft will be requested only in exceptional and/or
at a-hearing. 7%e Regional general permit relating to the complex 'cases.1
.Administrator &hall send a copy of any maintenance of records,reporting. (4) May, at his or her discretion. and
comment. objection, or recommendation Monitoring. sampling, or the provision of to the extent feasible within the period
to the permit applicant. any@ other information by the permittee of time available under the
(b) Wlthin go days following receipt of are inadequate, in the Judgment of the Memorandum of Agreement. afford to
a permit applfcatiox@ draft permit or Regional Administrator, to assure interested persons an opportunity to
dridt general permit for which the compliance with permit conditions comment on the basis for the objection
Regional Administrator has provided including water quality standard& (f) Within 90 days of receipt by the
notification under paragraph (a) of this required by, CWA. by 4G CFR Part 230. State Director of an objection by the
section. .the Regional Administrator may or.by the draft permit oidraft general. Regional Admini trator. the State or any
object to permit- issuance. In order to . permit; interested person may request that a
object. the Regional Administrator shall (6) The information contained in the public hearing be held by the Regional
set forth in writing and transmit to the permit, application is insufficient to" * Administrator on the objection. A public
State Director. judge compliance with 40 CFR Part -230 hearing in accordance with the-
(1) A statement of the reason(s) for or - procedures of I 1124.12 (c) and (d) shall
the objection (including the section of (71 Issuance of a permit would In any be held. and public notice provided in
CWA or regulations thereunder that other respect be outside the . accordance with 1124.10, whenever
support the objectionk and requirements of section 404 of CWA. or requested by the State issuing the
(2) The actions that must be taken by regulations implementing section 404 of permit. or if warranted by significant
the State Director in order to eliminate CWA. public interest based on requests
the objection (Including the conditions (e) Prior to notifying the State Director received,
which the permit would include If it of an objection based upon any of the (g) A public hearing held under
were issued by the Regional grounds set forth in paragraph. (d) of this paragraph (f) of this section shall be
Administmtor). sectiM the Regional Atiministrator.- conducted by the Regional

B - 6 1.

33478 Federal Register/ Vol. 45, No. 98 / Monday. May 19, 1980 / Rules and Regulations;

Administrator, and, at the Regional ~q(b) Co~a~qm~q@~4q@~a~n w~i~0q& a~qt~qher Federal ~.~~6q*~t~&-States ate ~a~n~G~oura~qse~qd~4~wr~e~c~e~qi~v~e
Administrator's discretion with the and ~2qF~q6de~q=~qt-~0qS~qf~d~qt~e ~qm~v~qie~r~qi~8qp~r~qwe~ss~a~s, and use i~nf~orm~a~don developed by the V~4qa
assistance of an EPA panel designated State s~qe~ctia~nAD~q4 programs shall a~&~qK1~qM Fish and Wi~ql~qd~8qf~8qf~a Service as part of the
by the Regional Adminstrator in an coordination~. ~o~qfS~qtate section 40~q4 permits~.~, National Wetlands ~qh~iven~t~ory as it becomes
orderly and expeditious manner. with ~qF~eder~a~qLa~nd~qFe~qd~e~ral~-S~qta~te water ~a~va~qllab~8qk.~q1
(h) Following the public hearing the related p~qL~a~n~ni~n~qg and review p~roc~e~ss~e~L 123.10~q3~. Enfor~c~e~s~u~e~nt~a~L~dh~o~r~4q4
Regional Administrator shall reaffirm (1) The State Director shall a~s~s~u~qm that In addition to meeting the
the original objection. modify the the the impact of proposed discharges ~qw~qi~qa requirements of ~qJ 12~8qM State sec~h~qm
of the objection, or withdraw the be cons with the W~qf~qid and Scenic 404 programs shall include procedures
objection. and shall modify the State of Rivers Act when the proposed discharge which enable the State Director to
this decision. could affect portions of ~i immediately and effectively halt -or
(i)(1) If no public hearing is held under designated wild. re~cre~at~qf~a~na~qt ~s~c~e~qw~c~@ or remove any unauthorized discharges of
paragraph (f) of this section and the under ~donsid~e~r~ati~on for such dredged or fill m~ate~tia~qL including t~qhe
State does not resubmit a permit revised de~sig~n~at~qi~o~v- authority to issue a cease and desist
to meet the Regional Administrator's ~q(~q2) Agencies with jurisdiction aver order, interim protective order. or
objection or notify EPA of its intent to Federal and Federa~ql-St~ate~qwa~qter re~q4~a~qted restoration order to ~a~ny-~ql~i~e~t~s~o~n
deny the permit within go days of planning a~n~0qd~qn~V~qie ~6qp~r~o~ce~s~s~qm ~qmsp~ens~qibl~e f~or,~or ~i~nv~4qd~v~ed ~-~qh~i. an'
receipt of the objection the Secretary ~qw unauthorized discharge.
may issue the permit in accordance With including -the ~6qM~6q& Army Corps of
the guidelines and regulations of CWA. Engineers. the VS. Fish and W~0qW~0q& 1123.104 Approval process-
(2) If a public hearing is held wider Service, and t~qi~qm National Marine (a) Within ~4qM days of receipt of a
paragraph (f) of this section. die Fisheries Service, shall n~v~qt~6qf~6qf~qy~@ the complete State secti~qm 40~q4 program
Regional Administrator does not Regional Ad~i~n~qf~u~qi~strator that they wish submission under ~q1123~-3~. the
withdraw the objection, and the State to ~,comment an a permit application. Administrator shall provide copies of
does not resubmit a permit revised to draft permit, ~or'draft general pt~a ~u~r~qit the State's submission to the Corps of
meet the Regional Administrator's within ~qz~qo days of receipt by the Regional Enginee~qm the U.S. Fish and Wildlife
objection or modified objection or notify Administrator of theperm~qit app~0qE~ca~qt~qio~n. Service, and the National Marine
EPA of its intent to deny the permit draft p~arm~qi~qt~1p~draft general permL~qL Fisheries Service.
within 30 days of the date of the Such a~qgenc~ql~qe~t should. submit their ~q(b) After determining that a State
Regional Administrator's notification evaluation and c~qamments to the program submission ~qis complete, EPA
under paragraph (h) of this section, the Regional Administrator within 50 days shall publish notice of the States
Secretary may issue the permit in of receipt by the Regional Administrator application in ~qthe~2qYed~era~ql Re~8qi~qm~q1~qw~. and
accordance with the guidelines and of the Permit application.- draft permit in enough of the largest newspapers in
regulations of CWA. or draft general permit~. The Regional the State t~t~) attract Statewide attention~.
Administrator may ~allaw any such, and shall mail notice to persons known
� 123.102 Coordination requirements. agency up to an additional 30 days to to be ~qh~iterested in such matters,
(a)General coordination If the submit comments~. upon request of such. including a~ql~ql persons on appropriate
State has a Statewide CWA section agency. State, EPA. Corps of Engineers, U-~6qS Fish
208(b)(4) regulatory program. the State (3) A~ql~ql comments from the U.S. Army and W~qi~ql~qd~qlil~qb Service. and National
Director shall develop an agreement Corps of ~6qE~ng~qineer~s~.~-the ~q1~q1~@~6q& Fish and Marine Fisheries Service mailing lists
with the agency designated to Wildlife Service- and the~-Nat~qi~o~na~ql and a~ql~ql perm~qit~'~qh~older~s and a~qpp~ql~qI~c~qin~qt~a
administer such program. The agreement Marine Fisheries Service on Permit within the State. This notice sha~4qM
shall include: applications, draft permits, and draft ~q(i) Provide a comment period of not
(i) A definition of the activities to be general permits shall be considered by less than 45 days during which
regulated by each program: the Regional Administrator. If the interested members of the public may
(ii) Arrangements providing the Regional Administrator does not adopt a express their views on the State
agencies an opportunity to comment on recommendation of any such agency, he program.
prospective permits, BMPs and other shall consult with that agency. The final (2) Provide for a public hearingw~qit~qh~6qk
relevant actions: and decision to object or to require permit the State to be held no less than 30 days
(iii) Arrangements incorporating BMPs conditions shall be made by the after notice of the hearing is published
developed by the section 208(b)(4)
program into section 404 permits, where Regional Administrator. in the Federal Register,
appropriate. (c) C~oo~rd~qm~Eation with. other St~at~qw~. ~0qN (3) Indicate the cost of obtaining:~8
(Z) Where a CWA section 208(b)(4) the proposed discharge may a~2qhect the copy of the State's submission:
program has been approved under quality of the waters of ar~ry State~q(s) ~q(4~q) Indicate whe~r~&~i~qmd when the
section 208(b)(4)(C) no permit shall be other than the State in which the State's submission may be reviewed by
required for activities for which the discharge occurs the State Director shall the public;
Administrator has approved BMPs provide an oppo~2qirtunity for such State(~qs) ~6q(~4q5) Indicate whom an interested
under such approved program except as to submit written comments within the member of the public should contact
provided in 123.92(b) and (c). Until public comment period on the effect of with any questions; and
such section 208W~8q(~4qb)~4q(4) program has been the proposed discharge an such State~0q(~qs) (6) Briefly outline the fundamental
approved by the Ad~qin~4qi~6qi~6qi~2qistra~4qtor, a person waters, and~q'to suggest additional permit aspects of the State's proposed program.
proposing to discharge must obtain an conditions. If these recommendations and the process for EPA review and
individual permit or comply with a are not accepted by t~0qhe State Director. decision.
general permit. he shall notify the affe~8qbted State and the (c) Within 90 days of receipt of a
(3) The State Director shall consult Regional Administrator in wTiting of his complete program submission un
with any State a~6qgency~0q(ies) with failure to accept these � I~4qZ3~q.3, the Corps of Engineers, the ~24qM~20q&
jurisdiction over fish and wildlife recommendations, together with his Fish and Wildlife Service, and the
resources. reasons for so doing. National Marine Fisheries Service shall

B-62

Federal I Register Vol. 45, No. 98 Monday. May. 19, 19W Rules. and Regulations 33479

submit any comments on the State
pr, am.
Nr Within IM days of the receipt of a
complete program submission under
� 1.=.% the Ad-inistrator shall approve
or disapprove, the program based on the
requirements of this Part and of CWA
and taking into consideration all
comments received. A responsiveness
summary shall be prepared by the
Regional Office which identifies the
public participation activities
conducted. describes the matters
presented to the public, summarizes
significant comments received. and
explains the Agency's response to these
comments. The Administrator shall
respond individually to comments
received from the Corps of Engineers,
the U.S. Fish and Wildlife Service, and
the National Marine Fisheries Service.
(e) If the Administrator approves the
State's section 404 program he or she
shall notify the State and the Secretary
and publish notice in the Federal
Register. The Secretary shall suspend
the issuance of section 404 permits by
the Corps of Engineers within the State,
except for those waters specified in
section 404(g)(1) of CWA and not
identified in the'program description
under J 123.4(h)(1) as State regulated
waters.
(f) If the Administrator disapproves
the State program he or she shall notify
the State of the reasons for the
disapproval and of any revisions or
Modifications to the State program
which are necessary to obtain approval.

B-63

APPENDIX C

U.S. FISH AND WILDLIFE SERVICE
REGULATIONS

Friday
May 18, 1979

Part V

Department of the
a
Interior

Office of the Secretary
Department of
commerce

National Oceanic and Atmospheric
Administration

Fish and Wildlife Coordination Act,
Uniform Procedures for Compliance

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29300 Federal Register Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

DEPARTMENT OF THE INTERIOR I. Procedural Background such activity in some way, to provide
*ldlife conservation equal
In a Water Policy Memorandum dated w' .
Office of the Secretary July 12, 1978, President Carter directed consideration with other features of
that- such projects throughout the agencies'
DEPARTMENT OF COMMERCE planning and decision-making
The Secretary of the Interior in cooperation processes. It requires such agencies, or
National Oceanic and Atmospheric with the Secretary of Commerce shall applicants to such agencies, to first
Administration promulgate regulations by March 1, 1979, consult with state and federal wildlife
defining the requirements and procedures
that must be met for fully complying with the agencies with a view to ascertaining
[50 CFR Part 4101 Fish and Wildlife Coordination Act.* what project facilities.- operations, or
Then, not later than 3 months after measures may be considered necessary
Fish and Wildlife Coordination Act; promulgation of such final regulations, by those agencies to mitigate and
Notice of Proposed Rulemaking Federal agencies with consultative compensate for project-occasioned
responsibilities under the [FWCAJ shall losses to wildlife resources, as well as to
AGENcy- National *Oceanic and publish ... separate procedures to be enhance those re'sources.
Atmospheric Administration, followed in implementing the regulations for The FWCA further requires that the
Commerce; Office of the Secretary, [the FWCAJ. These procedures shall be reports and recommendatioas of wildlife
Interior. reviewed, and if consistent with the agencies on the wildlife aspects of such
regulations, approved within 60 days by the
ACTION: Proposed rulemaking. Secretary of the Interior ... and shall be projects shall be presented to action
- published in final form. These regulations agency decision-makers and (where
SUMMARr. This Notice invites public shall include acceptable methods for applicable) the Congress, and that the
participation in the development of rules determining adequate measures to prevent or 'action agencies shall give full
which would establish uniform to mitigate losses to fish, wildlife,... and consideration to those reports. Action
procedures for federal agency other resources protected by [the FWCA] ... agencies are required to include in
compliance with the Fish and Wildlife and procedures to ensure compliance of all project plans such means and measures
projects not yet constructed with [the FWCAJ for wildlife conservation as they may
Coordination Act (FWCA). The and these regulations.'
President's Water Policy Message of find justifiable to obtain maximum
June 6, 1978 and the President's Water A Notice of Intent to Propose Rules under overall project benefits, and the costs
the FWCA was published in the Federal thereof are to be considered integral to
Policy Memorandum dated July 12,1978, Register on September 29.1978.43 FR "870-
directed the publication of these rules. 44872. We received a large number of those of the project.
These rules would standardize agency responses to the questions asked in that III. Relationship of the FWCA and This
procedures and interagency Notice, particularly from state fish and Proposal to NEPA and Other
relationships in the analysis of the wildlife agencies. The staff of the Fish and Environmental Review Requirements
impacts of federal, or federally- Wildlife Service (FWS) and the National
approved, water-related projects upon Oceanic and Atmospheric Administration Because of the breadth of the
wildlife resources. They relate closely to (NOAA) which participated in the drafting of concerns imposed upon wildlife
the procedures established for these rules held numerous conferences with agencies by the FWCA, more is required
interested Congressional staffs and with most of wildlife agencies in carrying out their
compliance with the National federal agencies which would be affected by commenting responsibilities under
Enviornmental Policy Act [NEPA]. these rules. In addition, the President's Water NEPA than is required of most other
DATES: Written comments must be Policy Implementation Task Force on agencies who comment upon
received no later than July 17, 1979. Environmental Statutes discussed, and held environmental impact statements (EIS).
ADDRESS: Comments should be public hearings on, the President's proposal The Eighth U.S. Circuit Court of Appeals
addressed to: Associate Director (AE). for FWCA rules. has noted that "[t]he proposed
Fish and Wildlife Service, Department H. The FWCA mitigation plans go to the very heart of
of the Interior, Washington, D.C. 20240. The FWCA requires federal agencies the question before the [agency]
Written and oral comments will be (hereinafter "action agencies") which preparing its environmental impact
received at public hearings to be propose, or are authorized, to undertake statement-whether the project should
convened in the following cities on the impoundment, diversion, deepening, proceed at the present time in view of its
dates to be later announced by notice or other control or modification of environmental consequences."
published in the Federal Register. waters of any stream or other body of Environmental Defense Fund v.
Arlington (Dallas/Ft. Worth), Texas water, or which are asked to approve Froehlke, [Cache River], 473 F.2d 346,
Washington, D.C. 351 (8th Cir. 1972).
San Francisco, California 'The President also directed the submission of The procedures established in these
annual reports to the Office of Management and proposed FWCA rules can be carried
New Orleans, Louisiana Budget which demonstrate compliance with out at the same time that action
Denver, Colorado environmental protection statutes, including the agencies are complying with the NEPA
FOR FURTHER INFORMATION CONTACT. YWCA. Finally, the President directed that- regulations, particularly prior to and
In all project construction appropriation requests,
Thomas J. Bond, Fish and Wildlife agencies shall include designated funds for all during the preparation of a draft EIS.'
Service, Division of Ecological environmental mitigation required for the project
Services, 18th and E Sts. NW., and shall require that mitigation funds be spent -it has been stated that "compliance with the
concurrently and proportionately with construction National Environmental Policy Act ... is de facto
Washington, D.C. 20240. (202) 653- funds throughout the life of the project. compliance with [the FWCA).- Cape Henry Bird
5952. These reporting and funding directives are being Club v. Laird. 359 F. Supp. 404 (W.D. Va, 1973). This
James R. Chambers, National Marine analyzed by the President's Water Policy conclusion was presumed by that Court to be
implementation Task Force on Environmental justified by Environmental Defense Fund. ina
Fisheries Service, 3300 Whitehaven St. Statutes and are not addressed in this Notice. Como of Engineers lGillham Dam). 325 F. SUpp. 749,
NW., Page Building 11, Washington, I lowever. should that Tisk Force so recommend. 754 (ED. Ark. 1971). which held that where a federal
DC 20235, (202) 634-7940. these rules may be amended at a Idier date to agency observes the requirements of NEPA. "it will
incorporate the procedures adopted for complying. automatically take into consideration all factors
SUPPLEMENTARY INFORMATION: with these latter two directives. Pootnotes continued on next Page

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29301

The relationship between the NEPA that plan to Congress at the same time applicant for one of these -various
regulations and these proposed rules has project reports are submitted, and, (3) federal approvals makes application to
been carefully drawn here and specific the implementation of the authorized the agencies at different points in time.
cross-citations have been made to the mitigation plan concurrently with Such results also occur when one
NEPA regulations where appropriate. construction. federal regulation becomes applicable to
� 410.3 (definitions of "compensation,'! The FWCA is more than a mere a project only after the jurisdiction of
"loss prevention," ..mitigation"); consultative responsibility; it is an another agency has been invoked by an.
� 410.16(a); (general relationship); affirmative mandate to action agencies, application filed under a different
� 410.15 (lead agencies); � 410.22(b)(4) of which consultation with wildlife program.
(scoping); � 410.22(a)(1) (prelipninary agencies is only a,part. Like NEPA, it IV. Applicability
review of applications); � 410.23(b) requires early planning and post-
(timing of reports by wildlife agencies); consultation findings and -Subpart B of these rules establishes a
J 410.24(a)(2) (findings on justification implementation. Moreover, it speaks compliance procedure for all projects
for wildlife mitigation measures in draft specifically to benefit-cost calculations covered by the FWCA, with slightly
EIS); � � 410.32(b), 410.32(d)(1)(i) and allocates responsibilities for paying different procedures applied, depending
(compliance with NEPA in development the costs of mitigation. 16 U.S.C. upon whether the project in question is
of General Plans); � j10.33(c) (post- 662(c),(d), 663(b). This complements the federal or "non-federal." Latitude is
authorization monitoring). requirements of NEPA's Sections provided to action agencies during the
The requirements of NEPA and the 102(2)(C) and 102(2)(E). In the case of proposed rulemaking and implementing
FWCA are similar in many respects. projects. requiring EIS's, the NEPA procedures phases of this initiative to
First. by requiring that wildlife regulations provide that when benefit- discuss with the Secretary of the Interior
conservation be given "equal cost analyses are prepared, they shall be and the Administrator of NOAA FWCA
consideration" with other features of incorporated by reference or appended compliance procedures which would be
water resource development programs, to the EIS to assist in the evaluation of carefully tailored to their individual
the FWCA assigns a weight to wildlife alternatives, and of environmental - needs and programs.
values in making determinations on the consequence. 40 CFR 1502.23. These No procedures would be established
content of Federal project plans or proposed reguations are thus fully in advance for FWCA compliance by
Federal approvals. This parallels the consistent with and complement NEPA comprehensive water and related land
goals and policies of Section 101 o and the NEPA regulations. resources planning programs, for certain
NEPA, and the requirements in Section These rules will also advance the projects undertaken in emergencies, and
102(4) and (B) that agencies use a Presidenfe directive that federal for federal programs administered by
systematic interdisciplinary approach to agencies should coordinate and simplify states. An opportunity is provided
insure that environmental values and invironmental review requirements. See during the proposed rulemaking and
amenities are given appropriate President's Invironmental Message of Implementing procedures phases of this
consideration along with economic and May 23,1977,13 WEEKLY COMP. OF initiative to devise FWCA review
technical factors. The legislative history PRES. DOC. 782,794. FWCA compliance procedures appropriate to these types of
of the FWCA shows 'that Congress was is to be coordinated with other federal activities.
prepared to accept a reduction in the environmental review requirements. See
benefits of other project purposes in � 410.23(b) and 410.23(c)(6). V. Project Accounting
order to obtain the benefits of fish and In addition, � 410. 15 permits two or Several provisions of these proposed
wildlife conservation.
Secondly, NEPA's requirement that !no!e action agencies which each have rules sh@uld resolve some of the
wildlife impacts and mitigation Jurisdiction over an action, and which confusion which exists over the
alternatives be considered in would separately have to comply with treatment of wildlife resource-related
environmental impact statements the FWCA. to complete the consultation project accounting for benefit-cost,
carries with it an obligation to and reporting phases of FWCA reimbursement, and budgeting purposes,
undertake mitigation activities to the compliance through =e (leadl agency. These rules make a distinction between
fullest extent possible in order to Section 410.16(b) requires action "mitigation" and "enhancement". See
achieve the goals of Section 101. See agencies which are considering the � 410.3. This is necessary for two
NEPA Section 102 and 40 CFR 1505.2(c) approval of a project to which the reasons. First, the costs of installing fish
and 1505.3. The FWCA requireb (1) the FWCA applies to require their and wildlife enhancement measures at
preparation of a plan containing specific applicants to make a showing of federal projects are reimbursed to the
measures to mitigate and compensate compliance with other permit programs United States under rules which differ
wildlife losses, as well as to enhance to which the FWCA applies separately; substantially from those which govern
wildlife resources, (2) the submission of namely, sections 402 and 404 of the the reimbursement of the costs of loss
Clean Water Act and sections 9 and 10 prevention and mitigation measures.
Footnotes continued from last page of the River and Harbor Act of 1899. Compare 16 U.S.C. 4601-12, et seq., with
required by [the FWCAJ and it is not reasonable to Action agency observance of these two 16 U.S.C. 662(b), 662(d).
require them to do both separately." While it may provisions could avoid placing wildlife Second, the costs of fish and wildlife
not have been appropriate to require the Corps in agencies in the position of commenting loss prevention and mitigation measures
that case to consult again with wildlife agenciea--it
having done so previously under NEPA-it is quite upon the same proposed project at are required by the FWCA to be
another matter to suggest the NEPA and the FWCA different times. This is the "two bites at considered as costs. not benefits, for the
impose identical burdens. Other cases considering the apple" problem which is posed for purposes of any benefit-cost analysis
the relationship of the two Acts have recognized
their distinct requirements. Zabel v. Tobb. 430 F.2d any federal agency administering a which may be required by other law.
199 (5th Cir. 1970): Akers v. Resor, 339 F. Supp. 1375 federal environmental review See � 410.24(b). Although the costs of
(D. Tenn. 19721; National Wildlife Federation v. requirement respecting an action over adopted wildlife resource loss-
Andrus, 440 F. Supp. 1245 (D.D.C. 1977): Texas which several other federal agencies compensation measures, and of
Committee on Natural Pesources v. Alexander, -
F. Supp.- (E.D. Texas. December 8,1978) may also initiate primary jurisdiction. uncompensated losses, would be figured
unofficially reported 12 ERC 167& This problem is exacerbated when an is costs in the overall project benefit-

C-9

29302 Federal Register Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

cost ratio, conservation measures would VIL Section-by-Section Analysis "Wildlife" and "wildlife resources"
not be subjected to normal benefit-cost A general overview of the remaining, are defined by taxonomic
analysis in order to determine whether more significant provisions of the classifications, as well as by reference
they are justified. See � 410.24(b)(3)(ii) to habitat elements. As applied in
and � 410.24(a)(2). proposed rules follows. The FWCA and � 410.24(b)(1), the rules require that
these rules apply to water-related action agencies consider impacts upon
These rules also make it clear that the federal actions; defined as "projects wildlife resource not only in the project
total costs of wildlife compensation Different procedures are provided,
measures (acquisition, operation, depending upon whether the projects in area, but wherever they "occur". For
maintenance, replacement, and question are federal undertakings, as example, an upstream water project
management) are to be included in cost opposed to "non-federal" projects which could have significant impacts upon the
analysis. See � 410.24(a)(2). In the case- are "approved" by a federal agency. wildlife resources of an estuary far
of federal profects, the budgeting of such These procedures are set forth in removed from the project site.
costs will be by the construction agency, Subpart B. "Wildlife resource properties", as
in order that the true costs of water In � 410.3, the terms "action agency", applied in � 410.32, refers to areas
projects can be recognized. See "approval", and "project" are defined. designated by federal agencies in
� 410.32(e); 16 U.S.C. 663(b). Lack of "Project" defines the kind and location connection with federal projects for the
agency and Congressional attention to of impacts covered by the FWCA. conservation of wildlife resources.
funding of OM&R costs has been a "Action agency" defines the kinds of Areas set aside in connection with non-
major factor foreclosing authorized federal actions which are the predicate federal projects are not affected by
mitigation. for application of the FWCA. these proposed rules.
"Approval" refers to a federal agency Section 410.11(a) should resolve a
VI. Techniques for-Evaluating Project action which provides entitlements for great deal of confusion which has arisen
Impacts on Fish and Wildlife Resources non-federal projects. over the applicability of the FWCA to
These rules respond to the President's The terms "loss prevention", certain federal programs, project
directive that "these regulations shall ent" have locations, actions indirectly affecting
mitigation". and "enhancem water, and types of water resources.11t is
include acceptable methods for been defined and distinguished after recognized that by defining the
determining adequate methods to extensive deliberations among wildlife applicability of the FWCA, in part, by
prevent or to mitigate losses to fish, resource planners. They are reference to actions which "depend
wildlife, * * * and other resources distinguished because (1) they have upon, or necessarily result in, a
protected by* * " ''the FWCA. This is different economic and financial diversion, control or other modification
consistent with and carries out NEPA's connotations (described above), and (2) of a stream or other body of water,"
Section 102(2)(3), which requires "to the in order to emphasize them as separate there will be a point at which the effects
fullest extent possible" that all agencies steps in the action agency approval and of that federal action upon water are
identify and develop methods and authorization process. Enhancement is remote. During proposed rulemaking or
procedures which will insure that recognized to be a separate planning the implementing procedures phase of
presently unquantified environmental objective which is just as important as the President's initiative, action
amenities and values may be given mitigation. See �� 410.24(b)(1). 410.21. agencies and the public may recommend
appropriate consideration in decision- "Compensation" is used to state an to the Secretar .
,y of the Interior whatever
making, along with economic and objective or measure of loss prevention special compliance procedures they feel
technical considerations. These rules and mitigation planning. It is a term should be applied to these programs.
would require,' at least for federal used in the FWCA. Section 410.11 (b) and (c) restate the
projects, that the federal construction The definition of "Regional Directors", exemptions or exclusions contained in
agency receive, consider, and transmit as applied in � 410.22(a) (1) and (2), the FWCA for certain programs or
to the Congress an analysis of the extent confirms the fact that the jurisdiction of projects. Public and agency views are
of wildlife resource productivity lost to. the Departments of the Interior and particularly solicited on the extent to
or gained with, the proposed project, Commerce over all projects to which the which the FWCA applies to certain of
and an analysis of the compensation FWCA applies will be totally such programs directly. Agreements
measures which are required to replace concurrent. It is recognized that different have been reached between wildlife
that loss, measured in terms of levels of effort will be devoted to agencies and some of those agencies to
equivalent wildlife resource various projects by the two federal insure that wildlife resource
productivity. See � � 410.23(c)(3), agencies, depending upon such factors considerations are factored into their
410.24(a)(1)(ii), 410.24(c). In preparing as project location, resource impact, decision-making processes. These
their reports under the FWCA, wildlife program emphasis. and staffing. Should agreements will appear in the
agencies are directed to use evaluation the pending proposal for executive Appendices to this Part. Though the
techniques in describing project effects reorganization become effective, FWCA may not apply to such agency
and identifying conservation measures appropriate changes will be made to this programs directly, the FWCA does
which are directed at qualifying and proposal. apply through othe .r agency
"Wildlife a-ency" is defined and used environmental review programs
quantifying potential effects on wildlife, 0
their habitat and related values. See to refer to federal and state wildlife applicable to these otherwise exempt
� 410.23(c)(1). Action agency findings on agencies collectively. In the case of state projects and programs. The most
conservation measures *hich they deem agencies, the FWCA is construed to apparent of those other agency
justifiable must be based upon the use require consultation with the state programs are: the Section 103(b), 402,
of assessment and evaluation agency which exercises "immediate and and 404 permit programs under the
techniques reflecting wildlife habitat direct administration over the fish and Clean Water Act. the permit programs
values. See � 410.24(b)(1). wildlife resources" of the affected state under � � 9 and 10 of the River and
or states. Harbor Act of 1899.

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Federal R4ster Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29303

Section 410.12 deals with the timing to provide, in their application action agencies in the context of certain
and extent to which these rules will be procedures for non-federal projects, that objectives and requirements of the
applied to particular projects which are applicants for such projects must FWCA.
in various stages of authorization, provide documentation showing that the Paragraphs (b)(3)(ii) and (b)(3)(iii) of
approval, or construction. It is applicant has previously consulted with � 410.24 provoked much discussion
responsive to the President's directive the wildlife agencies. This practice has during the preparation of these proposed
that these rules should "insure been used successfully by the Federal rules, partly because they are
compliance of all projects not yet Energy Regulatory Commission. Delays misunderstood. These rules apply only
constructed with [the FWCA]". This in action agency approval processes are to measures recommended for the
includes, inter olia, projects which are avoided by the development of '.compensation" of wildlife resource
authorized and on which construction is environmentally sound project losses, hot to "enhancement." The
not complete. Guidance is sought from applications. Often, tardy, post- FWCA provides that wildlife resource
the affected agencies and the public on application consultation with wildlife compensation measures are to be
screening criteria [see � 410.12(c)(1)] agencies places them in a reactive considered costs of doing business in
which could be use to selectively apply posture, often with a short time frame public resource areas. Thus, the fact that
these rules to projects where for response. The resultant delays measures necessary for compensation of
construction has begun but has not yet caused by honest attempts to carry out wildlife resource losses may produce
advanced to a stage where FWCA responsibilities are "benefits" under one of a number of
compensation measures are foreclosed. characterized as faults in the FWCA different methods of calculation is
A vast potential exists for examining and wildlife agencies. totally irrelevant to the question of
the fish and wildlife resource No period of time is specified for this whether those measures are justified
conservation potentials of authorized consultation in advance of the under the FWCA.
federal water projects. particularly those application in question. This is left to Similarly, the unw-illffigness of non-
authorized many years ago. Should the the judgment of the applicant. Since this federal entities to fund or reimburse
procedures of Subpart B become procedure applies only in the case of their statutory share of federal project
applicable to such projects in larger projects-which doubtless will costs otherwise deemed justified to
accordance with this provision, the require an extensive period of pre- compensate for wildlife resource losses
relevant decision-makers and the application planning-it should not be should not be a reason for refusing to
Congress would be provided with up-to- burdensome. To the extent that this seek authorization of such measures.
date analyses of the fish and 'wildlife procedure may encourage the filing of Paragraph 410.24(b)(3)(iii) does not
resource needs and potentials of these well-conceived applications, it will apply to non-federal. projects. If, prior to
projects. result in a saving of action agency federal project authorization, non-
It is understood that the views, needs, resources. federal entities indicate an
and rights of federal projects sponsors Section 410.24 deals with the decision- unwillingness to fund an appropriate
would be taken into account during the making processes of action agencies. It share of these project costs, the project
observance of these procedures, and in requires action agencies to make a would not be recommended for
any later submissions which may be record of their decisions concerning the authorization. Subsequent to
made to the Congress for implementing wildlife resource component of authorization. if the action agency
the ensuing recommendations of the environmental mitigation. It also determines that wildlife resource
Executive Branch. requires public disclosure of. and public compensation measures which had not
Subpart B sets forth the,.basic FWCA participation in, action agency decisions previously been authorized should be
compliance procedure. Sect 'ion 410.21 on which wildlife conservation recommended for authorization, then
provides substance to the term "equal measures will be incorporated into the alternative cost-sharing provisions can
consideration," as used in the F`WCA. It project. It identifies the financial cost of be recommended in those cases where
emphasizes the relative weight to be wildlife conservation measures as the non-federal entities are unwilling (e.g.,
accorded to wildlife resource subject of benefit-cost analysis. These by reason of contract rights) to share the
conservation. It identifies enhancement cost are to be developed for alternatives costs. Nothing in these rules would
as a separate project objective of equal so that a true comparison can be made require the adoption of such measure in
importance with the objective of merely ambrig them, and so that, if an those circumstances or require the
compensating for wildlife resource alternative to the primary proposal is imposition of such burdens on non-
losses. It defines the FWCA compliance- selected, appropriate conservation federal entities.
process as involving four steps; not just measures are available for inclusion in Section'410.32 should provide an
as the consultation and avoidance the authorization. incentive for wildlife agencies and
process which sometimes characterizes Section 410.24(b)(3) specifies some action agencies to devote more attention
the practices of action and wildlife considerations which may not be taken to wildlife areas which had been
agencies today. into account by action agencies in proposed to justify project
Section 410.22 largely restates existing making the statutorily-required findings authorizations. If, as a result of the
action agency practices for the initiation as to which wildlife conservation FWCA compliance process, a project is
of wildlife agency involvement in their measures recommended by wildlife authorized in part upon the
planning and approval processes. The agencies are justified to maximize representation that land and water
intent of this section is to get wildlife overall project benefits. Whereas it is areas will be acquired and managed in
agencies involved early so that they can true that action agencies have the order to replace the wildlife productivity
complete their necessarily extensive ultimate authority under the FWCA to lost to the project. and then the affected
review in time for action agencies to use make these findings, it is also true that, agencies do not provide resources to
their input in a meaningful way. For at least in the case of federal projects, make good that representation, then the
larger projects which are likely to have the Congress. not the federal action wildlife resource and the public have
the most significant impact upon wildlife agency, makes the final determination. been short-changed. Bare acquisition,
resources, action agencies are required Moreover, these findings are made by without management, is not mitigation.

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29304 Federal Register / Vol. 44; No. 98 / Friday, May 18, 1979 / Proposed Rules

VIII. Alternative Approaches more damaging projects (from the such techniques subsequent to
This discussion focuses upon perspective of wildlife resource certification.
conservation). An alternative The selected proposal serves the
alternatives which wereconsidered to considered and rejected would have function of forcing wildlife and action
those provisions of these proposed rules applied this procedure to all, or wider, agencies to focus upon losses to wildlife
which would make significant changes classes of projects. Also rejected was a resources, rather than on the human use
in action agency procedures. proposal to require pre-application of such resources. If habitat productivity
The procedures contained in Subparts consultation with wildlife agencies prior is lost to a project, no amount of human
B and C apply to all projects to which to a fixed period in advance of filing an use of the project features will replace it.
the FWCA applies, unless they are
rendered inapplicable by specif .ic application with the action agency. The The fact that a value can be attached to
proposal which was adopted was human use of project features or of
provision of these rules or by Secretarial considered acceptable from the "replacement" habitat is gratuitous but
action during the implementing standpoint of promoting bears no relation to the assessment of
procedures phase of the President's environmentally sound non-federal what must be done to replace habitat
initiative. See � 410-12, The Departments projects applications. productivity lost to a project. The use of
of the Interior and Commerce are not in computational methods other than those
a position at this time to review and Although the findings which would be based on wildlife habitat productivity
analyze all federal programs to required of action agencies by (or values) has persisted because there
determine whether the procedures of � 410.24(a) are being made as a matter has been insufficient incentive such as
Subparts B and C can be -meaningfully of practice by some action agencies, this these rules to abandon them.
applied to all such programs. Action provision was deemed necessary to
agencies are in a much better position to ensure that wildlife agencies and the IX Rulemaking Requirements
examine these questions in the first public are able to participate in this The Department of the Interior and
instance and to seek selective aspect of decision-making by all action the Depqrtment of Commerce have
modification, when necessary. agencies. In many cases, the wildlife determined that the rulemaking
Section 410.12(c) is responsive to the agencies and the public are excluded procedures of the Department of the
President's directive that these rules from action agency decision-making on Interior will be followed. The
should apply to authorized but not wildlife conservation recommendations Department of the Interior has
completed federal projects. These rules and are provided no meaningful determined that this document is a
would not apply to all such projects. In rationale for why they were rejected. significant rule but does not require a
certain of these cases, the Secretary of Alternative procedures which were regulatory analysis under Executive
the Interior can consider specified rejected included (1) publication of these Order 12044, and 43 CFR Part 14. An
criteria and find that these procedures findings in only one media (the Federal enviornmental assessment has been
will be applied. In such cases, affected Register), (2) a provision requiring action prepared and is available from the
federal agencies are provided an agency decision-makers to provide their Associate Director, Environment, Fish
opportunity to state whether they rationale for rejecting wildlife and Wildlife Service, Department of the
believe the rules should apply. However, conservation measures recommended Interior, Washington, D.C. 20240 [(202)
if an authorized project is not exempt, by their own staffs, and (3) a provision 343-4767).
action agencies are admonished not to for mandatory public hearings upon the The policy of the Department of the
make "any irreversible or iff etrievable request of wildlife agencies. Interior is, whenever practicable, to
commitment of resources pending Section 410.24(b)(1) requires that afford the public an opportunity to
compliance with these rules which findings made by action agencies as to participate in the rulemaking process.
would foreclose the consideration of loss prevention and mitigation measures Accordingly, interested persons may
alternatives to compensate for wildlife deemed justified to maximize overall submit written and oral comments.
resource losses." project benefits "shall be made using suggestions, or objections regarding this
Alternatives considered included a assessment and evaluation techniques proposal in the manner set forth above.
provision making these rules applicable based upon wildlife habitat values. In the Notice of Intent to Propose
immediately upon their effective date Monetary values may be displayed and Rules, published at 43 FR 44870-44872, it
and a provision which would direct the used in measuring the cost-effectiveness was proposed that these rules be
action agencies not to seek funding for ofalternative mitigation plans but shall codified in Part 403 of Title 50, CFR. In
these projects until these rules were not be used for justification purposes." order to provide more room in the 400
complied with. We also considered This provision recognizes the limitations series of Title 50 for endangered species
making these rules applicable to of monetary or user-day computations of regulations, these joint rules will, when
approved, non-federal projects. It was value in determining whether adopted, be codified as Part 410 of Title
determined that the proposal adopted recommended loss prevention and .50.
was the least burdensome alternative mitigation measures will compensate for The joint authors of this document
which was still acceptable from the wildlife resources lost, and therefore are:
standpoint of meeting the intent of the should be adopted. Alternatives Karl F. Stutzman, Fish and Wildlife Service.
President's directive. considered included a proposal that Department of the Interior, Room 3251,*
Section 410.22(a)(1) would require assessment and evaluation techniques Washington. D.C. 202.40, 202-343-4767.
action agencies to change their based upon wildlife habitat values William W. Garner. office of the Solicitor.
procedures for receiving applications for should be emphasized, but not required Department of the Interior, Room 6545,
non-federal projects which they in such findings. Also considered and Washington. D.C. 20240,202-343-2172.
James R. Chambers. National Marine
approve. It would require a showing that rejected was a provision requiring the Fisheries Servtce. 3300 Whitehaven Street,
the applicant undertook pre-application use of a particular assessment and NW., Page Building 11, Washington, D.C.
consultation with the wildlife agencies. evaluation technique, once approved or 20235.202--834-7490.
This requirement applies only to certified by the Secretary of the Interior, Eric Erdheim. Office of General Counsel.
applications for the larger, potentially coupled with a ban upon the use of other National Oceanic and Atmospheric

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29305

Administration, 3300 Whitehaven Street, Subpart A-General Provisions and integration of FWCA compliance
NW., Page Building H, Washington, D.C. into decision-making processes while
20235.202-634-4224. � 410.1 Scope. plans are still flexible;
It is therefore proposed to amend 50 This Part implements the National (c) Ensure that planning for wildlife
CFR, Chapter IV, by adding a new Part Environmental Policy Act (NEPA), 42 resource conservation measures
410 in the manner set forth below. U.S.C. 4332, and sections 1-4, 8, and 9 of addresses loss prevention, mitigation,
the Fish and Wildlife Coordination Act compensation, and enhancement;
Dated this 11 day of May, 1979. (FWCA), 72 Stat. 563, as amended (16 (d) Establish guidelines which ensure
James A. Joseph, U.S.C. 661-664,666b, 666c (1976)). The that applicants for selected classes of
Acting Secretary of the Interior, FWCA recognizes that wildlife non-federal project approvals by action
Elsa A. Porter, resources make a vital contribution to agencies will consult with wildlife
Acting Secretary of Commerce. the Nation and that federal and non- agencies before making such
federal water and related land resources applications;
PART 410-FISH AND WILDLIFE developments will affect such resources. (e) Describe factors to be considered
COORDINATION ACT It mandates that wildlife conservation by an action agency in determining what
Subpart A-General Provisions shall receive equal consideration and be measures are justifiable to obtain
coordinated with other features of water maximum overall project benefits to the
Sec. resource development programs public;
410.1 Scope. throughout the action agencies' planning (f) Require the use of techniques
410.2 Purpose. and decision-making processes. It based upon habitat values as the means
410.3 Definitions. requires such agencies, or applicants to for assessing impacts on wildlife
410.11 Applicability of the FWCA. such agencies, to first consult with state
410.12 Applicability of this Part. and federal wildlife agencies to resources and for evaluating loss
410.13 Comprehensive water resources ascertain what means and measures prevention, mitigation and
planning requirements. may be considered necessary by those compensation measures-,
410.14 Federal programs administered by agencies to prevent and mitigate project- (g) Ensure that comparative benefit-
states., related losses of wildlife resources, as cost analyses of alternative project
410.15 Lead action agencies. well as to enhance those resources. plans include the construction,
410.16 Relation to other environmental acquisition, operation, maintenance, and
review requirements. , The FWCA further requires that replacement costs of wildlife
Subpart &-FWCA Compliance Procedure reports and recommendations, from conservation measures, and, if
wildlife agencies be presented to action
410.21 Equal consideration. agency decision-makers and (in the case quantifiable, the costs of.
410.22 Consultation. of federal projects) the Congress, and uncompensated wildlife resource losses;
410.23 Reporting. that the action agencies shall give full (h) Provide for inter-agency review of,
410.24 Consideration. consideration to those reports and and public participation in, wildlife and
Subpart C-Project Implementation recommendations. Action agencies are action agency decisions on means and
410.31 Congressional liaison. required to include in project plans such measures forwildlife resource
410.32 General plans for management of means and measures for wildlife conservation.
wildlife resource properties. conservation as they may find justifiable 6 410.3 Dofinitlons.
410.33 Study or modification of authorized to obtaiii maximum overall project As used in this Part:
federal projects. benefits to the public. The.costs of such
means and measures are to be "Action agency" means a department,
Subpart 13-Implementation of This Part considered integral to those of the agency or instrumentality of the United
410.41 Action agency implementing project. States which plans, constructs, operates
procedures. or maintains a project, or which plans
410.42 Comprehensive planning � 410.2 Purpose. for or approves a grant, loan, loan
requirements. The purpose of these rules is to ensure guarantee, financial or technical
Appendix A-Regional Directors. that wildlife conservation of fully assistance, permit, lease, license, or
Appendix B-Agreements of FWS with considered and weighted equally with contract for projects.
Actior Agencies. other project features in agency "Approval" or "approve" means final
Appendix C-Agreements of NOAA/NMFS decision-making processes by action agency action on an application
with Action Agencies. integrating such considerations - into by a federal, state, or other applicant for
Appendix D-FWS Guideline For Oil and project planning, NEPA compliance a grant, loan, loan guarantee, financial
Gas Exploration and Development Activities
In Territorial And Inland Navigable Waters procedures, financial and economic or technical assistance, permit, lease,
and Wetlands. analyses, authorization documents, and license, or contract.
Appendix E-FWS Guidelines For Review project implementation. This Part will- "Compensation" means completely
of Fish and Wildlife Aspects of Proposals In (a) Establish procedures to be offsetting losses to wildlife resource
or Affecting Navigable Waters. followed in achieving compliance with values using measures described in the
Authority.-Fish and Wfldlife Coordination the FWCA in the development and NEPA regulations [40 CFR 1508.20].
Act, Pub. L. 85-264. 72 Stat. 563 (16 U.S.C. 661, consideration of alternative project "Conservation" means wildlife
et seq.); National Environmental Policy Act of plans which provide for the resource loss prevention, mitigation,
1969, sec. 102(2)(A) and (B), Pub. L. 91-190, 83 conservation of wildlife resources; compensation, and enhancement.
Stat. 853 (42 U.S.C. 4332(2)(A), (B)); 5 U.S.C. (b) Minimize delays in project "Enhancement" means development
552; Fish and Wildlife Act of 1956. sec. 7. 70 authorization decisions and require the or improvement of wildlife resource
Stat. 1122 (16 U.S.C. 7420; President's
Memorandum on Environmental Quality and development of environmentally sound values of the area affected by the
Water Resources Management, July 12, 1978 project plans without needless waste of project beyond that which would occur
[See also, Weekly Comp. of Pres. Doc. 105 public and private resources by without the project. This term is
(June 6,1978)]; U.S.C. 301. establishing procedures for the timing synonomous with the term

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29306 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

"development and improvement," as wildlife is dependent. "Wildlife per se, of FWCA requirements. By
used in the FWCA. resources" include the biotic and abiotic reason of section 2(g) of the FWCA.
"Federal project" means a project factors upon which wildlife depends; i.e. section 2 of the FWCA does -not apply to
planned or constructed by or on behalf habitat. projects (or project units) authorized or
of a federal agency. "Wildlife resource properties" means approved prior to August 12, 1958, which
"Loss prevention" means designing the lands. waters, or interests therein to were completed or substantially
and implementing a project to avoid be acquired, reserved, or otherwise set completed on August 12, 1958. A project
adverse impacts on wildlife resources. aside by federal agency for the or project unit is deemed to be
[40 CFR 1508.20(b)] conservation of wildlife resources in substantially completed when sixty
"Mitigation" means (1) lessening connection with a federal project, percent or more of then-estimated
wildlife resource losses to a project pursuant to the provisions of section 3 construction costs (as of August 12,
through use of loss prevention measures and section 4 of the FWCA. 1958) had been obligated for
and (2) offsetting losses through use of 410.11 Applicability of the FWCA. expenditure. However, the FWCA does
other structural and non-structural apply to projects (or project units)
measures. [40 CFR 1508.20(b)-(e)] (a) General. The FWCA applies to authorized or approved prior to August
"Project" means any action, or federal projects and to non-federal 12,1958, which were not substantially
planning process which could condition projects which are approved by an completed at that time, and to projects
an action, which impounds, diverts, action agency. It applies to federal (or project units) authorized or approved
deepens the channel of, or otherwise projects which are authorized by the subsequent to August 12, 1958,
controls, pollutes, or modifies any water federal construction agency itself, as regardless of their state of construction
body for any purpose whatsoever. Such well as those authorized by the or whether completed.
water bodies include, without limitation, Congress. Examples of projects covered Section 2 applies to action agency
wetlands and the waters of any stream, by the FWCA are: initiation of a process of developing a
including their associated ground water, (1) Discharges of pollutants, including report on the modification or
or estuarine or marine waters seaward municpal, mining and industrial wastes supplementation of plans for previously
to the outer margin of continental shelf or dredged and fill material, into water authorized federal projects (whether or
(OCS) or fisheries conservation zone, or wetlands; not constructed). It also applies to any
whichever is farther. (2) Those involving the construction, application for the renewAl or
"Regional Directors" means the operation, or maintenance of channels, modification of a federal approval.
named officials, or designees, of the Fish turning basins, or other navigation (c) Agencies or agency projects
and Wildlife Service (FWS) [including features: specifically exempt from the FWCA.
the Area Director for Alaska] and the (3) Those involving the construction Of The FW.CA does not apply to the
National Marine Fisheries Service dams, impoundments, and/or water Tennessee Valley Authority, the small
(NMFS) in whose geographic areas of diversion structures for flood control, watershed program of the Soil
jurisdiction the project may be located. hydroelectric power generation, water Conservation Service (as authorized by
For projects outside the U.S. territorial supply, cooling ponds, irrigation. Section 3 of the Watershed Protection
sea, "Re-ional Director" means the recreation, fish and wildlife, or other and Flood Prevention Act of 1954), to
named official of both agencies whose purposes; impoundment projects where the
area of jurisdiction is closest to the (4) Those which depend upon, or aggregate maximum surface area of such
project. [See App. A for addresses and necessarily result 4 a diversion, control impoundments is less than ten acres, or
areas of jurisdiction of federal Wildlife or other modification of a stream or to activities for or in connection with
agency Regional Directors]. other body of water, such as: federal programs primarily for land
"Reporting Officer" means that action water and hydro-power marketing, management and use carried out by
agency offi 'cial responsible for preparing allocation or contracting decisions; federal agences with respect to federal
the project report, obtaining public and changes in reservoir release and storage lands under their jurisdiction. Hoi@ever,
agency views, and making plans; diversions for x)r discharges from where such projects require other water-
recommendations on a proposed project power plants; mineral exploration or related federal approvals, the FWCA
to higher authority (if any) within the extraction permits, leases, or licenses on applies through those programs.
agency. Implementing procedures of the OCS; reservoir rights-of-way on
action acencies will identify approphate federal or Indian trust lands-, projects 410.12 Applicability of thl3 part.
reporting officer(s). conducted in beds of intermittent Except as provided in �� 410.13,
"Wildlife agency" means the FWS, streams, or those temporarily 410.14, and 410.22(a)(2)(iii), this Part
NMFS, and, if the project is to be sited dewatered; water-related aspects of shall apply to projects to which the
within the boundaries of States of the federal mining or mineral leases, or of FWCA applies and shall govern the
United States, the state agency(ies) mining plans adopted under the Surface content of implementing procedures
exercising immediate and direct Mining Control and Reclamation Act; issued in accordance with Subpart D.
administration over the fish or wildlife (5) Those undertaken to abate They shall become applicable as
resources of the particular state(s) damages or causes of erosion, storms, or follows:
wherein projects are proposed to be, or floods [See paragraph 410.22(a)(2)(iii) for (a) Projects not authorized or
have been, constructed. For projects to expedited FWCA compliance approved For projects in a planning
be sited outside the territorial sea, this procedures in these cases]; phase and not yet approved or
term means the head of the wildlife (6) Those involving the rehabilitation authorized for construction on the
agency(ies) of the state(s) nearest the or lining of water conveyance systems; effective date of these rules, action
project. (7) Water resource and water quality agencies shall comply with the
"Wildlife" and "wildlife resources" planning programs. procedures and methods prescribed by
mean birds, fish, mammals and all other (b) Previously authorized or approved this Part which are applicable to the
classes of wild animals, and all types of projects. Prior authorization or approval planning or approval stages remaining
aquatic and land vegetation upon which of a project does not constitute a waiver, on that date.

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29307

(b) Completed or approvedprojects. (i) Its location, and the source and agency which obtains the concurrence
This Part applies upon action agency date of authorization; of other action agencies which may Save
initiation of a process of developing a (ii) The state of constuction (if any) jurisdiction over the project in question
report on the modification or and the percentage of current total to act in that capacity. Notwithstanding
supplementation of plans for previously estimated project cost which has been such agreement, action agencies must
authorized federal projects (whether or expended; comply with the other requirements of
not consLructed). It applies to (iii) A description of the mitigation the FWCA and this Part.
applications for renewal, modification, and enhancement measures which were
or relicensing of a non-federal project. It authorized and a discussion of any � 410.16 Relation to other environmental
applies to actions which are defined as difficulties encountered which could review requirement&
projects and which are proposed or defeat adoption of such measures; (a) Compliance with NEPA and the
undertaken at those authorized projects fiv) Where mitigation and Principles and Standards of the Water
covered by � 410.11(b). These rules will enhancement measures may be under Resources Council are complementary
apply to completed federal, and other consideration for future authorization, to, but not a substitute for, compliance
federally-approved, projects as the an explanation of the status of planning with the FWCA or these rules. To the
action agency may, from time to time, and approval of such proposals within maximum extent possible, the reports
determine practicable. the action agency; and recommendations of wildlife
(c) Authorized but not completed (v) If mitigation or enhancement land agencies will accompany environmental
federalprojects. (1) This Part will acquisition was authorized, a statement assessments and be incorporated into
become applicable to federal projects, or of the percentage of the authorized the draft and final decision document
separately-authorized units thereof, . amount which has been acquired; and the draft and final environmental
which were authorized for construction (vi) A ranking of those projects most impact statement (EIS), and Principles
but not completed on the effective date in need of Secretarial action under and Standards analysis.
of this Part to the same extent that the paragraph (c)(1), stating the rationale for (b) If a permit is required under
Principles and Standards Manual of such ranking and listing those not under sections 103(b), 402, or 404 of the Clean
Procedures, issued pursuant to the active consideration for construction; Water Act or section 9 or 10 of the River
President's Water Policy Initiatives o
T.- (vii) A statement of whether the and Harbor Act of 1899 for projects of,
,ly 12, 1978, will be applied to such project meets one or more of the criteria or pending approval before, a federal
projects. The Secretary of the Interior referred to in paragraph (c)(1) and, if it agency, that agency shall ensure
may nevertheless determine that this does, whether the procedure of this Part compliance with those permit programs
Part will apply to projects otherwise should nonetheless apply. before, or at the same time, approves,
exempt by reason of the foregoing if,
after a review of evidence submitted in (d) Waivers by States or NMFS. seeks authorization of, or seeks
accordance with paragraph (c)(21) of this Where, in the judgment of a Regional construction funding for the project.
:
ection, the Secretary determines that_ Director of NMFS or the head of a state (c) Many statutory authorities require
(i) Authorized fish and wildlife wildlife agency, their involvement in the consultation with the Departments of
onservation measures will not be procedures set forth in Subparts B and C the Interior and/or Commerce on the
stalled or will not substantially would be inappropriate, he or she may wildlife impacts of federal actions.
compensate for fish and wildlife waive those requirements as applied to Federal, state, or private agencies or
resource losses caused by the project, said agency. individuals are encouraged to adopt and
and 1410.13 Comprehensive water resources employ the procedures or meth6ds
(ii) The impacts of the project upon planning requirements. prescribed by these riiles to obtain the
wildlife resources are significant, or With the exception of Level C studies full loss prevention, mitigation, and
(iii) Construction has not proceeded to undertaken by federal action agencies, enhancement potential of projects,
the point that all options for wildlife Subpart B will not apply to whenever authorized.
conservation are practically foreclosed. comprehensive water or related land
Where appropriate, the Secretary of the resources planning requirements. Subpart B-FWCA Compliance
Interior will consult with the However. J 410.21 does apply to such Procedure
Administrator of NOAA in making this programs. Wildlife agencies will be J 410.21 Equal consideration.
determination. involved in such programs as provided
(2) If this Part becomes applicable to a in Subpart D. Equal consideration of wildlife
Federal project in accordance with resource values in project planning and
paragraph (c)(1) of this section, action 1410.14 Federal programs administered approval is the essence of the FWCA
agencies shall not make any irreversible by States. compliance process. It requires action
or irretrievable commitment of resources Subpart B will not apply to projects agencies to involve wildlife agencies
pending compliance with this Part which approved under federal programs throughout their planning, approval, and
would foreclose the consideration or administered in whole or in part by implementation process for a project
alternatives to compensate for wildlife States, except as provided pursuant to and highlights the need to utilize a
losses. J 410.41. systematic approach to analyzing and
(3) Within Ninety (90) days of a establishing planning objectives for
written request by the Secretary of the 1410.15 Lead action agencies. wildlife resource needs and problems
Interior, action agencies will submit the Wildlife agencies will coordinate and developing and evaluating
following information to the Secretary of action compliance with the procedural alternative plans. Wildlife resources will
the Interior with respect to each federal requirements of � � 410.22 and 410.23 of be conserved in action agency project
project, and separately-authorized this Part through lead action agencies planning and approval by minimi ing
federal project unit, which is otherwise designated in accordance with NEPA adverse effects, compensating for
exempt by reason of paragraph (c)(1) of regulations [40 CFR 15M.5), or, where wildlife resource losses, and enhancing
this section: not so designated, through an action wildlife resource values.

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29308 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

Compliance with the equal agencies will be specific enough to by paragraph (a)(1) of this section shall
consideration mandate requires: allow them toldentify possible effects accompany these notices.
(1) Consultation between action on wildlife and to identify potential (iii) Emergencies. (A) If a major
agencies for applicants to them) and -conservation measures (including disaster will be declared by the
wildlife agencies on measures necessary alternatives), and yet be general and President under authority of the Disaster
to conserve wildlife in project planning, flexible enough to allow the Relief Act Amendments of 1974, the
construction, and operation; incorporation of justifiable conservation designated Federal Coordinating Officer
(2) Reporting by wildlife agencies on measures prior to submission of a (FCO) of the Federal Emergency
the effects of the project and its formal application to the action agency. Management Agency (FEMA), will
alternatives upon wildlife resources and Wildlife agencies will provide to the consult with the Regional Directors and
on measures recommended to conserve potential applicant a brief analysis of the affected state wildlife agency to
wildlife resources in connection with the potential impacts to wildlife resources. determine the need for FWCA
project and its alternatives; suggested modifications or alternatives, compliance during the course of the
(3) Full consideration by the action and an indication of which project emergency. When continuing detailed
agencies of measures recommended to features, if any, would likely be viewed coordination is determined necessary by
conserve wildlife resources, both with as being unacceptable at the time of wildlife agencies, the FCO will provide
regard to the project and its alternatives; permit or license review. The detail of facilities for a wildlife agency
(4) Implementation of justifiable analysis and refinement of coordinator(s) at the Disaster Field
conservation measures. recommendations will be related to the Office (DFO). Field level coordination
level of detail of the proposed plan. The will occur between the designated
� 410.22 Consultation. wildlife agencies shall identify any wildlife coordinator(s) and the FEMA
(a) Indliation. The FWCA compliance areas of concern or analysis that require Public Assistance Officer (PAO)
process may be initiated by a potential further detail or study. The results of responsible for the DFO. In the event of
applicant, an action agency, or a wildlife this analysis should be integrated in or unresolved conflicts between the
agency. accompany the action agency's NEPA wildlife coordinator(s) and the PAO, the
(1) Potential Applicants. Implementing
, environmental assessment. matter will be referred to the Federal
procedures of action agencies shall (2) Action agencies. Notwithstanding Coordinating Officer for resolution:
provide that applicants for those non- any applicant consultation which may (B) Procedures for FWCA compliance
federal project approvals enumerated be required by paragraph (a)(1) of this in other action agency programs or
below contain written. evidence that section, action agencies shall initiate for actions in emergency situations will be
they initiated the FWCA compliance continue) the FWCA compliance identified during the period for approval
process with both Regional Directors process in the following manner. of implementing procedures.
and the head of the state wildlife agency (i) Federal projects. Action agencies (3) Wildlife agencies. Where FWCA
exercising administration over the fish shall notify both Regional Directors and compliance is not initiated where
and Wildlife resources of the state(s) the head of the state wildlife agency required. it shall be deemed initiated
wherein the project is to be constructed. (through OMB Circular A-95 procedures, upon notice by a wildlife agency.
This pre-application procedure applies or otherwise) upon initiation of studies (b) Coordinatedplanning. (1)
to projects which- or actions which may lead to the Particularly in the case of federal
(i) Involve drainage, dredging, filling, authorization of a federal project. This projects and NRC, FERC, and REA-
or other modificatioi@ of wetlands also applies to the initiation of planning approved projects, wildlife and action
greater than ten acres, create for the modification or supplementation agencies shall utilize a systematic
impoundments greater than fifty acres. of project reports on previously approach in analyzing wildlife resource
involve one half mile of dredging or authorized project. See � 410.12(b)(2). needs and problems, establishing
stream channel modification, or Action agencies shall invite wildlife planning goals therefor, and developing
(ii) Require a water-dependent power agencies to participate actively and evaluating alternative resource
project approval from the Federal throughout the planning process. [For management plans.
Energy Regulatory Commission (FERC). existing Memoranda of Understanding, (2) Wildlife agencies will cooperate
the Nuclear Regulatory Commission see App. B and C1. with action agencies in the development
(NRC), or the Rural Electrification (ii) Federally-approved projects. of analyses. recommendations, and
Administration (REA). This paragraph Appropriate wTitten notice of reports to action agencies on means and
also applies to preliminary permit preliminary permit (FERC) and early site measures for the conservation of
(FERC) and early site review (NRC) review (NRC) applications, as well as wildlife resources.
applications. The intent of this NRC and FERC construction license and (3) Action agencies shall provide
paragraph (a)(1) of this section is to permit or renewal applications, will be wildlife agencies adequate opportunity
assist applicants in designing forwarded for comment to both the to prepare FWCA reports and
environmentally sound projects without Secretaries of the Interior and of recommendations and transmit them to
waste of their planning resources and to Commerce and to the head of the the action agency for timely
minimL-e the potential for delay in the wildlife agency for the state(s) wherein consideration with NEPA environmental
processing of applications. Action the proposed construction may occur. assessments. and for incorporation into
agency implementing procedures shall Appropriate written notice of all other the draft EIS and other decision
advise that consultation should be applications to federal agencies for documents.
initiated by the applicant at the earliest approvals, including renewal (4) In the case of federal projects and
stages of its project planning, and that applications, shall be forwarded FERC, NRC, and REA-approved
its submissions to wildlife agencies shall promptly after their receipt to both projects, the action agencies shall
indicate the general work or activity Regional Directors and to the head of convene scoping meetings with the
being considered. its purpose(s), and the the wildlife agency for the state(s) wildlife agencies and (where applicable)
general area in which it is contemplated. wherein the proposed construction may applicants upon initiation of the FWCA
T'he information provided to wildlife occur. The evidence which is required compliance process. Such meeting need

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Federal Register Vol. 44, No. 98 Friday, May 18, 1979 / Proposed Rules 29309

not be convened where consultation has and recommendations to action agencies (v) The plan, if any, which they prefer
occurred in accordance with paragraph within an agreed-upon time.frame from the standpoint of wildlife
(b)(1) of this section. To the fullest sufficient to permit preliminary action conservation.
extent possible, these meetings should agency decisions on incorporation of (3) Wildlife agency reports on federal
be combined with the NEPA scoping those recommendations into project - projects shall include an analysis of the
process where the proposal requires plans, and to permit their inclusion and extent of wildlife resource productivity
preparation of a draft EIS. 40 CFR analysis in the draft decision document lost to. or gained with, the proposed
1501.7. Such meetings may also be and/or the environmental assessment or project and of the conservaton measures
convened in the case of other draft EIS. See � 410.24(a). To the required to replace that loss (if that is
applications for approvals at the request maximum extent possible, preparation possible), measured without reference to
of a wildlife agency or the action , and transmittal of FWCA reports will be values attributed to human use ("user-
agency. Such meetings will be for the coordinated and combined with the day") or other monetary computations.
purposes of- preparation and transmittal of reports or This analysis may be provided for non-
(I) Developing plans of study which other reviews required of the federal projects and for alternative
ensure fall wildlife agency participation Department of the Interior or National project plans.
throughout each phase of the planning Oceanic and Atmospheric (4) FWCA reports and
or approval process, Administration (NOAA) by other federal recommendations will contain a review
(ii) Determining who, as among the environmental review requirements, of the disposition of wildlife agency
federal and state agencies or the includint-- recommendations previously made.
applicant, will undertake and oversee (1) Endangered Species Act of 1973, (5) If features of project design,
the required studies and investigations, (2) Estuary Protection Act, construction, or operation are not
(III) Establishing mutually acceptable (3) � 6(a) of the Federal Water Project sufficiently developed that their effects
target dates for the initiation and Recreation Act. can be properly assessed. the report of
completion of studies and the the wildlife agencies will so state and
submission of FWCA reports and (4) Coastal Zone Management Act, will list the areas requiring further study
recommendations, (5) � � 103(b), 401, 402, 404, 303, and to identify necessary conservation
(iv) Coordinating FWCA compliance 208 of the Clean Water Act of 1977 measures. Any consultation or
with other environmental review (6) � 5(d) and 7(b) of the Wild and coordination necessary in the
requirements, Scenic Rivers Act. implementation of conservation
(v] Ensuring that conservation of Memoranda of understanding or measures will be identified.
wildlife resources is given equal agreements which may provide time (6) When analyzing project effects and
consideration with other study or limits for the referral of FWCA reports impacts, wildlife agencies will take into
project purposes or goals, and and recommendations for certain account other water-related project
(vi) Ensuring that action agencies classes of projects appear in planning and review requirements, such
provide wildlife agencies with adequate Appendices B and C. as: Executive Orders 11988 (floodplains)
descriptions of alternative project plans (c) Content (1) Wildlife agencies will and 11990 (wetlands); � 73 of the Water
under consideration. A record of the prepare reports that describe project- Resources Development Act of 1974
agreements reached and responsibilities related effects upon wildlife resources (non-structural alternatives); Indian
assigned in scop,*ng meetings shall be and identify alternative means and trust environmental review
distributed to the participating parties measures necessary to conserve wildlife requirements; the Marine Protectiom.
and included in the administrative resources. Evaluation techniques used in Research, and Sanctuaries Act of 1972:
record of *.a action agency. All parties describing effects and identifying � 102(b) of the Clean Water Act; federal
share a responsibility for early and conservation measures will be directed water policy; the potential effects of the
timely exchange of information required at quantifying and qualifying potentiaL proposed project upon federal property
for completion of assigned studies, effects upon wildlife, their habitat and and public trust interests, including
Investigations, reports. and its productivity and related values. reserved water rights.
recommendations. (2) Wildlife agencies shall prepare (d) Public participation. Where
and submit reports to action agencies significant wildlife resource issues are
410.23 ReportIng. that describe- involved, wildlife agencies will invite
(a) AuthorRy. Except in the case of public participation in the process of
NRC and FFIRC-I'Acerised projects, the (1) Wildlife problems and needs and developing FWCA reports and
authority to transmit FWCA reports and, recommended fish and wildlife planning recommendations in accordance with
recommendations of the Secretaries of goals, guidelines which they develop.
the Interior and Commerce is exercised (ii) The.positive and negative effects (e) Inability toreport. If a wildlife
by the Regional Directors. In the case of and impacts of alternative project plans agency is unable to prepare an FWCA
FERC and NRC-approved projects, such upon wildlife and recommended report or otherwise participate in the
authority is exercised for the Secretary conservation features, planning or approval process, it shall
of Commerce by the Assistant (III) The positive and negative effects notify the action agency within 30 days
Administrator for Fisheries, NOAA, and and impacts of the construction and of the receipt of an action agency's
for the Secretary of the Interior by the operation of the selected plan upon request to initiate consultation, detailing
Assistant Secretary for PoIcy, Budget, wildlife, the conservation measures the reasons therefor. Such notification
and Administration, acting upon the identified during plan formulation, and does not relieve action agencies of the
recommendation of the FWS and the specific recommendations for requirements of the FWCA or � � 410.21
Office of Environmental Project Review. conservation measures that should be and 410.24 of this Subpart.
(b) Timing. Consistent with NEPA included in the selected plan, (f) Follow-throggh. Once wildlife
regulations [40 CFR 1501.6 and 1502.251, (iv) The results and impacts expected agency reports are sent to action
wildlife agencies shall, to the maximum from implementing these agencies, all wildlife agenceis should
extent possible, forward their reports reconiniendations, and actively pursue such means as will

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29310 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 Proposed Rules

ensure that necessary studies and h-@-arings, the reporting officer shall obtain these conservation goals.
recommended measures are undertaken publish those findings in the Federal Findings directed at loss prevention and
and implemented. Register or other appropriate media and mitigation measures shall be made using
afford the ---blic reasonRble opportunity assessment and evaluation techniques
410.24 Considerstlam to presa"i its views. In Lie case of FERC based upon wildlife habitat values.
(a) Action agencyflndliWs. (1) The and NRC-approved projects. Monetary values may be displayed and
reporting officer shall prepare for the opportunities for administrative or court used in measuring the cost-effectiveness
administrative record (project plan or review of the findings of action agency of alternative mitigation plans, but shall
planning report, where applicable) initial or final decision-makers will not not be used for justification purposes.
written findings on which of the be considered compliance with this Enhancement measures may be
measures recommended by wildlife paragraph. evaluated using other techniques, but
agencies with respect to the selected (5) The reporting officer shall transmit should be measured using habitat-based
project plan and its alternatives are and the information required by paragraphs techniques, where possible. Such
are not believed to be justified, and (a)(1) through (a)(4) to counterpart findings shall be made with the
why. This documentation will include: officials in the wildlife agency(ies) objectives of both preventing 'and
(i) A summation of measures adopted concerned for an agreed-upon period of compensating for wildlife resource
during plan formulation to prevent and time for comment prior to final, agency losses, and of enhancing- wildlife
compensate for wildlife resource losses; action on the matter. If there are resource values. To the extent
(ii) In the case of federal projects, a differences at this stage between a practicable and justifiable, action
finding whether the selected plan fully wildlife agency and the action agency agencies shall ameliorate project-related
compensates for losses to wildlife on the reporting officer's disposition of losses to wildlife resources, wherever
resource productivity. measured in wildlife agency recommendations, the they occur. With the exception of the
terms of equivalent wildlife resource wildlife agency may request the action enhancement component, wildlife
productivity; agency to hold a public h -earing on the resource conservation measures do not
(iii) The justification for tradeoffs matter. Action agency implementing create benefits, for the purposes of
made between wildlife conservation and procedures shall require an ensuing benefit-cost analysis; they are to be
other project features in arriving at the reconsideration of the matter and, if considered as avoiding or abating costs
selected plan; such hearings are deemed appropriate (losses) to existing resources and values.
(iv) An identification of any issues of by the action agency, full consideration (2) Action agencies may not reject
disagreement remaining between the of information generated by such public recommended wildlife conservation
action agency and the wildlife agencies. hearings. Differences not resolved in measures for federal projects on the
(2) In addition to the matter required this manner shall be made a matter of grounds that wildlife conservation is not
for federal projects by I 2(f) of the record and. if requested by either the a "purpose" for which a federal project
FWCA (16 U.S.C. 662(f)), the reporting action or wildlife agency, promptly was or can be authorized, or on the
officer on federal projects and projects referred to successively higher authority grounds that they are not authorized to
pending consideration by NRC and of both agencies for resolution. Where so condition a non-federal project
FERC, shall analyze and discuss the memoranda of understanding or approval. The FWCA amends the
acquisition, operation. maintenance, agreement do not already so provide organic authorities of action agencies to
replacement and management costs, [see App. B and C], implementing provide these authorities. In the case of
and the environmental impacts, of procedures shall provide a means of federal projects undertaken by the
wildlife conservation measures complying with this paragraph. Department of the Interior, the Fish and
proposed by each wildlife agency for (6) If, despite best efforts, wildlife Wildlife Act of 19SO, 70 Stat. 1122 (16
each alternative treated in the draft and agencies cannot identify loss prevention, U.S.C. 742f(4)-(5) (1976)), supplements
final environmental impact statement in mitigation, and enhancement measures such authority.
benefit-c'ost analyses of alternatives, in detail prior to project authorization or (3) Action agencies must justify the
and (where applicable) in the evaluation approval, action agencies shall include adoption or rejection of means and
accounts of the Principles and in their recommendations to higher measures for wildlife resource
Standards of the Water Resources authorities the requirements necessary conservation using substantive
Council. The reporting officer shall also to ensure that, once identified and economic, envirnomental, and social
treat uncompensated damages to fish described, these measures will be reasons. Measures recommended by
and wildlife resources as a cost proposed for authorization or approval wildlife agencies for compensation of
chargeable to the project. All such costs and, if authorized and funded or wildlife resource losses cannot be
(monetary and non-monetary) shall be approved, will be implemented. Action considered unjustified because-
estimated over the life of the project. agencies should avoid committing (i) That agency or other agencies may
regardless of whether the U.S. Treasury resources which foreclose adoption of not have adopted a habitat-based
or non-federal parties will bear them. alternative wildlife conservation wildlife impact assessment and
(3) In making the findings required by measures. evaluation procedure,
paragraphs (a)(1) and (a)(2) of this (b) Decision criteria. (1) Action (ii) Those measures, either alone or
section, the reporting officer and each agencies are required to make findings collectively, do not have a favorable
higher action agency decision-making on wildlife conservation measures monetary benefit-cost ratio,
authority shall use the criteria which they deem justified to be included (iii) Project beneficiaries or other non-
established in paragraph (b) of this in projects to obtain maximum overall federal entities are unwilling to fund the
section. project benefits to the public. Action appropriate share of increased federal
(4) Where the findings required by agencies must regard wildlife project costs necessary to compensate
paragraphs (a)(1) and (a)(2) of this conservation as a programmatic and for wildlife resource losses,
section have not been disclosed in a project purpose or goal equal to other (iv) There are other proposed uses for
draft EIS, in publicly circulated planning project purposes or goals. Certain land or waters recommended for
document. or in public or adjudicatory project benefits may be diminished to wildlife compensation purposes, unless

C-18

Federal Register / :Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29311

their proposed use is found to be more administrative or legislative jurisdiction (b) NEPA compliance. Action
in the public interest than the proposed over the area to the agency which will agencies are responsible for NEPA
mitigation, or administer the area for wildlife compliance respecting General Plans.
-(v) Recommended wildlife resource purposes. Where possible, the information referred
properties or compensation measures (a) The determination of which to in subsection (d) of this section
are outside the immediate project agency shall manage tb e wildlife should appear in the project EIS.
boundaries. resource properties. (1) Properties with (c) Development and approval of
(4) If an action agency finds that a migratory bird values. After generalplans. (1) After consultation
measure recommended by wildlife investigation, the Secretary of the with the state wildlife agency, the
agencies for compensation of wildlife Interior will determine whether wildlife Regional Director of NMFS. the action
resource losses is not justifiable because resource properties have value in agency and (if different) the agency
it would render the monetary benefit- carrying out the national migratory bird exercising primary jurisdiction over the
cost ratio of the project unfavorable or program. When the Secretary -concludes area ("primary jurisdiction agency"), the
because project beneficiaries or other that the properties have such value, the FWS will initiate the development of a
non-federal entities are unable to fund Department of the Interior may preliminary draft of a general plan for
the appropriate share of increased administer the lands directly, or in the management of the wildlife
federal project costs necessary to accordance with a cooperative resources of wildlife resource properties.
mitigate/ compensate for the wildlife agreement with the appropriate state In cases where the area in question will
resource losses involved, the action wildlife agency. The Secretary may likely be managed by a State, the FWS
agency shall explain in detail, in terms manage such properties through another will request the state wildlife agency to
of obtaining maximum overall project public or private agency or organization. prepare the draft. The major features of
benefits, its reasons for so finding. The action agency shall make such the draft shall be based on the wildlife
(5) justifiable means and measures for wildlife resource properties available, agencies' reports and recommendations
wildlife resource conservation shall be without cost, for administration to- which are required by section 2(b) of the
L FWCA and these rules. The draft shall
incorporated as conditions or (i) The Secretary of the Interior, when be submitted concurrently to the wildlife
stipulations in action agency approvals the Department of the Interior will be agencies, the action agency, and (if
where the practical effect of not doing responsible for administering the different) the primary jurisdiction
so is that the means and measures will property either directly, or through agency, for their review and responsive
not be adopted. . cooperation with a public or private recommendations.
(c) Requests forproject authorization. agency or organization, or (2) Any differences between the
The reports, recommendations, and (ii) The state wildlife agency, if it is action and/or primary jurisdiction
findings required by � � 410.23 and jointly determined by the Secretary of agency and the FWS on the proposed
410.24 shall be made an integral part of the Interior and such state wildlife General Plan that cannot be resolved by
(1) action agency reports submitted to agency that state administration of staff shall be resolved by-
the Office of Management and Budget those wildlife resources would be in the (i) The Secretary of the Interior, when
and the Congress in connection with a public interest. the said agency is an agency in the
construction authorization proposal, and (2) Other properties. When the Department of the Interior, or
(2) submission to action agency final Secretary concludes that the wildlife (ii) The Secretary of the Interior, in
decision-maker(s) of recommendations resource properties have value other consultation with the head of any other
on projects they may approve or than for migratory bird management, the department or agency of which the
authorize. state wildlife agency shall be afforded action or primary jurisdiction agency
Subpart C-Project Implementation the opportunity to assume management may be a part.
of the lands. (3) Any differences over the content of
410.31 Congressional liaison. (3) Interim administration. During the the proposed General Plan between
Wildlife agencies will make period after the action agency has FWS and state wildlife agency that
themselves available to testify in acquired the wildlife resource properties cannot be resolved by them will be
authorization and appropriations and before the joint approval of the resolved by the Governor of the affected
committee hearings concerning General Plan, wildlife resource state and the Secretary of the Interior.
proposals for Congressional properties shall be made available upon (4) General plans shall be approved at
authorization or funding of wildlife request and without cost to the FWS for the same time as the document which
conservation measures. interim administration of the property transfers administration of the lands
for wildlife resource conservation from the primary jurisdiction agency to
� 410.32 General plans for management of purposes. The FWS and the state the agency or organization designated in
Wildlife resource propertles. wildlife agency may agree which agency accordance with paragraph (a) of this
A General Plan is a document that shall assume interim administrative section. The General Plan shall be
designates the lands which are to responsibility. If for any reason, the approved or modified jointly by-
become transferred for wildlife resource state wildlife agency cannot assume or (i) The head of the agency exercising
management properties and generally continue the administration of wildlife primary jurisdiction over the area,
describes the use of such properties for resource properties, the FWS shall be (ii) The Secretary of the Interior, and
wildlife management purposes. The afforded the opportunity to assume (iii) The head of the wildlife agency of
objective of General Plans is to ensure a administration of such property for the state wherein the proposed project
realization of the wildlife resource wildlife resource purposes on an interim may be or is constructed.
conservation measures which formed a basis, or to enter into cooperative (5) Where the FWS and NNEFS agree
basis for the justification and arrangements with the action agency that wildlife resources of interest to
authorization of the project. The FWCA whereby that agency shall administer NMFS would be substantially affected
requires the execution of a General Plan such property for wildlife resource by management of the wildlife resource
prior to action agency transfer of purposes. property which is the subject of the

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29312 Federal Register / Vol, 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

General Plan, the responsibilities of Federal projects, they should be made and what time delay is required by
assigned to Interior officials by either by wildlife agencies, or by others procedural preconditions to their
paragraphs (c)(2) through (c)(4) of this after consultation with wildlife agencies. adoption;
section shall be performed jointly by the Post-authorization studies should (6) If any applicable provisions of this.
appropriate official of NOAA and determine the need for added wildlife Part are believed to be inappropriate for
Interior. conservation measures. In addition to a class of projects, are there reasons
(d) Content of a generalplan. A the monitoring provided for in NEPA why such classes should be exempt, or
General Plan shall: (1) Describe the uses regulations [40 CFR 1505.31, post- is there an alternative which satisfies
of the wildlife resource property by construction stud,es should evaluate the the substance and intent of the
generally detailing- impact of any non-implementation of provisions?
(i) The wildlife management goals for measures recommended by wildlife (b) In consultation with the
the area, as discussed in the project EIS agencies, as well as the effectiveness Of Administrator of NOAA and the head of
(where applicable), implemented measures. the federal agency in question, the
(1i) The principal species and habitats All reports, findings, and Secretary of the Interior will resolve any
to be managed, determinations resulting from such differences on interpretation and
(iii) The general management studies shall be incorporated into any applicability of this Part which may
concepts and practices to be employed. reports on modification or arise and cannot be resolved by staff
(iv) The wildlife development, supplementation of plans for previously- during the process of approval of
facilities, or other features to be authorized projects and employed in implementing procedures.
constructed, complying with the FWCA and these (c) The Secretary will approve
(v) Any restrictions on use of the rules. See 410.11(b). acceptable implementing procedures
wildlife resource properties, and which are proposed in accordance with
(vi) The availability of the land for Subpart D-implernentation of This paragraph 410.41(a) within one hundred
public access; Part fifty (150) days of the publication date of
(2) Designate the agency or � 410.41 Action agency Implementing this Part.
organization responsible for the procedures. � 410.42 Comprehensive planning
administration of the wildlife resource (a) Within three months of the requirements.
properties, as governed by the publication (not effective) date of these
provisions of paragraph (a) bf this rules, action agencies shall propose to Within three months of the
section; the Secretary of the Interior procedures publication date of these rules, action
(3) Describe the boundaries and which would implement this Part agencies will review the comprehensive
location of the wildlife resource Action agencies will first identify in that water and related land resources and
management properties; proposal the typical classes of projects water quality planning programs
(4) Identify capital, operation, of, or approved by, them which are administered by them to determine what
maintainence and replacement costs; referred to in paragraphs 410.11 (a) Ievel(s) of wildlife agency involvement
(5) Contain provisions for continued through (c) and � 410.14 of Subpart A. therein are presently provided for by
written action agency procedures.
consultation between the agency and in � 410.22(a)(2)(iii) of Subpart B. Action agencies will report such
administering the property for wildlife For each class of projects so identified, determinations to the Secretary of the
purposes and the primary jurisdiction action agencies shall provide responses Interior and, if necessary, propose to the
agency to coordinate wildlife resource to the following: Secretary new coordination procedures
management with the management of (1) What are the statutory and U.S. for wildlife agency involvement in such
the project. Code citations under which authority programs, including (but not limited to)
(e) Funding and reports. Funds for the class of projects may be authorized., those authorized by. or referred to as-
operation, maintainence, management, (2) Do existing procedures already (a) Water Resources Planning Act of
and replacement of wildlife resource satisfy the following provisions of this 1965,
properties acquired or made available Part (if so, give specific CFR or other (b) Sections 201, 208, 303, and 314 of.
for compensation of project-related citations to appropriate sections of
wildlife resources losses shall be action agency procedures), the Clean Water Act of 1977,
computed by the administering agency particularly- (c) Type IV studies of the Soil
and included in the annual budget (i) Section 410.3 ("Regional Directors," Conservation Service,
submissions of action agencies. "reporting officer" and "wildlife (d) Coastal Zone Management Act of
Together with other project features agency") and � 410.22(a)(2)-routing of 1972,
adopted for compensation of wildlife consultation requests, and (e) Federal Land Policy and
resource losses, these costs are integra (ii) Section 410.11(c) and J 410.16(b)-- Management Act,
project costs. Any agency administeri coordination with the Clean Water Act (f) Land and Water Conservation
wildlife resource properties may be and River and Harbor Act permit Fund Act,
requested to prepare annual reports to programs. (g) Wild and Scenic Rivers Act.
action and federal wildlife agencies (3) Does the law applicable to the (h) Resource Conservation and
demonstrating how authorized wildlife action agency positively bar the Development Act,
conservation measures and the General adoption of any requirement of this Part .(i) Forest and Renewable Resources
Plan are being implemented and how applicable to a class in question. Planning Act of 1974,
compensation and enhancement is being (4) What implementing procedures are 6) Urban Studies of the Corps of
achieved. required to put into effect the provisions Engineers,
� 410.33 Study or modification of set forth in paragraph (a)(2); (k) National Forest Management
authorized federal projects. (5) flow would this be accomplished- Planning Act of 1976,
If it is decided to undertake post- by codified regulation, by a public (1) Soil and Water Resource
authorization wildlife resource studies proceeding, or by other instructions- Conservation Act of 1977,

C-20

Federal Register */ Vol 44, No. 98 Friday, May 18, 1979 Proposed Rules 29313

(m) Surface Mining Control and
Reclamation Act,
(n) Outer Continental Shelf Lands Act.
Appendix A. Regional Directors, Fish and
Wildlife Service
Region I
U.S. Fish and Wildlife Service, Lloyd 500
Building, Suite 1692, 5W N.E. Multnomah
Street, Portland. Oregon 97232.
Region 11
U.S. Fish and Wildlife Service, 500 Gold
Avenue, S.W., P.O. Box 1306, Albuquerque,
New Mexico 87103.

Region III
U.S. Fish and Wildlife Service, Federal
Building, Fort Snelling, Twin Cities, MN
55111.

Region IV
U.S. Fish and Wildlife Service, 17 Executive
Park Drive, N.E., P.O. Box 95W7, Atlanta,
Georgia 30347.

Region V
U.S. Fish and Wildlife Service, One Gateway
Center, Suite 700, Newton Comer.
Massachusetts 02158.

Region V7
U.S. Fish and Wildlife Service, P.O. Box
25486,134 Union Boulevard, Lakewood,
Colo. 80228.

Alaska Area Office
U.S. Fish and Wildlife Service, 1011 East
Tudor Road, Anchorage, Alaska 99503.
Regional Directors, National Marine Fisheries
Service
Regional Director, National Marine Fisheries
Service, Northeast Region. Federal
Building, 191 Main Street, Gloucester,
Massachusetts 01930.
Regional Director. National Marine Fisheries
Service, Southeast Region, Duval Building,
9450 Gandy Boulevard, St. Petersburg,
Florida 33702.
Regional Director, National Marine Fisheries
Service, Northwest Region, 1700 Westlake
Avenue, North, Seattle, Washington 98109.
Regional Director, National Marine Fisheries
Service. Southwest Region, 300 South Ferry
Street Terminal Island, California 90731.
Regional Director, National Marin- Fisheries
Service, Alaska Region, P.O. Box 1668,
Juneau, Alaska 99801.
BILUNG CODE 4310-55-M

C-21

FWS REGIONAL AND AREA OFFICE BOUNDARIES
@, 01

01% .......

+ W
lk

a 0 A

I+ L

c 0

R
IL
K.
M 1 *ITI

L A. +

X I C o
0 F M E
G L F

I.I'MrILkil IN IML DIII14-11 'IF RLIITI ........ ....

SASKINGTUM. D.C. IF.PII.MHkK 36. IvTf $4.4 LL IN MILLS

U.S. DEPARTmENT OF COmMERCE E h.bi
National Oceon4c and Atmospheric Atim.nistration
NATIONAL MARINE FISHERIES SERVICE REGIONAL ORGANIZATION

SEATTLE, WASH.

NORTHWEST REGION
GLOUCES

NORTHEAST REGION
SOUTHWEST REGION

HAWAII TERMINAL ISLAND.
AMERICAN CALIF. SOUTHEAST REGION
SAMOA
GUAM
TRUST
TERRITORIES
(SOUTHWEST
REGION) ALASKA REGION ST. PETERSBUR

REGIONAL OFFICE
0 ^1 NMFS BOUNDARIES
JUNE U

OCTOBER

fti-NO COM 4310--Srp-C

29316 Federal Register / Val. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

Appendix B-Part A-28 Land Acquisition Management shall be a joint cooperative Approved: April 6, 1955.
Exhibit 1-General Plans-A-28.1 endeavor by the District Engineer, Corps of S. D. Shugs,
Engineers; Regional Director of the Service; Chief Corps of Engineers.
Procedures for Developing Ceneral Plans for and the Head of the appropriate State
Fish and Wildlife Management agency, by mutual exchange of information Memorandum of Understanding Between the
The agreement between the Fish and pertaining thereto, discussions, and Fish and Wildlife Service, U.S. Department of
Wildlife Service and the Corps of Engineers, agreement. Normally the Service or the State the Interior, and the Forest Service, U.S.
approved by the Acting Secretary of the will initiate the preliminary draft of a General Department of Agriculture
Interior on August 6. and by the Secretary of Plan for Fish and Wildlife Management after Whereas the Fish and Wildlife Service is
the Axiny on August 20,1954, provides in determining the views of the other agencies. the agency of the Federal Government
Section 7 that General Plans for Fish and
Such draft of a General Plan for Fish an'l primarily responsible for the welfare of fish
Wildlife Management. as specified in Section Wildlife Management will be submitted and wildlife resources and research thereon;
3 of the Coordination Act (Pub. L 732, 79th concurrently for comment to the other two and
Congress. approved August 14,1946, 60 Stat. Whereas the Forest Service is the agency
1080) shall be developed jointly by the Corps agencies. Such General Plan for Fish and of the Federal Government primarily
of Engineers, the Fish and Wildlife Service, Wildlife Management will be subject to responsible for the administration and
and the appropriate State agency for all approval by the Secretary of the Army, the management of the National Forests and for
project lands and waters where management Secretary of the Interior, and the Head of the all aspects of forestry research;
for fish and wildlife purposes is proposed. . agency exercising sidmi-istration over the Now, Therefore, it is mutually agreed that
The agreement further provides, in Section 8. wildlife resources of the State wherein the the general functions of the two agencies
that standard procedures for the development lands and waters lie. under this memorandum within the limits of
of General Plans for Fish and Wildlife 3. After the field offices of the Corps, the their resources. will be as follows:
Management shall be developed jointly by State and the Service have reached
the Office of the Chief of Engineers and the agreement as to the form and context of the L Administration and Management
Fish and Wildlife Service. Section 8 further deneral Plan for Fish and Wildlife a. The Fish and Wildlife Service will act in
provides that copies of such procedures will Management, signature in triplicate by the an advisory capacity to the Forest Sevice in
be made available to all field offices of both appropriate State official will be obtained matters pertaining to fish and wildlife
agencies. management on lands administered by the
General Plans for Fish and Wildlife thereto signifying concurrence, and the Forest Service. The responsibility and
Management are prepared for the purpose of signed copies thereof will be forwarded by authority for correlation and integration of
designating the type of use as between the the Corps through channels to higher fish and wildlife habitat management with
national migratory bird management program authority for approval and execution by the recreation. watershed management, timber
of the Department of the Interior and the respective Secretaries of the two production, range management and other
wildlife programs of the respective State and Departments. uses of these lands will rest at all times with
therein to define the lands and waters to be 4. After completion. conformed copies of the Forest Service.
administered by each. Such Plans should be the General Plan for Fish and Wildlife b. The Forest Service will act in an
only as detailed in those respects as may be Management shall be supplied by the advisory capacity to the Fish and Wildlife
necessary to indicate the agencies, the areas, Secretary of the Army to each of the three Service in matters pertaining to timber,
and the general purposes to be accomplished re
under each assignment. The Plans should not spective parties. watershed and range management on forest
and related lands under the control of the
be burdened with operating details which are B. Ceneral Provisions Fish and Wildlife Service. The responsibility
properly a part of the cooperative agreements
understood to be necessary between the 1. Every reasonable effort will be made to and authority for correlation and integration
Corps of Engineers and the Fish and Wildlife reach mutual agreement at an early date with of timber, watershed and grazing
Service or the State in making areas respect to the provisions of a General Plan management with recreation, game, fish and
other uses on these areas will rest at all times
available to the latter two ajencies for Fish and Wildlife.Management for a with the Fish and Wildlife Service.
subsequent to the completion of the General project. Where a General Plan is to be C. The Fish and Wildlife Service will
Plans for Fish and Wildlife Management. prepared, wildlife agencies of the affected operate fish hatcheries and rearing facilities,
In accordance with Section 8 of the August States and the Fish and Wildlife Service will and may provide fish for the stocking of
agreement, the following procedures for the be consulted by the Corps of Engineers on water on national forest lands on mutuall Y*
development of General Plans for Fish and wildlife matters with a view to reaching agreeable terms. The Fish and Wildlife
Wildlife Management have been developed tentative agreement on lands and waters to Service may conduct stream and lake surveys
jointly by the Office of the Chief of Engineers be utilized for wildlife management purposes and related investigations to determine
and the Fish and Wildlife Service. prior to public hearings on Master Reservoir principles upon which fishery management
A. Specific Procedures Management Plans. should be based in the national forests, and
1. Reports prepared by the Fish and 2. It is agreed that project lands and waters will cooperate with the Forest Service and
Wildlife Service in cooperation with the of particular value for the conduct of the the State Fish and Game Departments in
appropriate State fish and game agency, in national migratory bird management program carrying out fish management programs.
accordance with Section 2 of the Act of made available to the Fish and Wildlife d. Federal predator control projects on
August 14,1946, shall specify, when Service may subsequently, through a national forests will be conducted by the Fish
appropriate, the necessity for a General Plan cooperative agreement, be administered by a and Wildlife Service, but only after the
for Fish and Wildlife Management in the State in accordance with Section 4 of the program has been approved by the Forest
recommendations of the reports. In Coordination Act, if such action appears to Service. Programs to control non-game
accordance with previously established animals damaging forest resources may be
procedure, the reports will be transmitted to be in the public interest. conducted by either agency, after joint
the District Engineer. 3. It is understood that the Federal and approval, in accordance with methods
2. Whenever the use of project lands and State agencies managing the project lands for approved by the Fish and Wildlife Service.
waters for fish and wildlife management wildlife may utilize same for the production Where State predator control projects are
purposes is proposed, the Service or the of food for the wildlife involved. carried out on national forests, it is the
appropriate State agency may request the Ap responsibility of the Forest Service to
preparation of a General Plan for Fish and proved: March 9. 1955.
Wildlife Management. The formulation of a John L Farley.
General Plan for Fish and Wildlife Director, Fish and Wildlife Service.

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29317

coordinate this program with that of the Fish development and production of mineral 1. For the Survey, As Conservation
and Wildlife Service. resources on the Outer Continental Shelf of Division is designated as the coordinating
e. No introduction of an exotic wild animal the United States; office in Washington, and the office of the
species will be undertaken or authorized on Whereas, the Bureau of Land Management appropriate Regional Conservation Manager
the national forests without the approval of hereinafter referred to as the Bureau, is or the Conservatior Manager, Gulf of Mexico
both agencies. responsible for the administration and OCS Operations, as the field level
L Studies of water-use projects on national issuance of leases thereon; and is responsible coordinating office.
forest lands. required to be made under the for the examination and assessment, under 2. For the Bureau, the Division of Marine
Fish and Wildlife Coordination Act and the the National Environmental Policy Act of Minerals is designated as the coordinating
Federal Power Act, will be planned and 1969, of foreseeable environmental impact office in Washington, and the office of the
conducted by the Fish and Wildlife Service in that could result from the development of appropriate Outer Continental Shelf Manager
cooperation with the Forest Service and State mineral deposits: and as the field level coordinating office.
fish and Same agencies. Whereas. the Fish and Wildlife Service, 3. For the Service, the Office of
2. Research hereinafter referred to as the Service, is Environmental Quality, Bureau of Sport
responsible for the conservation and Fisheries and Wildlife is designated as the
The Fish and Wildlife Service and the management of fish and wildlife resources, coordinating office in Washington, and the
Forest Service will conduct cooperative and has the capability to provide advice and office of the appropriate Regional Director of
research relating to fish and wildlife. assistance on biological. chemical and the Bureau of Sport Fisheries and Wildlife as
Including rodents, and wildlife habitat physical factors affecting these resources to the field level coordinating office.
management on forest and range lands the foregoing agencies; and D. General Provisions:
wherever and whenever it Is of mutual, Whereas, the Survey and the Bureau, in All assistance rendered under this
interest to the two agencies. Such cooperative meetng their responsibilities for Agreement will be carried out in full
research will be guided by the following. administering and supervising mineral compliance7with the 'objectives, policies, and
a. Generally, research involving the two exploration, leasing, development and responsibilities of the Department. Any
agencies will be coordinated. with the Fish production, and assessing environmental unresolved matters concerning Outer
and Wildlife Service emphasizing the wild impact, desire to engage in mutual Contifiental Shelf management where there is
animal phase and the Forest Service cooperation and exchange of information and
emphasizing the vegetation and land-use to solicit the cooperation and expertise of the a mutual interest shall be referred for
phases. Service; . I resolution to the next supervisory level
b. Where lack of finances limits the Now, Therefore, it is mutually agreed that: involved.
participation of either agency in coordinated A. The Survey and the Bureau will . Arrangements will be made by the three
research. joint planning and evialuation of cooperate with the Service in minimizing agencies at headquarters and field offices as
results will remain the guiding principle. harm to fish and wildlife resources and their may be necessary to implement the intent
3. There will at all times be a free exchange environment by providing the Service with: and purposes of this Agreement.
of pertinent data and frank discussions 1. information regarding the conduct of Dated: November 8,1972.
between members of the two agencies. marine geophysical explorations supervised Spencer FL Smith.,
Members of both agencies will refrain from by the Survey. Director, Bureau of Sport Fisheries and
expressing in public a view contrary to the 2 Opportunity to make recommendations Wildlife.
mutually accepted polcly or plans of the onconditions to be included in permits for
other. such geophysical explorations and in leases Dated: November 20,1972.
4-. Nothing in this memorandum of for mineral development. Burt Silcock,
understanding is intended to modify in any 3. Opportunity to observe geophysical Director, Bureau of Land Management.
manner the present cooperative programs of explorations in areas of interest and,.when -in
either agency with States, other public the course of such observation, It appears Dated: November 16,1972.
agencies, or educational Institutions. that adverse environmental effects may V. E. McKelvey,
5. The Cooperative Agreement between the result to recommend such action as may be Director, Geological Survey.
Forest Service and the Fish and Wildlife necessary to reduce such possibility. .
Servive, dated September 16, 1952, Is Memorandum of Understanding Between
superseded by this Memorandum of 4. Information regarding areas of the Outer Bureau of Land Management, Fish and
Understanding. - Continental Shelf that are expected to be or Wildlife Service, and U.S. Geological Survey
0. This Memorandunr of UrYddftfdhd1Jhg wff are-beft d6nildered for a possible call for Concerning OCS Environmental Research
become effective upon the date subscribed by nominations. and Monitoring Activities
the last signatory, and shall continue in force B. The Service will cooperate with the
Survey and Bureau Lin assessing the potential Furpose: The purpose of this Memorandum
and effect until terminated by either agency environmental impact of administering OCS of Understanding (MOU) is to'detail
upon ninety days written notice to the other. leasing. and of administering and supervising procedures and responsibilities of the Bureau
Dated: October 6, 1960. exploration, development and production of of Land Management (BLM), the U.S.
U.S. Department of the Interior, Fish and mineral resources with minimal Geological Survey (USGS), and the Fish and
Wildlife Service. environmental harm by providing: Wildlife Service (FWS) in the conduct of
Arnie 1. Suornels, 1. Results of periodic studies on problems environmental research and monitoring
Commissioner of Fish and Wildlife. relating to the impact of mineral exploration associated with the OCS minerals program.
and exploitation on estuarine and coastal This ensues from Section 2 of Secretarial
Dated: October 19, 1950. resources. Order 2974. The environmental research and
U.S. Department of Agriculture, Forest 2. Information which relates directly or monitoring activities are carried out in the
Service. indirectly to the assessment of potential context of a BLM program for administration,
R. E. McArdle, environmental impam and to the management, funding, the construction of
Chief, Forest Service. administration and supervision of mineral environmental studies related to the effects
exploration and production of the Outer of OCS development, and which include
Memorand *urn of Understanding Between the Continental Shelf lands by the Bureau or the benchmark data collection. subsequent
Geological Survey, Bureau of Land Survey. monitoring, and special investigations.
Management, Fish and Wildlife Service 3. Information useful in the identification Benchmark and monitoring studies will be
Whereas, the Geological Survey, and designation of restricted use areas designed, conducted. or overseen in the
hereinafter referred to as the Survey, Is including Marine Preserves. manner described below. Special studies
responsible for the issuance of mineral C. Designation of Coordinating Offices for initiation, implementation, and monitoring
exploration permits and for the supervision of Purposes of this Memorandum: are outlined in the subsequent section.

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29318' Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

A. Benchmark and Monitoring Studies to resolve the disagreement. If GS or FWS do (1) may affect decisionmaking by the
In order to facilitate inter-bureau not notify the Assistant Secretary-Program Secretary
coordination with respect to benchmark and Development and Budget of a disagreement (2) are non-duplicative of planned or
monitoring studies related to OCS minerals within 5 working days, the decision of BLM ongoing efforts
development, BLM, USGS, and FWS agree to will be considered uncontested and (3) fill data gaps in the Department's
the following procedures: implementation will proceed. research effort toward determining the effects
1. BIM will apprise USGS and FWS of any 3. (a) Subsequent to the development of a of OCS mineral development.
schedule (including schedule changes) of study plan, but in all cases prior to the Recommendations should not be restricted
forthcoming benchmark or monitoring studies issuance of an RFP, non-competitive to in-house capabilities or interests, but
for each OCS lease area as soon as such procurement or interagency agreement for Lould examine the scientific and technical
all
schedule is prepared, or a change is made. In any or all work elements, a meeting will be questions from as many theoretical aspects
order that BLM may have full knowledge of held to mutually consider the desirability of as possible. BLM will direct the investigation
ongoing or occasional studies being FWS or USGS participation in the
performed or funded by FWS and USGS in performance or management of work of duplication of effort with Federal, State,
the area, the transmittal of a studies schedule elements identified in each study plan and private agencies through the Inter-Bureau
by BLM shall oblige FWS and USGS to developed. Such meeting should be held. Coordinating Committee on the OCS
prepare lists of ongoing environmental within two weeks of a completed study plan, Minerals Program, OCS Research
:
tudies, future (within present and the unless significant revision of the study plan is Management Advisory Board, contracts, and
ucceeding fiscal years) proposed studies. anticipated by other sources (such as the informal contacts. To aid BLM in this
and past (within previous two years) studies, OCS Research Management Advisory Board). investigation, the FWS and USGS will list
and transmit them to BLM within 30 days. Provisions for such participation will then be those ongoing or proposed in-house studies
Studies to be listed are defined as those made if, and as, appropriate. that could relate to the special investigations
studies which collect data on biotic, physical, Recommendations from FWS and USGS portion of the OCS environmental studies
and geologic systems on the OCS and in the regarding the type of procurement should be program.
coastal zone. or specific effects studies of made at this meeting. . 1. At the beginning of budget review cycles
limited geographic or subject scope. (b) At the meeting mentioned in 1(a), FWS (fiscal funding, supplemental appropriations),
2. (a) To provide specifically for the and USGS should indicate to BLM those BLM will conduct a meeting with FWS and
participation of USGS and FWS in the design aspects of each study plan in which each USGS concerning accumulated
phase of benchmark or monitoring studies on, agency has a special interest and would like
an area-by-area basis, one-or more planning to monitor in some fashion. As both bureaus recommendations (including BLM's). The
conferences will be scheduled for each are already standing members of the topical nature of said meeting will be the
separately identified OCS area in which such Technical Proposal Evaluation Committee, examination of each recommended special
studies are to be conducted. Staff
,,, monitoring may take the form of- investigation, its scope, -feasibility and
representatives of BLM, USGS, and FWS w (1) Participation in post-contract award tractability, anticipated funding, and
meet to formulate a study plan. At the planning and coordination with contractors. management. A mutually agreed upon set of
conference(s), USGS and FWS will make (2) Assignment as the contracting Officer's special investigations recommended for BLM
Recomnindations concerning (1) specific authorized representative (COAR) and/or fdnding will be developed, except that in all
elements to be incorporated in the studies, inspector. cases, iny additional BLM recommended
including scope, intensity, timing, required After consideration of the interests of FWS investigations will not be subject to
funding, etc., and (2) allocation of funds and and USGS, BLM will determine appropriate agreement. Comments and criticism by FWS
the levels of effort among various study arrangements for such study monitoring and and USGS concerning BLM recommended
elements. The conference(s) will normally be will notify USGS and FWS of its d6cision. If studies are actively solicited, however, BLM
under Washington Office control; a period of USGS and FWS do not agree with the final recommended studies are actively solicited,
one month after notification by BLM of its decision of BLM, they may notify the however, BLM reserves the right to prioritize
desire to construct a study plan will be Assistant Secretary@Program Development special investigations pursuant to approved
allowed for field office recommendations to
and Budget of the nature of the disagreement
reach the Washington Office of the respective through the appropriate line Assistant funding levels.
bureaus. Secretary (as specifiedin Section 5 of 2. When special investigations are given
(b) Each study plan will be formally Secretprial Order 2974) with 5 working day's budgetary approval, FWS and USGS will be
reviewed at the Washington Office level for after notification of the decision. In such a notified of the anticipated special
comment by USGS and FWS prior to the case the Assistant Secretary-Program investigations. .
issuance of a request for proposals (RFP). Development and Budget will inform the 3. BLM will decide timing of initiation of
non-competitive contract, or arrangements
for development of study plans and Director, BLM that he has received an appeal each and every BLM funded special
management of the study with othe r agencies. of the decision. The Assistant Secretary- investigation. When such a detem-dnation.is
A time period of one week after the final Program Development and Budget will then made, FWS and/or USGS (depending on
planning conference will be allowed for the take appropriate steps to resolve the needed expertise) will meet with BIM to
formal study plan review. disagreement. If GS or FWS do not notify the discuss design of the investigation. In 8erieral,
(c) After due consideration of all views and Assistant Secretary-Program Development the sequence of events outlined in Section A
recommendations, BIN will approve the. and Budget of a disagreement within 5 above will then be followed to insure inter-
study plan for implementation and will notify working days, the decision of BLM will be bureau participation and involvement
GS and FWS of its decision. If GS and FWS considered uncontested and implementation throughout the study period.
do not agree with the final decision of BLM, will proceed. Dated: March 30,1976.
they may notify the Assistant Secretary- B. Apecial Investigations
Program Development and Budget of the Curt Berklund,
nature of the disagreement through the In order that BLM may obtain the expert Director, Bureau ofLand Management.
appropriate line Assistant Secretary (as advice from FWS and USGS regarding
specified in Section 5 of Secretarial Order special investigations that do not lie within Dated: April 20,1976.
2974) within 5 working days after notification the framework of benchmark or monitoring W. A. Radlinski,
of the decision. In such a case, the Assistant studies, FWS and USGS will submit to BLM Di.rector U.S. Geological Survey.
Secretary-Program Development and Budget on or before January I and July I of each year
will inform the Director, BLM that he has their recommendations for special Dated: April 30,1976.
received an appeal of the decision. The investigations. Each set of recommendations Lynn A. Greenwalt,
Assistant Secretary-Program Development should be constructed and directed toward Director, Fish and Wildlife Service.
and Budget will then take appropriate steps those investigations which:

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Federal Register / Vol. 44, No. 98 Friday, May 18, 1979 / Proposed Rules 29319..

Memorandum of Understanding Between BLM will develop lease stipulations to protect A few weeks ago we mailed several
Bureau of Land Management and the Fish fish and wildlife resources in consultation hundred'copies of the subject Memorandum
and Wildlife Service on Interfacing Activities with the FWS. of Understanding to the Regional Offices. If it
Regarding OCS Leasing Process 2. Review Draft Environmental Impact has riot been done already, pleasesee that
. Purpose. The purpose of this Memorandum Statement -Draft environmental impact they are distributed to the appropriate offices
of Understanding (MOU) is to outline general statements win be reviewed for content and -for careful review and implementation.
procedures providing for Fish and Wildlife substance. Assistant Scretary Reed has asked us to
Service (FWS) Input to the Bureau of Land 3. Attend Public Hearingo.-The FWS will prepare a report one year from the date the
Management (BLM) in relation to interfacing attend public hearings on draft Memorandum of Understanding was signed
activities associated with the OCS leasing environmental impact statements usually outlining the steps that have been taken to
process. This ensues from Sections 2 and 3 of representing the Assistant Secretary for Fish implement it. He stressed "the need for all of
Secretarial Order 2974. The activities are and Wildlife and Parks. our personnel to improve their cooperation,
carried out in the context of a BLM program E Decision Process coordination and liaison to insure that the
for the administration and management of the Interior family is working together toward
OCS leasing program which includes baseline 1. FWS Input to Program Decision Option mutual goals."
studies, resource assessments, tract Document (PDOD).- The FWS will provide May we haVe your progress report
selections environment impact statements, input to the PDOD regarding fish and wildlife including highlights of implementation of this
and other inputs to the decision process. The resources of concern in relation to the Memorandum of Understanding, by July 1.
varous activities will be conducted in the proposed sale. Input should discuss aspects 2976.
manner outlined below. of resources that are controversial, Lynn A. Greenwalt,
questioned, unresolved or otherwise the
A. Baseline Studies subject of discussion which warrant Director, Fish and Wildlife Service.
The FWS participate in the formulation of consideration by the Secretary. Memorandum of Understanding Between the
the environmental baseline studies program. FWS will prepare and forward to BLM National Park Service and the U.S. Fish and
This involvement is set forth in the BLM- options for the sale which are concerned with Wildlife Service
USGS-FWS Memorandum of Understanding the fish and wildlife protection Issues thar 1. WHEREAS the National Park Service
on environmental research and monitoring FWS identifies. and the Fish and Wildlife Service are both
activities. Options presented will include a list of the concerned with the conservation and the
A Proposed Sale tracts affected, the manner in which the area management of lands, waters, and fish and
in each option will be affected, and, if wildlife resources and their use and
1. Preliminary Resource Assessment.-ne possible, quantitative/qualitative estimates enjoyment by the public; and
FWS in response to a formal request from th 'e of the value of the resource based on the best 2. WHEREAS the National Park Service is
BLM will provide an assessment of fish and information available. responsible for the administration and the
wildlife resources within* a general proposed . 2. Review Final Environmental Impact management of thenatural, historic, and
lease area, and those nearby areas which will Statement-The review process will be the recreation areas of the National Park System
be affected by activity in the-lease area. The same as for the draft statement except that and the fish and wildlife resources therein,
assessment will be based on existing comment will usually be restricted to including the development and interpretation
knowledge. important new information or where. in the of research and resources management plans;
2. Supplemental Information Prior to Tract opinion of FWS, comments on the draft were and Is authorized to conduct and to direct
Selection.-Because, at the time of the Call not adequately considered. - research necessary to fulfill these
for Noniinations, the proposed sale area is 3. Program Decision Option Document.- responsibilities-, and is authorized to furnish
better defined. FWS may provide additional FWS will review the draft PDOD, especially technical assistance to other agencies on
information which might bear upon potential with regard for the issues as FWS views them recreational planning, development and
leasing and development of particular tracts. and the sale options as FWS perceives them operations; and '.
This response will be based on additional from a fish and wildlife resource advocacy 3. WHEREAS the Fish and Wildlife Service
data or assessments which were not viewpoint. Any FWS position in relation to administers lands on which there are fish,
available at the time of preliminary resource fish and wildlife resource protection provided wildlife and recreational resources, and is
assessment. This additional during the tract by the options will be provided to the authorized to cooperate with other Federal
selection process. secretary for his consideration in the agencies in the conduct of research, surveys,
C. Tract Selection Process decisionmaking process. and Investigations to provide a sound
4. Notice of Sale.-The FWS will review biological basis for fish and wildlife
Tract Selections-The FWS will the notice of sale and surname the document conservation and management; and
participate, as outlined in S.O. 2974, in the if appropriate. .4. WHEREAS the complexities of natural
tract selection process and will be noted: March 30,1976. resources management demand Integrated
represented at field and Washington office
tract selection meetin Curt Berklund, skills and knowledge from many disciplines
.go as appropriate. The of the natural, social and physical sciences;
Regional representative will prepare a Director, Bureau of Land Management and
memorandum for attachment to the BLM-GS Dated; March 3,1970. 5. WHEREAS both agencies have
field recommendation. An FWS Washington Lynn A. Greenwalt, developed recognized experience and skill in
office representative will surname the their paramount fields of responsibilities and
memorandum to the Secretary recommending Director, Fish and Wildlife Service. desire to exchange their knowledge on
the tentative tract selection. October 9, 1975. mutually satisfactory terms in furtherance of
D. Draft Environmental Impact Statement United States Department of the Interior, Fish the recognized objectives, policies, and
and Wildlife Service, responsibilities of each,
1. Data for Impact Statements.-The Washington, D.C. 20240. NOW. THEREFORE, it is agreed that:
appropriate FWS regional office will work Memorandum to: Associate Director, a. The Fish and Wildlife Service will assist
directly with the BLM OCS Office to provide Environment and Research; Associate the National Park Service in the attainment of
such data and insight on the fish and wildlife Director, Fish and Wildlife Management: its basic objectives by conducting research
resources within and immediately adjacent to Assistant Director, Administration; Regional and by providing technical advice and -
a proposed sale area as is available. The Directors,, Alaska Area Director, and Western services required to preserve and to manage
Field Coordinator. fish and wildlife resources on lands
From: Director, Fish and Wildlife Service. administered by the National Park Service-,
Subject: Memorandum of Understanding and
Between the National Park Service and the b. The National Park Service will assist the
Fish and Wildlife Service. Fish and Wildlife Service in the attainment of

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29320 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

Its basic objectives by conducting studies and -f Technical assistance In projects directed the conduct of approved restoration projects
by providing technical advice and services toward the control of surplus, problem or being conducted for the National Park
required to develop and to operate non-native animals. Service by furnishing such manpower,
recreational and interpretive use facilities g. Evaluation of the effects of pollutants on equipment, and facilities as may be available
and programs on lands administered by the fish and wildlife and their habitats in units of for the purpose.
Fish and wildlife Service. the National Park System. 6. Evaluate any proposals to transfer fish
h. Management of fish and wildlife and fish eggs from park waters for cultural or
in Effecting This Understanding resources on recreation areas in the National restoration purposes or to transfer wildlife
A. The Fish and Wildlife Service will when Park System, when so agreed upon through from park lands for restoration purposes
requested: 1. Assist the National Park Service approved management plans. when these activities will not jeopardizb the
by planning and by conducting research on B. The National Park Service will when welfare of the native species in the park and
fish and wildlife occurring on lands and requested: 1. Assist the Fish and Wildlife will not conflict with other park values.
waters of the National Park System or Service by planning for recreational 7. Consider cooperative proposals to use
proposed for addition to such system. Such development and use by the public on lands National Park Service lands to reintroduce
research may include, but not necessarily be under Fish and Wildlife Service jurisdiction. endangered plant and animal species
limited to: studies concerned with taxonomy This assistance may Include, but is not historically indigenous to the areas.
and distribution, ecology, population limited to: C. General Provisions
dynamics, behavior, life histories, habitat a. Recreational surveys and analysis of 1. All assistance and services rendered
requirements, food habits, parasites., present and projected visitor use of Fish and under this agreement by either Service for the
diseases, pesticide-wildlife relationships. and Wildlife Service areas. benefit of the other will be carried out in full
other factors affecting the numbers and b. Assistance in developing recreational compliance with the program objectives,
conditions of fish and wildlife. use plans for Fish and Wildlife Service areas policies, and responsibilities of the benefiting
This research will be designed to- having potential for public use. These general Service. Reference should be made to his
a. Advance technical knowledge on fish development plans will include proposals for Memorandum of Understanding in other
and wildlife resources to achieve a better primary and supportive visitor use facilities agreements with State agencies that may
understanding of ecological relationships. which are compatible with the basic mission pertain to fish and wildlife resources of the
b. Provide information basic to the of the area. National Park System. If cooperative projects
conservation, management, and c. Assistance in providing necessary are to be undertaken in a particular area, an
interpretation of fish and wildlife on lands professional services for the designing and initial meeting between the appropriate
administered by the National Park Service. developing of recreational facilities, and in personnel will be held to develop a thorough
the analyzing of traffic flow and visitor use understanding of project objectives and
c. Provide such information as necessary in patterns as a guide for developing future responsibilities.
order to assess the impacts of other activities recreational facilities. 2. The extent to which the National Park
and programs carTied out in units of the d. Assistance in designing exhibits and Service and the Fish and Wildlife Service will
National Park System on the fish and wildlife interpretive niaterials depicting interesting undertake substantial cooperative projects
resources.. and educational features of the area's natural falling within the terms of this Memorandum
2. Assist the National Park Service by resources. , of Understanding will depend upon
conducting investigations and providing a. Assistance in operating recreational and availability of funds and personnel. By
technical assistance and services in fish and interpretive programs and facilities on lands mutual agreement, funds may be transferred
wildlife management. Such management under the jurisdiction of the Fish and Wildlife from one Service to the other or the work
services-may include, but will not be imited Service, when so agreed upon through performed on a reimbursable basis for this
to: approved management plans. purpose. In order to staff and finance
4. Surveys of marine and fresh water L Archeology, history and cultural substantial cooperative projects, it is
resources conducted fb determine: the status anthropology sqiveys and assistance in essential that the work be programmed in
of populations of fishes and other aquatic life, developing preservation or restoration plans advance and a determination made as to
catch by anglers, fishermen use, needs for for Fish and Wildlife areas. which Service should budget the work before
replenishing fish stocks, feasibility of native 2. Assist the Fish and Wildlife Service by it is undertaken. Projects undertaken within
fish restoration. aquatic habitat reclamation. planning and conducting training programs the terms of this Memorandum of
the degree of protection necessary for the for Fish and Wildlife Service employees Understanding will be implemented after a
preservation of threatened and endangered engaged in recreation management and work plan is developed which sets forth the
species of aquatic plant and animal life and interpretation of fish and wildlife to the work to be accomplished, source and level of
the applicability of fishing regulations. public. This assistance may include funding, manpower requirements, and
b. Surveys of animal resources to attendance by Fish and Wildlife Service respective agency responsibilities have been
determine: the status of animal populations, personnel at National Park Service training approved by both agencies.
conditions of the habitat, occurrence of schools or provision of special instruction by 3. Irrespective of 2. above, personnel of
diseases, parasites and other factors affecting National Park Service personnel at Fish and each Service are encouraged to provide
the number and conditions of animal species. Wildlife Service training sessions. The routine advice and assistance to one another.
the degree of protection and/or management objective shall be the development of Advance programming or an exchange of
of threatened animal species and habitats suitable programs, including interpretation. funds between the Service shall not be
necessary to insure their survival. and as features of an expanded Fish and Wildlife required for this purpose.
measures required to protect or to restore Service effort to provide recreation related to 4. The parties to this Memorandum agree to
native species of animals and their habitat fish and wildlife. exchange information and consult with each
c. Studies concerned with the effects of 3. Recognize and facilitate the use of other prior to implementing plans. programs,
proposed water resource projects and other national parks by the Fisb and Wildlife or activities that may directly or indirectly
developments upon the fauna and flora of Service for studies and investigations affect the other party.
established areas in the National Park designed essentially for Fish and Wildlife 5. Publication of research and technical
System or in areas proposed for inclusion in Service purposes when not in conflict with reports shall be encouraged and shall follow
the System.. the park mission. the normal editorial and review policies of
d. Provision of fishes from national fish 4. Consider proposals for the collection of the author's respective agency. Other reports,
hatcheries for distribution in park waters scientific specimens by. the Fish and Wildlife manuscripts, and informational materials
under approved stocking, programs and Service under permit issued by the related to National Park Service and Fish and
assistance in fish stocking operations. Superintendent of the area in which Wildlife Service policies, administration and
a. Participation in the planning and the collecting is done. management programs resulting from projects
conduct of fish restoration or aquatic habitat -5. Assist the Fish and Wildlife Service in covered in this Memorandum will be released
reclamation projects. surveys of fish and wildlife resources and in or published onIX after mutual agreement'in

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Federal' Register / Vol. 44, No. 98 / Triday, May 18, 1979 / Proposed Rules 29321

each specific case. Advice and information Dated: June 23,1975. and utilization of lands and water for all
on all cooperative projects will be freely Gary Everhardt, types of outdoor recreation opportunities and
exchanged. The Service issuing the reports or Director, National Park Service. will reflect coordination of planning to
informational materials will provide copies of provide for such opportunities.
these releases to the other. Dated: July 10. 1975. C. The Bureau of Sport Fisheries and
6. Scientific specimens collected in the Lynn A. Greenwalt, Wildlife will furnish to the Bureau of Outdoor
course of investigations conducted Director, Fish and Wildlife Service. Recreation for inclusion on the project report
of that Bureau information concerning the
essentially for Fish and Wildlife Service Approved: con ervation, development, and utilization of
purposes shall be deposited in the study a
Nathaniel P. Reed, fish and wildlife resources for sport fishing,
collections of the Fish and Wildlife Service hunting,'and other related recreation
until such time as they are catalogued as part Assistant Secretary of the Interior for Fish purposes. This information will cover such
of the U.S. National Museum collection. and Wildlife and Parks. specific subjects as: present and future
Specimens collected in the course of Memorandinn of Agr@ement between the demand for hunting, fishing, and other
investigations conducted essentially for Bureau of Outdoor Recreation and the Bureau' recreation uses of fish and wildlife; existing
National Park Service purpoies shall be of Sport Fisheries and Wildlife and prospective supplies of fish and wildlife
deposited in the study collection of the park (Supersedes the Memorandum of resources; recommended measures for the
concerned. Other suitable depositories for Understanding approved on February 3, low) conservation. development and utilization of
such specimens may be used by either In view of the mutual necessity for close fish and wildlife resources; and anticipated
Service upon mutual consent. Each Service cooperation between the Bureau of Outdoor benefits and costs In dollars and/or other
will provide duplicate specimens to the other Recreation and the Bureau of Sport Fisheries measures. To the extent appropriate, the
upon request. and Wildlife to insure that fish and wildlife Bureau of Outdoor Recreation may refer in its
7. The Fish and Wildlife Service Is resources and outdoor recreation make the reports to the findings and recommendations
recognized as the lead Service In matters greatest possible contribution to the welfare of the Bureau of Sport Fisheries and Wildlife.
pertaining to threatened and endangered of the American public, it is mutually agreed D. The Bureau of Outdoor Recreation will
species of plant and animals under authority that the two Bureaus will carry out their furnish to the Bureau of Sport Fisheries and
given to the Secretary of the Interior by the respective responsibilities and programs with Wildlife for inclusion in "the project report of
Endangered Species Act of 1973 (16 U.S.C. full coordination and shall specifically that Bureau information concerning the
1531-1543; 47 Stat. 884). The National Park operate in the following manner. conservation, development, and utilization of
Service recognizes its unique responsibilities 1. Planning. There will be frequent land and water for general and specialized
In this matter by providing essentialbabital consultation between planning offices of the outdoor recreation purposes. This
two Bureaus in the development of plans for information will cover such subjects as:
and protection of existing populations within programs of the type specified in this present and future demand for all recognized
several of the national parks for many of the agreement. Where so designated herein. each outdoor recreation activities; existing and
plant and animal forms covered by this Act. Bureau will furnish the other with one or prospecting supplies; recommended measures
The Fish and Wildlife Service will, as more copies of the completed plans. Site for the preservation, development, and
appropriate, cooperatively assist the National plans of the Bureau of Sport Fisheries and utilization of recreation opportunity, and
Park Service in carrying out the Endangered Wildlife--master plans for refuges, anticipated benefits and costs in dollars and/
Species Program within parks administered hatcheries, and laboratories--will be or other measurei. To the extent appropriate.
by the National Park Service in accordance furnished only when they have a bearing on a the Bureau of Sport Fisheries and Wildlife
with regulations and policies of the National cooperative endeavor between the two may refer in Its reports to the findings and
Park Service. The Fish and Wildlife Service Bureaus. recommendations of the Bureau of Outdoor
will provide consultation and supportive 2. Planning Related to Water Resource Recreation.
services as prescribed in the Endangered Development Programs., The purpose of this, E. In recognition of the problens of
Species Act of -1973 which will benefit special section is (2) to promote sound planning for separating hunting, fishing, photography, and
National Park Service management programs recreation related to fish and wildlife and nature study from other closely associated
pertaining to threatened and endangered othei outdoor recreation in conection with general recreation activities such as camping,
species of plants, and animals, Federal water resource projects and boating, and picnicking, the reporting officers
8. This Memorandum of Understanding programs and witkaimiler projects subject to will make a special effort to Identify areasof
supersedes the Memorandum of Federal license or permit; and (2) to establish mutual and separable interests and take am.
Understanding between the National Park procedures which will avoid duplication of into account In the planning process. Where
effort and insure inter-Bureau coordination. hunting, fishing, and other recreation use of
Service and the Bureau of Sport Fisheries and A. The Bureau of Sport Fisheries and fish and wildlife resources are_experienced
Wildlife dated August 5, 1966. Supplementary Wildlife will conduct investigations and by-visitors to a project area the extent and
agreements between the Bureau of Sport prepare reports to construction agencies value of this use will be determined by the
Fisheries and Wildlife, now known as the concerning the fish and wildlife aspects of Bureau of Sport Fisheries and Wildlife- The
U.S. Fish and Wildlife Service, and the water resource projects. These reports will extent and value of other uses of recreation
National Park Service, presently in force, contain, among other things, opportunity afforded by a project area
remain in effect until superseded or recommendations for the conservation, Including such activities as camping, which
terminated by mutual consent. development, and utilization of fish and may be experienced In conjunction with
Supplementary agreements will be entered wildlife resources for recreational. hunting, fishing, and allied uses of fish and
into and implemented by the two Services at commercial, and other purposes, including wildlife resources, will be determined by the
appropriate administrative levels to carry out recommendations, where appropriate, for the Bureau of Outdoor Recreation.
the function and objectives outlined in this acquisition and use of lands and waters for F. To the extent practicable, the Bureau of
Memorandum of Understanding. such purposes. Outdoor Receation and the Bureau of Sport
B. The Bureau of Outdoor Recreation will Fisheries and Wildlife when reporting on a
9. This Memorandum of Understanding conduct investigations and prepare reports to specific river basin or project area will
shall become effective when approved by the construction agencies concerning the total employ the same or equivalent basic data
Assistant Secretary of the Interior for Fish outdoor recreation aspects of water resource relating to population, mobility, income
and Wildlife and Parks and shall continue in projects. These reports will include, where levels, and other econontic factos in their
force and effect until terminated by either appropriate, data on fish and wildlife to be determination of needs, resource
party with the concurrence of the Assistant supplied by the Bureau of Sport Fisheries and requirements, and recommended action.
Secretary. This Memorandum may be Wildlife. These reports also will contain, C. Reports of the two Bureaus on a given
amended by mutual consent and with the among other things, recommendations water resource project will be consistent one
concurrence of the Assistant Secretary. concerning the preservation, development, with the other insofar as the effects of the

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29322 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

project on conservation, development, and which would be important segments of the B. Prepare plans to insure preservation.
utilization of fish and wildlife are concerned. State outdoor recreation plans. C. Support Bureau of Outdoor Recreation
H. Reporting officers of the two Bureaus A. in view of the close relationship of these budget requests as agreed upon.
will cooperate closely with a view toward two types of financial assistance, the two D. Ascertain, acquire, and manage such
attaining compatible use of water resource Bureaus agree to keep each other informed as lands, and will designate them as national
projects for various outdoor recreation to these matters and to coordinate their areas for this purpose, and, wherever
activities including fishing and hunting. efforts in the review and approval of the two feasible, will develop their utility for wildlife-
1. Information made available by one programs. oriented outdoor recreation.
Bureau to the other under the terms of this B. The Bureau of Outdoor Recreation will 7. Regional Liaison and Cooperation. Since
agreement will be treated as preliminary and inform the Bureau of Sport Fisheries and both Bureaus are organized on a regional
subject to revision until the Bureau supplying Wildlife of those "701" urban planning grants basis (although not congruent) and since
the information has released or is prepared to made to States by the Department of Housing broad authority has been delegated to the
release such information in its own reports and Urban Development for recreation respective regional directors, active liaison
and/or has granted approval of its release by Planning, provided under authority of Section and cooperation will be fostered at the
the other agency. 701 of the Housing Act of 1954, as amended. regional level. As specific procedures are
J. The Bureau of Outdoor Recreation, after C. Whenever possible, the Bureau of formulated, such will be incorporated in the
consultation with the Bureau of Sport Outdoor Recreation will finance fish and respective Bureau operating instuctions or
Fisheries and Wildlife, will include in its wildlife planning under its grants to the , - manuals.
report on any Federal water resource project extent such planning contributes to and is an & Terms of Agreement. This Agreement
a finding on the extent to which the proposed integral part of the State Comprehensive supersedes the Memorandum of
recreation and fish and wildlife development Outdoor Recreation Plan. Understanding between the Bureau of
conforms to and is in accordance with the- D. The Bureau of Outdoor Recreation will Outdoor Recreation and the Bureau of Sport
State Comprehensive Plan developed encourage the Department of Housing and Fisheries and Wildlife, dated February 3.
pursuant to Subsection 5(d) of the land and Urban Development to include provisions for 1965.
Water Conservation Fund Act of 1965 (Pub. L fish and wildlife planning, to the extent cited This Agreement shall become effective
88-578), as required by Subsection 6(a) of the above, in such "701" grants as are made to upon the date subscribed by the last
Federal Water Project Recreation Act of July State planning agencies for developing signatory and shall continue in full force and
9, 1965 (Pub. L 89-72). recreation plans. effect until terminated by either Bureau upon
K: Procedures shall be devised by the two E. The Bureau of Outdoor Recreation and sixty (60) days written notice to the other.
Bureaus to provide for the equitable division the Bureau of Sport Fisheries and Wildlife IN WITNESS WHEREOF the parties hereto
agree to work out any additional details and have executed this Memorandum of
of dual-use separable costs involving genera procedures which may be necessary to Agreement as of the dates entered below:
recreation and fish and wildlife enhancemen implement this agreement. Dated:November 19 1966.
to facilitate cost-sharing and administration 5. Finaftial Assistance to States for
negotiations with non-Federal public bodies Acquisition and Development- Land JQhn S. Gottschaflr.
pursuant to Subsection 2(a) of the Federal acquisition and development projects which Director, Bureau of Sport Fisheries and
Water Project Recreation Act of July 9, 1965. are submitted for financial assistance under Wildlife.
3. Studies of Demandfor Outdoor eithIer Bureau's grant program will be Dated: January 24, 1970.
Recreation. The Bureau of Outdoor reviewed by the receiving Bureau for
Recreation conducts studies of demand for consistency with the Statewide Douglas Hoft,
outdoor recreation in connection with the Comprehensive Outdoor Recreation Plan. Director, Bureau of Outdoor Recreation.
Nationwide Outdoor Recreation Plan, which A. Each Bureau will study project
it prepares in accordance with the directive proposals for grant assistance with Memorandum of Agreement between the
of the Congress in Public Law 86-29. The consideration for programs of the other. Bureau of Sport Fisheries and Wildlife and
Bureau of Sport Fisheries and Wildlife the Bureau of Outdoor Recreation, United
Those that would affect a project assisted by States Department of the Interior
conducts hunting and fishing surveys under the other Bureau will be referred to that
the authority of the Fish and Wildlife Act of Bureau for review. Projects for the acquisition (Supplements the Memorandum of
1956,- as amended. and the Fish and Wildlife or development of facilities for the production agreement of January 24,1979)
Coordination Act, as amended. of fisli and game for stocking purposes will be WHEREAS, hunting and fishing and
In view of the close relationships between referred to the Bureau of Sport Fisheries and associated recreation activities are important
these types of demand studies, each Bureau Wildlife for review and comments as to the segments of the total recreation province and
agrees to inform the other, in writing, as to its need for and desirability of the Project. planning for those activities should be an
plans for the conduct of such studies, and to B. The Bureau of Outdoor Recreation shall integral part of the comprehensive statewide
consult with the other as to the content of the submit to the Bureau of Sport Fisheries and outdoor recreation plan prepared for
studies in order to promote maximum Wildlife any project proposal for'acquisition purposes of the Land and Water
coordination of demand data and to avoid or development adjacent to National Wildlife Conservation Fund Act of 1965; as amended,
duplication of effort. Refuges, National Fish Hatcheries, or areas as well as for the state comprehensive fish
4. Financial Assistance to States for managed under the small wetlands waterfowl and wildlife resource management plan
Planning and Program Development. Under production program; or any proposal affecting prepared under the authorities of the Federal
authority of the Land and Water rare and endangered species, anadromous Aid in Fish and Wildlife Restoration Acts, as
Conservation Fund Act of 1965, the Bureau of fish, or migratory birds. If no comments are amended; and
Outdoor Recreation may provide financial made by the Bureau of Sport Fisheries and WHEREAS, it is of mutual benefit to the
assistance to States for the preparation and Wildlife within thirty (40) days, the project state planning programs assisted by those
maintenance of comprehensive statewide will be presumed to have no adverse effects Acts that close coordination between the
outdoor recreation plans, required by that on fish or wildlife. Programs be maintained; and
Act as a prerequisite to receiving acquisition 6. Threatened Species of Fish or Wildlife. WHEREAS, the Bureau of Outdoor
and development grants. Under authority of One of the purposes of funds allocated to Recreation has been delegated responsibility
the Federal Aid in, Wildlife Restoration Act Federal agencies under the Land and Water by the Secretary of the Interior as the agency
(Pittman-Robertson Act) and the Federal Aid Conservation Fund Act is the acquisition of responsible for the administration of the Land
in Fish Restoration Act (Dingell-Johnson Act), land for the preservation of habitat for and Water Conservation Fund Act of 1965, as
the Bureau of Sport Fisheries and Wildlife species of fish and wildlife threatened with fimended; and,
may provide financial assistance to the extinction. The Bureau of Sport Fisheries and WHEREAS, the Bureau of Sport Fisheries
States for the preparation of statewide plans Wildlife will: and Wildlife has been delegated
and programs for the utilization and A. Compile all available information on responsibility by the Secretary of the Interior
development of fish and wildlife resources such species. as the agency responsible for the

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29323

administration of the Federal Aid in Fish and 6. Amendments or updated strategic or directly concerned. Accordingly, District-
Wildlife Restoration Act, as amended; operational plans submitted for approval Engineers of the U.S. Army Corps of
NOW THEREFORE, it is mutually agreed under either Federal grant program will be Engineers shall coordinate with the Regional
that the general functions of the two agencies exchanged by the Regional Directors for Directors of the Secretary of the Interior on
under this memorandum within the limits of review and comment as under Bi and B2 of fish and wildlife, recreation, and pollution
their resources, will be as follows: this memorandum. problems associated with dredging, filling,
A. Coordination of State Planning Efforts. This agreement supplements but does not and excavation operations to be *Conducted
Both Bureaus will encourage their supersede or replace the Memorandum of under permits issued under the 1899 Act in
counterpart State planners to, Agreement of January 24,1970, between the the navigable waters of the United States,
1. Develop the overall assessment of Bureau of Outdoor Recreation and the Bureau and they shall avail themselves of.the
hunting and fishing within the State as an of Sport Fisheries and Wildlife. technical advice and assistance which such
Integral part of the statewide outdoor This agreement shall become effective on Directors may provide.
recreation plan as well as the State the date subscribed by the last signatory and 2. The Secretary of the Army will seek the
comprehensive fish and wildlife plan. shall continue in full force and effect until advice and counsel of the Secretary of the
2. Effect close planning coordination to terminated by either Bureau upon sixty (60) Interior on difficult cases. If the Secretary of
avoid duplication in the collection of data days wTitten notice to the other. the Interior advises that proposed operations
pertinent to both plans. IN WITNESS WHMOF, the parties will unreasonably Impair natural resources or
3. Use the same methodologies for hereto have executed this Memorandum of the related environment, including the fish
inventorying physical resources, estimating Agreement as of the dates entered below. ind wildlife and recreational values thereof,
and projecting hunting, fishing and other Dated: November 20, 1973. orwill reduce the quality of such water in
recreation demand and determining future United States Department of the Interior, violation of applicable water quality
requirements for the environmental, standards, the Secretary of the Army in
scientific, and recreational enrichment of the Bureau of Outdoor Recreation. acting on the request for a permit will
people. James G. Watt. carefully evaluate the advantages and
4. Use the same basic estimates and Director. benefits of the operations in relation to the
projections of population, and other supply Dated: October 26, 1973. resultant lose or damage, including all data
and demand variables as those used for resented by the Secretary of the Interior,
overall comprehensive planning in the State. United States Department of the Interior. end will either deny the permit or Include
5. Use common target years for projections. Bureau of Sport Fisheries and Wildlife. such conditions in the permit as he
6. use common or consistent intra-State Lynn A. Creenwalt, determines to be in the public interest,
planning regions to the extent possible. Director, including provisions that will assure
7. Summarize and reflect in the appropriate compliance with water quality standards
sections of the statewide comprehensive Memoradum of Understanding Between Ike established in accordance with law.
outdoor recreation plan the needs and Secretary of the Interior and the Secretary of
proposed actions of the comprehensive plan the Army Procedures for Carrying Out These Policies
for fish andvildlife management. In recognition of the responsibilities of the 2. Upon receipt of an application for a
B. Federal Review of Planning Documents. Secretary of the Army under section 10 and permit for dredging, filling, excavation, or
2. Within their respective Regions, the 13 of the Act of March 3,1899 (33 U.S.C. 403 other related work in navigable waters of the
Regional Directors, Bureau of Sport Fisheries and 407), relating to the control of dredging, United States, the District Engineers shall
and Wildlife. will be accorded an opportunity filling, and excavation in the navigable send notices to all interested parties,
to review each statewide comprehensive waters of the United States, and the control including the appropriate Regional Directors
outdoor recreation plan submitted to the of refuse in such waters, and the of the Federal Water Pollution Control
Bureau of Outdoor Recreation, and the interrelationships of those responsibilities Administrationi the United States Fish and
Regional Directors, Bureau of Outdoor with the responsibilities of the Secretary of Wildlife Service, and the National Park
Recreation will be accorded the opportunity the Interior under the Federal Water Pollution Service of the Department of the Interior, and
to review each State comprehensive fish and Control Act, as amended (33 U.S.C. 466 et the appropriate State conservation,
wildlife plan submitted to the Bureau of Sport seq.], the Fish and Wildlife Coordination Act resources. and water pollution agencies.
Fisheries and Wildlife. as amended (16 U.S.C. 661-866c), and the Fish 2. Such Regional Directors of the Secretary
2. Thirty days will be allowed for the and Wildlife Act of 1956, as amended (16 of the Interior shall immediately make such
review and comments, if any, that the U.S.C. 742a et seq.), relating to the control studies and investigations as they deem
Regional Director may wish to make. and prevention of water pollution in such necessary or desirable, consult with the
3. Comments received will be of assistance waters and the conservation of the Nation's appropriate State agencies, and advise the
in the review process and will serve as a natural resources and related environment, District Engineers whether the work proposed
basis for discussions with the State planners including fish and wildlife and recreational by the perntit applicant, including the deposit
for subsequent updating and improvement of values therein; in recognition of our joint of any material in or near the navigable
the plan. responsibilities under Executive Order No. waters of the United States, will reduce the
4. Where they are still available, the 11288 to improve water quality through the quality of such *store in violation of
Regional Directors, Bureau of Outdoor prevention, control, and abatement of water applicable water quality standards or
Recreation, will endeavor to make pollution from Federal and federally licensed unreasonably impair natural resources or the
arrangements with each State to furnish the activities; and in recognition of other related environment.
appropriate Regional Director, Bureau of provisions of law and policy, we, the two 3. The District Engineers will hold public
Sport Fisheries and Wildlife, with a copy of Secretaries, adopt the following policies and hearings on permit applications whenever
.the current statewide outdoor recreation procedures: response to a public notice indicates that
plan. Where copies are no longer available. hearings are desirable to afford all interested
the Regional Director, Bureau of Sport Policies parties full opportunity to be heard on
Fisheries and Wildlife, upon his request. will It Is the policy of the two Secretaries that objections raised.
be accorded an opportunity to review the file there shall be full coordination and 4. The District Engineer, in deciding
or working copy held by the Bureau of cooperation between their respective whether a permit should be issued, shall
outdoor Recreation. Departments on the above responsibilities at weigh all relevant factors in reaching his
5. Each Regional Director will encourage all organizational levels, and it is their view decision, In any case where Directors of the
each State to furnish copies of plans that maximum efforts In the discharge of Secretary of the Interior advise the District
developed under their respective Federal those responsibilities, including the Engineers that proposed work will impair the
grant programs to the appropriate counterpart resolution of differing views, must be 'water quality in violation of applicable water
Regional Director for his information and undertaken at the earliest practicable time quality standards or unreasonably impair the
files. and at the field organizational unit most natural resources or the related environment,

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29324 Federal Register Vol. 44, No. 98 / Friday, May 18, 1979 1 Proposed Rules

he shall. within the limits of his 12. Relinquishments. received from industry. BLM-SO will send am
responsibility, encourage the applicant to 13. Annual Enviornmental Report. Information copy of nominations to AGS.
take steps that will resolve the objections to 14. Annual Report of Diligent Exploration. Menlo Park, and the FWS-AO.
th'h work. Failing in this respect the District 15. Designation of Coordinating Offices for (b) Scheduling far Non-Competitive
Engineers shall forward-the case for the Purposes of the Memorandum. Leasing. Where non-competitive leasing only
consideration of the Chief of Engineers and 16. General Provisions. is involved, BLM-SO should consult with
the appropriate Regional Director of the Memorandum of Understanding for the AGS and FWS-RO to determine area,
Secretary of the'Interior shall submit his Geothermal Program priority, and scheduling of EAR's. Where
views and recommendations to his agency's withdrawn lands are involved, the BLM-SO
Washington headquarters. U.S. Geological Survey-Bureau of Land shall consult with the appropriate land
5. The Chief of Engineers shall refer to the Management-U.S. Fish and Wildlife Service management agencies with he basic authority
Under Secrertary of the Interior all those The following guidelines are for the mutual to pern-dt leasing. The criteria for scheduling.
cases referred to him containing unresolved of EAR's to be prepared by the BLM-DO
cooperative efforts of the U.S. Geological
substantive differences of views and he shall Survey, Bureau of Land Management and should include geothermal potential of the
include his analysis thereof, for the purpose U.S. Fish and Wildlife Service in area, its environmental sensitivity, and
of obtaining the Department of the Interior's implementing the Federal geothermal industry interest. AGS will furnish. upon
comments prior to final determination of the resources program pursuant to the request by BLM-SO, a priority listing of
issues. Geothermal Steam Act of 1970. potential geothermal areas with copies to the
6. In those cases where the Chief of. Abbreviations used hereafter for the FWS-RO.
Engineers and the Under Secretary are vanou Is agencies, offices, and reports are as 2. EnvironmentalAnalysis Considerations.
unable to resolve the remaining issues. the follows: (a) Pre-Lease En vironmental Analysis
cases will be referred to the Secretary of the BLM-Bureau of Land Management Record (EAR). (Primary responsibility-
Army for decision in consultation with the BLM-DO-Bureau of Land Management BLM.)
Secretary of the Interior. District Office (1) Upon initiation or revision of an EAR
7.-If in the course of operations within this BLM-SO-Bureau of Land Management State for either competitive or non-competitive
understanding either Secretary finds its terms Office leasing, BLM-DO will notify in writing the
in need of modification. he may notify the GS-U.S. Geological Survey AGS and the FWS-AO of the area covered
other of the nature of the desired changes. In CS-RCM-U.S. Geological Survey, Regional by the EAR. The AGS and FWS-AO will
that event the Secretaries shall within 90 Conservatioq Manager furnish BLM-DO with technical advice and
days negotiate such amendment as is AGS-Area Geothermal Supervisor information for consideration in the EAR.
considered desirable or may agree upon CS-AG-U.S. Geological Survey Area including recommended stipulations and
termination of this understanding at the end Geologist mitigating measures. BLM-DO should specify
of the period. GS-DG-U.S. Geological Survey District deadline for such input with a minimum of 30
Dated: July 13,1967. Geologist dais advance notice. Maximum lead time
Steward L. Udall, FWS-Fish and Wildlife Service should be provided.
Secretary of the Interior. FWS-RO-Fish and Wildlife Service (2) BLM-DO will furnish a copy of the draft
Regional Office EAR. with proposed special lease
Dated: July la, 1967. FWS-AO-41sh and Wildlife Service Area stipulations, to the AGS and FWS-AO and
Stanley Resor, Office FWS-RO for review and comments prior to
Secretary of the A EAR-Environmental Analysis Record submission of EAR to BLM-SO.
MY. (prepared by BLM) (3) BLM-SO will furrilsh AGS the final BLM
Memorandum of Understanding for the EA-Environmental Analysis (prepared by stipulations.which are to be attached to non-
Geothermal Program, U.S.. Geological GS) competitive leases, or included in the notice
Survey-Bureau of Land Management-U.S. GEAP--Geothermal Environmental Advisory of competitive lease sale, for the AGS review
Fish and Wildlife Service, Cooperative Panel (Sec. Order 296@1 , and concurrence with the stipulations. FWS-
Procedures in the Geothermal Program 1. Priorities and Scheduling of Lease Soles RO will be furnished a copy of the
Table of Contents and Non-Competitive Leasing. (Primary stipulations for review and comment-
responsibility-B1.14) . . (4) BLM-SO will furnish AGS and FWS-RO
Introduction. Primary contacts will be the ACS, the with two copies each of the final EAR.
1. Priorities and Scheduling of Lease Sales FWS-RO. the BLM-SO involved. (b) Post-Lease Environmental Analysis
and Non-competitive Leasin& (a) Compe Vive Lease Sale Scheduling- (EA). (Primary responsibility-AGS)
a. Competitive Lease Sale Scheduling. BLM-SO may on its own motion. on (1) For each proposal which requires a Plan
b. Scheduling for Non-competitive Leasing- recommendation from CS, or through of Operations. an Environmental Analysis
2. Environmental Analysis Considerations. nominations from industry, select areas for (EA) will be prepared by the AGS. The AGS
a. Pre-Lease Environmental Analysis and schedule competitive lease sales in will request the technical advice an fish and
Record (EAR). Known Geothermal Resource Areas wildlife matters, surface management, and
b. Post-Lease Environmental Analysis (EA). (KGRA's). The BLM-SO will consult with environmental expertise of the BLM-SO1 and
3. Competitive Lease Sales. GS-RCM as to KGRA leasing priorities, FWS-AO. The FWS-AO and the BLM-SO
4. Non-competitive Lease Applications. recommendations for lease stipulations, total will provide technical advice and information
a. Serial Register Page. area to be covered by the EAR, andoverall in their areas of expertise to AGS for
b. Competitive Interest Overlaps. priority and scheduling of the EAR and the consideration in the EA which will include
c. Environmental Considerations. sale. The BLM-S0 will consult with FvVS- the recommended surface protection and
d. KGRA Clear listing, Lease Issuance. AO and RO concerning fish and wildlife reclamation requirements-.
5. Pre-Lease Exploration Permit. resources and related habitat and regarding (2) When the GEAP chooses to review the
6. Post-Lease Notice of Intent to Conduct recommended stipulations and mitigating draft EA. BLM-DO and FWS-RO will also be
Geothermal Resource Exploration measures to protect these resources. sent copies of the AGS draft EA for its review
Operations. Generally, the areas to be covered by the and comment.
7. Plan of Operation and Application for EAR, prepared by BLM-DO, should include (3) In every case, BLM-SO and FWS-AO
Permit to Drill (APD). the maximum number of non-competitive and GEAP will be provided with a copy of
8. Plans of Operation for Surface Installations lease applications in the vicinity of the the final EA.
or Subsequent Well Work. KGRA. Determiniation of priority of 3. Competitive Lease Sales. (Primary
9. Plans of Deve-'.:)pment. Injection, or sheduling lease sales will generally be based responsibility-BLM.)
Production. upon the geothermal potential of the area. its In steps (a) through (h) below, the CS
10. Designation of Operator. environmental sensitivity, and industry, contact will be the ACS. and the FWS
11. Filing and Termination of Bonds. interest. If nominations are either solicited or contact the appropriate FWS--AO. In step (a)

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29327

cooperation for those activities related to may be terminated upon mutual consent of quality management process administered by
resource inventories, surveys, and the parties. the Environmental Protection Agency under
monitoring; 'assessment and appraisal; Frank Gregg, sections 201, 208, and 303 of the Clean Water
program evaluatiorv, development of program Director, Bureau of Land Management Act-, facilitate the participation of thebe
strategies; preparation of statements of Dated June 6, 1978. Interior Bureaus in the State and local
policy-, and resource planning. Status reports establishment of water quality goals and the
will be prepared to keep Agency Heads R. A. Resler, development and implementation of State
informed of joint activities. Should Acting Chief Forest Service. and local programs to achieve those goals;
unresolvable conflicts arise, they will be Dated: June 0. 1978. and assure adequate consideration, under the
elevated to the Agency Heads for resolution. Lynn A. Greenwalt@ Clean Water Act, of program needs of these
Recognizing that each Agency has differen .t Director, Fish & Wildlife Service, Interior Bureaus.
objectives in design. development, and Dated: June 6, 1978. If. provisions
implementation of inventory, assessment/
appraisal. and resource planning activities, R. M. Davis, A. The U.S. Fish and Wildlife Service,
this Agreement will provide for coordination Administrator, Soil Conservation Service. National Park Service, and Heritage
of the following areas: Dated: June 0, 1978. Conservation and Recreation Service will to
1. Land Classification System; the extent resources permit:
2. Data element definitions and units of October 30, 1978.. 1. Establish a central point in the National
measure; In Reply Refer To: and Regional Offices to facilitate Bureau
3. Intensity and subject matter of surveys FWS/PL involvement in the water quality
and inventories; Memorandum management planning process, seek to derive
Interior program benefits from Improved
4. Statistical reliability; To: Agency Representatives. water quality. and coordinate and integrate
5. Land-base being inventoried: From: Fish and Wildlife Service. regional and field program activities with
6. Compatibility for data exchange; Subject. Interagency Agreement Related to
7. Compatibility of analytical assumptions; Classifications and Inventories of Natual water quality management programs.
S. Identification of Agency activities; Resources. 2. Participate in State and local review and
9. Data acquisition procedures--tie to State revision of water quality standards
Interagency Remote Sensing Committee; Attached is a copy of the amendment to the providing technical assistance and
10. Division of responsibilities; subject agreement adding the United States information on the identification of water
11. Criteria for evaluation, sensitivity, and Geological Survey as a member. uses and water quality criteria necessary to
cost-benefit analysis; Attachment protect water uses including outdoor
12. Preparation of needed interagency Interagency Agreement Related to recreation needs, protection and propagation
agreements; Classification and Inventories of Natural of aquatic life and wildlife, and preservation
13. Involvement and coordination with Resources of natural and cultural resources under the
States; administrative jurisdiction or trustes-ship of.
Effective the date of the last signature the Agency.
14. Coordination of budgets to avoid hereto the above agreement Is amended to 3. Participate in the development,
duplication and to take advantage of joint include the United States Geological Survey. implementation. and evaluation of State and
opportunities; Frank Gregg, areawide water quality management plans,
Is. Program evaluation;
16. Statements of policy, Director, Bureau of Land Management provide appropriate technical assistance and
27. Development of program strategies; and Dated: October 24, 1978. information. and serve on advisory
IS. Resource planning. R. A. Resler, committees where appropriate.
4. Comment to EPA on State adopted water
Special Ass4nments Chief Forest Service, quality standards and state and areawide
The Agency representatives will also Dated: October 26, 1970. water quality management plans submitted to
advise and consult with the Director of the Lynn A. Greenwalt, EPA for approval.
Rocky Mountain Forest and Range - Director, Fish & Wildlife Service. 5. Provide EPA with appropriate technical
Experiment Station on the activities of the Dated: October 24,1978, and other material for inclusion in guidance
Station's Evaluation of alternative research R. M. Davis, and other memoranda circulated to EPA
directions, assignment of priorities and Regional Offices and State and areawide
personnel, establishment of technical Administrator Soil Conservation Service. agencies.
working arrangements, as needed, and Dated: October 25, 1978. a. Within 5 months after the effective date
related matters. J. R. Balsley, of this agreement recommend guidelines to
EPA for designating Outstanding National
Procedures Acting Director, Geological Survey. Resource Waters.
The Agency representatives will meet on Dated: October 24, 1976. 7. Within 6 months from the date of
the last Thursday of each month: Staff from Memorandum of Understanding Between the publication of mutually approved guidance
each Agency will participate. as appropriate. Environmental Protection Agency and U.S. under E. 12.'Identify waters under jurisdiction
on subject items to be coordinated. Existing Department of the Interior of the Assistant Secretary which should be
working relationships and agreements that considered for designation as Outstanding
now exist between the Agencies will not be L Purpose National Resource Waters. Participate in
preempted. Additional working relationships This Memorandum of Understanding has identifying such waters in the State water
will be established as needed. been developed in accordance with the quality standards review and revision
The meetings will be chaired alternately by provisions of the Interagency Memorandum. process.
the Agencies. Minutes will be taken of each of Agreement prescribed in section 304(j)(1) 8. Submit a work plan for implementing this
meeting and distributed to Agency Heads and of Pub. L 9Z-5W, and executed on August 30, agreement within go days of the signing of
others as deemed necessary. Additional 1973, by the Administrator, Environmental this memorandum and prepare an annual
meetings will be called or regular meetings Protection Agency (EPA) and the Secretaries progress report reviewing activities of the
canceled or rescheduled by mutual of the Army, Agriculture and the Interior. The previous year under this agreement and
agreement of Agency representatives. purpose of this Memorandum to tcy updating the work plan.
This agreement shall be effective on the coordinate the programs of the U.S. Fish and B. United States Fish and Wildlife Service
date of the last signature hereto. Any agency Wildlife Service, the National Park Service, (FWS)-In addition. the U.S. Fish and
may withdraw from the agreement upon and the Heritage Conservation and Wildlife Service will to the extent resources
written notice to the others. The agreement Recreation Service (HCRS) with the water pern-ft-

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29328 Federal Register / Vol. 44, No. 98 / Friday, May 18. 1979 / Proposed Rules

1. Conduct research and provide technical (d) Develop and demonstrate supplemental necessary to achieve viable fish, wildlife and
assistance and information an development nonpoint source Best Management Practices recreational objectives.
of water qi4ahty criteria. to protect or enhance fish and wildlife 10. Participate in the development of State
2. Advise EPA and State and areawide resources. and areawide water quality management
water quality management planning agencies (e) Develop and demonstrate methods and plans to assure proper consideration and
of FWS monitoring results which indicate strategies to utilize sewage wastewater for protection of natural and cultural resources
pollution levels that are detrimental to fish, fish and wildlife habitat enhancement. which Include properties listed in or eligible
wildlife, or their habitat. (f) Initiate research to provide for the National Register of Historic Places
3. In cooperation with HCRS. develop supplemental data on the effects of and the National Register of Natural
integrated water quality/water quantity environmental contaminants on fish and Landmarks. Assist as requested with water
modeling methods and criteria for wildlife and their supporting ecosystems from quality management plan implementation.
determining minimum and optimum stream key pollutants listed in Table I of the House 11. Encourage consideration of public boat
flows and other physical Parameters that are Committee Print 95-33 (Committee on Public ramp and nature trail construction in
necessary forprotection of fish and wildlife Works and Transportation) and any facibtles planning.
and recreational objectives. additional pollutants designated under 307(a). D. National Park Service (NPS)-The
4. Assist States and areawide water quality C. Heritage, Conservation and Recreation National Park Service Will tG the extent
management planning agencies as requested Service-In addition, the HCRS will to the resources permit.
in identifying endangered and threatened extent resources permit, 1. Assist State and areawide water quality
species and their critical habitats identified 1. Identify recreation and open space management planning agencies in the review
pursuant to Pub. L 93-205 in the planning opportunities and methods. Provide general and revision of water quality standards to
area which are impacted by water quality. advice concerning the protection of natural identify:
Recommend water quality standards and and cultural resources. (a) Water quality conditions necessary to
other water quality management plan 2. Prepare program guidelines for State and preserve and protect natural and cultural
provisions to the State# and areawide local governments encouraging the use of resources within the National Park System;
agencies where necessary to protect and Land and Water Conservation Fund grants (b) Appropriate water uses consistent with
enhance such species and habitats. FWS will for the development of recreation and open the NPS responsibility-,
assist, where appropriate, in the development space opportunities in conjunction with (c) Waters which should be considered for
of those provisions. existing and planned wastewater treatment designation as Outstanding National
5. In waters under FWS jurisdiction, Works. Resource Waters.
comply with applicable Federal, State, 3. Coordinate program activities with the 2. Participate in the development and
interstate and local requirements including water quality management planning and the implementation of State and areawide water
State water quality standards as provided in statewide Comprehensive Outdoor quality management plans as necessary to
section 313 of the Clean Water Act. Recreation Plan process to maxirni a outdoor assure proper consideration and protection of
6. Coordinate FWS activities which affect recreational benefits derived from improved natural and cultural resources within the
or concern water quality with appropriate water quality and protect natural and cultural National Park System.
water quality management planning agencies. resources. - - 3. Serve on advisory comniittees in water
7. Take an active role in selected special 4. Develop guidance, in coordination with quality management planning areas where
study projects under the water quality EPA and the FWS, encouraging and assisting water quality impacts units of the National
management planning process and FWS State and areawide water quality Park System.
programs to: management planning agencies in enhancing 4. Encourage State natural resource
(a) Identify water quality management outdoor recreation opportunities and I management agency involvement in the
planning activities to protect resources of orotecting natural and cultural resources. review and revision of water quality
concern to the FWS; HCRS regional offices will distribute the standards and development and
(b) Assist in the development of work guidance to park and recreation agencies and implementation of water quality management
plans; and encourage those agencies to address outdoor plans.
(c) Participate in the development and recreation in the water quality management 5. Take an active role in select
implementation of the water quality process. demonstration-type projects under water
management planning program in 5. Encourage appropriate State and local quality management planning and NPS.
cooperation with local, State and other park, recreation, and natural resource programs to:
federal agencies. agencies and public constituencies to (a) identify water quality management
8.. Encourage State Fish and Wildlife maximize HCRS program benefits derived planning programs to protect resources under
agency involvement in the development. from improved water quality and to NPS jurisdiction;
review and revision of water quali 'ty coordinate with and participate in water (b) assist in the development of work plans;
standards and development and quality management planning. (c) participate in the development and
implementation of water quality management 6. Provide EPA with appropriate technical implementation of water quality management
plans. material relating to primary and plans to maintain. restore, and enhance the
9. Encourage consideration of public boat supplemental public recreational chemical, physical and biological integrity of
ramp and nature trail construction in opportunities and protection of natural and waters associated with or affecting the
facilities planning. cultural resources. involved units of the National Park System.
10. Consistent with section 208 and related 7. Convene, in cooperation with EPA, 6. Comply with State water quality
provisions of the Clean Water Act of 1977 regional conferences to develop an standards in waters within units of the
and to the extent resources are made awareness of the primary and supplemental National Park System.
available through FWS budget channels: public recreation opportunities of State and 7. Coordinate NPS activities which affect or
(a) Complete a National Wetlands local water quality management planning concern water quality with appropriate water
inventory, develop interpretive reports, and programs. quality management planning agencies.
make such information available to planning S. Encourage through guidance the 8. Identify endangered and threatened
agencies as specified in the Clean Water Act: provision of adequate facilities to accept and species and their habitats in units of the
(b) Provide technical assistance to EPA treat wastes from watercraft equipped with National Park System for appropriate State
Reiional Offices and State 208 agencies containment devices. and areawide water quality management
91
through training, handbooks, workshops, and 9. In cooperation with FWS@ develop planning agencies.
direct consultation and advice; integrated water quality/water quantity 9. Assure that adequate facilities exist in
(c) Develop environmental requirements modeling methods and criteria for units of the National Park System to accept
and management techniques for key species determining minimum and optimum stream and treat wastes from watercraft equipped
in wetlands or riparian habitats. flows and other physical parameters that are with containment devices.

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29329

10. Exercise such other legal authorities 12. Consult with Interior Bureaus for the Memorandum of Agreement Between
and responsibilities as are or may be purpose of developing EPA guidelines for Environmental Protection Agency and Bureau
available to assure the maintenance, Identifying Outstanding National Resource of Sport Fisheries and Wildlife, Department
restoration. and/or enhancement of existing Waters; within 9 months after the effective of the Interior.
water quality in. units of the National Park date of this agreement, Issue the mutually In accordance with the advice of the
System. approved guidelines for consideration by the President to Congress in his July 9. 1970
E. Environmental Protection Agency@The States in the development of water quality Message Relative to Reorganization Plans
Environmental Protection Agency will to the standards. Nos. 3 and 4. this Agreement takes
extent resources perndt: 13. During the next scheduled (after
cognizance of several scientific and technical
1. Establish contact points in the Nationar mutually approved guidelines are published environmental matters of common concern to
and Regional offices for coordinating the under E. 12) review and revision of Water the Agency and the Bureau: research.
activities under this memorandum. Quality Standards encourage States to apply including monitoring and field appraisal, on
2. Provide assistance and all necessary the guidelines and consider designating effects of chemical containinants (pesticides,
information including National guidance to waters identified under A. 7 of this agreement PCB's, heavy metals. and other pollutants) on
facilitate the timely involvement of Interior by the Assistant Secretary; encourage States fish and wildlife; questions of pollution and
Bureaus in the development of water quality to submit a written justification for failure to its abatement at Bureau installations-,
management plans. Assist these Interior designate waters identified under A. 7 as establishment of water quality criteria and
Bureaus in securing placement on appropriate Outstanding National Resource Waters; upon standards as these may affect fish and
State and areawide water quality request of the Assistant Secretary, review (in wildlife; chemical contamination in food
management planning agency mailing lists. consultation with the Assistant Secretary and chains; and the registration of chemicals and
3. Assure that State and areawide water the State) the State's action and, in the drugs. This Agreement recognizes the merit of
quality management planning agencies absence of a State designation, take under avoiding duplication and of exchanging
actively seek the advice and involvement of consideration the promulation of Information and expertise In the interest of
these Interior Bureaus and their Stateand designations pursuant to Section 303(c)(4) of the public service.
local counterparts in the water quality the Clean Water Act, where appropriate. The elements of the Agreement are as
management planning process including 14. Provide the Regional Directors of these follows:
State/EPA Agreement and areawide work Interior Bureaus with the opportunity to 1. Research and Monitoring of An vironmental
program formulation, advisory groups, and review and comment on water quality Contaminants
development and implementation of water management plans and State water quality
quality management plans. standards submitted to the EPA Regional The Bureau's four primary centers for
4. Assure that State and areawide water Administrators for review and approval. 7%e research on the effects of environmental
quality management planniiv agencies EPA Regional Administrators will carefully pollutants'(Laurel, Maryland- Denver,
coordinate their activities with the consider comments submitted by these Colorado. Columbia, Missouri; and Ann
Interior Bureaus in the EPA review and Arbor, Michigan) will continue and. as
appropriate Interior Bureau activities approval process. Upon request if the possible, broaden efforts at understanding
affecting the planning area. Director of FWS, HCRS, or NPS, the Deputy and anticipating the effects of pollutants on
S. Provide these Interior Bureaus with the Assistand Administrator for Water Planning survival, reproduction. physiology, behavior,
oppoitunity to review and comment on and Standards will review unresolved and other factors critical to the well-being
proposed criteria and information developed concerns and will seek to resolve them prior and management of fish and wildlife aid the
under sections 304(a) and 403 of the Clean to approval. The Assistant Administrator for conservation of wildlife populations. The
Water Act. th the Water and Waste Management will Bureau will seek to understand the mods of
6. Provide these Interior Bureaus wl participate upon request of the Assistant action. methods of inhibition. and movements
opportunity to review and comment on Secretary. through the ecosystem of chemicals and
proposed regulations, guidance and technical IS. Support these Interior Bureaus in formulations in common or anticipated use.
publications under sections 208 and 303 of the obtaining resources to implement the The Bureau agrees to provide, to the
Clean Water Act provisions of this agreement designated offices or officers of the Agency,
7. Respond to Interior Bureau comments I& Submit a work plan to the Assistant regularly scheduled data and progress reports
transmitted under paragraphs 5 and 6 above. Secretary for implementing EPA based upon current Notifications of Research
8. Encourage State and areawide water responsibilities under this agreement within Projects (NRVs) submitted to the Science
quality management planning agencies to 90 days from the signing of this'memorandurn Information Exchange of the Smithsonian
'Consider, nonstructural solutions to.water and prepgLM.q& annual progress report Institution.
pollution control problems that will preserve reviewing actlVitics ofthe @revfous year Ile Bureau will continue to provide to the
and enhance fish and wildlife habilaL open under this agreement and updating the work Agency, on request all available information
space and outdoor recreation. plan. and advice that may be helpful in evaluating
9. Ensure that State water quality Within five years from the effective date of pollutants or In preparing for hearings. The
standards revisions describe the water this agreement. the Deputy Administrator and Bureau will allow employees ofthe Agency to
quality necessary to meet requirements of the the Assistant Secretary shall review the utilize the Bureau's specialized reprint files
Act, including protection of existing and effectiveness of this agreement in achieving And will permit them to photocopy reprints in
designated beneficial uses and designated the stated purposes. If, based upon that reasonable numbers on Bureau machines, as
Outstanding National Resource Waters. review or at any time during the course of available, without charge.
10. Assure that State and areawide water implementation of this agreement either the The Agency agrees to provide, to the
quality managment planning agencies Deputy Administrator or the Assistant designated offices or officers of the Bureau,
consider State Comprehensive Outdoor Secretary determines that the memorandum Information concerning current or anticipated
Recreation Plan (SCORP) priorities and State needs modification, the Deputy Administrator pesticide or other pollutant problems upon
fish and wildlife plan priorities and and the Assistant Secretary shall within 90 which research would be desirable.
Comprehensive Statewide Flistoric days after official notice negotiate such In the interests of efficiency, economy, and
Preservation Plan priorities. amendments considered appropriate. avoidance of duplication, the concern of the
n. Consult with these Interior Bureaus In Cecil D. Andrus, Bureau and its expertise in research on the
the development of guidelines identifying Secretary, U.S. Department of the Interior. effects of pollutants on wildlife and
open space and recreation opportunities that Dated: November 10, 1978. freshwater fish, particularly on effects that
can be expected to result from improved are-important to conservation. management.
water quality, the planning of wastewater Douglas M. Costle, and recreational use of fish, wildlife, and
treatment works, and waste management Administrator, U& EnvirohmentalProtection associated food organisms and environment,
policies under section 201(0 of the Clean Agency. are recognized. The Agency will depend
Water Act. Dated: November 13, 1978. especially heavily on the Bureau for research.

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29330 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules

data, information, and analyses in relation to may be entered into any statutory or judicial interest of the Bureau in this field and may
wildlife. review procedure without the 30 days notice. consult the Bureau in the preparation and
Both parties agree that the EPA is trial of protocols for laboratory, field, and
concerned and has expprfise with respect to 2. Federa/Aidin Pesticide Programs simulated field tests with fish and wildlife.
many environmental areas including effects Nothing in this Agreement will limit the The Bureau may assist in the evaluation of
of pollutants on man and laboratory authority of the States to carry out research. given tests proposed for inclusion in
mammals. effects of pollutants on the aquatic development and management programs protocols designed for use with fish and
envirorunent, determination of pollutant using chemical agents, including herbicides wildlife. The Bureau agrees, within the limits
sources, regulation of pesticides, control of and other pesticides, nor the authority of the of its resources, to conduct methodological
pollutants, studies of air and wate@r quality, Bureau to enter into agreements with the research on this subject as mutually agreed
and control of air and water quality. The States to finance such programs under upon; to provide copies of publications and
Bureau recognizes that some of these fields Federal Aid in Fish and Wildlife reports on this subject that result from its
do and will require tests with fish. Restoration, and other grant or contractual own research. and on request to provide
When the Agency requires research or programs, subject to guidelines published by knowledgeable professionals for membership
analyses within the expertise of the Bureau. EPA for Federal agencies or mutually on panels and task forces.
the Agency may ask the Bureau to undertake acceptable requirements for specific projects. The Agency recognizes that the Bureau
this work in its entirety or to participate in 3 Pollution Elimination at Bureau requires much reliable information on
Agency research or analysis. The Bureau Installations pesticides and pollutants in the course of its
make a concerted effort to provide such work, and that the Bureau cannot meet this
service, retaining the option for in-house or The Bureau recognizes the Agency s need by duplicating the vast amount of
contract services. The cost of such work will expertise in, and its own responsibilities for toxicological work already performed 4y
be borne by the requesting party. A similar prevention, control and abatement of industry on given chemicals. The Agency
relationship will prevail when the Bureau environmental pollution at Bureau will. therefore, release to the Bureau, on
requires special work within the expertise of installations. The Bureau will need the request. as much information on given
the Agency. Agency's advice and assistance in esticides and other materials as is legally
interpretation of water quality standards and P .
The Bureau has not only the expertise for permissible and economically practicable.
evaluating the effects of toxicants on fish and effluent limitations, review of proposed
wildlife resources, but also the capability to Pollution elimination facilities, and other 0. Water Quality Criteria and Standards
conduct on-site studies by using its own aspects of wastes and effluents. The Bureau recognizes the Agency's
professional field people who are already In addition, each of the parties to this responsibility for promulgating water quality
trained and strategically located throughout Agree@ment will provide for the timely criteria. for approving State water quality
the country. exchange of information which would be of
I standards and establishing standards when
The Bureau will continue to monitor apparent benefit to either agency (for necessary. and for conducting or sponsoring
residue levels of organochlorine insecticides, example: new knowledge or new research that will lead to more effective
heavy metals, and other contaminants in developments in such areas as general water standards. The Agency recognizes the
birds and freshwater fish under the National chemistry. hydraulics, monitoring devices. Bureau's responsibility to conduct research to
Pesticide Monitoring Program in cooperation heating or cooling mechanisms, filtering determine the water quality required for the
with the Council an Envirommental Quality methods or equipment. pumps, and aerators). health and productivity of the fish and
(CEQ). As part of its research and monitoring 4. provision of Test Fish wildlife resource. The Agency will consult the
programs. it will conduct field observations The Bureau agrees to provide to the Bureau for aid in defining water quality
on the effects of pollutants upon fish and Agency reasonable numbers and available criteria for protection of the fish and wildlife.
wildlife. The Bureau will review all plans species of fish from its National Fish In discharging their responsibilities in these
involving the proposed use of pesticides on Hatcheries. as may be required for the areas, the Agency and the Bureau agree to
Bureau lands. Agency's research. Requirements for unusual maintain close liaison to avoid needless
The Bureau will make monitoring data numbers, species, or sizes of fish will be duplication of research effort; to keep each
available to the. Agency'as quickly as specified at least 12 months in advance of the other apprised of research progress; to be
possible after chemical analyses are time the fish are needed. responsive to each other's needs in planning
completed. assembled. and reviewed. The future research, and, when mutually
Agency will consult the Bureau for its views 5. Registration of Chemicals beneficial, to share facilities and equipment,
on the interpretation of monitoring data with Bureau and its Federal Aid-supported or to collaborate on research programs.
respect to hazards to fish and wildlife. The State programs have urgent needfor certain 7. joint Actions
Agency needs meaningful data in considering chemicals for fish and wildlife management
the possible impact of pesticides and other (for example, herbicides for vegetation In reviewing plans for federally
contaminants upon man and other living control in hatchery waters, control agents for constructed, permitted, licensed or supported
organisms. The Bureau and the Agenci will pest animals). Bureau research centers and water resource development projects, the
take such steps as they deem necessary to field stations will continue to do research Bureau will provide information to the
ensure free exchange of information on a pertinent to the registration and clearance of Agency on the water quality criteria and flow
scientist-to-scientist basis, which will benefit these chemicals. The Agency agrees to regimens necessary for fish and wildlife and
both agencies in meeting their responsibilities furnish the Bureau prompt authoritative the fish and wildlife mitigation or
'on environmental matters. statements from the Agency on minimum enhancement benefits these will provide.
The Agency reserves the right to be the requirements for clearance and registration of Since these evaluations also will be used in
first to release or to publish data resulting such materials as the Agency regulates. The the Bureau report to the sponsoring or
from work it has performed or financed Agency agrees to provide guidelines for the licensing agency, any modification of such
independently of the Bureau, The Bureau research and testing needed to secure evaluations in reports of the Agency should
reserves the same right in respect to work it clearance and registration; to review research be limited to those concurred in by the
has performed or financed. Work done jointly protocols f!rom the Bureau promptly; and to Bureau,
by the Agency and the Bureau, or done by inform the Bureau, upon request, of the status Each signatory party is obligated to call the
one with the financial aid of the other, will be of any particular pesticide or device within attention of the other to needed actions in all
released or published only if agreed to by the registration process. areas of common concern. Each will identify
both parties. If the Agency and the Bureau The Agency, in its responsibility for for the other the areas in which they are
differ on the advisability of releasing given registration of pesticidal chemicals. requires unable to act and will inform the other of
data that have resulted from joint action, expert advice in establishing guidelines and activities they are undertaking. When the
either party may release the data 30 days protocols for evaluating the effects of these nominally responsible agency is unable to
after giving wTitten notice to the other party. chemicals on fish and wildlife. The Agency carry out work in an important area involving
Notwithstanding this agreemept. such data recognizes the experience. responsibility, and fish and wildlife. this Agreement provides for

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Federal Register Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29331

interim cooperative agreements for For the guidelines to be effective, reasoned Accordingly, the following final guidelines
reassignment of the work, for the transfer of judgment will be required among professional are published for information purposes.-
funds, and for loan of equipment and planners, biologists, and others. Robert L. Herbst,
manpower to accomplish the task. In such Compromises will need to be negotiated. We
instances. the. transfer of resources will be expect users of the guidelines to sugge;t Assistant Secretary for Fish and Wildlife and
implemented by a separate interagency Parks, US. Department of the Interior.
agreement which specifically describes the refinements. After a reasonable period of use. M. Rupert Cutler,
we will review their effectiveness and
work to be undertaken. rewrite them if the need is apparent. The Assistant Secretary for Conservation,
When informed of large losses of fish or guidelines should be studied thoroughly and Research, and Education. U.S. Department of
wildlife presumably caused by pollution. applied intelligently. In general. they provide Agriculture.
each agency will promptly inform the other that: Channel Modification Guidelines
and will state its plans for investigating the 1. SCS and FWS will use an
situation. These investigations may be made lnterdisciplinary planning process which Prepared by U.S. Department of the Interior.
singly or jointly, as each agency deems best permits a balancing of the need to both Fish and Wildlife Service; U.S. Department
in specific cases. maintain a viable, naturally fLuictioning of Agriculture, SoV Conservation Service.
Whenever any ad hoc or standing ecosystem and provide for projected food Published in the Federal Register, Vol. 43, No.
committee involving both fish and wildlife and fiber. economic. and other social needs. 41, Wednesday, March 1. 1978, pp. 8276-ZM
resources and water quality is established by 2. Measures other than channel work will
either agency, the other agency may be Channel Modification Guidelines
invited to nominate a representative to sit on be suggested. analyzed, evaluated, an
the committee as a regular member. accepte 'd if channel work will cause Table of Contents
This Memorandum of Agreement. entered measurable habitat losses and if other L Introduction.
into in good faith for the public good. the alternatives will contribute to project A. Purpose.
mutual benefit of the agreeing agencies, and objectives with less damaging effects. B. Policy.
the promotion of efficiency in Government. Channel work normally will be a -last resort" C. Applicability.
may be amended by common consent or ineasures. 11. Background.
terminated in whole or in part after not less 3. Channel work will not be undertaken HL Guidelines.
than So days notice of intention by either when it would destroy or modify critical A. Alternatives.
party. habitat fbr endangered or threatened species. B. Types of Channel Modification.
Approvals: 4. Wetland types 3-20 will not purposely C. Channel Modification as an Alternative.
For the Environmental Protection Agency. drained. and any indirect drainage of these rV. Coordination and Interaction.
types will be avoided unless appropriate V. Resolution of Issues.
John R. Quarles, Jr.. mitigation or compensation is provided. Channel Modification Guidelines
Deputy Administrator, Environmental Types I and 2 will be evaluated as to their
Pt-otection Agency. ecological importance and preservation I Introduction
Dated: October 10, IW3. strongly recommended in accordance with A. Purpose. These guidelines are
For the Bureau of Sport Fisheries and provisions in the guidelines. promulgated by the Soil Conservation Service
Wildlife. 5. The intent and spirit of the Federal Wild (SCS) and the Fish and Wildlife Service
Lynn A. Greenwalt. and Scenic River Act and similar State (FWS) to guide their personnel in identifying
Director, Bureau of Sport Fisheries and legislation will be respected. when and where channel modification may
Wildlife. Department of the Interior. 6. Important fish and wildlife habitat be used as a technique for implementing
values will be maintained or enhanced. water and related land resource projects.
Dated. January 31. 1974. Conservation easements or other comparable They will be used in the planning of all SCS
Department of Agriculture Soil Conservation ineans will be utilized wherever necessary to projects or measures which qualify for either
Service Water resources Project Type provide reasonable protection for wetlands technical. finoncial, and/or credit assistance
Activities subject to secondary drainage predicted to under the autnorities for flood prevention
occur as a result of. or be faciliti-@ed by, projects, small watershed projects, and
Channel Modification Guidelines channel modification. resource conservation and development
Agency- Soil Conservation Service Effective date: projects. These program authorities contain
(Department of Agriculture) and Fish and For further information contact: Dr. F. provisions for maintaining and enhancing fish
Wildlife Service (Department of the Interior). Eugene Hester, Associate Director, and wildlife resources as well as achieving
Action: Notice of Final Guidelines for Use Environment and Research, U.S. Fish and other water management objectives. -
of Channel Modification as a Means of Water Wildlife Service (202-343-5715). B. Policy. It is the policy of SCS and FWS
Management in water resource project type Mr. Joseph W. Haas. Assistant that care and effort will be made to maintain
activities of the Soil Conservation Service Administrator for Water Resources, Soil and restore streams. wetlands, and riparian
(SCS). The guidelines are not intended 40 Conservation Service (202-447-45271- vegetation as functioning parts of a viable
have the force of rules or regulations, but are Supplementary information: On August 8. ecosystem upon which fish and wildlife
published for the information of the 2977. the Soil Conservation Service and the resources depend.
interested public. Fish and Wildlife Service pAlished in the It is also the policy of SCS and FWS to use
Summary: An interdisciplinary team of Federal Register (42 FR 40119) proposed en interdisciplinary planning process which
specialists from the Department of the guidelines for use of channel modification as will permit a balancing of the need to
Interioes Fish and Wildlife Service (FWS) maintain a viable. naturally functioning
and the Department of Agriculture's Soil a means of water management in water cosystem. and projected food and fiber,
Conservation Service has worked resource project type activities of the Soil :conomic, and other social needs.
cooperatively over the past several months to Conservation Service. During the 37-day The application of these guidelines. the
develop the attached guidelines for channel commenting period numerous comments were resource inventory, interpretatiotu and
modification. The guidelines are based on received from Federal agencies. State planning assistance provided by SCS and
these professional's own experienced agencies, organizations, and individuals. All FWS will ensure identification and -
judgment plus the suggestions of many-other written comments were given consideration consideration of alternatives to channel
interested Federal and State agencies, in developing the final guidelines. The full modification.
organizations, and individuals whose views text of all comments received is on file and C. Applicability. These guidelines become
were solicited. The beads of both agencies. available for public inspection in: Room 52A effective as of the date they are approved.
Lynn A. Greenwalt and IL W. (Mel) Davis. South Agriculture Building, Washington. D.C. They will be applied to. (1) all new planning
have personally guided this effort and Room 849,1730 K Street. N.W., Washington, starts: (2) all projects in the planning phase.
support the guidelines. D.C. unless SCS and FWS agree it is not important

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29332 Federal Register I Vol. 44, No. 98 / Friday, May 18, 1979 1 Proposed Rules

and f@asib 'le to apply the guidelines; (3) all impaired or damaged naturally or through a significant contribution to project
projects approved for construction, (a) when man's unwise use or management of adjacent objectives; and (3) results in less damage to
supplements or revisions are prepared which or upstream lands. It may also be needed to fish and wildlife habitat. Thus, channel
would result in an increase in the amount or provide q safe and health environment and modification will normally emerge as the last
type of channel modificatiori which would for the maintenance of existing agricultural resort measure.
increase the potential adverse environmental productivity. The following three broad types of
impact; or (b) when SCS and FWS agree that However, channel modification can cause alternatives will be considered singly or in
(I) important fish and wildlife habitat is serious damage to fish and wildlife resource combination:
involved and threatened; (ii) project values. In addition to the direct impacts on 1. Soil and Water Conservation practices.
modification is feasible, and (iii) project the stream and immediate environs, the 2. Nonstructural-nonstructural measures
modification to minimize adverse pilactice has, on occasion, led directly or may include, but are not limited to, land use
environmental impact has not been indirectly to major drainage of wetlands, regulation, land acquisition, the maintenance
accomplished as a result of reviews clearing of bottomland forests for intensive of aquatic areas, floodplain zoning,
mandated by the National Environmental agriculture, and increased flooding and floodproofing existing buildings, flood
Policy Act or other congressional, siltation in downstream areas. Channel forecasting, flood warning, flood hazard
Presidential, or Secretarial initiatives, modification for flood control, drainage, and information. flood insurance, tax
After the guidelines have been in use for a irrigation projects has often resulted in adjustments, emergency assistance, and
year or more, their effectiveness will be severe conflict with the function of the relocation of properties and people.
reviewed. and changes will be made if associated ecosystems, changing or reducing 3. Structural-structural alternatives to
determined to be necessary. These guidelines both the variety and abundance of fish and channel modification include, but are not
may be terminated at the request of either wildlife resources. limited to, dams, floodways, dikes, levees
agency. Because of the variety of values associated (including set back levees), flood walls,
with water, it is incumbent upon the SCS and pumping plants, diversions, and wetland
11. Background the FWS to continue to share their technical development, maintenance, and restoration.
Congress bas recognized that erosion, expertise to help ensure decisions which will B. Types of Channel Modification. Channel
floodwater, and sediment can cause damage result in the maximum benefits to assure modification is defined in these guidelines to
in the watersheds of the rivers and streams of long-term agricultural productivity and Include actions such as riprapping, selective
the United States. It has found that loss of life optimum environmental quality. snagging, clearing and snagging, widening,
and damage to property constitute, a menace deepening, realignment, and lining, listed
to the national welfare and that the Federal Ill. Guidelines generally in order of ascending impact on fish
Covernment should cooperate with States A. Alternatives. The guidelines for channel and wildlife resources.
and their political subdivisions for the modification will be used when formulating 1. Selective Snagging-The selective
purposes of preventing such damages and of alternative plans under the Water Resources removal of obstructions from a channel to
furthering the conservation, development, Council's Principles and Standards. The increase its capacity to convey water. This
utilization, and disposal of water. In so doing, planning process will include an inventory of includes, but is not limited to, the removal of
this action will also preserve, protect and resources, including fish and wildlife habitats downed timber and accumulations of debris
improve the Nation's land and water and their geographic delineation. It will also or obstructions.
resources and the quality of the environment. identify appropriate means for minimizing 2. Clearing and Snagging-The removal of
Congress has also recognized that rivers adverse impacts on habitat values. obstructions from the channel and stream
and streams, wetlands, and riparian Measurement of habitat values will be banks, including the removal of vegetation
vegetation constitute a valuable resource determined on a case-by-case basis in and accumulations of bedload material, to
which Is vital to thp public interest in accordance with habitat evaluation increase its capacity to convey water. It may
naturally functioning ecosystems, water procedures promulgated by FWS and include the removal of sediment bars, drifts,
transport, and maintenance of fish and developed jointly,,with SCS. logs. snags, boulders, piling, piers, headwalls.
wildlife populations. Dependent upon the. Alternative plans will be formulated to: (1) and debris.
situation. wetlands can serve as: (1) natural emphasize environmental quality; (2) 3. Riprapping-The placement of irregular
flood detention areas; (2) sediment and optimize national economic development; permanent material such as rock in critical
debris traps; (3) water purifiers and in and (3) provide varying mixes of the areas along the watercourse to protect the
recycling nutrients; (4) groundwater recharge components of the environmental quality and earth materials against excessive erosive
areas; (5) nursery areas for aquatic animal national economic development objectives. forces.
species; (6) important habitats for a wide For each alternative plan. there will be a 4. Widening-The overall widening of a
variety of plant and animal species, some of display of accounting of relevant beneficial channel to restore or increase its capacity to
which have been depleted to the point that and adverse effects. A comparison of the convey water. This usually involves clearing,
their continued existence is endangered; and displays will identify trade-offs between the snagging, and excavation of a portion of the
(7) areas which produce highly valuable environmental quality and economic channel side slope(s). Where practical,
crops of timber, fish, and wildlife. development objectives. Within this widening is performed on one side only with
High flows in rivers and streams and framework and in compliance with the appropriate consideration given to
periodic overflow have significant value in requirements of the National Environmental alternating from one side to the other.
creating and maintaining meandering Policy Act (NEPA): equal consideration will 5. Deepening-The overall deepening of a
channels and in cleansing and redistributing be given to environmental and economic and channel to increase its capacity to convey
substrates. This action by water provides technical aspects in the decisionmaking water and/or provide drainage. Deepening
riffles, pools, or other habitat for fish process. usually involves clearing or snagging and
spawning and rearing and production of In compliance with the mandates of NEPA excavation of a portion of the channel bottom
aquatic invertebrates. It also provides diverse and the Water Resources Council's Principles and the channel side slope(s).
plant successional areas and other types of and Standards, the FWS will assist the SCS 6. Realignment-The construction of a new
shoreline habitat that fulfill fish and wildlife develop, evaluate, and recommend channel or a new alignment and may involve
food and cover requirements. However, it is alternatives. if any, to channel modification the clearing, snagging, widening, and/or
also recognized that many areas adjacent to when it is expected to cause, directly or deepening of the existing channel where the
streams and wetlands are well-suited for and indirectly, measurable losses of fish and new alignment coincides with the existing
have a long history of agricultural and urban wildlife resources. Channel modifications channel. it may include straightening the
uses. will not be considered if a practical alignment to restore or increase the capacity
Channel modification. used in 9 sensitive alternative exists. A practical alternative is of the channel to convey water.
manner, is one method that can be utilized in one which meets all of the following tests: (1) 7. Lining-Placement of a nonvegetative
solving specific water management problems. is consistent with the Water Resources protective lining over all or part of the
It may be needed to restore a water course Council's Principles and Standards; (2) makes perimeter of a channel to prevent erosion or

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Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Proposed Rules 29333

to increase the capacity of the channel to species similarly classified under law of the secondary drainage predicted to occur as a
convey or conserve water. State(s) in which the project is located. result of. or be facilitated by, channel
C. Channel Modification as an Alternative. 2. Result in restricted access to use of modification, (Measuremerit of habitat values
The following criteria will be utilized in the streams or stream segments developed will be determined on a case-by-case basis in
planning process for determining when specifically for recreation or fish and wildlife accordance with habitat evaluation
channel modification can be considered an use by the general public. procedures to be promulgated by FWS and
alternative, It used, channel modification will 3. The intent or purpose is to drain or developed jointly with SCS.)
be the minimum required, either alone or in otherwise alter wetland types 3 through 20,** IV. Coordination and Interaction
combination with other measures. It will be or the result of the modification would be to
accomplished using the least damaging indirectly alter wetlands types 3 through 20 The FWS and the SCS recognize that the
construction techniques and equipment in and provisions for appropriate mitigation or application of the above guidelines can most
order to retain as much of the existing compensation by establishment of similar effectively be accomplished through
characteristics of the channel and riparian habitat values in the project area are not cooperative effort during all planning phases
habitat as possible. Construction practices provided. Wetland types I and 2 with of a water resource project. The FMS and the
may include, but are not limited to, such important fish and wildlife habitat value, will SCS will work cooperatively with State fish
things as seasonal construction. minimum be treated in accordance with item 3 below, and wildlife agencies to inventory and assess
clearing, reshaping spoil, limiting excavation and their preservation will be strongly the fish and wildlife resources and to plan
to one bank (on alternating sides where recommended when they are adjacent to alternatives, enhancements, replacement, or
appropriate], and prompt revegetation of types 3 through 20 or are needed to maintain necessary mitigation measures.
disturbed areas. a balanced aquatic or sen-d-aquatic The level of effort to be devoted by FWS to
Channel modification may be considered ecosystem. each watershed project will be proportional
as an alternative for project purposes for Also, channel modification will not be to the value of the resources and expected
which the SCS is currently authorizied by law considered as an alternative unless it can be impact on fish and wildlife resources. If FWS
and which are in conformance with agency accomplished with little or no direct or determines at any stage of planning that it
(SCS) policy and regulations, provided the indirect adverse"" effect on: cannot, for any reason, participate, it will so
modification is designed to resolve specific i, Stream or stream segments now notify SCS in writing stating reasons for
problems and would not cause directly or designated or undergoing study under the discontinued participation. Even though FWS
indirectly any of the following to occur. Wild and Scenic Rivers Act or officially discontinues participation in planning, they
1. jeopardize the continued existence of will eventually, as prescribed by law, become
designated pursuant to other Federal or Involved with reviewing and commenting on
endangered species and threatened species State(s) legislative actions for their important U1
designated or formally proposed I by the natural, esthetic, or recreational values. the watershed plan. In such instances, FWS
ofsuch will not oppose the project plan on the basis
destruction or modification of habitat 2. Streams located in or flowing through or of channel modifications unless it is clearly
species which Is determined to be critical contiguous to established wilderness areas, evident that the plan is not in conformance
under the Endangered Species Act of 1973 or parks, refuges, or other areas set aside with the 'provisions of these guidelines after
pursuant to Federal or State(s) legislative consultation with SCS determining this to be
Applicable only during a 6-month period actions for fish and wildlife esthetic or the case.
Immediately following the date a proposal is recreational values. The following procedures will be used in
published in the Federal Register by FWS in 3. Important fish and wildlife habitat the planning of water resource projects. The
compliance with the Endangered Species values,. including riparian habitat, in the coordination identified is between the held
Conservation Act of 1973. . . project impact area, State, or Nation after levels of FWS and SCS; however, both
* *Wetland types as described in FWS Circular providing for all appropriate mitigation. agencies recognize that planning will always
#39 or subsequent publications. ing these compensation, or preservation measures. in valve State fish and wildlife agencies as
gu ... Rule of reason must be used in apply Conservation easements or other comparable well as the interested public and sponsoring
Idelines and determining the actual not effects means will be utilized wherever necessary to agencies at all stages througout the planning
and their significance at the field level considering
the value of the resource and importance of the provide reasonable life of project protection process.
project objectives. for wetlands or riparian areas subject to
Coordination of Field Level Planning

Process SCS action FWS action

Preapplication ..... . ............................................................. . .......... Potential application under oonsideratiom Notifies Participate in meetings.
FWS that potential application is being considered
and issued Invitation to meetings..
Assists sponsors in developing information when ap- Furnishes available Information and FWS viewpoint concerning potentials for
propriate. (Normally requires from one to several and impacts of a probable projecIL If requested, participates jointly with
days.) Request from FWS available fish and wddlite SCS and State fish and wildlife agency studies needed and reports find-
Information and viewpoints concerning potentials Ings as may be required. (Field level letter.)
for and impacts of a probable project.
Application . . . . . . . ... .... ... .............. . ........ .............. .................. Receives application. Notifies FWS in writing that WParticipates in meetings.
pfication has bow received and when field exami-
nation is to begin. Issues Invitation to FWS to par-
Wpate in all meetings and in study and evaluation
of available Information. (Field examination may re-
quire a low days to severalweeks.).
Initiates field examination and assembles available in- Participates in field exarnination. Assembles and fumishes available fth and
formation. coordinates study and evaluation of wildlife information and data. Participates in a" and evaltistion of availa-
available information and data. Begins environffw@- ble, information and data and in identification of problems and study needs
tal assessment. and potential solutions worthy of further study.
Identifies problems and needs. potential solutions, Works cooperatively with SCS and State fish and wildlife agency in any ape-
and broad alternatives worthy of further study. Re. ciai sUidies required and in preparing an appropriate report.
quest FWS to work cooperatively with SCS and
State fish and wildlife agency in any spacial studies
required in this step. .
Prepares field examination report (includes pertinent Provides inputs Oetter report) for the field examination report.
fish and wildlife information from FWS) and pro.
vides copy to FWS-
Requests FWS to participate in develci@ a plan of Perfidp4tes with SCS In developing a plan of 9". FWS will advise as to
9". Prepares the study plain. . p a end detail of specific studies needed, capability of FWS to perform
"mm and its desire to participate in design of any contracts to secure
necessary information.
Requests planning sultionty (submits views of FWS
with request for piaming authorization).

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29334 Federal Register / Vol. 44, No. 98 / Friday, May 18, 1979 / Propose d Rules

Coordination of Field Level Planning h-Continued

Process SCS action FWS action

Planning ........... ..................................... . . .. . .................. .......... Receives notice of planning authorization, Notifies Participates in meetings and preparation of joint FWS-State fish and wildlife
FWS In writing. Initiates and coordinates Prelimi. agency-SCS fish and wildlife inventory. assessment. base line data. and
nary Investigation (PQ and continues environmental report
assessment. Notifies FWS in writing. (PI may M
quire from several weeks to 2 yeam).
SCS initiates preparation of PI report and update of Furnishes additional inputs to problems, needs, alternatives and impacts as
the study plan, Requests FWS participatim In PI the PI process progresses and Ontly makes recommendations for mitiga,
and update of plan of study. tion, compensation. and enhairicerneriL Furnishes in" for the PI report
and updating of sb* plan.
Sends PI report to FWS and others ......... .................. ... Participates with SCS to review the PI report with the public.
Detailed Planning ...................................................................... . .... Coordinates the detailed planning stage and continti. Participates with SCS and otliers in detaik.,J planning of alternatives and the
ation of the environmental assessment Notifies components. Works cooperatively with State fish " wildlife agency and-4
FWS that detailed planning is to commence and SCS to formulate the alternatives and to assess fish and wildlife Impacts.
issues invitattion to participate in detailed planning Works cooperatively with SCS and State In preparation of MMMfMrKl&-
and in meetings. tionts for mitigatim compensation, and enhanc for Initial draft plan
and, when prepared. an EIS, Participates in meetings. Provides detailed
report in accordance with Fish and Wildlife Coordination Act arid Section
12 of P.L 83-666.
Prepares initial draft plan and, when required, an EIS. Provides review comments on Initial draft and participates in local field
Initiates local field review and Issues an invitation review.
to FWS to participate in tta review. Provides FWS
with initial draft plan and an EIS. if prepared
Review (Formal) . .. . ........... . ... ........ .. Prepares a draft plan and EIS, if required, and circu- Provides comments to Interior and waft with SCS in an attempt to resolve
Islas for Interagency review. Issues, if warranted.
SCS prepares final plan and EIS. It required. For- Review plan and EIS according to FWS arA Interior Wistructions.
wards Plan and EIS through system for approval
and authorization.
operations ..... ............ . ....... .. . ......... ............................... ..... ...... Receives notice at authorization for insuillatio. Noti- Reviews Pertinent co---I*- Plans-
fies FWS. (Regional arid - Offices-) Prepares
construction plans and invites FWS to review thOnk modification
14 ift, dwnd modifi. Participates in formulating supplemental plan when the channel
ofifes FwS of supplement when nt as in planning and provides
cation guidelines are applicable- (See pap 2.) Pre. guidelines are applicable. Same Involveme,
pares supplemental plans when nwAsmy and cir- Inputs for supplemental plan. Also p-vKlft comments on suPPIGffwntW
culates for local field review. 'plan when cvculated for local field review.
Forwards supplemental Plan for aPPrOvsI- PrOvidell
FWS copy of supplemental Plam
and wildlife agency of Participates in maintenance inspections at FWS discretion. if appropriate,
Maintenance ......................... ..... . ........... ............ .. ........... .. ..... Advises, FWS and State fish for changes in O&M agreement if necessary to
scheduled maintenance inspectionis 01" it" life makes recomMisride""
of the projecL ensure that proper maintenance is accomplished.
%All steps apply to planning for small watershed pirpiects. Appropriate steps win be, followed for P.L 76-534 and Resource Conservation and Development measures planning.
140TES.-i. scs notifies FWS when planning is suspended. proiect action terminated. or other stop actions are taken,
2. The level of effort to be devoted by the FWS to each watersh4d project will be proportional to the value of the resources arid expected impact on fish and wildlife resources. It FWS
determines at any stage of planning that it cannot for any me-, participate, it "D so notify SCS In writing stating -a- for discontinued participatIOM
V. tLesolution ofIssues Assistant Secretary for Assistant Secretary for . values for all purposes including additional
Ceneral. it is recognized that issues may Conservation, Research Fish and Wildlife and land areas to assure full realization of
develop which cannot be resolved at the field and Education Parks optimum present and future outdoor
level. When issues 'arise, it will be the Secretary of Agriculture Secretary of the Interior recreational and fish and wildlife potentials
practice of the FWS and the SCS to refer such The decision on whether channel of each reservoir.
cases and issues to.the next higher modification will be part of a project plan 1. Lands for reservoir construction and
administrative level for resolution respective shall rest with the Secretary of Agriculture. If Operation. The fee title will be acquired to the
and
ultimately. if necessary, to the Secretaries of disagreement still exists at the Secretary's following:
level, the FWS views and recommendations a. Lands necessary for permanent
Agriculture and Interior. The Secretary of will be appended to the project plan. structures.
Agriculture will seek the advice and counsel At all levels in the decision process. the b. Lands below the maximum flowage line
of the Secretary of the Interior in reaching his desires and needs of the local sponsors, of the reservoir including lands below a
decision. Consultation between the two environmental groups, State and Federal selected freeboard where necessary to
agencies will, at each level. occur throughout agencies, and interested public will be taken safeguard against the effects of saturation,
the decision process. fully into account. wave action, and bank erosion and to permit
Procedure. 1. Most.of the problems in Dated: February 21, 1978. induced surcharge operation.
applying the guidelines will be identified at C. Lands needed to provide for publi c*
Lynn A. Greenwalt, access to the maximum flowage line as
the field planning level. When this occurs, the D! .rector, Fish and Wildlife Service. described in paragraph 1b, or for operation
SCS Planning Staff Leader will consult February 22,1978. and maintenance of the project.
directly with the FWS Field Supervisor
(Ecological Services) and attempt to resolve R. M. Davis, 2. Additional lands for correlative
purposes. The fee title will be acquired for
the issue. Administrator, Soil Conservation Service. the following:
2. Should the SCS Planning Staff Leader Water Project Planning and Analysis, Federal a. Such lands as are needed to meet
and the FWS Area of Field Supervisor be Interagency Agreements, 2.541c present and future requirements for fish and
unable to reach agreement, the issue should Joint Policy of the Departments of the wildlife as determined pursuant to the Fish
be referred and coordinated as follows: and Wildlife Coordination Act.
USDA in Consultation With VSDI In terior and of the Army Relati Ive to b. Such lands as are needed to meet
Reservoir Aroject Lands present and future public requirements for
State Conservationist, Regional Director and/or Acquisition of lands for reservoir projects. outdoor recreation, as may be authorized by
Scs Area Manager, FWS In so far as permitted by law. it is the policy Congress.
as appropriate of the Departments of the Interior and of the 3. Easements in lieu of fee title may be
Administrator, SCS Director, FWS Army to acquire, as a part of reservoir project taken only for lands that meet all of the
construction, adequate interest in lands following conditions:
necessary for the realization of optimum a. Lands lying above the storage pool.

C-40

Friday
January 23, 1981

Part III

Department of the
Interior

Fish and Wildlife Service

U.S. Fish and Wildlife Service Mitigation
Policy

[As corrected in the Federal Register of February 4,
1981]

C-41

7644 Federal Register / Vol. 46@ No. 15 / Friday, January 23, 1981 / Notices

DEPARTMENT OF THE INTERIOR and animal species are varied and (1) Recent legislative, executive and
complex. Each species requires a regulatory developments concerning the
Fish and Wildlife Service different set of environmental conditions environment which have led to a need to
for survival and vigorous growth. These update and expand the advice within
U.S. Fish and Wildlife Service conditions form the habitat of the the 1974 Service policy statement;
Mitigation Policy; Notice of Final Policy various species. The development and (2) Increasing Service review
AGENCY: U.S. Fish and Wildlife Service, use of natural resources leads to responsibilities which require issuance of
Department of the Interior. changes in environmental conditions comprehensive guidance on mitigation
ACTION: Notice of Final Policy. that can redefine habitat and thus to maintain the quality and consistency
change the mix and abundance of plant of Service mitigation recommendations;
SUMMARY: This Notice establishes final and animal species. (3) An explicit summary of Service
policy guidance for U.S. Fish and A given change in habitat might mitigation planning goals and policies to
Wildlife Service personnel involved in increase or decrease overall habitat be disclosed to developers and action
making recommendations to protect or productivity or result in gains or losses agencies to aid their earliest planning
conserve fish and wildlife resources. of species that are valuable to people or efforts; and
The policy is needed to: (1) ensure ecosystems. In some cases, habitat (4) Finally, the current national need
consistent and effective Service modifications can also increase the to accelerate development of energy
recommendations; (2) allow Federal and numbers of species considered resources which requires that early
private developers to anticipate Service undesirable, and create a nuisance to planning decisions be made that can
recommendations and plan for people or crowd out more valuable minimize conflict between important
mitigation needs early; and (3) reduce species. Therefore, development actions environmental values and energy
Service and developer conflicts as well can cause habitat changes that are development.
as project delays. The intended effect of considered either beneficial or adverse For these reasons, it was determined
the policy is to protect and conserve the depending on the intended wildlife to be necessary to fully outline the
most important and valuable fish and management objectives. overall mitigation policy of the U.S. Fish
wildlife resources while facilitating When professional biologists and Wildlife Service. The final Service
balanced development of the Nation's determine that a given development policy statement integrates and outlines
natural resources. action will cause a change that is the major aspects of current Service
EFFECTIVE DATE: January 23, 1981. considered adverse, it is appropriate to . gation efforts. Intended as an
consider ways to avoid or minimize and m1t' I
ADDRESS: Comments submitted on the compensate for such adverse change or overview document, its guidance is
proposed policy may be inspected in loss of public resources. This is based on an analysis of current Service
Room 738,1375 K Street, N.W., commonly referred to as mitigation. field recommendations and on the
Washington, D.C. 20005, between 9 a.m. ..Fish and wildlife resources are public guidance contained in recent Service
and 3 p.m. on business days. in nature. The Service has provided management documents.
FOR FURTHER INFORMATION CONTACIr Federal leadership for over 40 years to This policy conditions only the
John Christian, Policy Group Leader- actions of Service employees involved
protect and conserve fish and wildlife
Environment, U.S. Fish and Wildlife and their habitat for the benefit of the in providing mitigation
Service, Department of the Interior recommendations. It does not dictate
@:@151. people of the United States. Under its
Washington, D.C. 20240, (202) 34 legal authorities, the Service conducts actions or positions that Federal action
SUPPLEMENTARY INFORMATION: fish and wildlife impact investigations agencies or individuals must accept.
and provides mitigation However, it is hoped that the policy will
BACKGROUND recommendations ondevelopment provide a common basis for mitigation
The development and use of the projects of all kinds. These efforts have decisionmaking and facilitate earlier
Natioii's natural resources continuesin been conducted through a full consideration of fish and wildlife values
an effort to provide people with their partnership with State agencies in project planning activities.
basic needs and to improve their lives. responsible for fish and wildlife Finally, it should be stressed that this
Fish and wildlife and the intricate fabric resources, and since 1970, with the Service policy outlines mitigation needs
of natural resources upon which they National Marine Fisheries Service of the for fish and wildlife, their habitat and
depend provide benefits to people in U.S. Department of Commerce. The uses thereof. Others interested in
many ways. Fishing, hunting, and bird recommendations of the Service are mitigation of project impacts on other
watching are basic benefits that come to considered by the Federal development aspects of the environment such as
mind immediately. These activities -and regulatory agencies for their human health or heritage conservation
involve the direct use of these adoption as permitted by law. may find the Service policy does not
renewable "natural resources." Perhaps Over the years, the Service has fully cover their needs. There was no
a greater benefit, although more difficult reviewed innumerable project and intent to develop a mitigation policy that
for some to understand, is the program plans with the potential to covers all possible public impacts
maintenance of the structure and adversely affect fish and wildlife except those stated. However, the
function of the ecosystem that comprises resources. The mitigation recommended Service strongly believes that
all living species, including people. The in recent years by Service personnel to preservation and conservation of
presence of diverse, healthy fish and prevent or ameliorate adverse impacts natural resources is a necessary
wildlife populations generally signals a has been governed primarily by a broad prerequisite to human existence.
healthy ecosystem which contains those policy statement on mitigation
elements necessary for human survival, promulgated in 1974 and by specif .ic DISCUSSION
including unpolluted air and productive guidelines issued as needed. Recent The following items are included to
land. events have prompted the Service to provide a better understanding of the
That fabric of natural resources called make known its mitigation objectives policy's relationship to other guidance
habitat is the supply for fish and wildlife and policies. Specific management and to improve the understanding of its
renewal. The life requirements for plant needs include: technical basis.

C-42

Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices 7645

1. Relationship of Service Mitigation proposed action (40 CFR Part 1502.14). resource may be cut off by the project
Policy to Other Service Planning The NEPA regulations later specify that and significant recreational or
Activities. Service impact analyses and mitigation commercial benefits may be lost.
The final policy is designed to stand recommendations shall be used as input In those cases where mitigation of
on its own. However, for a clearer to preparation of draft environmental habitat value is not deemed adequate
perspective of the relationship of the impact statements (DEIS) as follows: for losses of fish and wildlife
policy to the goals and objectives of the "To the fullest extent possible, populations or human uses, the Service
U.S. Fish and Wildlife Service, it can be agencies shall prepare draft will seek to mitigate such losses in
read with the Service Management Plan environmental impact statements accordance with the general principles
and the Habitat Preservation Program concurrently with and integrated with and concepts presented in the policy.
Management Document. environmental impact analyses and However, in the majority of cases, the
The Service Management Plan related surveys and studies required by Service feels that mitigation of impacts
describes the overall direction of the the Fish and Wildlife Coordination Act on habitat values will assure a
Service and the interrelationships of the (16 U.S.C. 661 et seq.), the National continuous supply of fish and wildlife
four major categories, including Habitat Historic Preservation Act of 1966 (16 populations and human use
Preservation, Wildlife Resources, U.S.C. 470 et seq.), the Endangered opportunities.
Fishery Resources, and Federal Aid- Species Act of 1973 (16 U.S.C. 1531 et The Service has recently revised and
Endangered Species. seq.), and other environmental review updated its Habitat Evaluation
The Habitat Preservation Program laws and executive orders." (40 CFR Procedures (HEP). It can be used, where
1502.25(a)). appropriate, to determine mitigation
Management Document outlines what These provisions provide clear needs based on habitat value losses. In
the Service will do over a one- to five- direction that NEPA requirements are some cases, the project may not be
year period to ensure the conservation not duplicative of or substitute for deemed appropriate for applying the
and proper management of fish and mitigation recommendations developed methodology as in the case of activities
wildlife habitat. It provides guidance to under the Fish and Wildlife conducted on the high seas under the
Service personnel and other interested Coordination Act and other Service Outer Continental Shelf (OCS) leasing
parties on the goals, objectives, policies, authorities. In fact, the NEPA program. In such cases, the use of other
and strategies of the Habitat regulations require that Service methods to describe habitat value
Preservation Category of the U.S. Fish recommendations be fully integrated impacts is clearly acceptable, including
and Wildlife Service. It includes a into the NEPA process as vital the best professional judgment of
discussion of important resource information necessary to comply with Service biologists. Other limitations
problems that the Service believes NEPA. related to the use of HEP are outlined in
require priority attention. 3. Focus of the Policy on Habitat Value. the Ecological Services Manual (100
2. Relationship of the Mitigation Policy ESM 1). The HEP are available upon
to any future Fish and Wildlife The policy covers impacts to fish and request from the Chief, Division of
Coordination Act (FWCA) Regulations wildlife populations, their habitat and Ecological Services, U.S. Fish and
and the National Environmental Policy the human uses thereof. However, the Wildlife Service, Department of the
Act (42 U.S.C. 4321-4347) (NEPA). primary focus in terms of specific Interior, Washington,'D.C. 20240.
guidance is on the mitigation of losses of
The Service mitigation policy outlines habitat value. Population estimates are 4. Acre for Acre Loss Replacement Is
internal guidance for Service personnel considered by many to be unreliable Not Necessarily Recommended by the
for all investigations and indicators for evaluating fish and Policy.
recommendations for mitigation under wildlife impacts. Sampling errors, cyclic As explained above, the policy
relevant Service authorities, including fluctuations of populations and the lack focuses on habitat value. The habitat
the FWCA and NEPA. However, the of time series data all contribute to the value of an acre of habitat can vary
coverage of the policy is basically problem. Therefore, the Service feels considerably depending on the type of
different from that of any future FWCA that habitat value, by measuring vegetation and other physical, biological
regulations as was explained in the carrying capacity, is a much better basis or chemical features. Service
preamble to the proposed policy for determining mitigation requirements. recommendations, therefore, will be
(September 9, 1980) (45 FR 5948&-59494). However, the use of population based on the habitat value adversely
Any future FWCA regulations will information is not foreclosed by the impacted, as opposed to strictly acreage.
principally recommend procedures for policy. In fact, concern for population For example, loss of one acre of a
all affected agencies to ensure losses led to formulation of the "General specific type of wetland might result in
compliance with that Act before and Policy" section to ". . . seek to recommendations for replacement of
after they receive fish and wildlife mitigate all losses of fish, wildlife, less than one acre of a different type of
agency recommendations. In contrast, their habitat and uses thereof . . .- The wetland of greater habitat value. if the
the Service mitigation policy only Service agrees that mitigation of habitat value of the wetland available
applies to Service personnel and population losses is a necessary aspect for replacement was equal to that lost,
outlines mitigation planning goals and of this policy, for example, when habitat then recommendations could be on an
policies for impact analyses and value is not affected but migration acre-for-acre basis.
recommendations. routes are blocked off as in the case of
The relationship of the mitigation dam construction on a salmon river. 5. Rationale for Mitigation Planning
policy to NEPA requirements is also a Mitigation of human use losses of fish Goals.
complementary one. The regulations and wildlife resources is also a In developing this policy, it was
implementing NEPA (43 FR 55978-56007) necessary aspect of the policy. agreed that the fundamental principles
recognize "appropriate" mitigation However, if mitigation of habitat value guiding mitigation'are: 1) that avoidance
recommendations as an important occurs, then in the majority of cases, or compensation be recommended for
element of the rigorous analysis and losses of human use are also minimized. the most valued resources; and 2) that
display of alternatives including the But, in some cases, public access to the the degree of mitigation requested

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7646 Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 if Notices

correspond to the value and scarcity of risk was also supported by many or otherwise, as discussed in H 1502.16
the habitat at risk. Four Resource commentors. Numerous commentors and 1508.27.
Categories of decreasing importance also praised its scope, cohesiveness and This problem is particularly vexsome
were identified, with mitigation planning clarity, and stressed that it should when those impacts depend on future
goals of decreasing stringency provide valuable guidance for contingencies and can be more
developed for these categories. Table 1 Government personnel providing appropriately analyzed when those
summarizes all categories and their technical and project planning contingencies occur. Even � 1502.4,
goals. assistance. which discussed EIS's in terms of broad
Table 1: Resource Categories and Detailed responses to significant agency actions, does so in the context of
comments follow: specific impacts caused by the action. In
Mitigation Planning Goals GENERAL COMMENTS ON THE the opinion of the Service, it has fully
Resource Designation mitigation planning PROPOSED SERVICE MMGATION complied with the letter and spirit of
category criteria goal NEPA and its regulations.
POLICY Comment: One commentor felt that
1 High value for evaluation No loss of existing Comment. Although the Service the preamble statement that an EIS
species and unique and habitat value. prepared an Environmental Assessment
irreplaceable. would be premature at this time
2 High value for evaluation No net loss of in- and, from its findings, concluded that contradicted a finding of no significant
species and scarce or kind habitat policy issuance did not constitute a
becoming scarce. value. major Federal action which would impact.
3 High to medium value for No not lose of Response: The Service sees no
evaluation species and habitat value significantly affect the quality of the contradiction with a finding of no
abundant. while mirilmizing human environment within the meaning significant impact and the statement
loss of irkind
habitat value. of Section 102(2)(C) of the National that an EIS is premature. The finding of
4 Medium to low value for Minimize loss of Environmental Policy Act (NEPA), a few no significant impact derives from an
evaluation species. habitat value. commentors disagreed with the analysis showing that the policy has no
Service's conclusion that an significant impacts amenable to analysis
POLICY HISTORY Environmental Impact Statement (EIS) at the present time. However, when in
The policy statement integrates and was not necessary for the proposed the future the Service does apply the
outlines the major aspects of current action. policy in developing mitigation
Service mitigation efforts. Intended as Response: During policy development, recommendations for a major Federal
an overview document, its guidance is the Service took action to determine if action which might significantly affect
based on an analysis of over 350 Service preparation of an environmental impact the quality of the human environment,
field recommendations and on the statement under NEPA was required. then the environmental impacts
guidance contained in recent Service Although section 1508.18 of the Council associated with implementing those
management documents. The proposed on Environmental Quality's (CEQ) recommendations which are considered
policy was published in the Federal Regulations for implementing the justifiable by the development agency
Register on September 9, 1980 (45 FR procedural provisions of NEPA can be analyzed by that development
59486-59494). A correction notice which classified adoption of an official policy agency. The Service has no way of
corrected insignificant formatting and as a "Federal action," it remained predicting which of its recommendations
typographical errors was published on unclear as to whether this action was will be accepted by the developer;
September 19,1980 (45 FR 62564). A .,major," or whether it would therefore, analysis of impacts of
notice extending the comment period on "significantly" affect the quality of the accepted mitigation recommendations is
the proposed policy to November 10, human environment, since policy the responsibility of the developer.
1980, was published on October 8, 1980 implementation would not result in or Comment: One commentor was of the
(45 FR 66878). The final publication is substantially alter agency programs. As opinion that an EIS "should be prepared
based on full and thorough was stated in the preamble, this policy for the Service's proposed mitigation
consideration of the public comments as is basically a distillation of approaches recommendations on each project."
discussed below. and policy currently being practiced by Moreover. the commentor felt that a
RESPONSE TO COMMENTS Service field personnel in providing significant portion of these EIS's should
mitigation recommendations. be devoted to analysis of economic
Over 90 sets of comments were In order to resolve this uncertainty, an impacts.
received on the proposed policy. All Environmental Assessment was Response: Mitigation
comments were thoroughly analyzed prepared for the proposed and final recommendations and actions cannot be
and cataloged and considered. Many policy. By doing so, the Service has meaningfully analyzed except in the
commentors expressed agreement with complied with one of the major purposes context of the development action
Service publication of the policy, of the NEPA regulations, which is to initiating them. And, since an EIS would
sensing a more consistent and have NEPA applied early in the be required for any major Federal action
predictable Service approach to decisionmaking process. which would significantly affect the
mitigation recommendations and a The NEPA regulations do not, in the quality of the human environment and
resultant decrease in the degree of opinion of the Service, require that the whose alternatives would include
conflict with developers. Many felt the agency speculate on future, possible consideration of mitigation, a separate
policy represented a rational approach events without any relation to actual, EIS would not be necessary for
to fish and wildlife resource existing impacts of an action. Section mitigation actions.
management, and that it would provide 1502.2 of the NEPA regulations directs Under the FWCA, the action agency
for adequate protection and that an EIS is to be analytical, however, which makes the ultimate decision is to
conservation of the Nation's fish and the Service action simply does not include all "justifiable mitigation means
wildlife resources. The underlying create any impacts capable of such and measures" in project formulation.
concept that the degree of mitigation analysis. Thus, there is no reasonable or The burden of analyzing the economic
requested should correspond to the scientific way for the Service to analyze impacts of "justifiable" mitigation
importance and scarcity of the habitat at any environmental impacts, significant measures therefore rests primarily with

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Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices 7647

the project sponsor, who will likely use requirements on Federal development required standard. Changes have been
the Water Resources Council's agencies falling under that Act's made to reflect this.
Principles and Standards to assist in the authority to (1) consult with the Service, Comment: No mention is made -of the
analysis. National Marine Fisheries Service State role in mitigation planning to
Comment: The substantive (NMFS) and State agencies responsible assure a compatible approach. The
requirements of-the Service mitigation for fish and wildlife resources; (2) States' authorities and decisionmaking
policy should be consistent with the incorporate such reports and prerogatives with respect to fish and
requirements of the National recommendations in one overall project wildlife resources should be denoted
Environmental Policy Act's report; (3) provide "full consideration" and the States' roles in mitigation
implementing regulations and the Water of the "reports and recommendations;" should be emphasized further.
Resources Council's Principles and (4) include in the project plan "such Response: A compatible approach is
Standards. justifiable means and measures for desirable. We have included appropriate
Response: We agree. The proposed wildlife purposes as the reporting changes. However, the policy is solely
and final policy have been developed agency finds should be adopted to for Service personnel. There is no intent
cons.istent with the substantive and obtain overall maximum project to infringe on the States' prerogatives.
procedural requirements of these benefits;" and (5) other requirements Comment: The policy should require
regulations. related to funding and land acquisition. full public disclosure of Service
Comment. The Environmental The clear intent of Congress was that mitigation analyses, determinations, and
Assessment identifies as one of the recommendations developed by the U.S. recornmendations.
advantages of the proposed mitigation Fish and Wildlife Service, NMF$, and Response. We agree that full
policy the establishment of " * * * State agencies responsible for fish and disclosure of Service analyses,
minimum performance standards for wildlife resources be taken seriously, determinations and recommendations
FWS recommendations (which) would and we know of no law which prohibits during the mitigation process would
serve as benchmarks by which the FWS the Service from taking a position for or serve the public interest. All public
and developers or action agencies against a project when making documents associated with Service
could assess individual Service mitigation recommendations. recommendations for mitigation on
mitigation proposals." However, neither specific land and water developments
the Federal Register notice nor the Comment: The policy will adversely are available for review in Ecological
Environmental Assessment identify or impact developmental interests. Services field offices. No change in the
discuss these "benchmarks." ' Re.sponse. The goal of the policy is to policy is necessary.
Response: The term "benchmarks" provide for equal consideration of fish Comment: The Service should
referred to the mitigation goals and and wildlife conservation while specifically address the acid rain
planning procedures. Both the pro ose .d facilitating development. problem in its policy. In particular, the
p Congress has clearly stated that
policy preamble and its Environmental 11 policy should address the impact of
Assessment discussed these guidelines, wildlife conservation shall receive ted Federal policies and programs that
explaining their derivation and equal consideration and be coordina support power plant conversions to coal.
importance to policy purposes. with other features of water-resource Response: The Service currently
However, a point of clarification is development programs" (Pub. L. 85-624, reviews such Federal actions under
needed regarding these guidelines. I ,t is Fish and Wildlife Coordination Act). NEPA, since these policies and
the recommendations made by Service This advice is further amplified in programs are likely to require an EIS.
personnel that would be measured Senate Report 1981 on the FWCA (84th Because acid rain has been highlighted
against these standards, not the Congress, 2nd Session (1958)). The as an Important Resource Problem (IRP)
mitigation implemented by an action Congress recognized that in some by the Service, environmental analyses
agency. The final policy makes this instances, the level of dollar benefits to which do not adequately address acid
point explicit. some purposes might have to be rain problems will receive particular
Comment. Many commentors argued diminished "in some slight degree" in attention by Service reviewers. Our
that the proposed policy goes beyond order to accomplish the fish and wildlife comments will be technically reinforced
that authorized by law. Specific concern conservation objectives of the Act. by Service research already being
was expressed over the use of words However, policy issuance should conducted in this area. Since the policy
that were mandatory in tone (e.g., benefit developmental interests. By already covers this issue, no change is
.'require" and "must") as opposed to providing developers with a clear necessary.
advisory. In addition, some commented picture of Service mitigation concerns Comment: Could the mitigation policy
that the Service has no authority to * and priorities, the policy will allow call for a recommendation as extreme as
support or oppose projects as stated in developers to anticipate Service reflooding of the Mississippi River
the po4cy. mitigation recommendations prior to Valley?
Response: The Service agrees that the final decisions on project design and Response, The mitigation policy
legal authorities for the mitigation policy location. By reducing a developer's would not lead to so extreme a
do not authorize the Service to exercise planning uncertainties, the policy will recommendation because it does not
veto power over land and water result in lowered project costs and apply to development actions completed
development activities. That fewer project delays and conflicts. prior to enactment of Service authorities
understanding was implicit in the Comment. Does the policy present or exempted.by those authorities. In
proposed policy. Appropriate changes general guidance or minimum required those situations where the policy does
have been made in the policy to more standards? The Service appears to be apply, there will be no recommendations
explicitly recognize and signify the trying to establish required standards. for mitigation over and above the level
advisory nature of the Service Response. The final policy sets out of impacts associated with a project.
responsibility. mitigation goals and planning guidance This policy acts to minimize impacts of
However, it should be clearly noted to guide the development of Service projects, not reverse them.
that the Fish and Wildlife Coordination mitigation recommendations. It does not Comment: Which agency enforces this
Act places clear mandatory require absolute strict adherence to a policy and what power does it have?

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7648 Federal Register / Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

Response: This is a policy that applies authorities, new mitigation computed for enhancement activities,
only to Service personnel. It does not recommendations may be necessary. and the inclusion of habitat
predetermine the actions of other Not infrequently, permit or license enhancement factors would provide for
Federal agencies, nor the actions of holders use the renewal process as a a more accurate estimate of the project's
State agencies or developers. Although convenient occasion to seek changes in impact on the environment.
the policy statement is. not judicially their permits. Amy changes in permit or Response: Use of the term "habitat
enforceable, the Service will administer license holders' activities have to be enhancement" to describe development
the policy by monitoring the mitigation evaluated to determine whether or not or improvement efforts is confused by
recommendations made by its own they necessitate new mitigation this comment. The mitigation policy
personnel. recommendations. does not cover enhancement as we have
Comment: Too often land acquired for This policy, therefore, will be used by described it. However, where habitat
mitigation does not provide the the Service in permit or license renewal improvement or development caused by
spectrum of resource values previously proceedings, keeping in mind that a project will result in habitat value
available because the managing Service recommendations are advisory increases, it may be considered as
agency's philosophy prevents it from to action agencies. Appropriate c nges . . .
managing the land for a mix of goals. were made in the policy to reflect is mitigation when consistent with the
Response: Lands acquired for position. resource category designation criteria
mitigation purposes must provide the Comment. Does this policy apply to and the appropriate mitigation planning
specific mitigation benefits for which man-induced wetlands? goal.
they were intended. Secondary land Response: Where the Service has the Comment. There should be a clear
uses, such as provision of timber, oil and authority and responsibility to statement that all opportunities for
gas exploration, or recreational benefits, recommend mitigation for these enhancement of fish and wildlife
should be attempted where these uses habitats, the tenets of the policy shall resources be thoroughly considered and
are compatible with the mitigation apply. included in project plans to the extent
lands' primary purpose. This concept Comment. There is a need for a feasible.
has been added to the policy. mechanism for evaluating enhancement Response: We agree. Appropriate
and a means to differentiate it from changes were made.
SPECIFIC COMMENTS ON THE mitigation.
MITIGATION POLICY Response: Although enhancement is IV. Definition of Mitigation
(These comments are keyed to an important concern of the Service, the Comment., Some commentors
sections of the proposed policy.) Service mitigation policy should not indicated concern over the definition of
I. Purpose serve as the primary vehicle for mitigation as used in the policy. Specific
Comment. Why is this policy discussing enhancement. The final concern was expressed that those
apparently unconcerned with flora? policy does differentiate between aspects of project planning that include
Response. Mitigating for fish and enhancement and mitigation avoidance or actions to minimize
wildlife losses necessarily means dealin recommendations by defining impacts should be considered good
9 enhancement to include measures which project planning and that mitigation
with the plant communities on which all would improve fish and wildlife should be confined solely to actions to
animal life indirectly depends. When resources beyond that which would compensate for resource losses.
habitat is preserved, it is the plant exist without the project and which Response: The Service agrees that
communities that are the vast bulk of cannot be used to satisfy the avoidance or actions to minimize
the living material of that habitat. appropriate mitigation planning goal. As impacts should be part of the early
Plants per se are addressed by other for evaluating enhancement, it would
authorities of the Service which are not appear likely that many of the design of projects and not just an
within the scope of this policy, such as procedures that can be used to evaluate afterthought. Some consider mitigation
the Endangered Species Act and mitigation can be used to evaluate to be a separate and distinct process
associated regulations. enhancement. that occurs after project planning has
H. Authority Comment. What is the basis for the been completed. The legally binding
No significant comments. policy position that enhancement cannot definition of mitigation as used in the
occur until all losses are compensated? regulations to implement the National
III. Scope There is no legislative history for this. Environmental Policy Act (NEPA) can
Comment. How does the policy affect Response: Unfortunately, the term have the effect of altering this notion
projects already completed or under "enhancement" suffers from wide through incorporation of all those
construction? differences in semantic usage. The actions that can lessen project impacts
Response. Appropriate changes in the proposed policy used the term to be throughout the planning process.
Scope section have been made to clarify synonymous with improvements beyond The policy has been modified to more
policy coverage with regard to the achievement of full mitigation. This clearly state that the Service supports
completed projects or projects under strict interpretation appeared to spark and encourages incorporation of
construction. controversy. features that will reduce adverse
Comment: Since Federal permit The final policy incorporates a impacts on fish and wildlife resources
renewals will result in no new effects on different usage of the term. as part of early planning and project
the environment, they should be exempt Enhancement is used to describe design in order to avoid delays or
from the policy. measures not necessary to accomplish conflicts. But without the emphasis on
Response: The permit or license mitigation purposes. avoidance and minimization provided
renewal process provides an Comment. The policy should credit by the NEPA regulations' definition,
opportunity to re-evaluate the project. towards mitigation goals those habitat there would be little incentive for
Depending on new scientific information value increases associated with areas of development agencies to incorporate
concerning impacts. the adequacy of the habitat which are enhanced by the such features. The Service, therefore,
past developer mitigation efforts, or new project. Habitat value should be supports and adopts that definition.

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V. Mitigation Policy of the U.S. Fish and see that any damage to those interests is Response; The Service fully supports
Wildlife Service prevented or mitigated. development of novel and imaginative
Comment.- A number of documents are The Service does and will attempt to approaches that mitigate losses of fish
referred to in the draft policy. They are fulfill its duties within its authorities and and wildlife, their habitat, and uses
essential to the functioning of the policy in a reasonable manner. It is certainly thereof, and has been in the forefront of
and should be-published as an appendix cognizant of the fact that pursuing any such development. No change is
and otherwise made available for public concept to its logical extreme may lead necessary.
comment, including public hearings. to unreasonableness, and will continue Comment: An Indian tribe strongly
Response: The preamble to the to strive to prevent this from happening supports the Department of the Interior's
proposed policy clearly indicated that in its mitigation activities. recognition of the role of Indian tribal
the policy was designed to stand on its Comment: What does "equal governments in mitigation planning.
own. The referenced documents are not consideration" of wildlife conservation Response: Our national heritage and,
essential to the functioning of the policy. mean within the context of the Fish and in some cases, the livelihood of Indian
For instance, even though Service field Wildlife Coordination Act and this tribes, can be directly linked with the
personnel will rely basically on the mitigation policy? conservation and use of fish and wildlifE
Habitat Evaluation Procedures in Response: "Equal consideration" was resources. Therefore, the U.S. Fish and
conducting project analyses, the policy not defined in the Act or this policy, and Wildlife Service will continue to
indicates that other methods can be has no particular meaning in the context recognize and support Indian tribal
used where appropriate and available. of this policy. This policy only covers governments' efforts to mitigate impacts
The concept of habitat value has been Service recommendations, not action on these resources.
recognized throughout the history of fish agency requirements. B. U.S. Fish and Wildlife Service Mitigation
and wildlife management. It is not new. Comment: The proposed Service Goals by Resource Category
Regardless of the fact that the policy policy now absolutely precludes support Comment., The mitigation goals for the
stands on its own, the referenced for non-water dependent projects within resource categories were characterized
documents have undergone varying or affecting waters of the United States. as: reasonable, too strict, or not strict
This should be modified to conform to
degrees of public scrutiny independent the requirements of Federal regulatory enough.
of the mitigation policy. For instance, a agencies such as the Army Corps of Response. As was explained in the
notice of availability and request for Engineers (COE) and the Environmental preamble to the draft policy, the
public comment was published in the Protection Agency (EPA). resource categories and their mitigation
Federal Register for the Service Response: The Service policy clearly, goals were abstracted from an analysis
Management Plan and Program does not exercise veto power over of actual field recommendations. The
Management Document on September development actions. Moreover, the designation criteria for the resource
29, 1980 (45 FR 64271-.64272). A habitat- Service will execute its responsibilities categories (replaceability, scarcity, and
based evaluation methodology has been fully within the context of existing laws value for evaluation species) are the
under active development in the Service and regulations governing basic decision factors used by Service
since 1973. The first document officially environmental reviews. However, the personnel to assess relative mitigation
called the Habitat Evaluation Service feels that wetlands and shallow needs. The mitigation goals represent
Procedures was published in 1976 with water habitats should not be subjected reasonable mitigation expectations for
the most recent revision in 1980. During to needless development because of the projects, viewed in the light of our two-
this 7 year period, the Nation's top public values of these areas. The Service faceted goal-(I) to conserve, protect
wildlife biologists have been consulted, 'policy statement does not include water and enhance fish and wildlife and their
both within the government and outside, dependency as the "sole" criterion for its habitats, and (2) to facilitate balanced
The procedures have been presented at recommendations. Other factors, . development of our Nation's natural
numerous public conferences and have including the likelihood of a significant resources.
been the subject of intense scrutiny. loss, are considered prior to a Service Numerous comments were received
Finally, the referenced documents recommendation for support of a project commending us an the balanced
were made available to reviewers. Over or the "no r ect" alternative. approach embodied in this policy. Since
75 requests were made and immediately The provfsioojns of the policy have its tenets derive from field
filled to allow commentors the full been modified to make such recommendations and comments, the
benefit of this information in preparing recommendations discretionary. credit belongs entirely to our field staff.
comments, including the group providing Comment. Congress, not the Service, Some commentors criticized the
this comment. Minor changes were is the entity that has the authority to mitigation goals. One group felt that one
made in the policy to more clearly require and fund compensation for or several of the mitigation goals were
indicate that the policy can stand on its Federal projects. too strict. These commentors objected to
own. Response: We agree. The policy has what they considered to be
A. General Principles been modified. unreasonably high goals for fish and
Comment: Mitigation should not be wildlife mitigation. In contrast to this
Comment: Pursued to its logical required for an indefinite period of time. first group, another set of commentors
conclusion, the concept of fish and Response: Mitigation is appropriate felt that the goals were not strict
wildlife as public trust resources could for the entire time period that habitat enough, and called attention to our
lead to serious restrictions on the use losses persist, which includes the life of legislative responsibility to seek
and management of private lands, the project and as long afterwards as protection for all fish and wildlife
Response: When the concept of the impacts of the project continue to resources.
personal property rights is exercised in exist. The policy reflects this position. Our response is that the mitigation
such a way as to jeopardize the interests Comment: Under "General goals represent the best professional
of the public in fish and wildlife Principles," the policy phould seek and judgment and cumulative experience of
resources on public or private lands, the endorse novel or imaginative Service field supervisors in developing
government may use its authorities to approaches to mitigation. mitigation proposals that would satisfy

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7650-,. Federal Register / Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

our legislative mandates, operate under the ecosystem perspective. This is a to mitigation planning, the authorities
time and money constraints, and assist difficult task. But human decisions underlying this policy deal with fish and
in maximizing overall social well-being. concerning fish and wildlife resources in wildlife and their habitat, rather than
The basic concept, therefore, is the face of a development action require ecosystems.
unchanged in the final policy, although judgment about the values of what will Ecosystems are addressed under this
minor changes were made to improve be lost and the need to avoid or policy in two ways. First, one criterion
understanding based on the comments. minimize and compensate for loss of in the selection of an evaluation species
Comment., Rather than rely on strict such values. is the biological importance of the
inflexible mitigation goals, the Service The specific criteria for such species to the functioning of its
should use "tradeoff" evaluation determinations are also exceedingly ecosystem. Secondly, when habitat loss
procedures in developing mitigation difficult to frame in a National policy is mitigated, the part of the ecosystem
proposals. context. The importance of a species to comprising that habitat is itself
Response: It is the responsibility of society depends on a complex, changing protected. No changes have been made.
the Federal action agency to use mix of factors. The importance of a Comment. Recreational use losses
tradeoff evaluation procedures species within an ecosystem is also may at times have to be directly
consistent with the Water Resources subject to many dynamic factors. But mitigated. The goal statements should
Council's Principles and Standards, human decisions about the level and reflect this need.
where applicable, to select a mitigation type of mitigation necessary for Response: We agree. Appropriate
alternative that will assist in maximizing development actions must be made in changes were made.
overall project benefits. The Fish and the absence of perfect information Comment.- In addition to assessing
Wildlife Coordination Act specifies that concerning these factors. In addition, the conditions of scarcity from a
"the project plan shall include such Service biologist reviewing project biogeographical viewpoint, i.e.,
justifiable means and measures for impacts has severe constraints on the ecoregions, the policy should also use
wildlife purposes as the reporting number of species and ecosystem geopolitical subdivisions, e.g., state
agency (emphasis added) finds should linkages that can be analyzed given boundaries.
be adopted to obtain maximum overall funding, personnel and time limitations. Response. As a Federal agency, the
project benefits." The role of the Service Somehow, choices must be made. Service perceives its major
is to represent those public trust We have deleted the term "important responsibility to be to protect those fish
resources under its jurisdiction. The species" from the policy and replaced it and wildlife and their habitat that are
proposed policy outlined a system with a more precise term, "evaluation valuable and scarce on a national level,
wherein the highest valued resources species." The criteria for selection of whether or not they transcend state
would be subject to the most protective evaluation species still includes those boundaries. However, should State
mitigation recommendations. Few, if species of high resource value to resource agencies wish to outline
any, commentors have disagreed with humans or that represent a broader relative scarcity on a more local basis,
this valuation perspective. Therefore, no ecological perspective of an area. Other Service personnel would certainly
changes were made. changes have been made related to the assist, whenever practicable. This point
However, many commentors have determination of resource categories to has been added to the policy.
questioned the reasonableness of a allow for additional public input and
seemingly uncompromising system that resource agency coordination into such Comment: The policy should scale the
did not appear to allow occasional determinations, where appropriate. relative need to achieve a particular
deviations from these goals. The effect of this change is not mitigation goal to the degree a particular
The system is not rigid. As stated in intended and shall not be interpreted to habitat will be impacted. For example, if
the Purpose section of the policy, the broaden the scope or extent of a half-acre of important habitat is
policy advice will be used as guidance application of this policy. But it does affected by a project and it is part of a
for Service personnel, but variations remove the implication that species can one-acre plot, this circumstance should
appropriate to individual circumstances be ranked against each other in terms of lead to a mitigation recommendation
are permitted. their overall importance to society, different from the situation where the
Comment: Numerous commentors which many considered quite beyond same half-acre is part of a ten thousand
raised the issue of the somewhat the capability of human beings. acre area. As drafted, the policy does
subjective nature of identifying certain Comment. The wording of the policy not reflect the differences in these
species as "important" for the purposes should clearly indicate that species situations.
of the policy. In addition, commentors selected for analysis should only be Response: The Purpose section of the
indicated that such distinctions could those demonstrated to actually utilize an policy states that it will be used as
lead to mis-classification of habitats in area. guidance for Service personnel, but
terms of resource categories and that Response. We agree, except for variations appropriate to individual
clear criteria were needed. Finally, situations where fish and wildlife circumstances will be permitted. The
many COmmentors felt that the artificial restoration or improvement plans have relative need to achieve a particular
distinction of certain species as been approved by State or Federal mitigation goal depends primarily on the
-important" was both a violation of the resource agencies. In that case the perceived value of the habitat, its
Ilublic trust and Service legal analysis will include species identified scarcity, and the replaceability of the
authonties. in such plans. Appropriate clarification threatened habitat. Other factors, such
Response: People perceive some has been added to the definition of as scaling considerations, can combine
cles to be more important than evaluation species. to modify this general Service
otheri. In the context of biology and Comment: The proper focus of the perspective on what constitutes
r-1100. all species are important. policy should be the ecosystem rather appropriate mitigation.
sem ins 4 useful purpose within the than particular species. Comment. The resource categories
carifines of their biological niche. The Response: Aside from the very real and mitigation goals are general, lack
mitigation policy must adilm-se both the technical problems of applying a definition, and provide no guidance on
needs and desires of human society and Complex concept such as the ecosystem habitat value. These categories are all

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subject to interpretation by the Service trucks, but it is good for crows and then improved to support the species
field personnel. buzzards that eat dead meat. affected by the project. It takes too long,
Response: It would be Response: The Service has not come and in the meantime, populations
counterproductive, if not impossible, for across many instances where crows and supported by the habitat on the project
a national policy to be worded as buzzards could be considered scarce, site are lost.
precisely as the commentor suggests and but when such a circumstance can be Response: If the period required for
still be implemented in a reasonable documented and verified, the Service improving the replacement habitat to the
manner under numerous and diverse will certainly try to protect and enhance appropriate condition was exceedingly
local circumstances. Words used to valuable highway habitat. long, this may be one indication that the
describe resource categories and Resource Category 1 habitat at risk was unique or
mitigation goals do have generally irreplaceable and actually belonged in
understood meanings. It is essential that Comment: A literal interpretation of Resource Category 1. In that case in-kind
field personnel be allowed to exercise the Resource Category 1 mitigation goal replacement through improvement of
professional judgment in applying would require absolutely no habitat lesser quality habitat would be an
resource categories and mitigation goals loss-not even a nature trail. Resource inappropriate mitigation
to specific activities. However, Category I should be deleted. recommendation. Also, additional
numerous clarifying changes were made Response. Not all environmental measures aimed at population
based on the comments to increase changes are adverse to'the habitat of a restoration could be recommended to
comprehension and understanding. fish and wildlife resource. If a nature restock the area, provided suitable
Comment: It is essenti@l to other trail resulted in an insignificant impact habitat was available to support the
agencies' review to know what general on habitat value that was determined stocked species. No changes were made.
types of habitat will be most important not to be adverse, then the Service Comment. One commenter was
in the U.S. Fish and Wildlife Service would not recommend against it. The
mitigation policy. At a minimum, some policy has been clarified to reflect this perturbed by an apparently rigid
examples of the types of habitat within point. insistence by the policy of in-kind
each category should be given. Comment: Endangered and threatened replacement of lost habitat. The
Response: The final policy does give species should be included as part of commentor pointed out that there could
guidance on areas that will be generally Resource Category 1. be occasions in which in-kind habitat
considered for Resource Category 1 or 2. Response: It would be inappropriate was not available to a project sponsor.
Providing examples for all resource to expand the scope of the Mitigation Response: The policy guideline for
categories could be misleading sinoe the Policy to include threatened and Resource Category 2 includes an
same type of habitat may fall into endangered species. The treatment of exception when " * * in-kind
several different resource categories, these species is addressed in an replacement is not physically or
depending on, among other factors, its extensive body of complex and detailed biologically attainable". No change was
relative scarcity and quality from one legislation and regulation. The Congress necessary.
locale to another across the nation. has legislated very specific and precise Comment: The policy appears to insist
On the other hand, field professionals law with regard to threatened and upon "acre-for-acre" replacement of in-
are generally familiar with the quality endangered species. Inclusion of these kind habitat.
and abundance of a given type of species under this policy would only Response: The policy does not insist
habitat that is in their area, so it is confuse the issue and compound the on "acre-for-acre" replacement of in-
preferable not to burden them with difficulties involved in implementation kind habitat. The mitigation planning
potentially inappropriate guidelines of of the Endangered Species Act and its goals involving in-kind replacement
this nature. associated regulations. Other reasons specifically ask for replacement of in-
Comment: The policy should clearly are discussed in the scope section of the kind habitat value. This point has been
distinguish between upland habitats and final policy. further clarified in the definitions
the more valuable wetland habitats. Comment: For all practical purposes section, throughout the policy, and in the
Response: In some cases, upland Resource Categories 1 and 2 adopt a "no policy preamble.
habitats may be determined to have growth" policy. *Resource Category 3
resource values equal to or greater than Response: The U.S. Fish and Wildlife
wetland habitats, so a policy that solely Service is not advocating a "no growth" Comment: The mitigation goal for
favored one habitat type over the other mitigation policy. The means and Resource Category 3 is not authorized
would not be in the best public interest. measures to achieve mitigation for by law and will be difficult to implement
However, the policy has been changed Resource Categories 1 and 2 are due to professional disagreement on
to indicate that certain habitats within designed to provide some flexibility so satisfactory achievement.
Service-identified Important Resource that limited growth can occur in an Response: Under the Fish and Wildlife
Problems (IRPs) and special aquatic environmentally prudent manner. The Coordination Act, the Service has the
sites should be given special policy reflects the national consensus responsibility to recommend
consideration as Resource Category 1 or that some habitats are of exceptional compensation for the loss of fish and
2. The IRPs contain a predominance of public value and should be carefully wildlife resources. The Act does not
wetland coastal areas. conserved, as evidenced in the Wild and restrict compensation to in-kind
Comment: If you build something in a Scenic Rivers Act (Pub. L. 90-542), the compensation. By recommending out-of-
habitat, it just changes it to another Wilderness Act (Pub. L. 88-577), and the kind compensation under certain
habitat that some other animal or fish National Trails System Act (Pub. L. 94- circumstances, the Service increases the
lives in-including the human being, 527). range of options that developers may
although the Service does not seem to Resource Category 2 use to mitigate project impacts to
appreciate that. For example, if you include development and improvement
build a highway, it is bad for dogs, Comment.- It is ill-advised to support of marginal resources different from
rabbits, opossums and field rats and in-kind replacement involving trading those lost. However, modifications have
such that get run over by cars and habitat for lesser value habitat which is been made in the policy to indicate that

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in-kind replacement is preferred for C. Mitigation Planning Procedures the life of a long-term operation is not
Resource Category 3. .1. Mitigation Goals possible.
Comment: The mitigation goal for Comment. Developers, Federal Response: The policy states that thd
Resource Category 3 should emphasize resource agencies, and the public should net biological impact of a specific
that in-kind habitat value replacement is participate with the Service and State project proposal is the difference in
preferable to out-of-kind replacement. agencies in making Resource Category predicted habitat value between the
Response: We ag'ree. This point has determinations and in developing future with the action and the future
been brought out in the final policy mitigation proposals. without the action. This is based on the
statement. procedures established by the Water
Response: Developers, as well as Resources Council's Principles and
Comment: Although out-of-kind other members of the public, may Standards. The future with the project
replacement is acceptable for Resource provide information that will assist the determination includes consideration of
Category 3 losses and, under certain Service in making Resource Category losses during the life of the project.
circumstances, may be accepted for determinations. This opportunity has Under the policy, if the disturbed habitat
Resource Category 2 losses, the policy been noted in the final policy statement. is of sufficient value for evaluation
should advise against replacement of Moreover, where these parties' inputs species to warrant a Resource Category
rare habitat types for more common will significantly aid in development of 2 or 3 level determination, the Service
habitat types. mitigation proposals that will will provide recommendations for "no
Response: We agree with the adequately satisfy mitigation planning net loss" over the life of the project. The
commentor's point and expect that goals, the Service will welcome their ability of the project sponsor to achieve
Service field personnel will recommend input. this goal depends on many factors that
mitigation alternatives that incorporate Comment: It is hoped that cannot be predicted in advance. In many
this concept, to the extent practicable. reclassification of habitats in Resource cases, it will be possible to achieve this
The Service is entirely in favor of Category 3 to Resource Categories 2 or I goal. No change was necessary.
preserving and/or promoting habitat can be readily employed if and when Comment. The with and without
diversity. No changes were necessary. certain habitats become more scarce. analyses should make allowances for
Resource Categories 4 and 5 Response: Resource Category human activities and natural species
determinations are made on the basis of successions which can reasonably be
Comment. Compensation should be conditions likely to occur without the expected to take place in the project
included as a means for satisfying the project. If those conditions later change, area.
mitigation goal for Resource Category 4. the Resource Category of a given habitat Response: We agree. Appropriate
Response: Appropriate language can be redetermined. changes have been made in this policy.
changes have been made to allow for However, once a mitigation plan in Comment.- Many commentors
such recommendations. connection with a given project has disagreed with the emphasis placed on
Comment: Habitats encompassed by been agreed upon, the U.S. Fish and the Habitat Evaluation Procedures
Resource Categories 4 and 5 are the only Wildlife Service will not provide new or (HEP) within the Service policy
areas wherein significant increases in additional recommendations except statement. Some commentors felt it
fish and wildlife can be realized through under limited circumstances as outlined should be de-emphasized, whereas
habitat improvement. Yet, the mitigation in the policy under the scope section. others felt it deserved further emphasis.
goals for these categories allow 2. Impact Assessment Methods Response: Although references to the
continual loss of these areas which more technical aspects of HEP have
possess great potential for Comment. The policy does not appear been deleted, the methodology itself
improvements in carrying capacity, to recognize that development activities remains one of the Service's more
may also show positive environmental important impact assessment tools. The
Response: The Service appreciates the effects. For example, cleared spaces policy does not recommend exclusive
significance of areas with relatively low beneath power lines can provide use of HEP, since time or resource
existing habitat values with respect to browsing areas for wildlife. Such contraints may, in some cases, show
their potential for carrying capacity positive effects should be factored into alternative methods to be more
improvements. In fact, the Service may the mitigation assessment process, practical. Where HEP habitat value
recommend improvement of these areas Response: We agree. This point has assessments do not fully capture
habitat values to mitigate for been included in the final policy important biological characteristics
unavoidable losses in Resource statement. The final policy further within a planning area, Service
Categories 2 and 3. In addition, where indicates that the Service and other personnel will use supplemental data,
these areas are included in a project, State and Federal resource agencies methodologies, and/or professional
planning area and are not appropriate shall make the determination of whether judgment to develop appropriate
for mitigation efforts, the Service will a biological change constitutes a mitigation proposals.
recommend that all opportunities for beneficial or adverse impact. However, Comment. What are the "other habitat
enhancement of these areas be when determining mitigation needs for a evaluation systems" alluded to in the
thoroughly considered and included in planning area, the Service will utilize policy's section on impact assessment
project plans, where practicable. these policy guidelines to determine methods? This reference is very vague.
We have amended the policy to whether these positive effects can be Response: Other systems can include
include the above guidance. applied towards mitigation. the Habitat Evaluation System (HES)
Comment: Resource Category 5 is Comment: The draft policy indicates developed by the Department of the
confusing and unnecessary. All habitat "no net loss" as a goal for certain Army, and the Instream Flow
has some value, no matter how low. it Resource Categories but it is unclear in Incremental Methodology (IFIM) of the
should be redefined or deleted. defining the time period allowed to U.S. Fish and Wildlife Service.
Response: We agree. This resource restore the land to its original value as Additional systems are referenced by
category has been deleted from the final in the case of strip mining operations. the Water Resources Council in a draft
policy. Maintenance of "no net loss" throughout document entitled, "Analysis of

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Wetland Evaluation Procedures" and transfer funds to the Service as strongly supported concurrent and
other publications. This information is may be necessary to conduct all or part proportionate funding.
not appropriate for inclusion into the of the investigations required to carry Response: The Water Resources-
policy so no change was made. out the purposes of * * * (Section 2 of Council's Principles and Standards
Comment: If other methodologies are the Act)." The Service uses these require " * * * at least concurrent and
found to be more appropriate for use transfer funds to conduct project- proportionate implementation with other
than the Instream Flow Incremental specific investigations. major project features, except where
Methodology (IFIM) for measuring flow Comment: Requiring field biologists to such concurrent and proportionate
impacts, they should be used. consider cost-effectiveness in providing mitigation is physically impossible".
Response: We agree. The final policy mitigation recommendations is beyond (emphasis added).
does state, however, that consideration their capability and may conflict with We agree with the Council, and
should be given to the use of the IFIM. the lead agencies' role as the determiner endorse expenditure of funds at an
Comment: Hopefully, this policy will of overall public interest. Habitat earlier stage of project planning when
stop the piecemeal destruction of protection should be a higher priority this will lead to more effective
valuable habitat, especially in areas like than cost-effectiveness. mitigation. Appropriate changes to the
the Florida Keys where insidious lot-by- Response: The proposed policy did policy on this matter have been made.
lot development continues in low not require a cost-effectiveness analysis Comment. Mitigation costs should
wetland sites with the concurrence of by Service biologists in a formal sense. include the cost of managing the
the U.S. Fish and Wildlife Service. We fully agree that Service personnel acquired land for the life of the project,
Response. The Service does not must perceive their responsibility to be and the value of present and future
concur with piecemeal development analysis and recommendations based on timber and crops on acquired land. In
where significant resource losses will the biological aspects of project addition, an environmental benefit/cost
occur. Cumulative impacts are proposals. There is no intent to require analysis should be developed for each
addressed by this policy. The Service is Service biologists to do a formal project, and Congress should not
sensitive to this loss of habitat and will economic analysis for which they are authorize a project unless the project
seek mitigation consistent with this not trained nor for which there is clear plan includes the proposed mitigation
policy. No change was necessary. legislative direction. However, the program and all its costs, including the
Comment. Population information Service has a responsibility to the public cost of lost timber productivity and
should be included as an additional to give consideration to cost while other resources.
factor in determining mitigation recommending ways to conserve fish Response. Costing of projects is
requirements. and wildlife. The policy has been determined by the Water Resource
Response: We agree. Although changed to reflect this need for Council's Principles and Standards and
population mitigation was an implicit consideration of other factors. is therefore beyond the jurisdiction of
part of the proposed policy, further Comment.- The Federal action agency this policy. We point out that Service
language clarifying this point has been should have the option of non-Service
added to the final policy statement. expertise to develop mitigation policy does not preclude timber harvest
or other resource recovery operations on
Comment: Professional judgment measures in those instances where the mitigation lands when the activity is
should be used as an alternative method Service cannot meet lead agency compatible with fish and wildlife
for assessing project impacts. program requirements. manag
Response: We agree that this is a Response: Although the Service ement objectives.
valuable method that has been in use for cannot prevent other agencies from Comment.- The Service mitigation
many years. It is difficult to improve on utilizing biological expertise from non- policy should more clearly note that fee-
informed and considered scientific Federal sources to develop mitigation simple land acquisition should be a
judgment by an expert. The Service will plans, the Fish and Wildlife measure of last resort.
continue to rely heavily on this Coordination Act specifically authorizes Response: The policy statement has
approach. The policy was changed to the Secretary of the Interior to prepare a undergone further modification to more
reflect this emphasis. report and recommendations on the fish c ear y stress the conditions when land
3. Mitigation Recommendations and wildlife aspects of projects acquisition is to be recommended by
including mitigation. This repori and Service personnel. In the future, the
Comment: Service recommendations recommendations are to receive "full Service will place far greater emphasis
should be timely. consideration" by the development on developing mitigation
Response: The proposed and final agency. If the Federal action agency recommendations that avoid, minimize,
policy specifically require Service involves the Service early and provides or rectify impacts in order to reduce the
personnel to present mitigation sufficient transfer funds, then the need for compensation lands.
recommendations " * * * at the earliest Service should be able to meet their Amplification of this point may be seen
possible stage of project planning to needs. No change in the policy was in the section on mitigation planning
assure maximum consideration." This necessary. procedures.
point has been echoed throughout Comment.- Several mitigation Comment: If some interest in land
Service management documents. Service proposals should be prepared for each must be acquired, areas of marginal
personnel can generally provide timely alternative structural or non-structural productivity should be considered first.
guidance provided developers make a plan. Such underdeveloped land would
point of notifying them of proposed Response: The Service is willing to benefit from better management of its
projects still in the planning stage and prepare multiple proposals provided productive capacity and respond more
provided Federal action agencies supply funds and time are available. vigorously than land already at higher
sufficient transfer funding with which to Comment: Some commentors felt that levels of production.
conduct environmental investigations. concurrent and proportionate funding of Response: We agree that special
Under Section 2(e) of the Fish and mitigation may not always lead to consideration should be given to
Wildlife Coordination Act, Federal optimal mitigation and should not be a marginal lands, and have changed the
action agencies are authorized to rigid requirement, Other commentors policy accordingly.

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7654 Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

Comment: Who owns land acquired habitat lost or degraded and may even mitigation, which has been adopted in
for mitigation purposes? reduce wildlife habitat and invite this policy, clearly states that mitigation
Response: Depending on the degradation by making an area more includes ".. . avoiding the impact
individual circumstances of the project, accessible to more people. Construction altogether by not taking a certain action
land acquired through fee-simple title is of public use facilities may be in the or parts of an action. . . ." Obviously, a
usually owned either by the Federal or public interest but should not.be mitigation recommendation of "No
State government and administered by disguised as mitigation for loss or project" falls under this subset of the
appropriate Federal or State resource degradation of wildlife habitat. This definition, since a project's impact can
agencies. Where wildlife easements are point has been added to the policy. be avoided altogether by a decision not
acquired, the land belongs to the 4. Follow-up to construct a project.
property owner, and the easement right
to the Federal or State government. Comment. The Service should initiate Appendix C
Comment: The policy should require post-project evaluation studies, as well Comment: The definition of the word
Service personnel to identify the as encourage, support, and participate in "practicable" should be amended to
authority to be used in implementing these studies. denote that the burden of identifying
any mitigation recommendations that Response: We agree and will do so alternative mitigation measures and of
are made. within the constraints of time, personnel conducting a searching inquiry into their
Response: The final policy clearly and cost. The Service will initiate practicability rests with the Service as
identifies the legal authorities under additional follow-up studies when funds well as the Federal action agency.
which the Service is expected to are provided by the Federal action Response: The policy indicates that
develop mitigation recommendations. In agency. The policy has been changed to the Service will strive to provide
addition, the policy only applies to reflect this. mitigation recommendations that
Service recommendations and is not an Comment. Follow-up studies must be represent the best judgment of the
instrument directing legal research in designed so as to separate the effects on Service on the most effective means and
individual circumstances. It would be fish and wildlife populations of measures to achieve the mitigation goal,
inappropriate to instruct our personnel implementing mitigation including consideration of cost.
to identify the implementing authority recommendations from other causes of Comment: A definition for
for the development agencies which are changes in species numbers. This has "developments" (as used in Section
fully aware of the authorities available not been the case in past studies. V.A., "General Principles") should be
to implement Service recommendations. Response: We agree in principle, but provided in Appendix C.
In the case of projects to be authorized point out that this is a very difficult task Response: "Development" is a
by Congress, authorities to implement technically, and that the conclusions in general-purpose term encompassing
mitigation can be, and increasingly have this regard rarely withstand vigorous those activities falling under the scope
been, spelled out. analysis. of Service mitigation authorities cited
Comment. The policy neglects to Nonetheless, distinguishing the true within this policy. For example, if timber
indicate the necessary process if an causes of population changes should be harvesting activities require preparation
agency does not agree with Service one of the goals of the follow-up study. of an EIS, or involves waters of the U.S.
mitigation recommendations. Comment: The policy should indicate and requires the issuance of a Federal
Response. This process has already what actions would occur if post-project permit or license, the Service would
been established for most rederal evaluation shows mitigation provide mitigation recommendations
agencies. If the project planners and the recommendations are not being consistent with the policy.
Service field office cannot agree on a achieved as agreed to by the developer. NATIONAL ENVIRONMENTAL
modified or substitute proposal for Response: We agree. The policy now POLICY ACT REQUIREMENTS
mitigation, the matter often is referred includes provisions instructing Service
upwards to the next highest level. personnel to recommend corrective The Service has prepared an
Higher management levels are then action in such situations. Environmental Assessment of this final
generally able to resolve the issue Appendix A policy. Based on an analysis of the
quickly, although the Federal action No significant comments. Environmental Assessment, the Director
agency has the final say. No change was of the U.S. Fish and Wildlife Service has
necessary. Appendix 8 concluded that the final action is not a
Comment: Mitigation Comment. Why not include more major Federal action which would
recommendations should ensure that intensive management of remaining significantly affect the quality of the
habitats which are preserved are habitat as a way of reducing net habitat human environment within the meaning
adequate in size and contiguous to loss? of Section 102(2)(c) of the National
ensure species survival and ecosystem Response: We agree, and have Environmental Policy Act of 1969 (42
functioning. modified the policy accordingly in the U.S.C. 4321-4347). Thus the policy does
Response: We agree. This point has Means and Measures section, which has not require an Environmental Impact
not, however, been added to the policy since been integrated into the body of Statement (EIS).
since it is standard operating procedure the final policy. The Environmental Assessment and
at the field level. The section clearly places priority on Finding of No Significant Impact will be
Comment. Improvement of public use increased habitat management as a furnished upon request.
prospects within a project area should means of replacing habitat losses, and REGULATORY ANALYSIS
not be considered mitigation for habitat additionally stresses use of existing
value losses. Development of public public lands to accomplish these ends. This policy statement has been issued
access is -legitimate mitigation only Comment., A mitigation in conformity with the Department of
when public uses are lost as a result of recommendation of "No project" is not the Interior's rulemaking requirements,
project action. logical or valid as a mitigation measure. which apply to actions meeting the
Response. We agree. Construction of Response. The Council on broad definition of a rule set forth in the
public access facilities does not replace Environmental Quality's definition of Administrative Procedures Act, 5 U.S.C.

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Federal Register Vol. 46, No. 15 Friday, January 23, 1981 Notices 7655

551(4) and 43 CFR Part 14.2(e) (1980).
This statement is not intended to be
judicially enforceable. It will not be
codified. It does not create private
rights. It only guides internal Service
administration. and is not to be
inflexibly applied by Service personnel.
The Department had previously
determined that the proposed policy
was not a significant rule and did not
require a regulatory analysis under
Executive Order 12044 and 43 Part 14.
No significant changes were made in the
final policy that required a new
determination.

ACKNOWLEDGEMENTS
The primary author of this final policy
is John Christian, Leader, Policy
Group-Environment, U.S. Fish and
Wildlife Service, (202) 343-7151. Primary
support for policy development was
provided by policy analysts Nancy Chu,
Scott Cameron, and Peter Ciborowski;
and Ecological Services Washington
Office and field personnel. Manuscript
preparation was accomplished by
Roberta Hissey, Karen Baker, Carol
Prescott, and Jinethel Baynes.
Accordingly, the mitigation policy of
the U.S. Fish and Wildlife Service is set
forth as follows:

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7656 Federal Register / Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

U.S. FISH AND WILDLIFE SERVICE license which would impound, divert, requiring a federally issued permit or
MITIGATION POLICY deepen, or otherwise control or modify a license that would impact waters of the
I.PURPOSE stream or other body of water and to U.S.; (2) all major Federal actions
This document establishes policy for make mitigation and enhancement significantly affecting the quality of the
U.S. Fish and Wildlife Service recommendations to the involved human environment; and (3) other
recommendations on mitigating the Federal agency. "Recommendations ... Federal actions for which the Service
adverse impacts of land and water shall be as specific as practicable with has legislative authority or executive
developments on fish, wildlife, their respect to features recommended for direction for involvement including, but
habitats, and uses thereof. It will help to wildlife conservation and development, not limited to: coal, minerals, and outer
assure consistent and effective lands to be utilized or acquired for such continental shelf lease sales or Federal
recommendations by outlining policy for purposes, the results expected, and shall approval of State permit programs for
the levels of mitigation needed and the describe the damage to wildlife the control of discharges of dredged or
various methods for accomplishing attributable to the project and the fill material.
mitigation. It will allow Federal action measures proposed for mitigating or B. Exclusions
agencies and private developers to compensating for these damages." In This policy does not apply to
anticipate Service recommendations and addition, the Act requires that wildlife
plan for mitigation measures early, thus conservation be coordinated with other threatened or endangered species. The
features of water resource development requirements for threatened and
avoiding delays and assuring equal endangered species are covered in the
consideration of fish and wildlife programs.
resources with other project features Determinations under this authority Endangered Species Act of 1973 and
and purposes. This Policy provides for specific projects located in estuarine accompanying regulations at 50 CFR
uidance for S areas constitute compliance with the Parts 17, 402, and 424. Under Section 7 of
9 ervice pers5;n_@neut
variatioEnasip2r2riate to individual provisions of the Estuary Protection Act. the Endangered Species Act, as
o_ amended, all Federal agencies shall
di-rcumstances agEpermitted. (See Appendix A.) ensure that activities authorized,
t@'e December Watershed Protection and Flood
18, 1974, policy statement entitled Prevention Act (16 U.S.C. 1001-1009). funded, or carried out by them are not
"Position Paper of the Fish and Wildlife This Act allows the Secretary of the lik.ely to jeopardize the continued
Service Relative to Losses to Fish and Interior to make surveys, investigations, existence of listed species or result in
Wildlife Habitat Caused by Federally and prepare a report with the destruction or adverse modification
of critical habitat. Mitigating adverse
Planned or Constructed Water Resource recommendations concerning the impacts of a project would not in itself
Developments" and the Service River conservation and development of be viewed as satisfactory agency
Basin Studies Manual Release 2.350 wildlife resources. on small compliance with Section 7. Furthermore,
entitled "General Bureau Policy on River watershed projects. it is clear to the Service that Congress
Basin Studies." National Environmental Policy Act of onsidered the traditional concept of
1969 (42 U.S.C. 4321-4347). This Act and c
IL AUTHORITY its implementing regulations (40 CFR mitigation to be inappropriate for
This policy is established in Part 1500-1508) requires that the U.S. Federal activities impacting listed
accordance with the following major Fish and Wildlife Service be notified of species or their critical habitat.
authorities: (See Appendix A for other all major Federal actions affecting fish This policy does not apply to Service
authorities.) and wildlife resources and their views recommendations for Federal projects
Fish and Wildlife Act of 1956 (16 and recommendations solicited. Upon completed or other projects permitted or
U.S.C. 742(a)-754). This Act authorizes completion of a draft Environmental licensed prior to enactment of Service
the development and distribution of fish Impact Statement, the Service is authorities (unless indicated otherwise
and wildlife information to the public, required to review it and make in a specific statute) or specifically
Congress, and the President, and the comments and recommendations, as exempted by them and not subject to
development of policies and procedures appropriate. In addition, the Act reauthorization or renewal. It also does
not apply where mitigation plans have
that are necessary and desirable to provides that "the Congress authorizes already been agreed to by the Service,
carry out the laws relating to fish and and directs that, to the fullest extent except where new activities or changes
wildlife including: (1) ". . . take such possible . . . all agencies of the Federal in current activities would result in new
steps as may be required for the Government shall . . . identify and impacts or where new authorities, new
development, advancement, develop methods and procedures . . . scientific information, or developer
management, conservation, and which will ensure that presently failure to implement agreed upon
protection of the fisheries resources;" unquantified environmental amenities recommendations make it necessary.
and (2) ". . . take such steps as may be and values may be given appropriate Service personnel involved in land and
required for the development, consideration in decisionmaking along water development investigations will
management, advancement, with economic and technical make a judgment as to the applicability
conservation, and protection of wildlife considerations." of the policy for mitigation plans under
resources through research . . . and III. SCOPE development and not yet agreed upon as
other means." of the date of final publication of this
Fish and Wildlife Coordination Act A. Coverage policy.
(16 U.S.C. 661-667(e)). This Act This policy applies to all activities of Finally, this policy does not apply to
authorizes the U.S. Fish and Wildlife the Service related to the evaluation of Service recommendations related to the
Service, National Marine Fisheries impacts of land and water developments enhancement of fish and wildlife
Service (NMFS), and State agencies and the subsequent recommendations to resources. Recommendations for
responsible for fish and wildlife mitigate those adverse impacts except measures which improve fish and
resources to investigate all proposed as specifically excluded below. This wildlife resources beyond that which
Federal undertakings and non-Federal includes: (1) investigations and would exist without the project and
actions needing a Federal permit or recommendations for all actions which cannot be used to satisfy the

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Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices 7657

appropriate mitigation planning goal PROVIDE THE FEDERAL LEADERSHIP TO development of ecological design
should be considered as enhancement CONSERVE, PROTECT AND ENHANCE information that outlines specific
measures. The Service strongly supports FISH AND WILDLIFE AND THEIR racticable means and measures for
HABITATS FOR THE CONTINUING P
enhancement of fish and wildlife BENEFIT OF THE PEOPLE. avoiding or minimizing impacts. The
resources. The Service will recommend The goal of Service activities oriented former can be used by developers to site
that all opportunities for fish and toward land and water development projects in the least valuable areas. This
wildlife resource enhancement be responds to Congressional direction that could possibly lower total project costs
thoroughly considered and included in fish and wildlife resource conservation to development interests. These actions
project plans, to the extent practicable. receive equal consideration and be are part of good planning and are in the
IV. DEFINITION OF MITIGATION coordinated with other features of best public interest.
Federal resource development and The early provision of information to
The President's Council on regulatory programs through effective private andpublic agencies in a form
which enables them to avoid or
Environmental Quality defined the term and harmonious planning, development,
"mitigation" in the National maintenance and coordination of fish minimize fish and wildlife losses as a
Environmental Policy Act regulations to and wildlife resource conservation and Part of initial project design is the
include: "(a) avoiding the impact rehabilitation in the United States, its preferred form of fish and wildlife
altogether by not taking a certain action territories and possessions. The goal is conservation.
or parts of an action; (b) minimizing to: B. U.S. Fish and Wildlife Service
impacts by limiting the degree or CONSERVE, PROTECT AND ENHANCE Mitigation Planning Goals by Resource
magnitude of the action and its FISH AND WILDLIFE AND THEIR Category
implementation; (c) rectifying the impact HABITATS AND FACILITATE BALANCED The planning goals and guidelines
by repairing, rehabilitating, or restoring DEVELOPMENT OF THIS NATION'S that follow will be used to guide Service
the affected environment; (d) reducing NATURAL RESOURCES BY TIMELY AND recommendations on mitigation of
EFFECTIVE PROVISION OF FISH AND
or eliminating the impact over time by WILDLIFE INFORMA77ON AND project impacts. Four Resource
preservation and maintenance RECOMMENDATIONS. Categories are used to indicate that the
operations during the life of the action; Fish and wildlife and their habitats level. of mitigation recommended will be
and (e) compensating for the impact by are public resources with clear consistent with the fish and wildlife
replacing or providing substitute commercial, recreational, social, and resource values involved.
resources or environments." (40 CFR ecological value to the Nation. They are The policy covers impacts to fish and
Part 1508.20(a-e)). conserved and managed for the people wi dlife populations, their habitat and
The Service supports and adopts this by State, Federal and Indian tribal the human uses thereof. However, the
definition of mitigation and considers Governments. If land or water primary focus in terms of specific
the specific elements to represent the developments are proposed which may guidance is on recommendations related
desirable sequence of steps in the reduce or eliminate the public benefits to habitat value losses. In many cases,
mitigation planning process. (See that are provided by such natura compensation of habitat value losses
Appendix B for definitions of other resources, then State and Federal should result in replacement of fish and
important terms necessary to resource agencies and Indian tribal wildlife populations and human uses.
understand this policy.) agencies have a responsibility to But where it does not, the Service will
recommend means and measures to recommend appropriate additional
V. MITIGATION POLICY OF THE U.S. mitigate such losses. Accordingly: means and measures.
FISH AND WILDLIFE SERVICE IN THE INTEREST OF SERVING THE RESOURCE CATEGORY 1
PUBLIC, IT IS THE POLICY OF THE U.S. a. Designation Criteria
The overall goals and objectives of FISH AND WILDLIFE SERVICE TO SEEK
the Service are outlined in the Service TO MITIGATE LOSSES OF FISH, Habitat to be impacted is of high
Management Plan and an accompanying WILDLIFE, THEIR HABITATS, AND USES value for evaluation species and is
Important Resource Problems document THEREOF FROM LAND AND WATER unique and irreplaceable on a national
which describes specific fish and DEVELOPMENTS. basis or in the ecoregion section.
wildlife problems of importance for In administering this policy, the b. Mitigation Goal
planning purposes. Goals and objectives Service will strive to provide No Loss of Existing Habitat Value.
for Service activities related to land and information and recommendations that
water development are contained in the fully support the Nation's need for fish c. Guideline
Habitat Preservation Program and wildlife resource conservation as The Service will recommend that all
Management Document, The mitigation well as sound economic and social losses of existing habitat be prevented
policy was designed to stand on its own; development through balanced multiple as these one-of-a-kind areas cannot be
however, these documents will be use of the Nation's natural resources. replaced. Insignificant changes that do
consulted by Service personnel to The Service will actively seek to not result in adverse impacts on habitat
provide the proper perspective for the facilitate needed development and value may be acceptable provided they
Service mitigation policy. They are avoid conflicts and delays through early will have no significant cumulative
available upon request from the involvement in land and water impact.
Director, U.S. Fish and Wildlife Service, development planning activities in RESOURCE CATEGORY 2
Washington, D.C. 20240. advance of proposals for specific
projects or during the early planning and a. Designation Criteria
A. General Policy design stage of specific projects. Habitat to be impacted is of high
This should include early value for evaluation species and is
The mission of the U.S. Fish and identification of resource areas relatively scarce or becoming scarce on
Wildlife Service is to: containing high and 'low habitat values a national basis or in the ecoregion
for important species and the section.

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7658 Federal Register / Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

b. Mitigation Goal It is preferable, in most cases, to develop compatible approaches and to
No Net Loss of In-Kind Habitat Value. recommend ways to replace such avoid duplication of efforts.
C. Guideline habitat value losses in-kind. However, if 2. Resource Category Determinations
the Service determines that in-kind
The Service will recommend ways to replacement is not desirable or possible, a. The Service will make Resource
avoid or minimize losses. If losses are Category determinations as part of the
likely to occur, then the Service will then other specific ways to achieve this Mitigation planning process. Such
planning goal include: (1) substituting determinations will be made early in the
recommend ways to immediately rectify different kinds of habitats, or (2) planning process and transmitted to the
them or reduce or eliminate them over increasing management of different Federal action agency or private
time. If losses remain likely to occur, replacement habitats so that the value developer to aid them in their project
then the Service will recommend that of the lost habitat is replaced. By planning, to the extent practicable.
those losses be compensated by replacing habitat value losses with b. Resource Category determinations
replacement of the same kind of habitat different habitats or increasing will be made through consultation and
value so that the total loss of such in- management of different habitats coordination with State agencies
kind habitat value will be eliminated. populations of species will be different,
Specific ways to achieve this planning depending on the ecological attributes of responsible for fish and wildlife
goal include: (1) physical modification of the replacement habitat. This will result resources and other Federal resource
replacement habitat to convert it to the in no net loss of total habitat value but agencies, particularly the National
Marine Fisheries Service and the
same type lost; (2) restoration or may result in significant differences in
rehabilitation of previously altered fish and wildlife populations. This is Environmental Protection Agency,
habitat; (3) increased management of generally referred to as out-of-kind whenever resources of concern to those
similar replacement habitat so that the replacement. groups are involved. Where other
in-kind value of the lost habitat is elements of the public, including
replaced, or (4) a combination of these RESOURCE CATEGORY 4 development groups, have information
measures. By replacing habitat value a. Designation Criteria that can assist in making such
determinations, the Service will
losses with similar habitat values, Habitat to be impacted is of medium- welcome such information.
populations of species associated with to low value for evaluation species. c. All Resource Category
that habitat may remain relatively b. Mitigation Goal determinations will contain a technical
stable in the area over time. This is rationale consistent with the designation
generally referred to as in-kind Minimize Loss of Habitat Value.
replacement. criteria. The rationale will: (1) outline
Exceptions: An exception can be c. Guideline the reasons why the evaluation species
made to this planning goal when: (1) The Service will recommend ways to were selected; (2) discuss the value of
different habitats and species available avoid or minimize losses. If losses are the habitat to the evaluation species;
for replacement are determined to be of likely to occur, then the Service will and (3) discuss and contrast the relative
greater value than those lost, or (2) in- recommend ways to immediately rectify scarcity of the fish and wildlife resource
kind replacement is not physically or them or reduce or eliminate them over on a national and ecoregion section
biologically attainable in the ecoregion time. If losses remain likely to occur, basis.
section. In either case, replacement then the Service may make a Note.-If the State agency responsible for
involving different habitat kinds may be recommendation for compensation, fish and wildlife resources wishes to outline
recommended provided that the total depending on the significance of the scarcity on a more local basis, U.S. Fish and
value of the habitat lost is recommended potential loss. Wildlife Service personnel should assist in
for replacement (see the guideline for However, because these areas possess developing such rationale, whenever
Category 3 mitigation below). relatively low habitat values, they will practicable.
RESOURCE CATEGORY 3 likely exhibit the greatest potential for d. When funding, personnel, and
significant habitat value improvements. available information make it
a. Designation Criteria Service personnel will fully investigate practicable, specific geographic areas or,
Habitat to be impacted is of high to these areas' potential for improvement, alternatively, specific habitat types that
medium value for evaluation species since they could be used to mitigate comprise a given Resource Category
and is relatively abundant on a national Resource Category 2 and 3 losses. should be designated in advance of
development. Priority for predesignation
basis. C. Mitigation Planning Policies will be placed on those areas that are of
b. Mitigation Goal 1. State-Federal Partnership high value for evaluation species and
No Net Loss of Habitat Value While a. The U.S. Fish and Wildlife Service are subject to development pressure in
Minimizing Loss of In-Kind Habitat will fully coordinate activities with the near future. Such predesignations
Value. those State agencies responsible for fish ca i be used by developers or regulators
tc determine the least valuable areas for
c. Guideline and wildlife resources, the National u:,e in project planning and siting
The Service will recommend ways to Marine Fisheries Service (NMFS) and c,3nsiderations.
avoid or minimize losses. If losses are the Environmental Protection Agency e. The following examples should be
likely to occur, then the Service will (EPA) related to the investigation of given special consideration as either
recommend ways to immediately rectify project proposals and development of Resource Category 1 or 2:
them or reduce or eliminate them over mitigation recommendations for
(1) Certain habitats within Service
time. If losses remain likely to occur, resources of concern to the State, NMFS identified Important Resource Problem
then the Service will recommend that or EPA. (IRP) areas. Those IRPs dealing with
those losses be compensated by b. Service personnel will place special threatened or endangered species are
replacement of habitat value so that the emphasis on working with State not covered by this policy. (See Scope)
total loss of habitat value will be agencies responsible for fish and (2) Special aquatic and terrestrial sites
eliminated. wildlife resources, NMFS and EPA to including legally designated or set-aside

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Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices 7659

areas such as sanctuaries, fish and 4. Mitigation Recommendations responsibility of the appropriate Federal
wildlife management areas, hatcheries, a. The Service may recommend action agency to implement or enforce;
and refuges, and other aquatic sites such support of projects or other proposals and (2) would provide for a duration of
as floodplains, wetlands, mudflats, when the following criteria are met: effectiveness for the life of the project
vegetated shallows, coral reefs, riffles (1) They are ecologically sound; plus such additional time required for
and pools, and springs and seeps. (2) The least environmentally the adverse effects of an abandoned
damaging reasonable alternative is project to cease to occur.
3. Impact Assessment Principles selected; e. Land acquisition in fee title for the
a. Changes in fish and wildlife (3) Every reasonable effort is made to purpose of compensation will be
productivity or ecosystem structure and avoid or minimize damage or loss of fish recommended by the Service only under
function may not result in a biologically and wildlife resources and uses; one or more of the following three
adverse impact. The determination as to (4) All important recommended means conditions:
whether a biological change constitutes and measures have been adopted with (1) When a change in ownership is
an adverse impact for which mitigation guaranteed implementation to necessary to guarantee the future
should be recommended is the satisfactorily compensate for conservation of the fish and wildlife
responsibility of the Service and other unavoidable damage or loss consistent resource consistent with the mitigation
involved Federal and State resource with the appropriate mitigation goal; goal for the specific project area; or
agencies. and (2) When other means and measures
(5) For wetlands and shallow water for mitigation (see Section 5 below) will
b. The net biological impact of a habitats, the proposed activity is clearly not compensate habitat losses
development proposal (or alternatives) water dependent and there is a consistent with the mitigation goal for
is the difference in predicted biological demonstrated public need. the specific project area; oF
conditions between the future with the The Service may recommend the "no .(3) When land acquisition in fee title
action and the future without the action. project" alternative for those projects or is the most cost-effective means that
If the future without the action cannot other proposals that do not meet all of may partially or completely achieve the
be reasonably predicted and the above criteria and where there is mitigation goal for the specific project
documented by the project sponsor, then likely to be a significant fish and area.
the Service analysis should be based on wildlife resource loss. Service recommendations for fee title
biological conditions that would be b. Recommendations will be land acquisition will seek to identify
expected to exist over the planning presented by the Service at the earliest mitigation lands with marginal economic
period due to natural species succession possible stage of project planning to potential.
or implementation of approved assure maximum consideration. The f. 1F!rE2L2a2d!y will be given to
restoration/improvement plans or Service will strive to provide mitigation recommendation of a mitigation site
conditions which currently exist in the recommendations that represent the wi.thin the planning area. Second
planning area. best judgment of the Service, including 2riority will be given to recommendation
c. Service review of project impac s consideration of cost, on the most of a mitigation site in proximity to the
effective means and measures of planning area within the same ecoregion
will consider, whenever practicable- satisfactorily achieving the mitigation section. Third priority will be given to
(1) The total long-term biological planning goal, Such recommendations recomme_n_a_aTi-o_n_o_f_@ mitigation site
impact of the project, including any will be developed in cooperation with elsewhere within the same ecoregion
secondary or indirect impacts regardless the Federal action agency or private section.
of location; and (2) any cumulative developer responsible for the project, g. Service personnel will fully support
effects when viewed in the context of whenever practicable, and will place a variety of uses on mitigation lands
existing or anticipated projects. heavy reliance on cost estimates where such uses are compatible with
d. The Habitat Evaluation PFoceduFes provided by that Federal action agency dominant fish and wildlife uses and, for
will be used by the Service as a basic or private developer. Federal wildlife refuges, are consistent
tool for evaluating project impacts and c. The Service will recommend that with the provisions of the Refuge
as a basis for formulating subsequent the Federal action agency include Recreation Act and the National
recommendations for mitigation subject designated funds for all fish and wildlife Wildlife Refuge Administration Act.
to the exemptions in the Ecological resource mitigation (including, but not However, it may be in the best public
Services Manual (100 ESM 1). When the limited to, Service investigation costs, interest to recommend limiting certain
Habitat Evaluation Procedures do not initial development costs and continuing uses that would significantly decrease
apply, then other evaluation systems operation, maintenance, replacement, habitat value for species of high public
may be used provided such use and administrative costs) as part of the interest. In such cases, the Service may
conforms with policies provided herein. initial and any alternative project plans recommend against such incompatible
e. In those cases where instream and that mitigation funds (as authorized uses.
and appropriated by Congress for li;...M@easures @to in @@reation
flows are an important determinant of Federal projects) be spent concurrently values will not be recommend d
habitat value, consideration should be and proportionately with overall project L-er-v-ic-e -ers-o-nn7e to -com- e _y
Ln@.@_ni_aie for
given to the use of the Service's _j - -_
Instream Flow Incremental Methodology construction and operation funds losses of habitat value. Recreation use
to develop instrearn flow mitigation throughout the life of the project. fo-ss7es _nof_re_sFo_red-thr_6_ugh habitat value
Note.-Prevention of losses may mitigation will be addressed through
recommendations, where appropriate. necessitate expenditure of funds at an earlier separate and distinct recommended
f. Where specific impact evaluation stage of project planning. This is acceptable measures to offset those specific losses.
methods or mitigation technologies are and preferred. i. The guidelines contained in this
not available, Service employees shall d. Service mitigation policy do not apply to threatened or
,tion
,jion
0

continue to apply their best professional recommendations will be made under an endangered species. However, where
judgment to develop mitigation explicit expectation that these means both habitat and endangered or
recommendations. and measures: (1) would be the ultimate threatened species impacts are involved,

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7660 Federal Register / Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

Service personnel shall fully coordinate (2) Use of nonstructural alternative to species for the purpose of completely
Environment efforts with Endangered proposed project. offsetting habitat value losses.
Species efforts to provide timely, (3) No project. (3) Build fishery propagation facilities.
consistent, and unified b. Minimize the impact (4) Arrange legislative set-aside or
recommendations for resolution of fish protective designation for public lands.
and wildlife impacts,.to the extent (1) Include conservation of fish and (5) Provide buffer zones.
possible. More specifically, Environment wildlife as an authorized purpose of (6) Lease habitat.
and Endangered Species personnel shall Federal projects. (7) Acquire wildlife easements.
coordinate all related activities dealing (2) Locate at the least environmentally (8) Acquire water rights.
with investigations of land and water damaging site. (9) Acquire land in fee title.
developments. This includes full use of (3) Reduce the size of the project. 6. Follow-up
all provisions that can expedite Se 'rvice (4) Schedule timing and control of The Service encourages, supports, and
achievement of "one-stop shopping, " initial construction operations and will initiate, whenever practicable, post-
including coordinated early planning subsequent operation and maintenance project evaluations to determine the
involvement, shared permit review to minimize disruption of biological effectiveness of recommendations in
activities, consolidated permit reporting, community structure and function. achieving the mitigation planning goal.
and consolidated flow of pre-project (5) Selective tree clearing or other The Service will initiate additional
information to developers, consistent habitat manipulation. follow-up studies when funds are
with legislative mandates and (6) Control water pollution through provided by the Federal action agency.
deadlines. best management practices. In those instances where Service
j. The Service will place high priority (7) Time and control flow diversions personnel determine that Federal
on and continue to develop and and releases. agencies or private developers have not
implement procedures for reducing (8) Maintain public access. carried out those agreed upon mitigation
delays and conflicts in permit related (9) Control public access for means and measures, then -the Service
activities. Such procedures will include, recreational or commercial purposes. will request the responsible Federal
but not be limited to: (10) Control domestic livestock use. action agency to initiate corrective
(1) joint processing of permits. C. Rectify the impact action.
(2) Resource mapping. APPENDIX A-OTHER AUTHORITIES
(3) Early provision of ecological (1) Regrade disturbed areas to AND DIRECTION FOR SERVICE
design information. contours which provide optimalfish and MITIGATION RECOMMENDATIONS
(4) Involvement in Special Area wildlife habitat or approximate original
Management Planning. contours. LEGISLA77VE
k. The Service will encourage (2) Seed, fertilize and treat areas as Federal Water Pollution Control Act,
predevelopment compensation actions necessary to restore fish and wildlife as amended (33 U.S.C. 1251 et seq.). The
by Federal action agencies which can be resources. 1977 amendments require the Fish and
used to offset future unavoidable losses (3) Plant shrubs and trees and other Wildlife Service ". . . upon request of
for lands or waters not adequately vegetation to speed recovery. the Governor of a State, and without
protected by an existing law, policy, or (4) Control polluted spoil areas. reimbursement, to provide technical
program. (5) Restock fish and wildlife resources assistance to such State in developing a
Banking of habitat value for the in repaired areas. Fish stocking or Statewide (water quality planning)
express purpose of compensation for. introductions will be consistent with the program and in implementing such
unavoidable future losses will be Service Fish Health Policy (January 3, program after its approval." In addition,
considered to be a mitigation measure 1978). this Act requires the Service to comment
and not an enhancement measure. d Reduce or eliminate the impact over on proposed State permit programs for
Withdrawals from the mitigation "bank" time the control of discharges of dredged or
to offset future unavoidable losses will fill material and to comment on all
be based on habitat value replacement, (1) Provide periodic monitoring of Federal permits within 90 days of
not acreage or cost for land purchase mitigation features to assure continuous receipt.
and management. operation. Federal Power Act of 1920, as
(2) Assure proper training of project amended (16 U.S.C. 791(a), 803, 811).
S. Mitigation Means and Measures personnel in the operations of the This Act authorizes the Secretary of the
Mitigation recommendations can facility to preserve existing or restored Interior to impose conditions on licenses
include, but are not limited to, the types fish and wildlife resources at project issued for hydroelectric projects within
of actions presented below. These sites. specific withdrawn public lands. The
means and measures are presented in (3) Maintain or replace equipment or Secretary is given specific authority to
the general order and priority in which structures so that future loss of fish and prescribe fishways to be constructed,
they should be recommended by Service wildlife resources due to equipment or maintained, and operated at the
personnel with the exception of the "no structure failure does not occur. licensee's expense.
project" alternative. (See Section 4(a)). Estuary Protection Act (16 U.S.C.
a. A void the impact e. Compensate for impacts 1221-1226). This Act requires the
(1) Conduct wildlife management Secretary of the Interior to review all
(1) Design project to avoid damage or activities to increase habitat values of project plans and reports for land and
loss of fish and wildlife resources existing areas, with project lands and water resource development affecting
including management practices such as nearby public lands receiving priority. estuaries and to make recommendations
timing of activities or structural features (2) Conduct habitat construction for conservation, protection, and
such as multiple outlets, passage or activities to fully restore or rehabilitate enhancement.
avoidance structures and water previously altered habitat or modify Coastal Zone Management Act Of
pollution control facilities. existing habitat suited to evaluation 1972 (16 U.S.C. 1451-1464). This Act

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Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices 7661

requires the Secretary of Commerce to Outer Continental Shelf Lands Act of the lands traversed." The Department
obtain the views of Federal agencies Amendments of 1978 (43 U.S.C. 1801). of Transportation projects using
affected by the program, including the This Act requires the Secretary of the protected lands cannot be approved
Department of the Interior, and to Interior to manage an environmentally unless there are no feasible and prudent
ensure that these views have been given sound oil and natural gas development alternatives to avoid such use and, if
adequate consideration before approval program on the outer continental shelf. none, all possible measures to minimize
of Coastal Zone Management Plans. The The Fish and Wildlife Service provides harm have been considered.
Service provides the Department's recommendations for the Department EXECUTIVE
views about fish and wildlife resources. regarding potential ecological impacts President's Water Policy Message
Pursuant to the Coastal Zone before leasing in specific areas and (June 6, 1978). This Message directs the
Management Act Amendments of 1980 contributes to environmental studies Secretary of the Interior to promulgate
(Pub. L. 96-464) the Department of undertaken subsequent to leasing. procedures for determination of
Interior provides comments on Federal . Mineral Leasing Act of 1920, as measures to mitigate losses of fish and
grants to help States protect and amended (30 U.S.C. 185). This Act wildlife resources.
preserve coastal areas because of their authorizes the Secretary of the Interior Water Resources Council's Final
". . . conservational, recreational, to grant rights-of-way through Federal Rules, Principles and Standards for
ecological or aesthetic values." The 1980 lands for pipelines transporting oil,
Amendments also authorize the natural gas, synthetic liquids or gaseous Water and Related Land Resources
Department of Interior to enter into fuels, or any other refined liquid fuel. Planning-Level C (September 29, 1980).
These rules reiterate the importance of
Special Area Management Planning to Prior to granting a right-of-way for a partic
". . . provide for increased specificity in project which may have a significant ipation in the development
protecting natural resources, reasonable impact on the environment, the planning process by interested Federal
coast dependent economic growth . . . Secretary is required by this Act to agencies, including the Department of
and improved predictability in request and review the applicant's plan the Interior. This participation includes
for construction, operation, and review, coordination, or consultation
government decisionmaking." required under various legislative and
Water Bank Act (16 U.S.C, 1301-1311). rehabilitation of the right-of-way. Also,
the Secretary is authorized to issue executive authorities. Under these rules,
This Act requires that the Secretary of guidelines and impose stipulations for "Consideration is to be given to
Agriculture ". . . shall consult with the such projects which shall include, but mitigation (as defined in 40 CFR 1508.20)
Secretary of Interior and take not be limited to, ". . . requirements for of the adverse effects of each alternative
appropriate measures to insure that the restoration, revegetation and plan. Appropriate mitigation is to be
program carried out . . . is in harmony curtailment or erosion of surface land-, included where suitable as determined
with wetlands programs administered . . . requirements designed to control or by the agency decisionmaker. Mitigation
by the Secretary of the Interior." prevent damage to the environment measures included are to be planned for
Wild and Scenic Rivers Act (16 U.S.C. (including damage to fish and wildlife at least concurrent and proportionate
1271-1287). This Act requires the habitat); and . . . requirements to implementation with other major project
Secretary of the Interior to comment on protect the interests of individuals living features, except where such concurrent
such proposals. The Fish and Wildlife in the general area of the right-of-way or and proportionate mitigation is
Service provides the Department's permit who rely on the fish, wildlife and physically impossible. In the latter case,
views with regard to fish and wildlife biotic resources of the area for the reasons for deviation from this rule
resources. subsistence purposes." are to be presented in the planning
Geothermal Steam Act of 1970 (30 Cooperative Unit Act (16 U.S.C. report, and mitigation is to be planned
U.S.C. 1001-1025). This Act requires that 753(a)-753(b)). This Act provides for for the earliest possible implementation.
the Fish and Wildlife Service cooIperative programs for research and Mitigation for fish and wildlife and their
recommend to the Secretary those lands training between the Fish and Wildlife habitat is to be planned in coordination
that shall not be leased for geothermal Service, the States, and universities. with Federal and State fish and wildlife
development by reason of their status Airport and Airway Development Act agencies in accordance with the Fish
as ". . . a fish hatchery administered by (49 U.S.C. 1716). This Act requires the and Wildlife Coordination Act of 1958
the Secretary, wildlife refuge, wildlife Secretary of Transportation to ". . . (16 U.S.C. 661-664) (sic)."
range, game range, wildlife management consult with the Secretary of the Interior Executive Order 11990-Protection of
area, waterfowl production area, or for with regard to the effect that any project Wetlands (May 24,1977). This Executive
lands acquired or reserved for the . . . may have on natural resources Order requires that each Federal agency
protection and conservation of fish and including, but not limited to, fish and ". . . take action to minimize the
wildlife that are threatened with wildlife, natural, scenic, and recreation destruction, loss or degradation of
extinction." assets, water and air quality, and other wetlands, and to preserve and enhance
Surface Mining Control and factors affecting the environment . . .... the natural and beneficial values of
Reclamation Act of 1977 (30 U.S.C. 1201 Department of Transportation Act (49 wetlands in carrying out the agency's
et seq.). This Act requires the U.S.C. 1653(f)). This Act makes it responsibilities for: (1) acquiring.
Department of the Interior to regulate national policy that ". . . special effort managing and disposing of Federal
surface mining and reclamation at should be made to preserve the natural lands and facilities; and (2) providing
existing and future mining areas. The beauty of the countryside and public federally undertaken, financed or
Fish and Wildlife Service provides the park and recreation lands, wildlife and assisted construction and
Department with technical assistance waterfowl refuges, and historic sites improvements; and (3) conducting
regarding fish and wildlife aspects of . . .," and requires that the Secretary of Federal activities and programs
Department programs on active and Transportation ". . . cooperate and affecting land use, including but not
abandoned mine lands, including review consult with the Secretary of the Interior limited to water and related land
of State regulatory submissions and in developing transportation plans and resources planning, regulation and
mining plans, and comments on mining programs that include measures to licensing activities." Relevant wetland
and reclamation plans. maintain or enhance the natural beauty concerns and values include, but are not

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7662 Federal Register / Vol. 46, No. 15 / Friday, January 23, 1981 / Notices

limited to, maintenance of natural habitat as a major goal of the energy leads to a clearly defined trophic
systems and long-term productivity of signatories. structure, biotic diversity, and material
existing flora and fauna, habitat Convention Between the United cycles. (Eugene P. Odum. 1971.
diversity, hydrological utility, fish, States and the Union of Soviet Socialist Fundamentals of Ecology)
wildlife, timber, and food. Under this Republics Concerning the Conservation "Evaluation species" means those fish
Order, a developmenta 'I project in a of Migratory Birds and Their and wildlife resources in the planning
wetland may proceed only if no Environments (November 8,1978). This area that are selected for impact
practicable alternatives can be Treaty endorses the establishment of analysis. They must currently be present
ascertained and if the proposal . . . sanctuaries, refuges, and protected or known to occur in the planning area
includes all practicable measures to areas. It mandates reducing or during at least one stage of their life
minimize harm to the wetland that may eliminating damage to all migratory history except where species not present
result from its use." birds. Furthermore, it provides for (1) have been identified in fish and
Executive Order 11988-Floodplain designation of special areas for wildlife restoration or improvement
Management (May 24,1977). This migratory bird breeding, wintering, plans approved by State or Federal
Executive Order requires that Federal feeding, and molting, and commits the resource agencies, or (2) will result from
agencies take floodplain management signatories to ". . . undertake measures natural species succession over the life
into account when formulating or necessary to protect the ecosystems in of the project. In these cases, the
evaluating water or land use plans and these areas ... against pollution, analysis may include such identified
that these concerns be reflected in the detrimental alteration and other species not currently in the planning
budgets, procedures, and regulations of environmental degradation." area.
the various agencies. This Order allows Implementing legislation, Pub. L. 95--616, There are two basic approaches to the
developmental activities to proceed in was passed in the United States in 1978. selection of evaluation species: (1)
floodplain areas only when the relevant Convention on Nature Protection and selection of species with high public
agencies have ". . . considered Wildlife Preservation in the Western interest, economic value or both; and (2)
alternatives to avoid adverse effects and Hemisphere (April 15, 1941). This Treaty selection of species to provide a broader
incompatible development in the has several provisions requiring parties ecological perspective of an area, The
floodplains . ." or when, in lieu of this, to conserve certain wildlife resources choice of one approach in lieu of the
they have ". designed or modified and their habitats. other may result in a completely
their actions in order to minimize Convention Between the United different outcome in the analysis of a
potential harm to or within the States and Great Britain (for Canada) proposed land or water development.
floodplain. for Protection of Migratory Birds Therefore, the objectives of the study
(August 1, 1916, as amended January 30, should be clearly defined before species
Executive Order 11987-Exotic 1979). This Treaty provides for a uniform selection is initiated. If the objectives of
Organisms (May 24,1977). This .1... system of protection for certain a study are to base a decision on
Executive Order requires that Federal species of birds which migrate between potential impacts to an entire ecological
agencies shall restrict, to the extent the United States and Canada, in order community, such as a unique wetland,
permitted by law, the introduction of to assure the preservation of species then a more ecologically based
exotic species into the lands or waters either harmless or beneficial to man." approach is desirable. If, however, a
which they own, lease, or hold for The Treaty prohibits hunting land or water use decision is to be
purposes of administration, and insectivorous birds, but allows killing of based on potential impacts to a public
encourage the States, local governments, birds under permit when injurious to use area, then species selection should
and private citizens to do the same. This agriculture. The 1979 amendment allows favor animals with significant human
Executive Order also requires Federal subsistence hunting of waterfowl use values. In actual practice, species
agencies to restrict, to the extent outside of the normal hunting season. should be selected to represent social,
permitted by law, the importation of economic and broad ecological views
exotic species and to restrict the use of APPENDIX B-OTHER DEFINITIONS because mitigation planning efforts
Federal funds and programs for such "Compensation," when used in the incorporate objectives that have social,
importation. The Secretary of the context of Service mitigation economic, and ecological aspects.
Interior, in consultation with the recommendations, means full Species selection always should be
Secretary of Agriculture, is authorized to replacement of project-induced losses to approached in a manner that will
develop by rule or regulation a system fish and wildlife resources, provided optimize contributions to the stated
to standardize and simplify the such full replacement has been judged objectives of the mitigation planning
requirements and procedures by the Service to be consistent with the effort.
appropriate for implementing this Order. appropriate mitigation planning goal. Most land and water development
NATIONAL/INTERNATIONAL TREATIES "Ecoregion " refers to a large decisions are strongly influenced by the
biogeographical unit characterized by perceived impacts of the proposed
Federal Trust Responsibility to Indian distinctive biotic and abiotic action on human use, Since
Tribes. This responsibility is reflected in relationships. An ecoregion may be economically or socially important
the numerous Federal treaties with the subclassified into domains, divisions, species have clearly defined linkages to
Indian tribes. These treaties have the provinces, and sections. A technical human use, they should be included as
force of law. Protection of Indian explanation and map is provided in the evaluation species in all appropriate
hunting and fishing rights necessitates "Ecoregions of the United States" by land and water studies. As a guideline,
conservation of fish and wildlife and Robert G. Bailey, published by the U.S. the following types of species should be
their habitat. Forest Service, 1976. considered:
Convention Between the United "Ecosystem" means all of the biotic * Species that are associated with
States andjapan (September 19,1974). elements (i.e., species, populations, and Important Resource Problems as
This Treaty endorses the establishment communities) and abiotic elements (i.e., designated by the Director of the Fish
of sanctuaries and fixes preservation land, air, water, energy) interacting in a and Wildlife Service (except for
and enhancement of migratory bird given geographic area so that a flow of threatened or endangered species).

C-60

Federal Register Vol. 46, No. 15 / Friday, January 23, 1981 / Notices 7663

Other species with monetary and resources to replace the habitat value of that will directly or indirectly affect fish
non-monetary benefits to people the resources lost, where such substitute and wildlife resources.
accruing from consumptive and resources are physically and "Replacement" means the substitution
nonconsumptive human uses including, biologically the same or closely or offsetting of fish and wildlife resource
but not limited to, fishing, hunting, bird- approximate those lost. losses with resources considered to be
watching and educational, aesthetic, "Loss" means a change in fish and of equivalent biological value. However,
scientific or subsistence uses. wildlife resources due to human resources used for replacement
An analysis based only on those activities that is considered adverse represent loss or modification of another
species with directly identifiable and; type of habitat value. Replacement
economic or social value may not be (1) reduces the biological value of that actions still result in a loss of habitat
broad enough to adequately describe all habitat for evaluation species; acreage and types which will
of the ramifications of a land and water (2) reduces population numbers of continually diminish the overall national
use proposal. If it is desirable to evaluation species; resource base. It should be clearly
increase the ecological perspective of an (3) increases population numbers of understood that replacement actions
assessment, the following types of "nuisance" species; never restore the lost fish and wildlife
species should be considered: (4) reduces the human use of those resource-that is lost forever.
Species known to be sensitive to fish and wildlife resources; or Dated: January 13, 1981.
sp:cific land and water use actions. The (5) disrupts ecosystem structure and Cecil Andrus,
species selected with this approach function.
serve as "early warning" or indicator Changes that improve the value of Secretary of the Department of the Interior.
species for the affected fish and wildlife existing habitat for evaluation species [FR Doc. 81-1895 Filed 1-22--81; 8:45 am]
community. are not to be considered losses, i.e., BILLING CODE 4310-55-M
0 Species that perform a key role in a burning or selective tree harvesting for
community because of their role in wildlife management purposes. In
nutrient cycling or energy flows. These addition, reductions in animal
species also serve as indicators for a populations for the purpose of harvest or
large segment of the fish and wildlife fish and wildlife managment will not be
community, but may be difficult to considered as losses for the purpose of
identify. this policy.
0 Species that represent groups of "Minimize" means to reduce to the
species which utilize a common smallest practicable amount or degree.
environmental resource (guilds). A, "Mitigotion banking" means habitat
representative species is selected from protection or improvement actions taken
each guild and predicted environmental exp
impacts for the selected species are ressly for the purpose of
extended with some degree of compensating for unavoidable losses
confidence to other guild members. from specific future development
"Federal action agency" means a actions. It only includes those actions
department, agency or instrumentality of above and beyond those typically taken
the United States which plans, by Congress for protection of fish and
constructs, operates or maintains a wildlife. resources.
project, or which plans for or approves a "Out-of-kind replacement" means
permit, lease, or license for projects or providing or managing substitute
manages Federal lands. resources to replace the habitat value of
"Fish and wildlife resources" means the resources lost, where such substitute
birds, fishes, mammals, and all other resources are physically or biologically
classes of wild animals and all types of different from those lost.
aquatic and land vegetation upon which "Planning area" means a geographic
wildlife is dependent. space with an identified boundary that
"Habitat" means the area which includes:
provides direct support for a given (1) The area identified in the study's
species, population, or community. It authorizing document;
includes all environmental features that (2) The locations of resources
comprise an area such as air quality, included in the study's identified
water quality, vegetation and soil problems and opportunities;
characteristics and water supply (3) The locations of alternative plans,
(including both surface and often called "project areas;" and
groundwater). (4) The locations of resources that
"Habitat value" means the suitability would be directly, indirectly, or
of an area to support a given evaluation cumulatively affected by alternative
species. plans, often called the "affected area."
"Important Resource Problem " means "Practicable "means capable of being
a clearly defined problem with a single done within existing constraints. The
important population or a community of test of what is practicable depends upon
similar species in a given geographic the situation and includes consideration
area as defined by the Director of the of the pertinent factors, such as
Fish and Wildlife Service. environment, cost, or technology.
"In-Aind replacement" means "Project" means any action, planning
providing or managing substitute or approval process relating to an action

C-61 u.s. oovzoDawr c,"iicm- i4n,

APPENDIX D

NATIONAL PARK SERVICE MANUAL

Or r
DEPARTMENTAL MANUA
0. Q
0
_P
TRANSMITTAL SHEET
J."o

PART SUBJECT RELEASE NUMBER

516 DM 1-7 4
FOR FURTHER INFORMATION, CONTACT Environmental Quality 5ATE
Office of Environ-
mental Project Review MAR 18 1980
EXPLANATION OF MATERIAL TRANSMITTED:
This release completely revises the Department's procedures for
compliance with the National Environmental Policy Act (NEPA).
The procedures adopt the regulations of the Council on Environ-
mental Quality (CEQ) and Chapters 2-6 cannot be read independently
from CEQ's regulations.
In addition the procedures reflect the Secretaryis decision that
there be only one set of NEPA procedures for the Department, that
environmental impact statements be approved at the organizational
levels responsible for decisionmaking on proposals, and that
decisionmakers be .-held accountable for NEPA compliance.

Procedures specific to each bureau will be promulgated as
appendices to Chapter 6.

Lury E, J-@"i.Jarotto
Assistant Secretary of the Interior

Filing Instructions
Remove: Insert:
516 DM 1 (2 sheets) 516 DM 1 (4 sheets)
.516 DM 2 (10 sheets) 516 DM 2 (2 sheets)
Appendices A-E (11 sheets) Appendix 1 (1 sheet)
516 DM'3 (1 sheet)
516 DM 4 (3 sheets)
Appendix 1 (2 sheets)
Appendix 2 (1 sheet)
516 DM 5 (1 sheet)
516 DM 6 (2 sheets)

Pen and Ink Change:
516 DM 3 change to 516 DM 7

D-2

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969
Protection and Enhancement
Chapter 1 of Environmental Quality__ 516 DM l.L

1.1 Purpose. This Chapter establishes the Department's
policies for complying with Title 1 of the National Environ-
mental Policy Act of 1969, as amended (42 U.S.C. 4321-4347)
(NEPA); Section 2 of Executive Order 11514, Protection and
Enhancement of Environmental Quality, as amended by
Executive Order 11991; and the regulations of the Council on
Environmental Quality (CEQ) impleme@@ing the procedural pro-
visions of NEPA (40 CFR 1500-1508).

1.2 Policy. It is the policy of the Department:

A. To provide leadership in protecting and enhancing
those aspects of the quality of the Nation's environment
which relate to or may be affected by the Departm:Tntls-@`
policies, goals, programs, plans, or functions in further-
ance of national environmental policy;

B. To use all practicable means, consistent with other
essential considerations of national policy, to improve,
coordinate, and direct its policies, plans, functions,
programs, and resources in furtherance of national environ-
mental goals;

C. To interpret and administer, to t he fullest extent
possible, the policies, regulations, and public laws of the
United States administered by the Department in accordance
with the policies of NEPA;

D. To consider and give important weight to environ-
mental factors, along with other essential considerations,
in developing proposals and making decisions in order to
achieve a proper balance between the development and utili-
zation of natural, cultural, and human resources and the
protection and enhancement of environmental quality;

E. To consult, coordinate, and cooperate with other
Federal agencies and State, local, and Indian tribal
governments in the development and implementation of the
Department's plans and programs affecting environmental
quality and, in turn, to provide to the fullest extent
practicable, these entities with information concerning the
environmental impacts of their own plans and programs;

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D-3

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969
Protection and Enhancement
.Chapter 1 of Environmental Quality 516 DM 1.27

F. To provide, to the fullest extent practicable,
timely information to the public to better assist in under-
standing Departmental plans and programs affecting environ-
mental quality and to facilitate their involvement in the
development of such plans and programs; and

G. To cooperate with and assist the CEQ.

1.3 General Responsibilities. The following reaponsibili-
ties lect the Secretary's decision that the officials
responsible for making program decisions are also responsi-
ble for taking the requirements of NEPA into account in
those decisions and will be held accountable for that
.responsibility:

A. Assistant Secretary--Policy, Budget and Administra-
tion.

Cl) Is the Department's focal point on NEPA
matters and is responsible for overseeing the Departmentts
implementation of NEPA.

(2) Serves as the Department's principal contact
with the CEQ.

C3) Assigns to the Director, Office of Environ-
mental Project Review, the responsibilities outlined for
that Office in this Part.

B. Solicitor. Is responsible for providing legal
advice in the DepErtmentts compliaiice with NEPA.

C. Assistant Secretaries.

(1) Are responsible for compliance with NEPA,
E.O. 11514, as amended, the CEQ regulations, and this Part
for bureaus and offices under their jurisdiction.

(2) Will insure that, to the fullest extent
possible, the policies, regulations, and public laws of the
United States administered under their jurisdiction are
interpreted and administered in accordance with the policies
of NEPA.

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D-4

Der)artment of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969
Protection and Enhancement
ironmental QualitV 516 DM 1.3a

D. Heads of Bureaus and Offices.

Cl) Must comply w'1th the provisions of NEPA,
E.O. 11514, as amended, the CEQ regulations and 'this Part.

(2) Will interpret and administer, to the fullest
extent possible, the policies, regulations, and public laws
of the United States administered under their jurisdiction
in accordance with the policies of NEPA.

C3) Will continue to review their statutory
authorities, administrative regulations, policies, programs,
and procedures, including those related to loans, grants,
contracts, leases, licenses, or permits, in order to
identify any deficiencies.or inconsistencies therein which
prohibit or limit full compliance with the intent, purpose,
and provisions of NEPA and, in consultation with the
Solicitor. and the Legislative Counsel, shall take or recom-
mend, as appropriate, corrective actions as may be necessary
to bring these authorities and policies into conformance
with the intent, purpose, and procedures of NEPA.

C4) Will monitor, evaluate, and control on a
continuing basis their activities so as to protect and
enhance the quality of the environment. Such activities
will include those directed to controlling pollution and
enhancing the environment and designed to accomplish other
program objectives which may affect the quality of the
environment. They will develop programs and measures-to
protect and enhance environmental quality and assess
progress in meeting the specific objectives of such
activities as.they affect the quality of the environment.

1.4 Consideration of Environmental Values.

A. In Departmental Management.

(1) In the management of the natural, cultural,
and human resources under its jurisdiction, the Department
must consider and balance a wide range of economic, environ-
mental, and social objectives at the local, regional,
national, and international levels, not all of which are
quantifiable in comparable terms. In considering and
balancing these objectives, Departmental plans, proposals,

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D-5

Department of the Interior

-DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969
Protection and Enhancement
Chapter 1 of Environmental Quality 516 DM 1.4A(l)
and decisions often require recognition of complements and
resolution of conflicts amon g interrelated uses of these
natural, cultural, and human resources within technological,
budgetary, and legal constraints.

(2) Departmental project reports, program
proposals, issue papers, and other decision documents must
carefully analyze the various objectives, resources, and
constraints, and comprehensively and objectively evaluate
the advantages and disadvantages of the proposed actions
and their reasonable alternatives. Where appropriate,
these documents will utilize and reference supporting and
underlying economic, environmental, and other analyses.

(3) The underlying environmental analyses will
factually, objectively, and comprehensively analyze the
environmental effects of proposed actions and their reason-
able alternatives. They will systematically analyze the
environmental impacts of alternatives, and particularly
those alternatives and measures which would reduce, mitigate
or prevent adverse environmental impacts or which would
enhance environmental quality. However, such an environ-
mental-analys'is is not, in and of itself, a program
proposal or the decision document, is not a justification
of a proposal, and will not support or deprecate the over-
all merits of a proposal or.its various alternatives.

B. In Internally Initiated Proposals. Officials
responsible for development or conduct of planning and
decisionmaking systems within the Department shall incor-
porate to the maximum extent necessary environmental
planning as an integral part of these systems in order to
insure that environmental values and impacts are fully
considered and in order to facilitate any necessary
documentation of those considerations.

C. In Externally Initiated Proposals. Officials
responsible for development or conduct of loan, grant,
contract, lease, license, permit, or other externally
initiated activities shall require applicants, to the extent
necessary and practicable, to provide environmental informa-
tion, analyses, and reports as an integral part of their
applications. This'will serve to encourage applicants to
incorporate environmental. considerations into their planning

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D-6

Department of the InteTio.Ir
( _,/1
DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969
Protection and Enhancement
Chapt2r 1 of Environmental Quality. 516 DM 1.4
processes as well as provide the Department with necessary
information to meet its own environmental responsibilities.

1.5 Consultation, Coordination, and Cooperation-with Other
Agencies and Organizations.

A. Departmental Plans and Programs.

(1) Officials responsible for planning or imple-
menting Departmental plans and programs will develop and
utilize procedures to consult, coordinate, and cooperate
with relevant State, local, and Indian tribal governments;
other bureaus and Federal agencies; and public and private
organizations and individuals concerning the environmental
effects of these plans and programs on their jurisdictions
or interests.

(2) Bureaus and offices will utilize, to the
maximum extent possible, existing notification, coordination
and review mechanisms established by the Office of Manage-
ment and Budget, the Water Resources Council, and CEQ.
However, use of these mechanisms must not be a substitute
for early and positive consultation, coordination, and
cooperation with others, especially State, local, and
Indian tribal governments.

B. Other Departmental Activities.

(1) Technical assistance, advice, data, and
information useful in restoring, maintaining, and enhancing
the quality of the environment will be made available to
other Federal agencies, State, local, and Indian tribal
governments, institutions, and individuals-as appropriate.

(2) Information regarding existing or potential
environmental problems and control methods developed as a
part of research, development, demonstration, test, or
evaluation activities will be made available to other
Federal agencies, State, local, and Indian tribal govern-
ments, institutions 'and other entities as appropriate.

(3) Recognizing the worldwide and long-range
character of environmental problems, where consistent with
the foreign policy of the United States, appropriate support
will be made available to initiatives, resolutions, and
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D-7

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality PolicV Act of 1969
Protection and Enhancement
Chapter 1 of Environmental QualitV 516 DM 1.5B(3)

programs designed to maximize international cooperation in
anticipating and preventing a decline in the quality of the
world environment.

C. Plans and Programs of Other Agencies and
Organizations

(1) Officials responsible for protecting, conser-
ving, developing, or managing resources under the
Department's jurisdiction shall coordinate and cooperate
with State, local, and Indian tribal 'governments, other
bureaus and Federal agencies, and public and private organi@
zations and individuals, and provide them with timely
information concerning the environmental effect's of these
entities' plans and programs.

(2) Bureaus and offices are encouraged to partici-
pate early in the planning processes of other agencies and
organizations in order to insure full cooperation with and
understanding of the Department's programs and interests
in-natural, cultural, and human resources.

(3) Bureaus and offices will utilize to the full-
est extent possible, existing Departmental review mechan-
isms to avoid unnecessary duplication of effort and to avoid
confusion by other organizations.

1.6 Public Involvement. Bureaus and offices, in consulta-
tion with the Office @7 Public Affairs, will develop and
utilize procedures to insure the fullest practicable pro-
vision of timely public information and understanding of
their plans and programs with environmental impact including
information on the environmental impacts of alternative
courses of action. These procedures will.include, wherever
appropriate, provision for public meetings or hearings in
order to obtain the views of interested parties. Bureaus
and offices will also encourage State and local agencies
and Indian tribal governments to adopt similar procedures
for informing the public concerning their activities
affecting the quality of the environment. (See also
301 DM 2.)

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D-8

Deoartment of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969
Protection and Enhancement
Chapter 1 of Environmental QualitV 516 DM 1.7

1.7 Mandate.

A. This Part provides Department-wide instructions for
complying with NEPA and Executive Orders 11514, as amended
by 11991 (Protection and Enhancement of Environmental
Quality) and 12114 (Environmental Effects Abroad of Major
Federal Actions).

B. The Department hereby.adopts the regulations of the
CEQ implementing the procedural provisions of NEPA
(Sec. 102(2)(C))except where compliance would be inconsis-
tent with other statutory requirements. In the case of any
apparent discrepancies between these procedures and the
mandatory provisions of the CEQ regulations, the' regula-
tions shall govern.

C. Instructions supplementing the CEQ regulations are
provided in Chapters 2-7 of this Part. Citations in
brackets refer to the CEQ regulations. Instructions
specific to each bureau are appended to Chapter 6. In
addition, bureaus may prepare a handbook(s) or other
technical guidance for their personnel on how to apply this
Part to principal programs.

D. Instructions implementing Executive Order 12114
will be provided in Chapter 8.

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D-9

Dei)artment of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 2 Initiating the NEPA Process 516 DM 2.1
2.1 Purpose. This Chap-Ler provides supplementary instruc-
tions for implementing those portions of the CEQ regula-
tions pertaining to initiating the NEPA process.

2.2 Apply NEPA Early [1501.21.

A. Bureaus will initiate early consultation and coor-
dination with other bureaus and any Federal agency which has
jurisdiction by law or special expertise with respect to any
environmental impact involved, and with appropriate Federal,
State, local and Indian tribal agencies authorized to
develop and enforce environmental standards.

B. Bureaus will also consult early with interested
private parties and organizations, including when the
bureau's own involvement is reasonably foreseeable in a
private or non@Federal application.

C. Bureaus will revise or amend program regulations or
directives to insure that private or non-Federal applicants
are informed of any environmental information required to be
included in their applications and of any consultation with
other Federal agencies, and State, local, or Indian tribal
governments required prior to making the application. A
list of these regulations or directives will be included in
each Bureau Appendix to Chapter 6.

2.3 Whether to Prepare an EIS [1501-41.

A. Categorical Exclusions [1508.41.

(1) The following criteria will be used to deter-
mine actions to be categorically excluded from the NEPA
process:
(a) The action or group of actions would have
no significant effect on the quality of the human environ-
ment, and
(b) The action or group of actions would not
involve unresolved conflicts concerning alternative uses of
available resources.

(2) Based on the above criteria, the classes of
actions listed in Appendix 1 to this Chapter are categori-
cally excluded, Department-w-ide, from the NEPA process. A
list of categorical exclusions specific to bureau programs
will be included in each Bureau Appendix to Chapter 6.
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D-10

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 2 Initiating the NEPA Process 516 DM 2.3A(3)

(3)' The following exceptions apply to individual
actions within categorical exclusions. Environmental
assessments must be prepared for actions which may:

(a) Have significant adverse effects on
public health or safety.

(b) Adversely affect such unique geographic
characteristics as historic or cultural resources, park,
recreation, or refuge lands, wilderness areas, wild or
scenic rivers, sole or principal drinking water aquifers,
prime farmlands, wetlands, floodplains, or ecologically
significant or critical areas, including those listed on
the Department's National Register of Natural Landmarks.

(d) Have highly uncertain environmental
effects or involve unique or unknown environmental risks.

(e) Establish a precedent for future action
or represent a decision in principle about a future consi-
deration with significant environmental effects.

(f) Be related to other actions with
individually insignificant but cumulatively significant
environmental effects.

(g) Adversely affect properties listed or
eligible for listing in the National Register of Historic
Places.

(h) Affect a species listed or proposed to
be listed on the List of Endangered or Threatened.Species.

(i) Threaten to violate a Federal, State,
local, or tribal law or requirements imposed for the pro-
tection of the environment or which require compliance with
Executive Order 11988 (Floodplain Management), Executive
Order 11990 (Protection of Wetlands), or the Fish and
Wildlife Coordination Act.

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D-11

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 2 Initiating the NEPA Process 516 DM 2.3A(4)

(4) Notwithstanding the criteria and exceptions
above, extraordinary circumstances may dictate or a respons-
ible Departmental or bureau official may decide to prepare
environmental assessments.

B. Environmental Assessment (EA) [1508.91.
See 516 DM 3.

C. Finding of No Significant Impact (FONSI) [1508.131.
A FONSI will be prepared as a separate covering document
based upon a review of an EA. Accordingly, the words
include(d) in Section 1508.13 should be interpreted as
attach(ed).

D. Notice of Intent (NOI) [1508-221. A NOI will be
prepared as soon as practicable after a decision to prepare
an environmental impact statement and shall be published in
the Federal Register, with a copy to the Office of Environ-
ment@Tl -Project Review, and made available to the affected
public in accordance with Section 1506.6. Publication of a
NOI may be delayed if there is proposed to be more than
three (3) months between the decision to prepare an environ-
mental impact statement and the time preparation is actually
initiated. The Office of Environmental Project Review will
periodically publish a consolidated list of these notices
in the Federal. Register.

E. Environmental Impact Statement (EIS) [1508.111.
See 516 DM 4. Decisions/actions which would normally
require the preparation of an EIS will be identified in.the
Bureau Appendix to Chapter 6.

2.4 Lead Agencies [1501.51.

A. The Assistant Secretary--Policy, Budget and
Administration will designate lead bureaus within the
Department when bureaus under more-than one Assistant
Secretary are involved and will. represent the Department
in consultations with CEQ or other Federal agencies in the
resolution of lead agency determinationb.

B. Bureaus will inform the Office of Environmental
Project Review of any agreements to assume lead agency
status.

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D-12

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality PolicV A2t of 1969

Chapter 2 Initiating the NEPA Process 516 DM 2.4C-

C. A non-Federal agency will not be designated as a
joint lead agency unless it.has a duty to comply with a
local or State environmental impact statement requirement
that is comparable to a NEPA statement. Any non-Federal
agency may be a cooperating agency by agreement. Bureaus
will consult with the Solicitor's Office in cases where
such non-Federal agencies are also applicants before the
Department to determine relative lead/cooperating agency
responsibilities.

2.5 Cooperating Agencies [1501.61.

A. The Office of Environmental Project Review.will
assist bureaus and coordinate requests from non--;Interior
agencies in determining cooperating agencies.

B. Bureaus will inform the Office of Environmental
Project Review of any agreements to assume cooperating
agency status or any declinations pursuant to Section
1501.6(c).

2.6 Scoping [1501.71.

A. The invitation requirement in Section 1501.7(a)(1)
may be satisfied by including such an invitation in the NOI.

B. If a scoping meeting is held, consensus is
desirable; however, the lead agency is ultimately responsi-
ble for the scope of an EIS.

2.7 Time Limits [1501.81. When time limits are established
they should reflect the availability of personnel and funds.

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D- 13

Department of the Int erior

.DEPARTMENTAL MANUAL

516 DM 2
Appendix 1

DEPARTMENTAL CATEGORICAL.EXCLUSIONS

The following actions are categorical exclusions.pursuant
to 516 DM 2.3A(2). However, environmental documents will
be prepared for individual actions within these categorical
exclusions if the exceptions.listed in 516 DM 2.3A(3)
apply.

1.1 Personnel actions and investigations and'personnel
services contracts.

1.2 Internal organizational changes and facility and office
reductions and closings-.

1.3 Routine financial transactions, including such things
as salaries and,expenses, procurement contracts, guarantees,
financial assistance, income transfers, and audits.

1.4 Law enforcement and legal transactions, including such
things as arrests; investigations; patents; claims; legal
opinions; and judicial proceedings including their initia-
tion, processing and/or settlement.

1.5 Regulatory and enforcement actions, including
inspections., assessments, administrative hearings, and
decisions; when the regulations themselves or the instru-
ments of regulations (leases, permits, licenses, etc.) have
previously been covered by the NEPA process or are exempt
from it.

1.6 Non-destructive.data collection, inventory (including
mapping), study, research and monitoring activities.

1.7 Routine and continuing government business, including
such things as supervision, administration, operations,
maintenance, and replacement.

1.8 Management, formulation, and allocation of the
Department's budget at all levels. (This does not exempt
the preparation of environmental documents for proposals
included in the budget when otherwise required.)

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D-14

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 3 Environmental Assessments 516 DM 3.1
3.1 LP@u4_@ose@_ This Chapter provides supplementary instruc-
tions for implementing those.portions of the CEQ regulations
pertaining to environmental assessments (EA).

3.2 When to Pre_pare [1501.31.

A. An EA will be prepared for all actions, except
those covered by a categorical exclusion, covered suffi-
ciently by an earlier environmental document, or for those
actions for which a decision has already been made to
prepare an EIS. The purpose of such an EA is to allow the
responsible official to determine whether to prepare an EIS.

B. In addition, an EA may be prepared on any.action at
any time in order to assist in planning and decisionmaking.

3.3 Public Involvement.

A. Public notification must be provided and, where
appropriate, the public involved in the EA process [1506.61.

B. The scoping process may be applied to an EA
[1501.71.

3.4 Content.

A. At a minimum, an EA will include brief discussions
of the need for the-proposal, of alternatives as required
by Section 102(2)(E) of NEPA, of the environmental impacts
of the proposed action and such alternatives, and a listing
of agencies and persons consulted [1508.9(b)].

B. In addition, an EA may be expanded to describe the
proposal, a broader range of alternatives, and proposed
mitigation.measures df this facilitates planning and
decisionmaking.

C. The level of detail and depth of impact analysis
should normally be limited to that needed to determine
whether there are significant environmental effects.

3/18/80 #2244
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D-15

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 3 Environmental Assessments 516 DM 3..4D

D. An EA will contain objective analyses which support
its environmental impact conclusions. It will not, in and
of itself, conclude whether or not an EIS will be prepared.
This conclusion will be made upon review of the EA by the
responsible official and documented in either a NOI or FONSI.

3.5 Format.

A. An EA may be prepared in any format useful to
facilitate planning and decisionmaking.

B. An EA may be combined with any other planning or-
decisionmaking document; however, that portion which
analyzes the environmental impacts of the proposal and
alternatives will be clearly and separately identified and
not spread throughout or interwoven into other sections of
the document.

3/18/80 #2244
Replaces 9/17/70 #1222 and 9/27/71 #1341

D-16

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 4 Environmental Impact Statements 516 DM 4.1

Purpose. This Chapter provides supplementary instruc-
4.1 Pu
tions for implementing those portions of the CEQ regulations
pertaining to environmental impact statements (EIS).

4.2 Statutory Requirements [1502.31. NEPA requires that an
EIS be prepared by the responsible Federal official. This
official is normally the lowest-level official who has over-
all responsibility for formulating, reviewing, or proposing
an action or, alternatively, has been delegated the
authority or responsibility to develop, approve, or adopt a
proposal or action. Preparation at this level will insure
that the NEPA process will be incorporated into the planning
process and that the EIS will accompany the proposal through
existing review processes.

4.3 Timing [1502.51.

A. The feasibility analysis (go/no-go) stage, at which
time an EIS is to be completed, is to be interpreted as the
stage prior to the first point of major commitment to the
proposal. For example, this would normally be at the
authorization stage for proposals requiring Congressional
authorization, the location or corridor stage for trans-
portation, transmission, and communication projects, and the
leasing stage for mineral resources proposals.

B. An EIS need not be commenced until an application
is essentially complete; e.g., any required environmental
information is submitted, any consultation required with
other agencies has been conducted, and any required advance
funding is paid by the applicant.

4.4 Page Limits [1502.71. Where the text of an EIS for a
complex proposal or group of proposals appears to require
more than the normally prescribed limit of 300 pages,
bureaus will insure that the length of such statements is
no greater than necessary to comply with NEPA, the CEQ
regulations, and this Chapter.

4.5 Supplemental Statements E1502.91.

A. Supplements are only required if such changes in
the proposed ac tLon or alternatives, new circumstances, or
resultant significant effects are not adequately analyzed
in the previously prepared EIS.

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D-17

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 4 Environmental Impact Statements 516 DM 4.5B
B. A bureau and/or the appropriate program Assistant
Secretary will consult with the Office of Environmental
Project Review and the Office of the Solicitor prior to
proposing to CEQ to prepare a final supplement without
preparing an intervening draft.

C. If, after a decision has been made based on a final
EIS, a described proposal is further defined or modified and
if its changed effects are minor or still within the scope
of the earlier EIS, an EA and FONSI may be prepared for
subsequent decisions rather than a supplement.

4.6 Format [1502.101.

A. Proposed departures from the standard format des-
cribed in the CEQ regulations and this Chapter must be
approved by the Office of Erivironmental Project Review.

B. The section listing the preparers of the EIS will
also include other sources of information,, including a
bibliography or list of cited references, when appropriate.

C. The section listing the distribution of the EIS
will also briefly describe the consultation and public
involvement processes utilized in planning the proposal
and in preparing the EIS, if this information is not dis-
cussed elsewhere in the document.

D. If CEQts standard format is not used or if the EIS
is combined with another planning or decisionmaking document
the section which analyzes the environmental consequences
of the proposal and its alternatives will be clearly and
separately identified and not interwoven into other
portions of or spread throughout the document.

4.7 Cover Sheet [15-02.111. The cover sheet will also
indicate whether the EIS is intended to serve any other
environmental review or consultation requirements
pursuant to Section 1502.25.

4.8 Summary [1502.121. The emphasis in the summary should
be on those considerations, controversies, and issues which
significantly affect the quality of the human environment.

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D-18

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 4 Environmental Impact Statements 516 DM 4.9
4.9 Purpose and Need [1502.131. This section may introduce
a number of factors, including economic and technical consi
derations and Departmental or bureau statutory missions,
which may be beyond the scope of the EIS. Care should be
taken to insure an objective presentation and not a
justification.
4.10 Alternatives Including the Proposed Action [1502.141.

A. As a general rule, the following guidance will
apply:

(1) For internally initiated proposals; i.e., for
those cases where the Department conducts or controls the
planning process, both the draft and final EIS shall
identify the bureau's proposed action.

(2) For externally initiated proposals; i.e. 5 for
those cases where the Department is reacting to an applica-
tion or similar request, the draft and final EIS shall
identify the applicant's proposed action and the bureau's
preferred alternative unless another law prohibits such an
expression.

(3) Proposed departures from this guidance must
be approved by the Office of Environmental Project Review
and the Office of the Solicitor.

B. Mitigation measures are not necessarily independent
of the proposed action and its alternatives and should be
incorporated into and analyzed as a part of the proposal and
appropriate alternatives. Where appropriate, major mitiga-
tion measures may be identified and analyzed as separate
alternatives in and of themselves where the environmental
consequences are distinct anct significant enough to warrant
separate evaluation.

4.11 Appendix [1502.181. If an EIS is intended to serve
other ;@vironmental review or consultation requirements
pursuant to Section 1502.25, any more detailed information
needed to comply with these requirements may be included
as an appendix.

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D-19

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 4 Environmental Impact Statements 516 DM 4,12

4.12 Incorporation by Reference [1502.211. Citations'of
specific topics will include.the pertinent page numbers.
All literature references will be listed in,the
bibliography.

4.13 Incomplete or Unavailable Information [1502.221. The
references to overall costs in this @_ection are not limited
to market costs, but include other costs to society such as
social costs due to delay.

4.14 Methodology and Scientific Accuracy [1502.241. Conclu-
sions about environmental effects will be preceded by an
analysis that supports that conclusion unless explicit
reference by footnote is made to other supporting documenta-
tion that is readily.available to the public.

4.15 Environmental Review and-Consultation Requirements
L1502.25T.-

A. A list of related"environmental review and con-
sultation requirements is attached as Appendix 1 to this
Chapter.

B. If the EIS is intended to serve as the vehicle to
fully or partially comply with any of these requirements,
the associated analyses, studies, or surveys will be
identified as such-and discussed in the text of the EIS
and the cover sheet will so indicate. Any supporting.
analyses or reports will be referenced or included as an
appendix and shall be sent to reviewing agencies as
appropriate in accordance with applicable regulations or
procedures.

4.16 Inviting Comments [1503.11.

A. Comments from State agencies will be requested
through the State Clearinghouse established by the Governor
pursuant to OMB Circular A-95, unless the Governor has
designated an alternative review process, and may be
requested from local agencies through Areawide Clearing-
houses to the extent that they include the affected local
jurisdiction.

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D-20

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality PoTi-ey Act of 1969

Chapter 4 Environmental ImT)act Statements 516 DM 4.16

B. When the proposed action may affect the environment
of an Indian reservation, comments will be requested from
the Indian tribe through the tribal governing body, unless
the tribal governing body has designated an alternate review
process.
4.17 Response to Comments [1503.41.

A. Preparation of a final EIS need not be delayed in
those cases where a Federal agency, from which comments are
required to be obtained [1503.1(a)(1)], does not comment
within the prescribed comment period. Informal attempts
will be made to determine the status of any such comments
and every reasonable attempt should be made to include the
comments and a response in the final EIS.

B. When other commentors are late, their comments
should be included in the final EIS to the extent
practicable.

C. For those EISs requiring the approval of the
Assistant Secretary--Policy, Budget and Administration
pursuant to 516 DM 6.3, bureaus will consult with the
Office of Environmental Project Review when they propose
to prepare an abbreviated final EIS [1503.4(c)].

4.18 Elimination of Duplication with State and Local Proce-
dures [1506-21. Bureaus will incorporate in their appro-
]@riate program regulations provisions for the preparation
of an EIS by a State agency to the extent authorized in
Section 102(2)(D) of NEPA. Eligible programs are listed
in Appendix 2 to this Chapter.

4.19 Combining Documents [1506.41. See 516 DM 4.6D.

4.20 Departmental Responsibility [1506.51. Following the
responsible official's preparation or independent evaluation
of and assumption of responsibility for an environmental
document, an applicant may print it provided the applicant
is bearing the cost of the Jocument pursuant to other laws.

4.21 Public Involvement [1506.61. See 516 DM 1.6 and
301 DM 2.

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D-21

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 4 Environmental Impact Statements 516 DM 4..22

4.22 Further Guidance [1506.71. The Office of Environmental
Project Review may provide further guidance concerning NEPA
pursuant to its organizational res.ponsibilities (110 DM 22)
and through supplemental directives (015 DM 6).
4.23 Proposals for Lezislation [1506.81. The Legislative
Couns@i_i',in consultation with the Office of Environmental
Project Review, shall:

A. Identify in the annual submittal to OMB of the
Department's proposed legislative program any requirements
for and the status of any environmental documents.

B. When required, insure that a legislative-EIS is
included as a part of the formal transmittal of a legisla-
tive proposal to the Congress.

4.24 Time Periods [1506.101.

A. The minimum review period for a draft EIS will be
sixty (60) days from the date of transmittal to the
Environmental Protection Agency.

IB. For those EISs requiring the approval of the
Assistant Secretary--Policy, Budget and Administration
pursuant to 516 DM 6.3, the Office of Environmental Project
Review will be responsible for consulting with the
Environmental Protection Agency and/or CEQ about any
proposed reductions in time periods or any extensions of
time periods proposed by those agencies.

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D-22

Department of the Interior

DEPARTMENTAL MANUAL

516 DM 4
Aimendix 1

LIST OF OTHER ENVIRONMENTAL REVIEW AND CONSULTATION
REQUIREMENTS

1.1 Cultural Resources

Archeological Resources Protection Act of 1979
16 U.S.C. 8 470aa et seq.

Archeological and Historic Preservation Act of 1974
16 U.S.C. 8 469a-1

National Historic Preservation Act of 1966 (Sec. 106)
16 U.S.C. 9 470f

Antiquities Act of 1906
16 U.S.C. 8 431

Executive Order 11593 (Protection and Enhancement of
the Cultural Environment)

American Indian Religious Freedom Act
92 Stat. 469

1.2 Water and Related Land Resources

Marine Protection, Research and Sanctuaries Act of
1972
(Sec. 102, 103, 301)
16 U.S.C. 8 1431 et seg.

Safe Drinking Water Act of 1974
42 U.S.C. 8 300f

Flood Disaster Protection Act of 1973
-12 U.S.C. 9 24, 1701-1 Supp
42 U.S.C. 9 4001 et seg.

Coastal Zone Management Act of 1972
16 U.S.C. 9 1451, 1456

Estuary Protection Act
16 U.S.C. 8 1221

Executive Order 11988 (Floodplain Management)

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D-23

.Department of the Interior

DEPARTMENTAL MANUAL

516 DM 4
Appendix 1-

Executive Order 11990 (Wetlands Protection)

Federal Water Project Recreation Act (Ss 6(a))
16 U.S.C. 8 4601-17

Clean Water Act (9 208, 303, 401, 402, 404, 405, 511)
33 U.S.C. 88 1288, 1314, 1341, 1342, 1344

Rivers and Harbors Act of 1899 (8 9and 9 10)
33 U.S.C. 9 401 et seq.

Wild and Scenic Rivers Act of 1968 (Sec. 7)
16 U.S.C. 9 1274 et seq.

Federal Power Act
16 U.S.C. 8 797

Water Resources Planning Act of 1965
42 U.S.C. 8 1962 et seq.

Water Resources Council's Principles and Standards

1.3 Wildlife

Endangered Species Act (See. 7)
16 U.S.C. 9 1531 et seq.

Fish and Wildlife Coordination Act
16 U.S.C. 9 661, 662

Fish and Wildlife Conservation at Small Watershed
Projects
16 U.S.C. 8 10015 1005(4), 1008

1.4 Public Lands, Open Space, Recreation

Federal Land Policy and Management Act
43 U.S.C. 8 1701, 1761-1771

Mineral Leasing Act Amendments of 1973
30 U.S.C. 8 185

Forest and Rangeland Renewable Resources Act
16 U.S.C. 8 1601 et seq.

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D-24

Department of the Interior

DEPARTMENTAL MANUAL

516 DM 4
Appendix 1

Land and Water Conservation Fund Act of 1965(Sec. 6(f))
16 U.S.C. S 4601-8(f)

Open Space Lands
42 U.S.C. 8 1500a(d)

Urban Park and Recreation Recovery Act
16 U.S.C. 8 2501 et 'seg.

National Trails System Act
16 U.S.C. 9 1241

1.5 Marine Resources

Deepwater Port Act
33 U.S..C. 9 1501, 1503-1505

Ocean Dumping
33 U.S.C. 8 1401, 1412, 1413, 1414

Marine Protection, Research and Sanctuaries Act
16 U.S.C. 9 1431-1434

1.6 Transportation

Department of Transportation Act of 1966 (Sec. 4(f))
49 U.S.C. 8 1653(f)

Federal Aid Highway Act of 1958
23 U.S.C. 8 1285 138

Urban Mass Transportation Act of 1964
-9 U.S.C. 9 1602, 1610
Airport and Airway Development Act of 1970
49 U.S.C. 9 1716

Federal Aviation Act
49 U.S.C. 8-3334

1.7 Air Quality

Clean Air Act
42 U.S.C. 8 7401 et seg.

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D-25

Department of the Interior

DEPARTMENTAL MANUAL

516 DM 4
Appendix-1

1.8 Miscellaneous

Intergovernmental Coordination Act of 1968.
42 U.S.C. 9 4201, 4231, 4233
(A-95 review process, including urban impact
analysis)

Demonstration Cities and Metropolitan Development Act
of 1966
42 U.S.C. 9 3334

Surface Mining Control and Reclamation Act of 1977
30 U.S.C. 8 1201 et seq.

Resources Conservation and Recovery Act of 1976
42 U.S.C. 9 3251 et seq.

Noise Control Act of 1972, as amended
42 U.S.C. 8 4901 et seg.

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D-26

Department of the Interior

DEPARTMENTAL MANUAL

516 DM 4
.Appendix 2

PROGRAMS OF GRANTS TO STATES IN WHICH STATE AGENCIES HAVING
STATEWIDE JURISDICTION MAY PREPARE EISs

2.1 Fish and Wildlife Service

A. Anadromous Fish Conservation [#15.6001

B. Fish Restoration [#15.6051

C. Wildlife Restoration [#15.6111

D. Endangered Species Conservation [#15.6121

2.2 Heritage Conservation and Recreation Service

A. Outdoor Recreation--Acquisition5 Development and
Planning [#15.4001

B. Historic Preservation Grants-in-Aid [#15.4111

C. Urban Park and Recreation Recovery Program Grants
(not yet incorporated in CFDA)

Note: Citations in brackets refer to the Catalog of
Federal Domestic Assistance, Office of Management
and Budget, 1979

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D-27

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969 -

Chapter 6 Relationship to Decisionmaking '516 DM 5.1-
5.1 Purpose. This Chapter provides supplementary instruc-
F___ -plementing those portions of the CEQ regulations
tions or Im
pertaining to decisionmaking.

5.2 Predecision Referrals to CEQ [1504.31.

A. Upon receipt of advice that another Federal agency
intends to refer a Departmental matter to CEQ, the lead
bureau will immediately meet with that Federal agency to
attempt to resolve the issues raised and expeditiously noti-
fy its Assistant Secretary and the Office of Environmental
Project Review.

B. Upon any referral of a Departmental matter to CEQ
by another Federal agency, the Office of Environmental
Project Review will be responsible for coordinating the
Department's position.

5.3 Decisionmaking Procedures [1505.11.

A. Procedures for decisions by the Secretary/Under
Secretary are specified in 301 DM 1. Assistant Secretaries
should follow a similar process when an environmental
document accompanies a proposal for their decision.

B. Bureaus will incorporate in their formal decision-
making procedures and NEPA handbooks provisions for consi-
deration of environmental factors and relevant environmental
documents. The major decision points for principal programs
likely to have significant environmental effects will be
identified in the Bureau Appendix to Chapter 6.

C. Relevant environmental documents, in-cluding
supplements, will be included as part of the record in
formal rulemaking or adjudicatory proceedings.

D. Relevant environmental documents, comments, and
*11 accompany proposals through existing review
responses wi
processes so that Departmental officials- use them in making
decisions.

E. The decisionmaker will consider the environmental
impacts of the alternatives described in any relevant
environmental document and the range of these alternatives
must encompass the alternatives considered by the decision-
maker.
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D-28

Department of the interior
DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 5 Relationship to Decisionmaking 516 DM 5.4-

5.4 Record of Decision [1505.21.

A. Any decision documents prepared pursuant.to
301 DM 1 for proposals involving an EIS may incorporate all
appropriate provisions of Section 1505.2(b) and (c).

B. If a decision document incorporating these provi-
sions is made available to the public following a decision,
it will serve the purpose of a record of decision.

5.5 Implementing the Decision [1505.31. The terms
11monitoring" and "conditions" will be interpreted as being
related to factors affecting the quality of the human
environment.

5.6 Limitations on Actions (1506-11. A bureau will notify
I
its Assistant Secretary, the Solicitor, and'the Office of
Environmental Project Review of any situations described in
Section 1506.1(b).

5.7 Timing of Actions [1506-101. For those EISs requiring
the approval of the Assistant Secretary--Policy, Budget and
Administration pursuant to 516 DM 6.3, the responsible
official will consult with the Office of Environmental
Project Review before making any request for reducing the
time period before a decision or action.

5.8 Emergencies [1506.111. In the event of an unantici-
pated emergency situation, a bureau will immediately take
any necessary action to prevent or reduce risks to public
.health or safety or serious resource losses and then
expeditiously consult with its Assistant Secretary, the
Solicitor, and the Office of Environmental Project Review
about compliance with NEPA. The Office of Environmental
.Project Review and the bureau T4ill jointly be responsible
for consulting with CEQ.

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D-29

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 6 Managing the NEPA Process 516 DM 6.1

6.1 Purpose. This Chapter provides supplementary instruc-
tions for implementing those provisions of the CEQ regula-
tions pertaining to procedures for implementing and managing
the NEPA process.

6.2 Organization for Environmental Quality.

A. Office of Environmental Project Review. The
Director, Office of Environmental Project Review, reporting
to the Assistant Secretary--Policy, Budget and Administra-
tion (PBA), is responsible for providing advice and assis-
tance to the Department on matters pertaining to environ-
mental quality and for overseeing and coordinating the
Departmentts compliance with NEPA, E.O. 11514, the '-CEQ
regulations, and this Part. (See also 110 DM 22.')

B. Bureaus and Offices. Heads of bureaus and offices
will designate organT'zatlonal elements or individuals, as
appropriate, at headquarters and regional levels to be
responsible for overseeing matters pertaining to the
environmental effects of the bureau's plans and programs.
The individuals assigned these responsibilities should have
management experience or potential, understand the bureau's
planning and decisionmaking processes, and be well trained
in environmental matters, including the Depdrtment's
policies and procedures so that their advice has signifi-
cance in the bureau's planning and decisions. These
organizational elements will be identified in the Bureau
Appendix to this Chapter.

6.3 Approval of EISs.

A. A program Assistant Secretary is authorized to
approve, an EIS in those cases where the responsibility for
the decision for which the EIS has been prepared rests with
the Assistant Secretary or below. The Assistant Secretary
may further assign the authority to approve the EIS if he
or she chooses. The Assistant Secretary--PBA will make
certain that each program Assistant Secretary has adequate
safeguards to assure that the EISs comply with NEPA, the
CEQ regulations, and the Departmental Manual.

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D-30

Department of the Interior

DEPARTMENTAL MANUAL
Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 6 Managing the NEPA Process 516 DM 6.3B

B. The Assistant Secretary--PBA is authorized to
approve an EIS in those cases where the decision for which
the EIS has been prepared will occur at a level in the
Department above an individual program Assistant Secretary.

6.4 List of Specific Compliance Responsibilities.

A. Bureaus and offices shall:

(1) Prepare NEPA handbooks providing guidance on
how to implement NEPA in principal program areas.

(2) Prepare program regulations or directives
for applicants.

(3) Propose categorical exclusions.

(4) Prepare and approve EAs.

(5) Decide whether to prepare an EIS.

(6) Prepare and publish NOIs and FONSIs.

(7) Prepare and, when assigned, approve EISs.

B. Assistant Secretaries shall:

(1) Approve bureau handbooks.

(2) Approve regulations or directives for
applicants.

(3) Approve categorical exclusions.

(4) Approve EISs pursuant to 516 DM 6.3.

C. The Assistant Secretary--Policy, Budget and
Administration shall:

(1) Concur with regulations or directives for
applicants.

(2) Concur with categorical exclusions.

(3) Approve EISs pursuant to 516 DM 6.3.

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D-31

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter.6 Managing the NEPA Process 516 DM 6.5

6.5 Bureau Requirements.

A. Requirements specific to bureaus appear.as
appendices to this Chapter and include the following:

(1) Identification of officials and organizational
elements responsible for NEPA compliance (516 DM 6.2B).

(2) List of program regulations or directives
which provide information to applicants,(516 DM 2.2B).

(3) Identification of major decision points in
principal programs (516 DM 5.3B) for which an EIS is
normally prepared (516 DM 2.3E).

(4) List of categorical exclusions (516 DM 2.3A).

B. Appendices are attached for the following bureaus:

(1) Fish and Wildlife Service (Appendix 1).

(2) Geological Survey (Appendix 2)

(3) Heritage Conservation and Recreation Service
(Appendix 3).

(4) Bureau of Indian Affairs (Appendix 4).

(5) Bureau of Land Management (Appendix 5).

(6) Bureau of Mines (Appendix 6).

(7) National Park Service (Appendix 7).

(8) Office of Surface Mining (Appendix 8).

(9) Water and Power Resources Service (Appendix 9).

C. The Office of the Secretary and other Departmental
Offices do not have separate appendices, but must comply
with this Part and will consult with the Office of Environ-
mental Project Review about compliance activities.

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D-32

Department of the Interior

DEPARTMENTAL MANUAL

Part 516 National Environmental
Environmental Quality Policy Act of 1969

Chapter 6 _Managing the NEPA Process '516 DM 6.6
6.6 Information About the NEPA Process. The Office-of
Environmental Project Review.will publish periodically a
Departmental list of contacts where information about the
NEPA process and the status of EISs may be obtained.

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D-33

APPENDIX E

U.S. COAST GUARD DOCUMENTATION

FEB 5 198
DEPARTMENT OF TRANSPORTATION
MAILING ADDRESS:
COMMANDER (oan)
UNITED STATES COAST GUARD FIFTH COAST GUARD DISTRICT
FEDERAL BUILDING
DOCUMENTATION TO 431 CRAWFORD STREET
ACCOMPANY BRIDGE APPLICATIONS PORTSMOUTH VIRGINIA 23705

An applicant for authorization to construct a bridge across navigable waters of the
United States must comply with the following:

1. Section 115.50, Title 33, U.S. Code of Federal Regulations. (Copy Attached)

2. National Environmental Policy Act of 1969 (Public Law 91-190)

Section 102 (2) (C) of the NEP Act is designed to ensure that environmental
considerations are given careful attention and appropriate weight in all
decisions of the Federal governments. To meet the requirements of Section
102 (2) (C), an applicant must submit one of the following:

a. "Environmental Assessment - A written analysis submitted describing the
environmental impacts of proposed actions.

b. "Environmental Impact Statement" - A report which identifies and analyzes
in detail the environmental impacts of a proposed action.

C. "Negative Declaration" - A detailed statement that the proposed action will
not have a significant impact on the environment.

The environmental statement should cover the bridge, the bridge approaches and
any highway/railway project which is part-of the overall construction plan.
This encompasses the geographic area where construction would cease if a permit
were not granted for the bridge.

3. Federal Water Pollution Control Act (Public Law 92-500)

Section 401 (a) (1) requires that any applicant for a Federal license or permit
to construct or operate a facility which may result in any discharge into the
navigable waters of the United States shall provide the licensing or permitting
agency a certification, normally in the form of a WATER QUALITY CERTIFICATE,
from the state in which the discharge originates that such a discharge will comply
with the applicable provisions of Section 301, 302) 306, and 307 of the Act.
Section 502 (6) of the Act states that the term "pollutant" includes dredged soil,
solid waste,sewage and sludge, chemical wastes, wrecked or discarded equipment,
rock, sand and other enumberated categories.

In addition the following 1aws May require some action on the part of the applicant

Department of Transportation Act of 1966 (Public Law 89-670) Section 4 (f)

Section 4 (f) lands include any publicly owned land from a public park,
recreation area, wildlife or waterfowl refuge, or any land from an historic site.

National Historic Preservation Act of 1966 Public. Law 89-665)

"Hstoric Preservation" includes the protection, rehabilitation, restoration,and
reconstruction of districts, sites, buildings, structures, and objects significant
in American history, architecture, archeology, or culture.
COASTAL ZONE MANAGEMENT ACT CAMA PERMIT REQUIRED (IF STATE HAS APPROVED PLAN)
F-2

Section 115,50, Title 33, U. S. Code of Federal Regulations
Bridges Across Waterways
(a) Approval of plans - To obtain approval of the Commandant, an
application for authorization to construct a bridge a:ross navigable waters
of the United States must show the name and address of the applicant; the
waterway and location of the bridge; citation to the act of Congress or the
State legislature authorizing the bridge.; be accompanied by a map of the
location and plans of the bridge showing these features which affect navi-
gation; papers to establish the identity of the applicant.

(b) Prior authority necessary - A bridge cannot lawfully be constructed
across any navigable waterway of the united states until legislative authority
has been obtained and the plans have been approved by the Commandant. (See
section 9, River and Harbor Act of Mar. 3, 1899 (30 Stat. 1151; 33 U. S.C.
401), General Bridge Act of Mar. 23, 1906 (34 Stat. 84; 33 U. S. C.-491),
and General Bridge Act of 1946 (60 Stat. 847; 33 U. S. C. 525 et seq.).)

(c) Legislation 'required - The legislative authority must be obtained
from Congress if the bridge crosses an international waterway. If the
navigable portions of the waterway are not within the limits of a single
state, the General Bridge Act of 1946 grants authority of Congress and no
special act is necessary. If the navigable portions of the waterway are
within the limits of a single State, State authority is necessary.

(d) Form - The application for the approval of plans consists of a
letter accompanied with maps and plans of the proposed structure.

(e) Signature - In case of signature by an agent or by an official of
a corporation, a duly authenticated copy of the authority for the action must
accompany the application.

(f) Identification - If the applicant is a corporation, it must furnish
certified copies of the following papers, all properly authenticated: The
charter or articles of incorporation; the minutes of organization; extract
from minutes showing the names of the present officers of the corporation.

(1) Where State laws vest in State or county officers, such as boards
of supervisors and county courts, the power to authorize the construction of
bridges, they anist furnish with their application certified extracts from
their proceedings showing their actf-on authorizing the proposed structure.

(g) Plans - Four sets of plans rrast be submitted with the application
on which the location of the work and the essential features covered by the
applicat-n will be outlined in red. - Each drawing mst have a si-,Tple title,
date and ,=ber, preferably in the lcwer righthand corner.

(h) Size of sheets - The drawings will be on sheets 8 by 10@2 inches in
size. As few sheets will be .:.sed as necessary to show clearly what is
proposed. I

(i) Special instructions - (1) The scale will be shown graphically. The
north and s@uth line will be indicated by a meridian arrow. Soundings and
elevati)ns will be shown in feet and referred to the established Government
datum plane at the locality.

F-3

Section 115.50, Title 33, U. S. Code of Federal Regulations

(2) The direction of currents will be indicated by an arrow, and
the strength of currents, both ebb and flow, or low water and high water,
will be shown close to the proposed location of the bridge, and at both
ends of the waterway shown on the map of location.

(3) The plans will show in figures the least clear height of the
lowest part of the superstructure over navigation openings, with
reference to the planes of mean high water and mean low water if the
bridge is to cross tidal water. If the waters are nontidal, the least
clear height will be shown with reference to the planes of extreme high
water and mean low water. If records of river heights are available,
the plane above which flood waters have not remained more than 2 percent
of the time will be indicated. Reference will also be made to other
datum planes if appropriate for the waterway in question.

(4) If harbor lines have been establIshed at the site of the bridge,
their position will be shown on the plans.

(J) Structural details - Only those should be shown which are needed
to illustrate the effect of the proposed structure on navigation. If the
bridge is to be equipped with a draw, the latter will be shown in two posi-
tions: closed and open.

(k) To whom application should be presented - The application and
the papers and plans accompanying it should be submitted to the District
Commander having jurisdiction over the area in which the bridge site is
located.

(1) Action on application - When an application is received for
approval of plans for a bridge, the District Commander will verify the
authority for construction of the bridge, review the application and plans
as to sufficiency, ascertain the views of local authorities and other
interested parties, and submit a report with the application to the
Commandant.

F-4

9. Investigation for involvement with:

No
Effect Comments

Section 4(f) of DOT Act

Wetlands, DOT Order 5660.1A

Floodplains, DOT Order 5650.2

Section 106 of National
Historic Preservation
Act and E.O. 11593

Section 401 Federal Water
Pollution Control Act

Fish and Wildlife
Coordination Act

'Threatened and Endangered
Species

Coastal Zone Management Act

Clean Air Act

Noise Control Act

Wild & Scenic Rivers

Prime & Unique Farmlands

Uniform Relocation and
1-@,,i,;tance Act

F-5

olf co.,14.

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'PROPOSED BRIDGE

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PfOPOS*d B-;dO 10 be 10colod Z.5 AtIlog LOCATION MAP
4rbokv Me motlfh of NA@.'SCAIONO q1Vf'R. PROPOSED MIDGE

localloot Atip rrproduc#d ftom USGS. Afcps NANSEMOND RIVER
801Y,CRS HIL4, EZNV5 CHZIRCY, CAr,1CXArj1CA-
ond NEWPoRr NewS SourH C,,OdvvljL PROIJ. f.017-061-103, Br.03
CITY OF SUFFOLK
APPLICATION By
VRGINIA DEPARTMENT OF HIGHWAYS
AlJD TRANSPOATATION
SCALE OF STATUTE MILES OFFICE OF THE 0niDGE ENGINE E R
RICHUCUD. VA. APRIL 1978
--------------------- SHEET _L OF-L (1)

F-6

410 2'- 0" 2 Spa 7sO-7 6- d-- 14-0, d'-
8 Spans @ 75 - 0 12 Spans@ 100!-0" 1200!-0" lid 140' Ild 12 Spans 106-d'- 1200'-0' 8 Sp)nS (9) 7 5'. 0"
600V'
600-0'
Finished Geode-/

ELEVATION

W N
To Portsmouth 0: /-Exi6ling Bridge to be Removed Newport News
-I-- I i --4 -
0 \-Proposed Bridge
z
0

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0
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4
PLAN

PROPOSED BrIDGE
N.B.L. RTE. 17 OVER
NANSMOND RIVER
PROJ. 6017 - 061-103, B603
CITY DF SUFFOLK
APPLI ATION BY
VIRGINIA DEPAR-MENT OF HiGHWAyS
AND TRJ NSPORTATION
T. -Rq- f 7 P1,
I

OFFICE OF THI BRIDGE ENGINEER
SCALE OF F ET RICHMOND, VA. APRIL,11978
0 500 1000 SHEE - _L OF_I_

Note:
Existing Vertical 010rcrCe t SGsculs Soon
Minimurn 'Vertical Clearonc; 65.0' Closad 1 ; IS t Open' Wirrutad
Existing Horizonto Cloo(ance 8 96'-0"

E%Irsme High Tide Elov. 6.0 (Aug. 1933)
Mean High Tide lov. 1.8
Mean Low Tide lov. -1.2

PART ELEVATION
Dolphln7@ N
140'-0"
-tfloo

Channel Span

7 7.:---

Proposod Bridge x
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b PROI OSED BRIDGE
N.B.L. ITE. 17 OVER
NANSIMOND RIVER
Fixed Channel Span PROJ. 601 - 061-103, 8603
Horiz ontal Clearance, 100'(Winj CITY I OF SUFFOLX
APPLICATION BY
VIRGINIA DEPAITMENT OF HIGHWAYS
0 0 AND Ti ANSPORTATION
PART PLAN OFFICE OF TIIE BRIDGE ENGINEER
Elevation% and Soundings are in feet RICHMOND, VA. APRIL,1978
SCALE OF FEtT and Wor to Mean Sea Level. SHUT Rev.;,JUA6,1978
0 40 80 OF
J

US.Department
of Transportation
United States
Coast Guard

OCT 5 1981

BRIDGE PERMIT

(102-81-5)

WHEREAS by Title V of an act of Congress approved August 2, 1946, entitled
"General Bridge Act of 1946, as amended (33 U.S.C. 525-533), the consent of
Congress was granted for the construction
maintenance and operation of bridges and
approaches thereto over United States;

AND WHEREAS under Section 502(b) of that act, the authority of which was
transferred to and vested in the Secretary of Transportation,by Section 6(g)(6)(C) of
the Department of Transportation Act (80 Stat. 931) and delegated by the Secretary to
the Commandant, U.S. Coast Guard by section 1.46(c) of Title 49 Code of Federal
Regulations, it is required that the location and plans for such bridges be approved by
the Commandant before construction is cornmenced and in approving the location and
plans of any such bridge, th Commandandt may impose any specific conditios relating

to the construction,.. maintenance and operation of the structure which he deems

necessary in the interest of public navigation, such conditions to have the force of law

AND WHEREAS the -COMMONWEALTH OF VIRGINIA- has submitted the
location and plans of a bridge to be constructed across Williams Creek near Dahlgren,
d the

NOW THEREFORE,.; This is to certify that the location and plans dated 29 April
1981 are hereby approved by the Commandant subject to the following conditions

1. No deviation from the approved plans may be made either before or after
completion of the structure unless the modifications of said plans has previously been
submitted to and received the approval of the Commandant.

2. The construction of falsework, cofferdams or other obstructions if required,
shall be inaccordance with plans submitted to an d approvec by the Commander, Fifth
Coast Guard District prior to construction of the bridge. All work shall be so
conducted that the free navigation of the waterway is no unreasonable interfered
with and the present navigable depths are impaired. Timely noticr of any and all
events that may affect navigation shall be given to the District Commander during
construction at the bridge. The channel or channels through shall be
promptly cleared of all obstructions plaed theirin or caused by the construction of
the bridge to the satisfaction of the District Commander when in his judjment the
construction work has reached a point where such action shoulb be taken, but in no
case later that ninety days after the bridge has been opened to traffic.

F-9

nuation Sheet Bridge across Williams Creek near Dahlgren, Virginia BRIDGE PERMIT
(102-81-5)
OCT 5 1981
3. Issuance of this permit does not relieve the permittee of the obligation or
responsibility for compliance with the provisions of any other low or regulation as may
be under the jurisdiction of the U. S. Department of the Interior, Fish and Wildlife'
Service; U.S. Department of Commerce, National Marine Fisheries Service; Common-
wealth of Virginia, State Water Control Board, or any other federal, state or local
authority having cognizance of any aspect of the location, construction or mainte-
nonce of said bridge.

4. In the event archaeological resources are encountered during the course of
construction activity, the permittee should immediately notify the Virginia Historic
Landmarks Commission.

5. All parts of the existing to be replaced S.R. 206 Bridge across Williams
Creek, mile 1.2, not utilized in the new bridge shall be removed down to or below the
natural bottom of the waterway Grid the waterway cleared to the satisfaction of the

District Commander. A period of 90 dayss subsequent to the opening to traffic of the
new bridge, mile 1.2 will be allowed for such removal and clearance

6. When the proposed bridge is no longer used for" transportation purposes, it

shall be removed in its entirety and the waterway cleared to the satisfaction of the
I
District Commander. Such removal and clearance shall be completed by and at the
expense of the owner of the bridge upon due notice from the District Commander.

7. The approval hereby granted shall cease and be null and void unless
construction of the bridge is commenced within 3 years and completed within 5 years
after the date of this permit.

p
Captain, U.S. Coast Guard
Chief Bridge Administration Division
By direction of the Commadant

F-10

APPENDIX F

MARYLAND DEPARTMENT OF NATURAL
RESOURCES (DNR) WETLAND PERMITS
DIVISION DOCUMENTATION

STATE OF MARYLAND
WATER RESOURCES ADMINISTRATION
TAWES STATE OFFICE BUILDING, ANNAPOLIS, MD 21401

WETLAND LICENSES, PERMITS AND NOTIFICATIONS

This brief review may provide you with a better understanding of the
Maryland Wetlands Act and directions for filing the form that you should
submit. The form will serve as Notification or as Application to do any
dredqinq, filling or otherwise alterinn wetlands in Maryland.

BACKGROUND

Wetlands and their resources have played an important role in the
State's development. The rich mixture of saltwater, freshwater, and
wetlands comprising much of Maryland's geography is essential in the food
chains of oyster, clams, and crabs, rock and other finfish, waterfowl and
lowland animals. Wetlands provide flood protection, silt absorption,
control of certain types of pollution, shoreline buffer to wave action
and erosion, and serve as an important source of oxygen for marine life.

Many wetland areas in Maryland have been modified or destroyed in the
past. The remaining wetland areas axe in danger of being further modified
or destroyed. it is recognized that there is a continuing need for certain
works for both the public and private benefit: to control shore erosion,
to gain access to water, to maintain a channel, etc. To preserve tidal
wetlands to the extent possible, in the face of these varying demands for
their use or modifications, the Wetlands Act,lwas enacted in 1970.

Projects to dredge, or fill or otherwise alter wetlands may not
individUally destroy much of this type acreage, Thus, an applicant may
feel that his particular project will have little effect on the overall
amount of this resource and would be of little, if any, environmental
significance. However, when added together, the acreages lost by these
projects have been and would continue to be appreciable. It is therefore
essential that each project be developed with the least involvement of
wetlands as practicable, and so designed as to permit restoration or
compensation by nature or by project mitigation within a reasonable period
of time. You should be prepared to show that alternative designs involving
less wetlands may not be practicable. An environmental impact statement
may be required for those works involving extensive dredging or filling
of wetlands.

LEGAL REQUIREMENTS

The regulation of dredging and/or filling on state wetlands is an
extension of pre-existing Maryland policy, and is not new. Licenses have
beon required by the State Board of Public Works for these types of works
for some years. in addition, the Corps of Enqineers has required that any
project to dred(le and/or fill in navigable waters or marshes at or below
the rican high water line (which are also known as state wetlands) a any
project to dredqe and/or fill tidal marshlands above the mean high water
line'(private wetlands) a federal permLt must be oSTWI-ned. Thus, any
project involving state and/or private wetlands, as described in this
pamphlet, requires that application be made to the Corps of Engineers for
such federal permit, as well as to the State for appropriate state approval.

G-3

Page Two
WETLAND LICENSES, PERMITS AND NOTIFICATIONS (Continued)

To c,_'@-tain the federal permit application, which requires similar but
frequently more detailed information that may be required by the State,
contact the-Permits Branch, Baltimore District, Corps of Engineers,
Post Office Box 1715, Baltimore, Maryland 21203., telephone (301) 962-4500.

TYPES OF APPROVALS

The Wetlands Act Provides that:

a) Proposed activLties in the area below mean hiqh water
line (termed state wetlands) require a license from
the State @'Board of Pubfir_cWorks. (An exception is
the submerged lands'held under valid grant or patent,
issued prior to 1862, which would be considered
private wetlands.)

b) The activities in the area landward of the mean hiqh
water line to limit of tidal influence and supporting
aquatic growth (termed private wetlands) may require,
dependent upon the nature of the work:

1) No Notification to the Secretary of Natural
Resources or
2) Notification to the Secretary of Natural
Resources or
3) Permit from the Secretary of Natural Resources.

The activities falling under each category are more
fully explained in the Rules and Regulations for Private
Wetlands for the county concerned. In general, normal
hunting, fishing, shellfishing and agricultural practices
in private wetlands do not require Notification. Perman-
ent alterations or modificat@ions of private'wetlands to
conserve soil, vegetation, fish and wildlife do require
Notification. All other activities require Permit.

ADMINISTRATIVE PROCEDURF

The Water Resources Administration is a member agency of the
Department of Natural Resources and acts for the Secretary of Natural
Resources in administering the Wetlands Act. The Administration upon
receiving the necessary form and plan will determine whether the wetlands
involvea are in the state and/or p'rivate wetland zones. The Administra-
tion will either accept the proposal form as Notification and so advise
the property owner, or accept the proposal form as an Application for a
state wetland license or private wetland permit. If a license or permit
is, required, the Administration will:

a) Gather relevant information from available sources,
i.e., fish and wildlife surveys, boating activity
records, topographic and hydropgraphic data, etc.
b) Consult with interested federal, state and local
agencies as may be appropriate.
c) Visit the site as may be indicated.

G-4

Page Three
WETLANDS LICENSES, PERMITS AND NOTIFICATIONS (Continued)

d) Prepare a report on the findings, together with a
recommendation as to whether the license or permit
should be issued, and if so, the conditions
attachina thereto.

e) Represent the Water Resources Administration at the
pu@lic hearing before a Hearing Officer for the
Secretary of Natural Resources (in the case of
private wetlands) or for the Board. of Public Works
(in the case of state wetlands).

The applicant or his aqent should be present at the hearing to
respond to any questions from th earing Officer or other inte@ested
parties, and to make such additional statements as he may deem appro-
priate. Failure to be present may result in delaying consideration of
the request.

The Board of Public Works (in the case of state wetlands) or the
Secretary of Natural Resources (in the case of Fr-17--v-ate wetlands) will
then determine whether issuance of a license or nermit is in the best
interests of the State, and any terms, or conditions that should be
attached thereto.

The law provides that if the project is to fill or erect shore
erosion structure no more than 300 feet in length parallel to and in
front of fast land and for no more than 10 feet channelward of mean high
water line, the Secretary may recommend that the Board of Public Works
issue st-ate wetland license without holding a public hearing. This does
not mean that in any project falling within these limits the Secretary
will automatically make such recoramendation to dispense with the public
hearing. If the Secretary determines that the work can be done at a
closer distance to or at the mean high water line rather than the
distance proposed, the Secretary will recommend that a public hearing be
held so that the Board of Public 14orks miaht consider such revision.
Further, if there are any valid objections by the public, the project
will be recommended for public hearing. The law also provides that
a state wetland license may include provision for periodic maintenance
dredging for 6 years beyond the date of issuance of a license. Said
provision is limited to Projects entailing the dredging of no more than
500 cubic yards of material.

PLANS

It is essential that a complete plan be submitted. The instruction
sheet specifies the items that must be shown on the plan. Please follow
these instructions carefully. Otherwise, it may be necessary to return
your application for such correct comoletion. This will delay consider-
ation of your application.

GENERAL

a) The processing of a complete anolication for license or
perinit will normally require about ninety (90) days (to allow for
schedulinq the hearing, advertising same and completing the Procedures

G-5

Page Four
WETLANDS LICENSES, PERMITS AND NOTIFICATIONS (Continded)

mentioned above). It is stronqly recommended that the application be
submitted at-least ninety (90) davs in advance of the desired starting
daLe. You should anticipate a similar ninety (90) day processing period
for federal permit for any project involving filling or dredging. It
is therefore suggested that applications for federal and state permits
be made concurrently so that your project may be better coordinated by
the respective reviewing agencies.

b) Complete application received by the 15th day of the month
will normally be advertised in the Maryland Register and a leading
newspaper printed in the county concerned and scheduled for public
hearing in the succeeding month.

SUMMARY

1. DFVELOP THE PROJECT WITH LEAST ENVIRONMENTAL IMPACT.

For example: What is the least amount of dredging required?
Can a pier serve instead? Would stone revetment
(riprap) rather than timber bulkhead enable
placement of the structure closer to the mean
high water line or better serve at the particular
site? Can you avoid the filling or dredging of
any marsh that might be present-z6

2. PREPARE COMPLETE, CLEARLY DRAWN PLAN ON 8-Sxll SHEET.

3. SUBMIT NOTIFICATION/APPLICA:TION FORM WITH PLAN AT EARLIEST
DATE TO:

Department of Natural Resources
Water Resources Administration
Wetlands Permit Division
Tawes State Office Building
Annapolis, Maryland 21401

4. PLEASE CALL (301) 269-3871/72 OR VISIT OUR OFFICE IF YOU HAVE
ANY QUESTIONS.

5. SUBMIT APPLICATION TO THE CORPS OF ENGINEERS PROMPTLY TO
INSURE CONCURRENT PROCESSING.

Permits Branch
Baltimore District
Corps of Engineers
P. 0. Box 1715
Baltimore, Maryland 21203

TeleTnhone: (301) 962-4500

G-6

1/80 Rev

STATE 02 Y,_,@-'.RYLAND
WATER RESOURCES @'@.DmINISTRATION

INSTRUCTIONS FOR:

A. COMPLETION OF NOTIFICATION AND/OR APPLICATION FORM

Item 1: Name of the actual owner of the property involved.

2: This infor-mation is to assist in more precisely locating the
property on maps, and in directing the evaluator on visit to
the site.

3: Indicate the specific purpose(s) of the project: to control
erosion, to obtain reasonable boat access, or to make other types
of improvements. In doing . describe the nature of the existing
problem and why use of non-wetlands may not achieve the purpose(s)
intended.

4: The applicant is not relieved from obtaining other federal, state
or local permits or approvals that may be required.

5: If the contractor is known, please complete.

6: Recognizing the time required to obtain necessary approvals,
indicate the approximate date on which work is to start.

7: If the applicant is not the property owner, but an authorized
representative, he should indicate his address, if it is other
than the property owner's.

B. COMPLETION OF PLAN Or PROJECT ON 8-@xllINCH PAPER

The plan to be submitted with the Notification and/or Application
Form mu st be complete. It must show each of the following items that may
be applicable (see SAMPLE PLAN):

Item 1: The mean high water (MHW) line and mean low water (MLW) line, and
any marsh areas.
2: The area(s) of the proposed dredging and/or filling. Include
location and cross section of the dikes to confine spoil.

3: The quantities (in cubic yards) of dredging and/or filling.

4: The depths of water (below MLW) in and surrounding the area to
be dredged or filled@

5: The final depths (below MLW) of the dredged areas.
The elevations (above MHW) of land areas to be filled and the
final elevations.

6: The structures to be built.

7: The property lines of adjoining properties, or indicate the
distances in feet and directions thereto.

8: The names and correct mailing addresses of adjoining property
owners.

9: The scale to which the plan is drawn.

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G-8

STATE OF MARYLAND
WATER RESOURCES ADMINISTRATION
TAWES STATE OFFICE BUILDING
ANNAPOLIS, MARYLAND 21401

PROPOSAL TO DREDGEL-FILL, REMOVE OR OTHERWISE ALTER WETLANDS
NOTIFICATION AND/OR APPLICATION
(Please complete in accordance with Instruction Sheet)

1. Name:
(Property Owner) (Phone)

Address:
(Street) (City/Town) (State) -7157

2. Project Location: County, Name of Waterway
Wetland Map No.: (if known) on which property is shown.

Address of site itself if different from above address (Give Street and Lot Number):

Describe how to reach from nearest prominent town and road; give name or number and,
in undeveloped areas, distance off road, other identification:

3. Purpose(s) of the project: (describe)

4. Indicate by check (v@ other permits or approvals required to carry out the project.
(If permit or approval has been obtained, enter "obtained").

Building Permit Health Department Permit
Zoning Approval Soil Conservation District Approval
Corps of Engineers Permit Other (specify)

5. If the project is to be done by a contractor, submit his name and address:

6. Proposed starting date:

7- Certification: I hereby certify that the information oti this form and on the
attached plan is true and accurate to the best of my knowledge and belief.
Further, I understand that the State may request information in addition to that
set forth herein as may be deemed appropriate in considering this proposal.

Printed Name of Property Owner (or authorized representative) Date

(address of other than above) Signature

THE PLAN COMPLETED IN ACCORDANCE WITH INSTRUCTION SHEET MUST ACCOMPANY THIS 1: @M-
(THE PLA.N PREPARED FOR FEDERAL PERMIT MAY BE USED.)

KEEP THIS M r'(,R @,-R RECORDS

STATE OF X,-M11JM
W&TER RESOURCES AI)MTISTRATION
TAWLS STATE OFFICE BUILDING
ANNAPOLIS, MARYLLIM 21401

PROPOSAL TO DREDGE, FILL, REMOVE OR OTHERWISE ALTER WETLANDS
INOTIFICATION AND/OR APPLICATION
(Please complete in accordance with instruction Sheet)

1. Name:
(Property Owner) Phone)
Address: (Sireet) (City/Town) (State) 7257

2. Project Location: County, Name of Waterway
Wetland Map No.: (if known) on which property is shown.
Address of site itself if different from above address (Give Street and Lot Number):

Describe how to reach from nearest prominent town and road; give name or number and,
in undeveloped areas, distance off road, other identification:

3. Purpose(s) of the project: (describe)

4. Indicate by check (,4 otner permits or approvals required to carry out the project.
(If permit or approval has been obtainedo enter "obtained").

Building Permit Health Department Permit
Zoning Approval Soil Conservation District Approval
Corps of Engineers Permit Other (specify)

5. If the project is to be done by a contractor, submit his name and address:

6. Ft-oposed starting date:

7, Certification: I hereby certify that the information on this form and on the
attached plan is true and accurate to the beat of my knowledge and belief.
Fuxther, I understand that the State may request information in addition to that
act forth herein as may be deemed appropriate in considering this proposal.

Printod Name of Property Owner (or authorized representative) Date

(address of other than above) Signature

THE PLAN COMP=ED IN ACCORDANCE WITH INSTRUCTION SHEET DIUST.ACCOMPANY THIS FORM.
(THE MAN PREPARED FOR FEDERAL PERMIT MAY BE USED.)

SUPPLEMENTAL FOr@@l FOR STOR14 DRATN PROJECTS

I. APPLICANT:

II. NAME OF PROJECT:

III. LOCATION OF PROJECT:

IV. PROJECT DETAIL:

A. What is the size of drainage area contributing runoff to the
existing natural or man made system?
B. What is the nature of the drainage area affected (e.g., land -use,
terrain, soils)?

C. Does the project entail new construction or improvement of an
existing system?

D. How many linear feet of drainage system are involved?

E. Will the type of system be open, closed or a combination thereof?

F. Will new flow directions or drainage patterns be established?
If so, describe and show on plans.

G. WHat is the number and nature of proposed outlets?

H. What57-e the existing and/or proposed discharge volumes and
velocities at each outlet?

I. Does design of the outlet include any structures (e.g., gabion
apron, riprap) to dissipate energy and prevent erosion or any
structures to trap sediments? If so describe and/or show on plans

J. What permanent poIlution control devices (e.g., sediment traps,
screening, grass strips, filter strips, sediment ponds, clean-
out traps) are planned in the project?

K. What maintenance provisions or schedules are planned for :Fh-ese
pollution control devices?

L. will temporary sediment control measures be established and
maintained during the construction period?

M. What site specific factors, if any, preclude utilization of any
of the above environmental impact mitigation measures and/or
alternative designs?

POLICY GUIDELINES FOR IMPLEMENTATION OF THE MARYLAND WETLANDS LAW

Purpose

To implement the public policy of the State to preserve its tidal wetlands
and prevent their despoliation~ and destruction by unregulated dredging,- dumping,
filling and like activity the the Wetlands Permit Section uses the policy_
guidelines outlined below in the review and approval of these activities for
State wetlands and Private wetlands in Maryland. Included are policy guidelines
for recommendations of the Department of Natural Resources on all applications
for Federal permits for any construction in the navigable waters of the State'

Regarding State wetlands, the purpose of the guidelines is to safeguard
the public interest in protedcting those natural resources that are in state
ownership. Alteration of State wetlands is authorized only when such alteration

clearly serves the overall public interest taking into account the affects upon
the varying ecological, economic, developmental, recreational and aesthetic.-
values of such wetlands.

Regarding Private wetlands, the purpose of the guidelines is to permit
reasonable use by the owner if such use is carried out 'under the conditions of
the permit, and in accordance with the regulations where applicable, to protect the
natural resource values in both the Private wetlands and the State wetlands.

The purpose of the guidelines concerned with the recommendations on
applications for Federal permits is to provide a basis for objective comment
on each application that reflects the effect of the proposed construction, or
the use of the facility after completion, upon public access and use and the effect
upon the water quality of the surrounding area.

Ceneral Requirements of the Wetlands Act

The dredging or filling of "'State Wetlands", as defined by the Wetlands Act,
to preserve access from riparian land to navigable water or to protect the shore
from erosion requires the issuance of a license from the State Board of Public
Works (tin exception is the submerged lands under valid grant or patent, -which are
-Private wetlands). Dredging or filling in "Private Wetlands", as defined by the
Act, requires a permit from the Water Resources Administration except in those
cases -specifically noted as exemptions (See "Order Establishing Wetland Boundaries
and Rules and Regulations, Section III C.

Maps; delineating the upland-boundary of tidal wetlands for each county-.
Are available at the county seat of each county in the-tidewater region, and
at the Wetlands Permit Section of the Water Resources-Administration. Any
landowner-proposing to dredge or fill within the area of Private or State
wetlands should consult with the Water Resources Administration on the procedure
Cor obtaining a permit or license. A Federal permit is also required for such,
work within navigable waters. The landowner must apply to the Baltimore District,
Corps of Engineers, U.S. Army, for a Federal permit. Concurrent application is
recommended.

G-12

The following outlines when a license or permit is required.

A State wetlands license must be obtained before any person starts any
dredging or filling within State wetlands, except for

a. dredging of seafood products by licensed operators
b. harvesting of seaweed
c. mosquito control and abatement work approved by the Maryland Department
of Agriculture
d. improvement of wildlife habitat approved by the Department of Ilatural
Resources
e. maintenance of agricultural drainage ditches approved by appropriate
Soil Conservation District. Construction of new drainage ditcbes
within State wetlands requires a State wetlands license.

(2) Any dredging or filling in the area landward of the mean high waterline to
the limit,of tidal influence and supporting aquatic vegetation (termed
Private wetlands) may require, depending upon the nature of the work,
Notification to the-Secretary of Natural Resources or a Private wetlands permit

The Secretary of Natural Resources has promulgated regulations concerning
dredging, filling, removing or otherwise altering Private vetlands. The
regulations do not grant any property rights, nor. do they authorize any
person to trespass upon or injure the property of another, nor do they
excuse any person from complying with other applicable Federal, State, and
local laws, regulations, or ordinances.

;(3) Authorized Uses of Private Wetlands

The following uses do not require a Private wetlands permit and are
permitted on Private wetlands if otherwise permitted by law:-

a. Projects or activities requiring approval of other state or local
agencies of officials

1) The maintenance of agricultural drainage ditches as approved
by the appropriate Soil Conservation District.
2) Alterations or modifications for mosquito control purposes a s
approved by the Maryland Department of Agriculture.

b. Recurring activities

1) Trapping, hunting, fishing and shellfishing.
2) The cultivation and harvesting of shellfish, including such
reasonable excavation in Privatewetlands as normally is necessary
in conducting such activities.
3) The cultivation and harvesting of agricultural or horticultural
products, including grazing and haying.

G-13

c. Permanent alteration or modification not requiring Notification

1) The construction and maintenance of walkways, foot bridges,
duckblinds, docks,-boathouses, boat shelters, and other
similar structures, provided that said structures are so
constructed on pilings as to permii the unobstructed flow of
the tide and preserve the natural contour of the private wetland;
2) Construction and maintenance of tide gates designed to prevent
the encroachment of salt water into agricultural drainage ditches;
3) The repair and maintenance of earthen dikes about a single
residential dwelling, provided that such work does not involve
the extension or increase in dimension of the existing dike.

d. Permanent alteration or modification requiring Notification

The Water Resources Administration is to be notified in writing
before any person starts to dredge, fill or otherwise alter Private
VetIands in any cbunty to carry out any of the following work:

1) Alterations or modifications which are customary and permitted
by existing regulations for the conservation of soil, vegetation,
vater, fish, shellfish, and wildlife, including fur-bearing animals;
2) Haking improvements necessary to preserve access to navigable waters,
or to protect Private wetlands against erosion; provided Uhat any
Improvement authorized involving either the dredging or filling.ot
State wetlands may not proceed unless a license for filling or
dredging has been issued by the State Board of Public Works under
the provisions of Title 9, Natural Resources Article of the
Annotated Code of Maryland;
3) The installation and maintenance of underground utilities, provided
that the surface of the wetland is restored substantially to its
original condition.

(4) Uses and Activities Prohibited on Private Wetlands Without a Permit

The followIng types of work may not be done except under the conditions
of a Private'detlands permit:

a. No person may fill, place, dump, or discharge on the Private wetlands
any loam, peat, sand, gravel, soil, or other similar substance; or any
trash, garbage, debris, junk, or other polluting substance.

b. No person may drain, excavate or dredge the Private wetlands or remove
therefrom loam, peat, sand, gravel, soil, or other similar substance.

c. 'No person may perform any act or use Private wetlands in a mann-@r which
would de--troy the natural vegetation, substantially @Llter existing
patterns of tidal flow, or Dtherwise alter or permit the alteration
of the natural and beneficial character of such wetland.

G-14

(5) Notification of Intent or Application for Permit and/or License to dredge,
fill, remove, or otherwise alter State or Private wetlands

Except for the activites authorized under Section (3)a,b, or c, a
person may not dredge, fill, remove or otherwise alter any Private wetlands
in any county without.fiTst informing the Water Resources Administration
and receiving approval or permit as applicable. A single for-mas
prescribed by the Water Resources Administration shall serve either as
Notification of Intent or Application for Permit and/or License.

a. NOTIFICATION of Intent

The form shall serve as the Notification prescribed in
Section (3)d for activities not requiring permit and/or
license. The proposed activity specified in the fdrm may
proceed upon advice from the Water Resources Administration.

b. APPLICATION for Permit and/or License

The form shall also serve as the Ap2lication for permit
to conduct an activity on private wetland not permitted in
Section (4) above, and for license to conduct any activity
on State wetlands.

Policy Guidelines for Evaluating Ap2lications

Dredging of Channels for Reasonable Riparian Access

The public policy of the State is to preserve the wetlands while providing
for the rights of the riparian land owner for his access to navigable waters.
Sections 9-202 and 9-306 describe procedures for obtaining state permission
for making permanent clianges to the wetlands in order to construct some
artificial means for obtaining such access. The intent of the Act is carried
Iout by the use of the following policy criteria in evaluating project plants
submitted for recommendations or approval:

(1) In cases where reasonable access for a riparian property owner
can be provided directly from fast land, such an alternative shall
be taken as opposed to the creation of a channel through the
vegetated wetlands or filling for'access.

(2) In those cases where access is to be provided to a subdiVision or
other multi-home development or co=unity, creation of one common
access channel or pier is encouraged; thus, a centralized boating
facility is preferable. In the case of isolated single family dwellings
a pier from fast land to open water shall normally fulfill the right
of reasonable riparian access.

(3) The ownership of land bordering upon tidal waters does not carry
with it the right to extend boat access inland by means of
artifical. channels.

G-15

(4) Ca=ls, channels, ponds or lagoons may not be excavated without
the plaas also being approved by the appropriate Soil ConservatiorL
District. As there are only a few types of usch excavations that
do not by law require a wetlands permit. from tile Department of
Natural Resources, the Soil Conservation District is asked to
verify the existence of such permit prior to their approval of the
Sediment Control Plan. Ponds or other excavations within 100 feet
of an existing shoreline might not be approved by the Soil
Conservation Districts without the written approval of the Water
Resources Administration.

(5) The authorization by the state for any person to dredge a
navigation channel through wetlands is coordinated to the maximum
possible extent with the approval of such work by federal and lecal
agencies.,

Construction of Shore Erosion Protection Work

The owner ot land bounding on navigable or tidal waters is entitled to
.protect his shore against erosion.as described in Title 9 of the Natural
Resources Article. To ensure this right, the Water Resources. Administration
.uses the following criteria to review proposed projects in carrying out the state
policy to preserve the *wetlands while allowing the exercise of the right of
a riparian owner to protect his shore against erosion.

The construction of bulk-heads or other shore protection measures
-shall include..only gu--c-F -filling as necessary for effective use .
of such measures an s iall generally be located at tile m I
137ater line or no further channelward than needed for proper tie-back
or c I . no further
channelward than needed to obtain a stable slope.
(7) Where shore protection is needed and a marsh exists In front of an,
applicant's land, the shore protection structure shall be placed
behind the marsh or low profile protection (prefeiably riprap) placed
thannelward of the marsh so that normal tidal flow into the marsh
wt.11 be maintnined.

(8) Bulkheads shall be constructed with adequate returns to fastland or
connected to adjacent shore erosion control structures, as may be
applicable.

(9) Because of their possible detrimental effect, shoreline protective
structures.D,aX not the
following cases, except where there is no alternative means to
achieve a necessary public benefit whose need significantly outweighs
the harni done by the proposed work:

a. Marshland will be filled or otherwise destroyed.
b. Surface drainage channels will be filled or occluded.
c. Navigation will. be adversely affected.
d. Unique or rare and endangered flora or fauna will be affected.
e. Important historical or archeological sites will be adversely affected
f. FrIvate oyster leases or natural oyster bars in adjacent open waters
w111 be affected.

G-16

(10) The provision of shoreline prctection is encouraged in locations
subject to severe erosion .where conditions described in
(9) above do not apply. In the review of such projects in locations
determined by Maryland Geological Survey (where applicable) to have
documented erosion, the Water Resource@s Administration recommends such
protective works to be constrzated in such way to have the minIMUM
adverse effect upon the ecological, economic, hydrological,
aesthetic, historical, and recreational values in the area.

(11) Permits or licenses may not be granted for shore protective structures or
filling unless adequate provision -is made for drainage froux inland
areas. The construction of bulkheads and other protective structures
across wetland areas shall prcvide only such filling as is necessary
for the effective operation o-.rL the shore protection work and shall not
be used for the creation of fast land from wetlands except in those
cases where the proposed acti7ity is water dependent and the filling
pmmplies with other pertinent policy in these guidelines.

(12) Dredging for fill to be used for the efficient operation of shore erosion
control- work is allowed only -where access to deposit lan d source
material is not feasible or costs are excessive and it is determined
not to have an extended or permanent adverse environmental impact.
Dredging seaward of an existing bulkhead will alter the graduated
bottom depth that helps dissi?ate wave energy. If dredging is used
for fill, adequate compensation may be required by the state for
this material. An example of cases where dredging to obtain
backfill material may be perr-itted is where:

a. A steep bank or cliff exists and the nearshorp water depths are
shallow which makes truching-in or barging-in fill material infeasible.

'b. Large trees or buildings prevent trucking-in fill
material.

In both a and b above, however, if grading is to be done, truckin&-irx
fill material tts--ally becomes feasible. The fact that dredged
material nvrzy be less expens-i7e than trucked-in fill is not a major

(13) The shore protection measures used must satisfy the following criteria
regarding quality and perfor=auce:

a. Mien site conditions perzit the use of a sloping bank stabilized
with vegetation, with or without riprap, this method should'be
encouraged as an economical solution while preserving the
natural conditions.

G-17

b. Junk metal, tires, tree stumps and logs or other material
that does not contain, and will not create pollutant-s, not
placed as an interlocking structure shall not be used as part
of any shore protection measures.

c. If jetties or groins are used, they must be designed at a
C> a
minimum length and height to s@rve the purpose intended and
only placed in a location not harmful to navigation or. to the
land of nearby land owners and the general public. The Water
Resources Administration requests a determination from the
Maryland Geological Survey on such works. Such work shall be
approved only if it does not interfere with public access,
create adverse sand transportation patterns or adversely disturb
the aquatic ecosystem.

d. The approval by the Water Resources Administration of any shore
protection measures does not constitute state certification of
the adequacy of the fixed structures for the particular circum-
stances, or for any specified time perioji.

Other Construction Within Wetlands

To carry out the state policy in providing for the preservation of the
wetlands as stated in Section 9-102, Natural Resources Article, the following
criteria are used by this Administration in evaluating proposed construction
within*wetland areas and for preparing appropriate recommendations upon such
projects. The preceding criteria deal with provision of access to navigable
waters and with shore erosion protection. The following criteria deal with
other activities as noted below.

(14) The general policy Is to allow dredgIng and-f@@@@@
-wat-or-dependent actJvltiem on State or 11rivtitc wetInads u-11101 41re
of Such nature that they mtlsL be tilong the shoreline or In the
wetlands in order to function. Wherever possible construction shall
occur on fast land'instead of involving the filling of wetlands.
An example of a water-dependent @acility is a boat facility
which must be along a shoreline and could not function in an
area away from the shore-

Soire exa pJ_e,,2_, but not an all-inclusive list, of structures,
facilities and activities that generally are not appropriate uses
of wetlands are:

Restaurants and businesses
Resi@ @nsapartments, motels, hotels, trailor parks
Parking lots and offices
Spoil and dump sites
Lagoons for sewage or industrial waste
Industries and factories
Storage areas for small boats
Recreational areas requiring filling above tide level such as
athletic fields, parking, picnic areai.

G-18

The applicant shall clearly demonstrate that any proposed work
which involves alteration or destruction of wetland areas is
water-dependent and that there is no alternative upland site
1:e a@ tere`sti@sser@@e@yMs
availa'bn tt@att @ees@
pu @ic I@n
faci.liy meeting a specific need clearly defined by the applicant.

(16) No dredging of private wetlands to obtain fill shall be permitted,
except where there is no alternative means to achieve a necessary
public benefit.

(17) All activites allowed on State or Private wetlands shall be
undertaken in such a manner as to minimize adverse environmental
effects.

(18) It is the general policy of the state not to allow the filling
o-f State wetlands for the purpose of creating fast land.

(19) In those cases where the best public interest justifies. approval
of the work, such projects involving the filling of Private or State
wetlands including those involving the creation of fast land, approval
of such project may be considered if tl@e-Foa7o-wTn-g-c-@o-nTi@t-io-ns are
satisfied:

The project cannot feasibly be undertaken on an adjacent
or nearby fast land location.

b. It is not feasible to provide the service the project Is
Intended to provide by an alternative means not involving
the filling of wetlands.

c. The creation of fast land shall occur only in those areas
adjoining existing fast lands.

d. No significant ecologically productive submerged wetlands,
such as major finfish and shellfish spawning and habitat areas,
sball be destroyed.

e. Fill utilized for the creation of fast land shall be obtained
from a land-based source and not dredged from adjacent Private
or State wetlands.

f. The creation of fast land shall not obstruct navigational
channels, adversely affect the public's use of the waters
of the state including the public's right to navigation and
fisheries, significantly @ffect major current patterns, or
significantly alter the existing contour of the shoreline.

G-19

9- In all projects involving the filling of State wetlands3,
.S@@@or fast land created in the public domain shall
generally be provided to the State in an amount determined by
the'State Board of Public Works..

(20) Title 9, Natural Resources Article, requires that in granting, denying
or limiting any permit, the Department of Natural Resources shaU
consider the effect of the proposed work with reference to the public
health and welfare, marine fisheries, shellfisheries, wildlife,
economic benefits, the protection of life and property from flood,
hurricane and other natural disasters, and the public policy set
forth in Section 9-102 of that Article. In granting a permit or
license, limitations or conditions may be imposed to carry out this
public policy.

(21) The policy regarding approval of earthen dikes for the protection
of structures constructed in Private wetlands is as follows:

.a. The repair and maintenance of earthen dikes in Private wetlands
are considered as works noi requirinig notification [Requirements
of the Wetlands Act, 3(c)], provided that such work does not
involve the extension or increase in dimension of an existing dike-
The latter is considered under 3(d) or 4 of the Requirements,
requiring notification and/or permit, depending upon -the nature
and magnitude of the work.

b. The construction of earthen dikes in Private wetlands about a
single residential dwelling which is subject to encroachment
by tidal waters, is considered under Requirement 3(d)v as works
requiring notification.

c. The construction of earthen dikes in Private wetlands about any
structure, other than single residential, dwelling, which is or
C>
zaay be subject to encroachment by tidal waters is ccnsidered
under Requirement 4, as works requiring permit.

d. Favorable consideration is given to the construction
of such earthen dikes as may be deemed reasonable to meet the
state purpose and which will be of minimal adverse on adjoining
wetlands.

G-20

(22) The policy with respect to road construction in or involving Private
wetlands for timbering operations is to minimize adverse environmental
impact with due consideration for the public and private benefits that
may be derived from that industry. Such road construction for
this purpose is that access required for the harvesting of ten (10)
or more acres of, forest to which reasonable direct access cannot be
made available from fast land. The Department of Natural Resources
'gives favorable consideration to the construction of such access,
temporary or permanent, preferably the former, under the following
conditions:

a. That the placement of the road is for the least distance across
.wetlands and tidal guts that is necessary to make the operation
economically feasible; and recognizin& property rights involved.

b. That temporary road construction will be encouraged to the extent
practicable, with such construction to consist of a roadbed no
more than twenty (20) feet in width and an elevation no more than
one (1) foot above adjacent wetlandi; and be built of excavated
marsh or clean inorganic earth fill. While land source fill is
preferable, excavation of adjacent marsh on either side, for a
surface width of eight .(8) feet and to no greater depth than
three (3) feet below marsh-surface is acceptable.

c. That permanent road construction will be perr@itted where the
nature of the particular operation, including continued. use for
access to adjoining harvest areas, would make this environmentally
and econcmically more feasbile. This road construction may be
for a 'roadbed no more than thirty (30) feet -in width with elevation
no.more than three (3) feet above adjacent wetlands, and composed
of excavated marsh. The excavation of adjacent marsh for a surface
ifidth of ten (10) feet and no more than five (5) feet in depth
on either side of the roadbed is acceptabl,@!. The installation of
culverts may be required to adequately handle flushing and.
drainage of the wetland areas affected by the construction. The
crossing of -natural streams shall be by piered structures.

d. The temporary roads are those that are within the above described
parameters, 8nd will be used for no longer period than six (6)
months, -@-ad for which provision will be made to remove any section
of the roadbed that has temporarily closed any natural tidal gut
so as to restore normal tidal flow when harvesting is completed.

e. The permanent roads'are those that are within the above described
parameters and for which periodic maintenance is to be provided
to insure the continued operability of any culverts and drainage
ditches incorporated.

G-21

f. The Department of Natural Resources recognizes that while
temporary roads, as defined above, may be operationally
of limited duration, the effect of the works constitute
a more permanent alteration of Private wetlands. Accordingly,
such proposed works require a permit. Proposals for permanent
road construction, or for those temporary or permanent roads
for access to less than or more than ten (10). acres of
harvestable timber also require a permit.

(23) The policy with respect to the construction of ditches and sumps in
Private wetlands for the purpose of allowing water to flow to fast
land to be used for irrigation, is to permit the construction of
such ditches within the following guidelines:

a. That the placement of the ditch is for the least possible
distance across wetlands to allow a sufficient supply of water
for irrigation purposes.

b. That the ditch be limited to four (4) feet in surface width and
three (3) feet in depth at mean low tide.

c. That the sump adjacent to fast land be limited to a maximum
surface area of. 100 square feet and maximum depth of six (6) feet.

d. That spoil from such ditches be placed an either side within five
(5) feet and in piles interrupted every 20 feet for a distance of
five (5) feet, so as to permit the flow of water in the wetlands.

e. That the spoil from the sump be placed on fast land or within ten
(10) feet of the sump if in wetlands.

f. The 6onstruction of irrigation ditches and sumps within these
parameters is considered as permanent alteration not requiring
notification or permit [Requirement 4(c)]. The construction
of irrigation ditches and sumps not within each of the
aforementioned parameters shal11 require notification and/or
permit as the particular circumstances and magnitude of the works
may dictate.

(24) The policy with respect to drainage ditches for mosquito control or
agricr.1tural drainage is to allow the construction or maintenance
i-f such ditches when approved by the Maryland Department of Agriculture,
and.by the appropriate Soil Conservation District. Such work shall
be in accordance with the following guidelines. This policy is to
allow such ditches for the purpose of draining agricultural and
related rural lands. All work shall be inaccordance with drainage
practice standards and specifications of the United States Soil
Conservation Service and shall conform to the following guidelines:

G-22

a. Ditches shall extend onto private wetlands for the least
distance required'to insure an outlet for adjacent lands,
and shall follow the alignment having the least disturbance
to wetlands.

b. Ditches in Private wetlands shall be sized according to good
agricultural drainage practice and in no case shall exceed the
following maximum size limitations:

1) Top width -- 14 feet
2) Depth - 4 feet
3) Side Slopes - I to 1

c. The spoil from such ditches shall be placed either:

1) wherever possible on fast land; or
2) in piles interrupted every twenty (20) feet for a
distance of five (5) feet so as to permit the flow
of water in wetlands; or
3) in continuous rows with tide gates at intervals to
allow water movement" in wetlands, if diking is needed
to protect uplands from tidal flooding.

d. The fringe of natural vegetation at least 8 feet wide bordering
both sides of the ditch shall be left intact as a filter strip
without being disturbed or covered by spoil.

e. Where appropriate, revegetate spoil areas by either:

1) Stripping, stockpiling and placing original vegetation on
spoil area surfaces; or
2) Plant and/or seed to species suited to local soils and
salinity conditions.

G-23

WETLANDS LICENSING PROCEDURE

1. Applicant submits application to Department of Natural Resources on
approved forms.

2. Department of Natural Resources - Water Resources Administration,
reviews application as to completion, accuracy of drawings. State
Wetlands involvement, etc,4

3. Water Resources Administration schedules hearingl. advises applicant
and Board of Public Works Wetlands Administrator and arranges for
the advertising of the hearing in local newspapers.

4. Water Resources personnel visit site of proposed works and prepare
site inspection report.

5. The Wetlands Administrator or Board of Public Works' Hearing Examiner
conducts the hearing. A representative of the Department of Natural
Resources is present as well as other interested parties. Report and
Recommendations of the Water Resources Administration is issued.

6. Based upon the Report and Recommendations of the Water Resources
Administration and upon the evidence produced before, during and after
the hearing,, the Wetlands Administrator makes a recommeadaticn as to
whether or not a license be issued and,. if so, under what terms and
conditions. To secure the approval of these recommendations by the
Board of Public Works, the Wetlands Administrator will use one of the
following methods-

A. Concurrence Cases (Cases of a routine nature w1herein
the Report and Recommendations of the Water Resources
Administration and the Recommendation of the Board of
Public Works Wetlands Administrator are in complete
agreement as to approval of the project substantially
.as applied for by the Applicant without the imposition
of compensation and/or bonding requirements). At least
ten (10) days prior to a scheduled Board of Public
Works meeting,, the Wetlands Administrator will furnish
to the office of the Secretary of the Board of Public Works,
a written listina of cases on which he has completed
his recommendation, are of a routine nature and are
recommended for approval. This listing will contain
the case number. name of applicant, description of
the work authorized and location of the project. The
listing would then become one agenda item under the
heading:

"Wetlands Licenses - Board of Public 111orks Approval of
a Recommendation by the Wetlands Administrator that
Licenses be Issued to the FIollowing:
C.@

See Attached Exhibit - I

G-24

-2-

The listing will be approved by the Board as one
item. (Note: The files on these cases will not
be furnished to the Board members prior to the
meeting unless otherwise requested, but will be
available at the meeting.)

B. Extraordinary Cases' (Cases wherein the Report
and Recommendations of the Water Resources
Administration and the Recommendation of the Board
of Public Works Wetlands Administrator are not in
agreement, and all cases involving denial, sub-
stantial modification to works as applied for,
requirements fbr compensation and/or bonding, or
requests by interested parties for a personal
appearance before the Board of.Public Works).
At least ten (10)-days prior to a scheduled meeting
of the Board of Public Works, the Wetlands Administrator
will advise the Secretary, in writing, that he has
finalized a recommendation relating to a case (or
cases) of non-routine nature and request that the
Secretary present each of the recommendations as an
individual item. Copies of each file will be furnished
to the Secretary who, in turn, will distribute them
to the-Board members with other agenda material.

7. Immediately after the Board meeting, the Board Secretary will advise
the Administrator, in writing, of the action taken by the Board.

8. Upon notification of the Board's action, the Wetlands Administrator
shall:

A. Concurrence Cases

(I..) Immediately notify the Department of Natural
Resources of the Board's action and forward a
copy of the covering letter and a copy of the
license granted in each case.

(2.) Immediately forward the original and one copy
of each license to the Applicant, requesting
the Applicant to sign the original and return
same to the Board of Public Works Wetlands
Administration, and further advising the
Applicant of the requirement to notify the Water
Resources Administration prior to the commence-
ment of work.

See Attached Exhibit - 2

G-25

-3-

B. Extraordinary Cases

1.) Immediately notify the Department of Natural
Resources of the Board's action and for'ward
a copy of each covering letter issued and each
License granted or formal notification of
denial, as appropriate.

2.) In cases where a condition for issuance of a
License is the posting of a performance and/or
completion bond, the Wetlands Administrator will
receive said bond from the Applicant and pass on
its acceptability prior to delivery of the License
to the Applicant.

3.) In cases involving the assessment of compensation
to be paid by the Applicant, the 'Wetlands Administrator
shall notify the Applicant of the Applicant's
responsibility to contact the Enforcement Division
of the Water Resources Administration pertaining
to the payment thereof. A statement to this effect
shall also be included among the terms aid conditions
of any license issued in a case involving compensation.

4.) In cases involving the denial of a License, the
Wetlands Administrator shall formally notify the
Applicant of said denial, stating the reasons
therefor.

5.) Forward the original and'one copy of each License
approved by the Board to the Applicant. requesting
C3
the Applicant to sign the.original as evidence of
Applicant's agreement to abide by the terms and
conditions thereof, and to return same to the Board
of Public Works Wetlands Administration, and further
advising the Applicant of the requirement to notify
the Water Resources Administration prior to the
commencement of 1w)rk.

9. Upon receipt of notification from the Wetlands Administrator of the
Board's action. the Water Resources Administration shall:

A. Concurrence.Cases

Upon receipt of the copy of the License, the Department
will immediately put into operation its procedures for
monitoring the project and enforcing the provisions of
C>
the License.

G-26

-4-

Extraordinary Cases

Upon receipt of the copy of the License, the
Department will immediately put into operation
its procedures for monitoring the project and
enforcing the provisions of the License, including
the collection of any financial compensation
assessed by the Board. All amounts collected will
be deposited in a special fund maintained by the
Department for purchasing additional wetlands to
be added to the State inventory thereof.

10. Procedures when Applicants take exception to condit@ons contained
in the Wetlands License.

The Wetlands Administrator shall receive all correspondence
pertaining to exceptions raised by an*Applicant to conditions
contained in a Wetlands License, and said Administrator shall
coordinate the review of said matters with the Applicant and
the Water Resources Administration.

11. License Follow-up Letters
The Wetlands Administrator shall cause a follow-up letter to
be sent to an Applicant whenever the License issued to the Applicant
is not signed and returned by said Applicant within 30 days of the
date of issuance thereof.

See Exhibit 3.

G-27

BOARD OF PUBLIC WORKS

EXIBIT 1. February 5, 1975

Secretary's Agenda

B0ARD OF PUBLIC WORKS - WETLANDS LICENSES

Approval of a recommendation by the Wetlands Administrator
that licenses be issued to the following:

74-270 Mr. James Oliver Stallings - to dredge a 150
foot long, 50 foot wide channel from 1 to 4
feet depths at mean low water; to deposit
700 cubic yards of spoil behind the' existing
bulkhead and on low areas at the property -
at the head of Madison Bay off the Little
Choptank River in Dorchester County.

74-286R Bethlehem Steel Corporation - to dredge area
400 by 175 feet adjacent to Pier 1 from 21
to 25 foot depth at mean low water and to
deposit 20,000 cubic yards of spoil on
upland site, Arundel Corporation, Fairfield,
at Sparrows Point on Patapsco River, BaltimorE
County.

74-431 Mr. A.V. Williams - to construct three (3)
groins, each 90 feet long with 30 foot wide
base centered 150 feet apart property,.
on Nanticoke River at Ragged Point, Wicomico
County.

75-102 Mr. Allan P. Poole - to construct 150 foot
bulkhead within five (5) feet of mean hiqh
water line; to backfill with 70 cubic yards
of land source borrow; to construct 140 foot
pier - on Potomac River at extreme northern
end of St. George Island, St.Mary's County.

75-111 Mrs. Bernice C. Garbisch - to emplace varying
lengths of riprap totalling 1,724 feet within
five (5) feet of mean hich water line and
existing concrete bulkhead - on Lecompte Day
just north of mouth of Lecompte Creek,
Dorchester County.

75-133 Cathcrine M. Sinclair - to construct three (3)
stone jetties extcnding 25 feet channelward of
the mean high water line - Middle River at
Turkey Point, Baltimore County.

EXHIBIT 1.

M 116 rL 2
of -Marv I a ab JgLaxt-ia -4R=-Ijrl
-trZr of qj1i1Tfir'rL aThsr Tarri.0

Wetlands Administration Ara
Post Office Box 1510
Annapolis, Maryland 21404
Phone: 301-267-1664

June 9, 1975

Mr. Sam E. Hull
5201 59th Avenue
Hyattsville, Maryland 20781

Dear Mr. Hull:

I am enclosing the original and one (1) copy of Wetlands License
74-161"A". dated April 24, 1975, which is being issued to you pursuant
to your application of September 11, 1973.*

After you have read all the conditions of the license, please sign
and return the original to this office immediately. No works may begin
until the original license, signed by you, has been mailed to this office.
Your license is valid for a period of three (3) years from the date shown
thereon.

Your attention is also directed to the fact that you must notify
the Water Resources Administration, Enforcement Division, in writing.,
prior to undertaking any work authorized by this license. This written
notification should directed to:

Water Resources Administration
Enforcement Division
Tawes State Office Building
580 Taylor.Avenue
Annapolis, Maryland 21401
Phone: 301-267-555-1

Please retain the copy of the license for your records. For your
convenience, we are enclosing an envelope for you to return the signed
original to our office.

if you have inquiries concerning any of the terms or conditions of
the attached license, please contact the Board of Public Works Wetlands
Administrator at the address and telephone number-shown above.

Very truly yours,

Lawrence B. Goldstein
Wetlands Hearin- Administrator

LBG:Ljn

Enclosure F-XIIIBTT 2

State of Maryland

Marvin Anndel
Governor
Board of Public Works
Annapolis, Maryland

April 26, 1975

Mr. James R. Vest, Jr.
1804 Chesapeake Place
Pasadena, Maryland 21122

Re: Wetlands Case No. 74-90

Dear Mr. Vest:

On March 1, 1975, this office forwarded to you a State Wetlands License
pertaining to the subject case together with instructions to sign and return
the original of said license.

As of this date, the signed original has not been received, and you are
hereby reminded that no works are to be commenced until such time as the signed
original has been returned to this office.

You are further advised that if signed original of said license has
not been received in this office on or before May 26, 1975, that said license
will on that date automatically be considered as withdrawn, requiring the
submission of a new application and a new hearing for the performance of the
works in question.

Very truly yours,

Lawrence B. Goldstein
Wetlands Hearing Administrator

LBG:hme

cc: Mr. Roger A. Kanerva
Enforcement Division
Water Resources Administration

EXHIBIT 3

APPENDIX G

MARYLAND DNR - COASTAL RESOURCES
DIVISION GUIDELINES

Guidelines for CRD Involvement
in Coastal Zone Related Projects

The guidelines which follow are not intended to be hard
and fast criteria. Flexibility is essential in that projects
will undoubtedly arise which do not meet some thresholds but
will require the Division's involvement.

1. Marina Development

a. Guidelines:

(1) The Coastal Resources Division will be in-
volved in the regulatory process for new
marina proposals of 50 or more slips.

(2) The Division will be involved in marina expan-
sion proposals for 25 or more slips.

b. Review factors. Congestion, existing and poten-
tial; water quality impacts; flushing characteristics; dredg-
ing impacts on fisheries and flushing; locational character-
istics (headwater areas vs. mouth of river); demand for boat
slips.

2. Shoreline Residential Development

a. Guidelines

(1) The Coastal Resource Division will review
proposed residential developments involving
100 acres or 1,000 housing units within 2
miles of tidal floodplains.

(2) The Division will review proposed residential
developments, regardless of size, in which
proposed location is within tidal or non-tidal
floodplain.

b. Review Factors. Potential sedimentation and non-
point source pollution problems; potential impacts on valu-
able natural resources - wildlife habitat, productive agri-
cultural land, State critical areas; adequacy of existing
public services - water supply, waste treatment and trans-
portation; natural hazards - shore erosion, flooding; con-
sistency with State development and local comprehensive
plans; impacts of any proposed water-related activity, i.e.,
marina (see Marine Development above).

1-3

3. Dredging and Filling of Wetlands and Filling of Flood-
plains

a. Guidelines: Dredging and filling of wetlands.

(1) The Coastal Resources Division will be in-
volved in the review of projects requiring the
dredging or filling of 1/4 acre or more of
marshland.

(2) The Division will be involved in the review of
projects involving the filling of open tidal
waters for the.creation of new fastland.

b. Review Factors. Riparian access consideration;
shore erosion control.;. water dependent vs. non-water-depen-
dent activity; wildlife and fisheries impacts; economic
benefits; public benefits.

C. Guidelines: Filling of floodplains.

(1) The Coastal Resources Division will be in-
volved in the review of all projects requiring
a State Watershed Management permit that
involve landscaping or filling of more than 1
acre, or which require any construction in the
floodplain.

d. Review Factors. Water quality impacts; impact on
upstream and downstream flooding; biological impacts - wild-
life habitat, productive agricultural land, wetlands; ade-
quate floodproofing; potential surface water runoff and
sedimentation problems, alternative locations.

4. Transportation Projects

a. Guidelines

(1) The Coastal Resources Division has the option
of participating in the Department of Trans-
portation's system planning activities at the
statewide, regional, and local levels for the
following non-routine types of projects:
interstate highways, two-lane to four-lane
improvement, railroad lines, airports, public
ports, and any roadway serving a peninsula
area, or which crosses tidal waters.

1-4

(2) The Division will be involved in the review of
the specifies of each project proposal at the
DEIS and FEIS stages.

b. Review Factors. Biological impacts to valuable
resource areas such as wetlands, wildlife habitat, State
critical areas; stream crossing and relocations; mitigation
measures; alternatives, including no-build; socio-economic
impacts.

5. Other Major Facility Proposals

This category of projects includes OCS-related oil/
natural gas facilities, electric generating facilities,
ports, industrial parks, mineral extraction facilities, and
sewage treatment facilities. Due to the magnitude and nature
of potential impacts of these types of projects, the Coastal
Resources Division will be involved in the review of all such
project proposals. Under existing State and Federal laws, a
comprehensive review of the socio-economic and environmental
impacts of such proposals is required.

6. Projects Impacting State Critical Areas

a. Guidelines. The Coastal Resources Division will be
involved in any project proposal which would result in ad-
verse or irreversible impacts to any recommended or desig-
nated State Critical Area.

b. Review Factors. Extent of impact(s); consideration
of alternative locations.

1-5

STATE OF MARYLAND
Coastal Zone Management Program
Federal Consistency Program

The following pages document the procedures used by the
Coastal Resource Division in making Federal Consistency
determinations and discuss the way these procedures relate to
other review procedures within the Department of Natural
Resources. Also summarized, in tabular form, are the activ-
ities of the U.S. Army Corps of Engineers, the U.S. Fish and
Wildlife Service, the National Marine Fisheries Service, and
the U.S. Environmental Protection Agency, which require a
Federal Consistency determination.

The first section gives an overview of Federal Consis-
tency and describes the types of Federal actions to which it
applies. This is followed by a discussion of the review
procedures used by the State, how the review relates to other
project reviews within the Department of Natural Resources,
and how appropriate Federal agencies are notified of a Fed-
eral Consistency determination.

General

Maryland's procedures for Federal Consistency are in
response to the Federal Coastal Zone Management Act of 1972,
as amended, and as specified in 15 CFR 930 (43 FR 10510,
March 13, 1978). The consistency requirement is that any
Federally conducted or supported activities which affect the
State's coastal zone be consistent, to the maximum extent
practicable, with an approved state program. This affects
applicants for Federal licenses and permits, State or local
recipients of Federal funding, and Federal agencies proposing
projects and programs.

The purposes of the Federal Consistency requirement are
several:

to plan for and manage impacts resulting from
Federal programs;

to develop a factual analysis of the effects of a
proposed Federal action;

to determine consistency by examining the results
of the analysis in the context of the goals, ob-
jectives, and policies of the Program; and

to screen all Federal actions for those with sig-
nificant potential for impact, individually or
cumulatively, on coastal resources or activities.

1-6

The basis for determining consistency of Federal actions
within Maryland's Coastal Zone Management Progrim are the
goals, objectives, and policies of the Program. A Federal
action is reviewed in terms of its consistency with these
goals, objectives, and policies.

The types of Federal activities subject to Federal
Consistency fall within four general categories:

1. Projects proposed and carried out by Federal agen-
cies;

2. Activities requiring a Federal license or permit;

3. Outer Continental Shelf activities; and

4. Federal assistance to state or local governments.

Table 1 summarizes the requirements and procedures that
are applied to each type of Federal action. Specifically,
the table indicates who makes the consistency determination,
who must notify the State, and what the Federal agency's
responsibilities are.

Review and Administrative Procedures

In reviewing any Federal action or project requiring a
Federal Consistency determination, it must be emphasized that
the actual review of the activity does not differ from one in
which there is no Federal involvement. That is, the activity
is reviewed in terms of its consistency with the goals,
objectives, and polciies of the Coastal Zone Management
Program. The only difference is that, based on the results
of the State's review, the appropriate Federal agency must be
notified whether the State concurs or disagrees with the
consistency certification made by the Federal agency or
applicant for a Federal permit or license.

Within the Department of Natural Resources, the review
of a proposed Federal action is first assigned to a lead
agency within the Department. In the case of a Federal
permit (i.e., Corps of Engineers) that also requires a State
permit (i.e., Wetlands), the agency adminstering the permit
program is the lead agency. The Coastal Resources Division
will generally be the lead agency for all Federal permits
that do not require a State permit.. This is always true in

Refer to State of Maryland Coastal Management Program and
Final Environmental Impact Statement for a listing of the
Program's goals and objectives.

1-7

ZMA Section 307(c)(1) & (2) 307(c)(3)(A) 307(c)(3)(B) 307(d)
I (Subpart C). (Subpart D) (Sub2art E) (Subpart F)
ederal Action Direct Federal Federally licQnsed Federally licensed Federal assistance
activities includ- and permitted and permitted to State and local
ing development activities activities described overnments
projects in detail in OCS
t plans
Coastal Zone "Significantly "Significantlv "Significantly affect-, @'Sicjnificantly affect-
Impact affecting the affecting the ing the coastal zone' ing the coastal zone"
coastal zone" coastal zone"
Responsibility Federal agency pro- Applicant for Person submitting A-95 Clearinghouse
to notify State posing the action Federal license OCS Plan receiving State or
agency or permit local government
application for
Federal assistance
Notification Alternatives chosen Consistency certi- Consistency OMB Circular A-95
procedure by Federal agency fication certification notification pro-
(subject to NOAA cedure
regulations)

Consistency Consistent to the Consistent with Consistent with the Consistent with the
requirement maximum extent the CZM Program CZM Program CZM Program
practicable with
00 CZM Program
Consistency Made by Federal made by Applicant Made by Applicant Made by State
determination agency (Review by with State agency with State Agency agency
State agency) concurrence concurrence
Federal Federal agency not Federal agency Federal agency may Federal agency may
agency required to dis- may not approve not approve Federal not grant assistance
responsibility approve action license or permit licenses or permits following State
following a following State following State described,in detail agency objection
disagreement agency.disagree- agency objection in the OCS Plan
ment (unless judi- following State agency
cially impelled to objection
do so) I I
Administrative Mediation by the Appeal to theS@_,cre_ Appeal to the Secre- Appeal to the Secre-
Conflict Secretary of tary of Commerce by tary of Commerce by tary of Commerce by
resolution Commerce applicant or inde- person or independent applicant agency or
pendent Secretarial Secretarial review independent Secre-
review tarial review
(Subpart G) (Subpart H) (Subpart H) (Subpart H)

TABLE I
FEDERAL CONSISTENCY MATRIX DIAGRAM

the case of Corps permits. In the case of Clearinghouse
reviews, the lead agency is assigned by the Clearinghouse
Review Officer in the Office of the Secretary.

It is the lead agency's responsibility to coordinate the
Department's review of the proposed Federal action. Regard-
less of the lead agency, it is the responsibility of the
Coastal Resources Division to formulate the Department's
position concerning Federal Consistency.' The Federal Con-
sistency determination then becomes a part of the Depart-
ment's position on the proposed Federal action. Due to the
broad nature of the goals, objectives, and policies of Coast-
al Zone Management Program, the Federal Consistency deter-
mination may be based in whole, or in part, on the positions
taken by other agencies. For this reason, the Coastal Re-
sources Division must be in close contact with the appro-
priate agencies during the review of a proposed Federal
action.

With the exception of U.S. Army Corps of Engineers
permits, the review procedures are essentially the same for
all Federal agencies. The majority of proposed Federal
actions are reviewed through the Clearinghouse process. For
any Federal actions that are not reviewed through Clearing-
house, the Coastal Resources Division is notified directly by
the Federal agency involved. The reason that Corps of Engi-
neers permits are singled out is due to the continuous,
ongoing nature of the permit program. Thus, the Federal
actions subject to Federal Consistency review fall within the
following categories:

1. Direct notification Corps of Engineers permits

2. Clearinghouse Review Federally funded projects,
including OCS activities

3. Direct notification - other Federal activities.

*Consistency determinations within Coastal Resources Division
are made by the Project Evaluation Program, managed by Elder
Ghigiarelli. Within CRD are various staff who review per-
mits and other Federal actions according to specified
areas:

Wetlands (Corps permits) - Elder Ghigiarelli, Jeff
Hutchins
Transportation - Terry Anthony, Jeff Hutchins
Sewer and Water - Rick Wagner
Dredging - Rick Wagner, Elder Ghigiarelli, Jeff Hutchins

Replies are coordinated by Elder Ghigiarelli and forwarded
to appropriate agencies.

1-9

The details of the review procedures for each of these
categories follows.

1. Corps of Engineers Permits

This category constitutes approximately 80 percent of
the Federal Consistency reviews;made by the State. The
Department is notified of all Corps permits through the
Public Notices issued by the regional office. There are two
State approvals necessary before the Corps may issue a per-
mit: (1) water quality certification from the Department of
Health and Mental Hygiene; and (2) consistency with the
Coastal Zone Management Program from the Department of Natu-
ral Resources.

In the review procedures described below, close coordi-
nation is maintained during the review with personnel hand-
ling the water quality certification. When a State permit/
license is involved, water quality certification will not be
issued until the Water Resources Administration has made a
decision (in the case of a wetlands permit) or recommended a
decision to the State Board of Public Works (in the case of a
wetlands license). Regardless of the review procedure, all
projects for which the Corps of Engineers have not received
comments, either verbal or written, from the Coastal Re-
sources Division by the deadline date on the Public Notice
are to be considered consistent with the Coastal Zone Man-
agement Program assuming that:

(a) There are no major issues associated with the
issuance of Water Quality Certification;

(b) There are no major issues resulting in the delay of
issuance of a license and/or permit from the Water
Resources Administration; and

(c) The applicant has not revised the project plans
such that the resultant impacts differ signifi-
cantly from the plan(s) associated with the initial
public notice.

There are two review procedures dependent upon the
nature of the proposed action. If dredging or filling is
involved, a State license and/or permit is required from the
Water Resources Administration. In these cases, the Coastal
Resources Division has the responsibility to document to the
Water Resources Administration any inconsistencies between a
permit application and the Coastal Zone Management Program.
If the Coastal Resources Division does not submit comments on
a permit application, it is assumed by the Water Resources
Administration that the proposal is not inconsistent. In

I-10

these cases involving a State license and/or permit, the
Federal Consistency determination is inherent in the permi.t
decision.

The second review procedure involves those Corps permit
applications in which there is no dredging or filling in-
volved. In these cases, the Coastal Resources Division
becomes the lead agency in the Department of Natural Re-
sources for the review. Upon consultation with all relevant
agencies in the Department, comments are sent directly to the
Corps. The comments include a consistency determination.

2. State Clearinghouse Review

Aside frm Corps permits, the majority of the Federal
actions subject to Federal Consistency are reviewed through
the State Clearinghouse Review process. This includes Fed-
eral assistance to state and local governments as well as
direct Federal actions. Federal Consistency review through
the Clearinghouse process is outlined in Figure 1.

State Clearinghouse projects are received by the Depart-
ment and assigned to a lead agency by the Clearinghouse
Review Officer. The lead agency is responsible for coordi-
nating the comments of all appropriate agencies of the De-
partment and for preparing the Department's response. The
Department's position is then forwarded to State Clearing-
house through the Clearinghouse Review Officer. The Coastal
Resources Division responsibility is to document consistency
or inconsistency with the Coastal Zone Management Program to
the lead agency for inclusion in the Department's position on
the Federal action.

3. Other Federal Activities

For any Federal activities that are not reviewed through
Clearinghouse, the Coastal Resources Division receives direct
notification from the Federal agency. The Division acts as
the lead agency for the Department, consulting all relevant
agencies prior to making the consistency determination. A
consistency statement is then sent directly to the Federal
agency.

It is important to note that any negative Federal Con-
sistency determination made by the Coastal Resources Division
must receive approval from the Secretary's Office. In this
manner, any conflicting positions among units of the Depart-
ment or between Departments are resolved by the Secretary
prior to a final consistency determination.

Figure I- FEDERAL CONSISTENCY REVIEW THROUGH CLEAR INGHOUSEE

APPLICANT

SUBMITS APPLICATION

STATE
CLEARINGHOUSE

ATTACHES CONSISTENCY
NOTICEi SENDS

REViEW
CRO ALL REVIEWERS 30 to 60
DAYS

NOTE ANY INCONSISTENCY

z
z
W
I--
SQ Of
cr)
z
0
0
OVI
STATE STATE RESOLUTION
CLEARINGHOUSE CLEARINGHOUSE Cpc) UPT030
DAYS

RESOLUTION INFORMAL RECSOLUTIOU CAN
IBLEGIN BEFORE END OF
REVIEW PERIOD IF CLEAR INGHOUSE.
RECEIVES PRIOR NOTICE

APPLICANT CRD FINAL
DETERMINATION

FEDERAL AGENCY
FEDERAL CANNOT FUMD
AGENCY INCONSISTENT
ACTION

FUND REJECT

1-12

Federal Agency Actions Subject to Consistency Review

The preceding pages have discussed the review procedures
applied by the State to the various types of Federal actions
subject to consistency review. Table 2 lists the specific
actions of the U.S. Army Corps of Engineers, U.S. Fish and
Wildlife Service, National Marine Fisheries Service, and the
Environmental Protection Agency which require a Federal
Consistency determination. Also noted is the type of noti-
fication.

1-13

TABLE 2
Specific Federal Agency Actions
Subject to Federal Consistency Review

Federal Agency Action Notification

U.S. Army Corps Permit Actions: Public Notice/
of Engineers Corps of Engrs.
-construction of dains or ditches across
navigable .vaters
-obstrLiCtion or alteration of navigable
waters (including structures of the OCS)
-establishment of harbor lines
-temporary occupation of sea wall, bulkhead,
jetty, dike, level, wharf, pier or other
work built by the U.S.
-discharge of dredged spoil into waters of
the U.S.
-approval of plans for improvements made
under Corps supervision at private expense
-transportation of dredged spoil for the
purpo se of dumping in ocean waters
-permit for artificial islands and fixed
structures on the OCS

Corps Navigation Projects, Beach Erosion Clearinghouse and/
Control Projects, Flood Control Projects or Direct
Notification
U.S. Fish and Assistance Programs:
Wildlife Cl eari nghouse and/
Service - Fish Restoration or Direct
- Wildlife Restoration Notification
- Rare and Endangered Species Conservation

National Marine Assistance Programs: Clearinghouse and/
Fisheries or Direct
Service -Anadromous and Great Lakes Fisheries Notification
Conservation
-Commercial Fisheries Disaster Assistance
-Commercial Fisheries Research and
Development
-Sea Grant Support

U.S. Environmental Permit Actions: Direct Noti-
Protection Agency fication
- NPD@S permits for discharges into the
contiguous zone and ocean waters
- NPDES permits for federal installations

Assistance Programs: Clearinghouse

-Solid Waste Disposal Planning Grants
-Solid Waste Disposal Demonstration Grants
-Construction Grants for Wastewater Treat-
ment Works
-Water Pollution Control -Research, Develop-
ment, and Demonstration Grants

1-14

APPENDIX H

MARYLAND HISTORICAL TRUST
REGULATIONS AND GUIDELINES

TUESDAY, JAMLIARY 30, 1979
PARTIV

ADVISORY COUNCIL
ON HISTORIC
PRESERVATION

PROTECTIONOF
HISTORIC AND CULTURAL
PROPERTIES

Final Amendments

0-2

C068 RULES AND REGULATIONS
14310-10-M] Oic Council, and interes*ed organiza- response to the directives contained In
ti-,ris and participate. Tile the President's Memorandum. The
Title 36-Parks, Forests, and Pub!ic r,-o2ess is de!iimed to assure that al- Task Force was charged with review-
Property "..1-natives to aoid or mitigate an ad- in." the draft regulations and informal-
verst eflect on a National Register or ly offering comments to the Council
CHAPTER Vill-*ADVISORY COUNCIL property are adequately con. on whether the regulations comply
ON HISTORIC PRESERVATION sidered in the planning processes. The with the directive.
re@@ulations are binding on all Federal Pursuant to the President's Memo-
PART 800-PROTECTION OF HISTOR- age.ncies and specify the manner in randum, agencies with consultation re-
which the Council will render Its com- sponsibilities under the Act must de-
IC AND CULTURAL PROPERTIES ments to Federal agencies when their velop regulations to be approved by
Amendments to Existing Regulations undertakings affect properties includ. the Chairman of the Council in re-
ed in or eligible for inclusion in the sponse to these regulations. Such
AGENCY: Advisory Council on Histor- National Register of Historic Places. agencies must publish regulations no
ic Preservation. To facilitate processing of the large later than three months after the ef-
ACTION: Final amendments to regu- volume of cases submitted for Council fective date of these regulations.
comment each year, the regulations Other agencies may choose to adopt
lations. provide for agency consultation with counterpart regulations specifically
SUMMARY: These regulations imple- the Council staff and State Historic tailored to their particular program
ment Section 106 of the National His- Preservation Officers to reduce the needs as stipulated in these regula-
toric Preservation Act 1966, as amend- number of undertakings that require tions.
ed (16 U.S.C. 470). and two Presiden- consideration by the full Council. These regulations issued pursuant to
tial directives issued pursuant to Sec- The purpose of the present amend- 16 U.S.C. 470s were adopted by unani-
tion 106-Executive Order 11593, May ments is to reduce procedural delay, mous vote of the full Council in open
13, 1971, "Protection and Enhance- encourage agencies to develop internal session on January 17, 1979. As@direct-
ment of the Cultural Environment" regulations to comply with the re- ed by the President, the amended reg-
(36 FR 8921, 16 U.S.C. 470), and the quirements of the Act and these regu- ulatiOns will be effective March 1,
President's Memorandum on Environ- lations, to clarify the process since the 1979.
mental Quality and Water Resources last publication of the Council's regu-
Management, July 12, 1978. The regu- lations in 1974, and to implement the SUMMARY OF MAJOR CHANGES
lations have been amended to reflect directives in the President's Memoran- he flow of the commenting process
changes and additions to the Council's dum on Environmental Quality and es blished by the 1974 regulations re-
authorities, as well as experience Water Resources Management. ma. basically unchanged in the pres-
gained in working with the process In late 1977, the Council staff began ent' endments. However, the regula-
since the last publication of regula- a reassessment of the existing regula- tions ave been renumbered and rear-
tions in 1974. These amendments are tions codified in 1974 in 36 CFR Part raerom the 1974 publication for
r
re
r
r
r
intended to expedite and clarify the 800, in an effort to determine what !ea larity. The following major
commenting process required by Sec- changes, clarifications, or modifica, c anS ve been made in the regula-
tion 106 of the National Historic Pres- tions; were necessary. In July of 1978, t ons.
ervation Act. the President issued the Memorandum I. SectioiIi 00.4(a) has been substan-
EFFECTIVE DATE: March 1, 1979. on Environmental Quality and Water tially revis' to provide further guid-
Resources Management which direct- ance to Fede al agencies on the identi-
FOR FURTHER INFORMATION ed the Chairman of the Council to fication of Ntional Register and eligi-
'n ofN
CONTACT: review and promulgate regulations im- ble propertie
John M. Fowler, Acting General plementing the Act and the Memoran- 2. A new � 0.5 has been added to
Counsel, Advisory Council on Histor- durn by March 1, 1979. Accordingly, define the resp ibilities of State His-
ic Preservation, 1522 K Street NW the existing regulations were amended toric Preservati Officers in the com-
Washington,' D.C. 20005, 20@-254_' to reflect changes in statutory author- menting process.""
3967. ity, experience gained in implementing 3. Section 800*d) authorizes the
the procedures since 1974, and to meet Chairman to app . t a panel of five
SUPPLEMENTARY INFORMATION: the demands of the President's Memo. members of the C cil to consider
BACKGROUND randurn. undertakings in Heil of consideration
The Council published proposed by the full Council.
The Advisory Council on Historic amendments to the existing regula- 4. A new � 800.7 has' en added deal-
Preservation is publishing these final tions in the FEDERAL REGISTER on Oc- ing with resources dis vered during
amendments to its existing regulations tober 30, 1978, and invited public com- construction.
to implement Section 106 of the Na- ment for a 30 day period. A number of 5. A new � 800.8 has be added deal-
tional Historic Preservation Act, as Federal agencies and others requested ing with Programmatic 'moranda of
amended (16 U.S.C. 470f). The purpose extension of the comment period. On Agreement allowing an' agency to
of Section 106 is to protect properties November 28, 1978, the Council pub- obtain the Council's co ents,for a
included in or eligible for inclusion in lished notice in the FEDERAL REGISTER particular program or cl. of under-
the National Register of Historic extending the comment period for an takings that would otherwi require
Places through review and comment additional thirty days until December numerous individual reques for com-
by the Council on Federal undertak- 29, 1978, providing for a 60 day com- ments.
ings that affect such properties. Prop- ment period in total. A public briefing 6. Section 800.9 revises the riginal
erties are listed on the National Regis- for interested agencies, organizations, section dealing with the Natio 1 En-
ter or declared eligible for listing by and individuals on the proposed vironmental Policy Act to refile new
the Secretary of the Interior. As im- amendments was held on December Council on Environmental Q lity
plemented through these regulations, 11, 1978. Council staff also actively co- regulations.
the Section 106 process is a public in- operated with the Secretary of the In- 7. A new � $00.11 has been adde to
terest process in which the Federal terior's Water Policy Implementation authorize counterpart regulations
agency proposing an undertaking. the Task Force on Environmental Stat- mitting agencies to develop re
State Historic Preservation Officer, utes. The Task Force was convened in tions which, if approved by the

FEDERAL REGISTER, VOL 44, NO. 21-TUESDAY, JANUARY 30, 1979

0-3

6072 RULES AND REGULATIONS

tion 202 and will consider matters in en, Inents -e been deleted Sup- REVIEW OF INDIVIDUALUNVI:'
n 11i'delines II and IV have 800.4 Federal Agency R-spcn1:::
the public interest. A, e v @h
SECTION 800.13 REPORTS To THE be codified as part cf � 800.13. Sup- 800.5 State Historic Presuy--.. 0f'@I(r
ple entary Guideline I. the Criteria Responsibilities.
COUNCIL of t e National Register of ji@,ooric 800.6 Council comments.
his section sets standards for infor- Plac , is contained in 36 CFR 50.6. 800.7 Resources d;scovered con-
struction.
tion that should be provided to the Supp mentary Guideline Ill. Deter-
C incil to enable it to make informed minati ns of No Effect and No Ad- FEDERAL PROGRAM COORDINATION
c-ments on Federal undertakings. verse fect for Archeological Re- 800.8 Programmatic Menioranclum Of
ec ions 800.13(a) and (b) were previ- sources, ill not be published at the Agreement.
10 s] included in the Supplementary present ine. The Council's Task 800.9 Coordination with the National Envi-
Guid lines section. A large number of 'Force on cheolog-y will be consider- ronmental Policy Act (42 U.S.C. 4321 et
seq.)
co nters requested that these ing this gu eline and it will be revised 800.10 Coordination with the Pi@-sidenflal
stand ds for adequate documentation based uporl ecommendations of the Memorandum on environmenial, quality
be co fied. The Council ag-rees with Task Force; his Guideline received and water resources management.
these omments; and believes that numerous c() ments; and they have 800.11 Counterpart regulations.
codifyi g these sections will make the been provid6d to the Task Force for OTHER PROVISIONS
require ents; clear to all the consult- its considerael .
ing.p 'es and the public. Section 800.12 Investigation of threats to historic
800.13(c dealing with Reports for CLUSION properties.
Council eetings Includes a new sec- 800.13 Reports to the Council.
tion pre ibing the Secretary of the The Council ade a conscientious 800.14 Supplementary guidance.
Interior's Report. This section re- ef f ort to inco rate all valid com- 800.15 Public participation.
quests th Secretary to verify existing ments in t@hese al amendments. As AUTHORITY: Pub. L. 89-665, 80 Stat. 915
,io s
not @d, revisions e been made to the (16 U.S.C. 470), as amended, 84 Stat. 204
informati on the historical or cul-
tural signi icance of a National Regis- regulations whicIA e believe will serve (1970). 87 Stat. 139 (1973). 90 Stat. 1320
i ter or ell ble property and reflects to make the Secd 106 commenting (1976). 92 Stat. 3467 (1978); E.O. 11593, 3
procesi an open d public process CFR 1971 ComP, P. 154; President's Memo-
the current ractice of the Council. A randum on Environmental Quality and
number of ommenters felt that the that can be tailore o the needs of in_ Water Resources Management, July 12.
section was t entirely clear concern- dividual agencies. iCouncil believes 1978.
ing how repo ts for Council meetings that the regulations et a clear stand-
should be coo inated. The section has ard f or agencies to I Ilow in meeting � 800.1 Purpose and authorities.
their Section 106' (a) The National Historic Preserva-
been re-drafte to respond to these 06 @responsibilities,
while being sufficien flexible to re- tion Act of 1966, as amended, estab-
comments. e
spond to the wide va ety of agency lished the Advisory Council on Histor-
SECTION 800.1 SUPPLEMENTARY programs and needs. ic Preservation as an independent
GU ANCE The Council has de ermined that agency of the United States to advise
This is a new Sec 'on which provides these amendments are ot significant the President and the Congress on his-
that the Executive irector may issue regulations within the aning of Ex- toric preservation matters, recommend
further guidance t interpret certain ecutive Order 12044 and onsequently measures to coordinate Federal histor-
portions of the regul tions. do not require a regula ry analysis. ic preservation activities, and com-
The purpose of the a endments is ment on Federal actions affecting
PUBL PARTICIPATION to simplify existl gSe a *
SECTION 800.15 ing regul ions and to properties included in or eligible for
clarify language in confo ance with inclusion in the National Register of
This is a new secti which is de- the goals enunciated by Executive Historic Places. Its members are the
signed to encourage @) blic participa- Order 12044. Secretary of the Interior, the Secre-
tion throughout the rocess estab- The Council has determi d that an tary of Housing and Urban Develop-
lished by the regulatio A number of Environmental Impact tatement ment, the Secretary of Commerce, the
comments urged that t regulations under the National Envi onmental Administrator of General Services, the
contain more explicit d ection con- Secretary of the Treasury, the Attor-
cerning the means of volving the Policy Act is not required. ney General, the Secretary of Agricul-
public. Several suggeste that such PRINCIPAL AUTHORS ture, the Secretary of Transportation.
sugg
rtIc
reference to public partici tion be in- the Secretary of State, the Secretary
1
ci
ifi
ffic
cluded in various speci ic s tions. The Kenneth C. Tapman, Legisl ive and of Defense. the Secretary of Health,
Council believes that a Spec fic section Policy Counsel, John owler,
e:1 er H.
dealing with public partici tion will Acting General Courts ff@e Education, and Welfare, the Chairman
I Environmental
best serve to fulfill the int ded pur- Smith, Acting Director, Ice f In- of the Council on
pose of involving the pu lic. The tergovernmental Programs an lan- Quality, the Chairman of the Federal
Council notes that its proce is advi- ning; and Katherine Raub ley, Council on the Arts and Humanities.
the Architect of the Capitol, the Sec-
sory and does not constitut formal Legal -Assistant, Office of Intergo ern- retary of the Smithsonian Institution,
administrative hearings. T erefore, mental Programs and Planning. the Chairman of the National Trust
this section is intended for idance ROBERT R. GARVEY, Jr., for Historic Preservation, the Presi-
and is not -to be construed as s tting a Executive Directo dent of the National Conference of
strict legal standard. For exam e, the Part 800 is revised to read as t State Historic Preservation Officers,-
use of the word "notice" in s b ction and 12 citizen members from outside
(b) is not intended -to be a fo a legal forth below: the Federal Government appointed
requirement, but rather a means f in- PART 800-PROTECTION OF HISTOR- for five-year terms by the President on
forming the public of an opport ity the basis of their interest and experi-
to participate in the process. IC J.rJD CULTURAL PROPERTIES ence in the matters to be considered
OTHER Sec. by the Council.
800.1 Purpose and authorities. (b) The Council protects properties
The Supplementary Guidelines c - 800.2 Definitions. of historical, architectural, archeologi-
tained in the publication of the 800.3 Criteria of effect and advance effect. cal, and cultural significance at the na-

FEDERAL REGISTER, VOL. 44, NO. 21-TUESDAY, JANUARY 30, 1979,

o-4

RULES AND REGULATIONS 6073
tinal, State, and local level by review- (b) "Executive Order", means Execu- Secretary of the Interior to evaluate
ing and commenting on Federal ac- tive Order 11593, May 13, 1971, "Pro- properties to determine whether they
tions affecting National Register and tection and Enhancement of the Cul- are eligible for inclusion in the Nation-
eligible properties in accordance with tural Environment" (36 FR 8921, 16 al Register. (See 36 CFR 60.6.)
the following authorities: U.S.C. 470). (h) "Decision" means the exercise of
(1) Section 106 of the National His- (c) "Undertaking" means any Feder- or the opportunity to exercise discre-
toric Preservation Act. Section 106 re- al, federally assisted or federally li- tionary authority by a Federal agency
quires that Federal agencies with censed action, activity, or program or at any stage of an undertaking where
direct or indirect jurisdiction over a the approval, sanction, assistance or alterations might be made In the un-
Federal, federally assisted or federally support of any non-Federal action,ac- dertaking to modify Its impact upon
licensed undertaking afford the Coun- tivity, or program. Undertakings in- National Register and eligible proper-
cil a reasonable opportunity for com- clude new and continuing projects and ties.
ment on such undertakings that affect program activities (or elements of
properties Included in or eligible for such activities not previously consid- (I) "Agency Official" means the head
inclusion in the National Register of ered under Section 106 or Executive of the Federal agency having responsi-
Historic Places prior to the agency's Order 11593) that are: (1) Directly un- bility for the undertaking or a desig-
approval of any such undertaking. dertaken by Federal agencies', (2) sup- nee authorized to act for the Agency
(2) Section 1(3) of Executive Order ported in whole or in part through Official.
11593, May 13, 1971, "Protection -and Federal contracts, grants, subsidies. (J) "Council" means the Advisory
Enhancement of the Cultural Environ- loans, loan guarantees, or other forms Council on Historic Preservation as es-
ment." Section 1 (3) requires that Fed- of direct and indirect funding assist- tablished by Title II of the Act.
eral agencies, In consultation with the ance; (3) carried out pursuant to a (k) "Chairman" means the Chair-
Council, institute procedures to assure Federal lease. permit, license, certifi- man of the Advisory Council on His-
that their plans and programs contrib- cate, approval, or other form of enti- toric Preservation or a member desig-
ute to the Preservation and enhance- tlement or permission; or. (4) proposed nated to act for the Chairman.
ment of non-federally owned historic by a Federal agency for Congressional (1) "Executive Director" means the
and cultural properties. authorization or appropriation. Site- Executive Director of the Advisory
(3) Section 2(b) of Executive Order specific undertakings affect areas and Council on Historic preservation as es-
11593, May 13, 1971. "Protection and properties that are capable of being tablished by Section 205 of the Act. or
Enhancement of, the Cultural Environ- identified at the time of approval by a designee authorized to act for the
ment." Federal agencies are required the Federal agency. Non-site-specific Executive Director.
by Section 2(a) of the Executive Order undertakings have effects that can be (m) "State Historic Preservation Of-
to locate, inventory, and nominate anticipated on National Register and ficer" means the official, who is re-
properties under their jurisdiction or eligible properties but cannot be iden- sponsible for administering the Act
control to the National Register. Until tified In terms of specific geographical within the State or jurisdiction, or a
such processes are complete, Federal areas or properties at the time of Fed-
designated representative authorized
agencies must provide the Council an eral approval. Non-site-specific under- to act for the State Historic Preserva-
opportunity to comment on proposals takings include Federal approval of tion Officer. These officers are ap-
for the transfer, sale, demolition, or State plans pursuant to Federal legis-
substantial alteration of federally lation, development of comprehensive pointed pursuant to 36 CFR Part 61.2
owned properties eligible for Inclusion or area-wide plans, agency recommen- by the Governors of the 50 States,
In the National Register. dations for legislation and the estab- Guam, American Samoa, the Com-
(4) The President's Memorandum on lishment or modification of regula- monwealth of Puerto Rico, the Virgin
Environmental Quality, and Water Re- tions and planning guidelines. Islands, the Trust Territory of the Pa-
sources Management. The Memoran- (d) "National Register" means the cific Islands, the Commonwealth of
dum directs the Council to issue final National Register of Historic Places. It the Mariana Islands, and the Mayor of
regulations under the National Histor- is a register of districts. sites. build, the District of Columbia.
ic Preservation Act by March 1, 1979, ings, structures, and objects of nation- (n) "Secretary" means the Secretary
and further directs Federal agencies al. State, or local significance in of the Interior or a designee author-
with water resource responsibilities American htstory, architecture, ar- ized to carry out the historic preserva-
and programs to publish procedures cheology, and culture that is expanded tion responsibilities of the Secretary
implementing the Act not later than and maintained by the Secretary of under the Act, Executive Order 11593,
three months after promulgation of the Interior under aunthority of section and related authorities.
final regulations by the Council. Fed- 2(b) of the Historic Sites Act of 1935 (o) "Area of the undertaking's po-
eral agencies procedures are to be re- (49 Stat. 666, 16 U.S.C. 461) and Sec- tential environmental impact" means
viewed and, if they are consistent with tion 101(a)(1) of the National Historic that geographical area within which
the Council's regulations, approved by Preservation Act implemented direct and indirect effects generated
by the undertaking could reasonably the Council within 60 days and pub- through 36 CFR Part 60. The National lished in final forin. Register is published in its entirety in be expected to occur and thus causes the FEDERAL REGISTER each peer in change in the historical, archetectural,
� 800.2 Definitions. February. Addenda are usually pub-
As used in these regulations: lished on the first Tuesday of each archeological, or cultural qualities pos-
(a) "National Historic Preservation month. sessed by a National Register or eligi-
Act" means Pub. L. 89-665, approved (e) "National Register property" ble property. The boundaries of such
October 15, 1966, an "Act to establish means a district, site, building,struc- area. should be determined by the
a program for the preservation of ad- ture, or object included in the Nation- Agency Official in consultation with
ditional historic properties throughout al Register. the State Historic Preservation Officer
as early as possible in the planning of
the Nation and for other purposes" (f) "Eligible property" means any
(80 Stat. 915, 16 U.S.C. 470, as amend- district, site, building, structure, or the undertaking.
ed; 84 Stat. 204 (1970), 87 Stat. 139 object that meets the National Regis- (p) "Consultomg parties" means the
(1973), 90 Stat. 1320 (1976), 92 Stat. ter Criteria. Agency Official, the State Historic
3467 (1978)), hereinafter referred to as (g) "National Register Criteria" Preservation Officer, and the Execu-
"the Act." means the criteria established by the tive Director.

FEDERAL REGISTER, VOL. 44, NO. 21--TUESDAY, JANUARY 30, 1979

0-5

6074 RULES'AND REGULATIONS
�800.3 Criteria of effect and adverse of the National Historic Preservation obtained Pursuant to �800.4(a)(1). d,
effect Act and Section 2(b) of Executive termine what further actions are neL-
The following criteria shall be used Order 11593. It is the primary respon- essary to discharge the agency's af-
to determine whether an undertaking sibility of each Agency Official re- firmative responsibilities to locate and
has an effect or an adverse effect in questing Council comments to conduct identify eligible properties that are
accordance with these regulations. the appropriate studies and to provide within the area of the undertaking's
(a) Criteria of Effect. The effect of a the information necessary for an ade- potential environmental impact and
Federal. federally assisted or federally quate review of the effect a proposed that may be affected by the undertak-
licensed undertaking on a National undertaking may have on a National ing. Such actions may include a pro-
Register or eligible property is evalu- Register or eligible property. as well as fessional cultural resource survey of
ated in the context of the historical, the information necessary for ade- the environmental impact area, or
architectural. archeological, or cultur- quate consideration of mGdifications parts of the area.. if the area has not
al sigaficance possessed by the proper- or alterations to the proposed under- previously been adequately surveyed.
ty. An undertaking shall be considered taking that -could avoid, mitigate, or The recommendations of the State
to have an effect whenever any condi- minimize any adverse effects. It is the Historic Preservation Officer should
tion of the undertaking causes or may responsibility of each Agency Official be followed in this matter.
cause any change, beneficial or ad- requesting consultation with a State (3) The Agency Official, in consulta-
verse, in the Quality of the historical, Historic Preservation Officer under tion with the State Historic Preserva-
.architectural, archeological, or cultur, this section to provide the information tion Officer, shall apply the National
al characteristics that Qualify the that is necessary tomake an informed Register criteria to all properties that
property to meet, the criteria of the and reasonable evaluation of whether may possess any historical, architec-
National Register. An effect occurs &Property meets National Register tural. archeological, or cultural value
when-an undertaking changes the in- criteria and to determine the effect -of located within the area of the under-
tegrity of. location. design. setting, ma- a proposed undertaking on a National taking's , potential environmental
terials. -workmanship. feeling. or asso- Register or eligible property. Al- Impact. If either the Agency Official
ciation of the property that contrib.* though a Federal agency may require or the State Historic Preservation Of-
utes,to its significance, in accordance non-Federal parties to undertake cer- ficer finds that &"property meets the
with the National Register criteria. -An tain steps required by these regula- National Register Criteria or a ques-
effect may be direct or indirecL Direct tions as a prerequisite to Federal tion exists as to whether a property
effects are caused by the undertaking action and may authorize non-Federal meets the Criteria. the Agency Official
and occur at the same time and place. participation under this section and in shall request a determination of eligi-
Indirect effects include those. caused the consultation process under Section bility from the Secretary of the Interi-
by the undertaking that are later in 800-6 pursuant to approved counter- or In accordance with 36 CFR Part 63.
time or farther removed in distance part regulations; the ultimate respon- The opinion of the Secretary 7respect-
but are still reasonably foreseeable: sibility for compliance with these reg- ing the eligibility - of a property shall
Such effects may include changes in ulations remains with the Federal be conclusive for the purposes of these
the pattern of land use, population agency and cannot be delegated by it. regulations. If the Agency Official and
density or growth rate that may affect (a)'Identification of National Regis- the State Hlitoric Preservation Officer
on properties of historical. architec. ter and Eligible Properties. It is the re- agree that no identified property
tural, archeological, or cultural signifi- sPonsibillty of each Federal agency to meets the Criteria. the Agency Official
cance. identify or cause to be identified any shall document this finding and,
(b) Criteria .of Adverse Effect. -Ad- National Register or eligible property unless the Secretary has otherwise
verse effects on National Register or that is located within the area of the made a determination of eligibility
eligible properties may occur under undertaking's potential environmental under 36 CPR Part 63, may proceed
conditions which include but are not impact.and that may be affected by with the *undertaking.
limited to: the undertaking. (4) The Agency Official shall com-
(1) Destruction or alteration of all or (1) The Agency Official shall'consult plete the preceding steps prior to re-
part of a property: the State Historic Preservation Offi- questing the Council's comments pur-
(2) Isolation from or alteration of cer, the. published lists Of National suant to Section 800.4(b)-(d). The
the property's surrounding environ- Register and eligible properties, public Agency Official may, however. initiate
ment; records, and other individuals or orga- a request for the Council's comments
. (3) Introduction of vAsual, audible. or nizations with historical and cultural simultaneously with a reQuest for a de-
atmospheric elements that are out of expertise, 08 aVPr00riAt`b, to determine termin'ation -of eligibility from the Sec-
character with the Property or alter what historic Rod cultuZiLl properties retary when the Agency Off1clal and
its setting', are known to be within the area of the the State Historic Preservation Officer
(4) Neglect of a property resulting in undertaking's potential enviroranental agree that a property meets the Na-
its deterioration or destruction. impact. The State Historic Preserva- tional Register Criteria. Before the
(5) Transfer or sale of' a. property ticn Officer should provide the Council completes action pursuant to
without adequate conditions or restric- Agency Official with any information �800.6, the Secretary must find the
'lable on known historic and cul- property eligible for inclusion in the
tions regarding preservation. mainte- ava@
nance, or use. tural properties identified in the area National Register.
(whether on the National Register or (b) Dcte?7nination of Fffcct. For
REviEw OF INDIVIDUAL UN-DERtAxrNGs not), information on any previous sur- each National Register oi eligible
veys performed and an evaluation of property that is located within the
� 800.4 Federal Agency responsibilities. their quality, a recommendation as to area of the undertaking's potential en-
As early as possible before an agency the need for a survey of historic and virorunental impact,. the Agency Offi-
makes a final decision concerning an cultural properties, and recommenda- cial, in consultation with the State
undertaking and in any event prior to tions as to the type of survey and/or Historic Preservation Officer, shall
taking any action that would foreclose survey methods should a survey be apply the Criteria of Effect.
alternatives or the Council's ability tL recommended, and recommendations Q 800.3(a)). to determine whether the
.comment, the Agency, Official shall on boundaries of such surveys. undertaking will have an effect upon
take the following steps to comply (2) The Agency Official shall, after the historical, architectural. archeo-
with the requirements of Section 106 due consideration of the information logical, or cultural characteristics of

FEDERAL REGISTER, VOL. ", NO. 21-TUESDAY, JANUARY 30, 1979

0-6

JR
Sig, 7a
W
00'. eP@
AM,
01

N,
f

C: N
-Aad

Guidefil 1KI; for
Archeological
14
Investigations.
in Maryland
Prepared by
Joseph M. McNamara
Division of Archeology
Maryland Geological Survey

Maryland Historical Trust Technical Report Number 1
o-7

GUIDELINES FOR

ARCHEOLOGICAL INVESTIGATIONS IN MARYLAND

PREPARED BY

Joseph M. McNamara
Division of Archeology
Maryland Geological Survey
Department of Natural Resources

with assistance of a grant-in-aid from the

Heritage Conservation and Recreation Service
.U. S. Department of the Interior

administered by the

Maryland Historical Trust
Department of Economic and Community Development

February 1981

0-8

PORV'Apn

The need for written guidelines useful to archeologists, engineers,
Planners, administrators, and others charged with conserving archeological
resources in Maryland has been recognized for many years, Report format
was discussed at a 1974 meeting prior to organizing the Council for Maryland
Archeology, but serious efforts toward developing formal guidelines began
as part of Heritage Conservation and Recreation Service archeological
resources management grant-in-aids to the Maryland Geological Survey in 1978
and 1979. The task of preparing the document was assigned to Joe McNamara
who coordinated his efforts with the Council for Maryland Archeology and the
State Historic Preservation Officer.

Users of the guidelines will find that not all circumstances are addressed,
and some innovative approaches may not be easily accommodated. Inadequacies
in the guidelines should be brought to the attention of McNamara or myself for
consideration in future revisions.

The guidelines set down the general approach, organization, and content
that are expected of modern investigations and reports in Maryland archeology.
If major departures are contemplated for projects and reports subject to state
review of adequacy, advance discussion with the reviewing agency(ies) is
recommended. It will be a tragedy for the future of Maryland archeology,
however, if mechanical adherence to the guidelines by either investigators or
reviewers discourages innovation.

Tyler Bastian
State Archeologist
Maryland Geological Survey

0-9

PREFACE

Following the passage of the National Historic Preservation Act of
1966, the National Environmental Policy Act of 1969, and tile Archeological
and Historic Preservation Act of 1974, a number of rules and regulations

have been developed by various federal agencies for the implementation of
these and other historic preservation acts. The purpose of the archeo-
logical investigations and report guidelines presented in this document is
not to supplant the federal rules and regulations which have been developedd.
Each sponsor supporting compliance archeological investigations and each
archeologist conducting the investigations is responsible for complying
with the complex series of rules and regulations established by tile relevant.
federal agencies. These guidelines were developed to provide project spon-
sors and contracting archeologists with the minimum standards of fieldwork, IV
analysis and data reporting essential for the State Historic Preservation
Office and the State Archeologist's review of archeological report. The
guidelines should prove useful in assisting a project sponsor in developing
a scope of work for compliance investigations. The different levels of
survey and the type of investigations required at each level have been
clearly defined. The investigation and reporting standards presented were
developed based on ten years of review and report writing experience on tile
part of the archeologists at the Division of Archeology, the Maryland
Historical Trust, and the Council for Maryland Archeology. Many of tile
topics discussed include thoseproblem areas which have resulted in constant
delays in review due to adverse comments by the reviewing agency. Adherence
to the minimum standards outlined in these guidelines will greatly facili-
tate project clearance while significantly increasing the value of the
archeological reports as research and management documents.

Wayne E. Clark
Maryland Historical Trust

0-10

ACKNOWLEDGEMENTS

The author wishes to acknowledge and express his gratitude to the
following groups and individuals for their support and assistance in pre-
paring these guidelines. The guidelines have been prepared with the
assistance of a grant-in-aid from the Heritage Conservation and Recreation
Service of the U.S. Department of Interior. The grant was administered
by the State Historic Preservation Office at the Maryland Historical Trust,
an agency of the Department of Economic and Community Development. Infor-
mation for Sections I and II was developed from the "Recovery of Scientific,
Prehistoric, Historic, and Archeological Data: Methods, Standards, and
Reporting Requirements" (36 CFR 66), Maryland State Highway Administration
"Draft Guidelines for Archeological Studies", and guidelines used in other
states. The guidelines in draft form were distributed to the Council for
Maryland Archeology at the 9 February 1980 meeting. A Guidelines Review
Committee was formed by the Council and met 16 April 1980 at the Maryland
Geological Survey. Special thanks are extended to the members of that
committee: Dennis Curry, MGS; Wayne Clark and Gordon Fine, MHT; Steve Israel,
U. S. Army Corps of Engineers Baltimore District; June Evans, American
University; Ron Thomas, Mid-Atlantic Archeological Research, Inc.; and
Tim Thompson, Thunderbird Research Corporation.and Catholic University.
Special thanks also go to Tyler Bastian for his assistance with the final
review and editing. Any errors or misinformation are strictly the responsi-
bility of the author. The success of these guidelines will be measured
by the quality of future archeological work in the state.

Table of Contents

Panp

Forward - by Tyler J. Bastian . . . . . . . . . . . . . . . . . . . . . .

Preface - by Wayne E. Clark . . . . . . . . . . . . . . . . . . . . . . .

Acknowledgements . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1V

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . V

Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . I

Standards for Recording Archeological Data . . . . . . . . . . . ... . . 2

Standards for Preparing Archeoloqical Resource Manaaement PeDorts . . . . 3

Phase of Archeological Work . . . . . . . . . . . . . . . . . . . . . . . 5

A. Pre-Fieldwork Preparation . . . . . . . . . . . . . . . . . . . . 5

B. Preliminary Archeological Reconnaissance . . . . . . . . . . . . . 8

C. Intensive Archeological Survey . . . . . . . . . . . . . . . . . . a

D. Preliminary Site Examination . . . . . . . . . . . . . . . . . . . 9

F. Full Scale Excavation . . . . . . . . . . . . . . . . . . . . . . 10

II. Archeological Report Guidelines . . . . . . . . . . . . . . . . . . . . . 11

III. Criteria for Review of Archeological Reports . . . . . . . . . . . . . .

Appendices:

I. Maryland State archeological site numher and sitp survey forms 17

11. Handlinn of skeletal remains . . . . . . . . . . . . . . . . . . . 17

III. Notes on Curation . . . . . . . . . . . . . . . . . . . . . . . . 17

IV. Guide to Orderinn of Artifacts for ratalno . . . . . . . . . . 20

V. Maryland Rev i ew/"Iesovrr-,@ Aqencir-s 21

VI. Maryland Archeological Research Units . . . . . . . . . . . . . . 24

VII. .'Xtryland Archeoloqical Site Survey . . . . . . . . . . . . . . . .

VIII. Division of Archeology, Archeolooical SDecimen Cataloq . . . . . . 26

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GUI DEL. INES

FOR

ARCHEOLOGICAL INVESTIGATIONS IN MARYLAND

INTRODUCTION

This document outlines some of the resources, procedures, and standards
used in recommending and evaluating archeological investigations: (1) on
state lands or (2) for compliance with federal regulations. Recognizing
the variety of training, skills, methodologies, and research interests among
archeologists working in Maryland, the guidelines describe minimum require-
ments without discouraging experimentation and diversity in conducting and
reporting archeological work.

Adequate background preparation, field work, and reporting are critical
to protect the interests of the sponsoring agency, to enable reviewers to
do their jobs, and to insure future usefulness of the findings. Inadequate
investigations may:

1) endanger the archeological record through failure to record
significant resources or to communicate their significance,

2) delay the review process,,

3) delay final payment to the archeologist, and/or

4) delay construction.

The major sections of this document:

1) describe the principal phases of archeological field research, and

2) present appropriate content and format for archeological reports.

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Standards for Recording Archeological Data

These preliminary standards indicate minimal, procedures and material
quality believed necessary to insure long-term preservation and usefulness
of archeological data collected in Maryland.

Field methods - quantify by indicating distance between surface survey
swaths, size of screen mesh, etc.

Constraints - time, access in field and to data files, ground cover,
weather, etc.

Photographs - use only film of major manufacturers (not Sears, Fotomat,
etc.)

Black and white (Kodak Plus-X Pan recommended) - The
basic record. Minimum negative size for Preliminary
Site Examination and Full Excavation phases: 2-1/4"
x 2-1/4"; 35mm is acceptable for Preliminary Recon-
naissance and Tntensive Survey.

Hand process to archival standards.

Color transparency (Kodachrome recommended) - Secondary
to black and white as permanent record.

Processing by manufacturer only.

Field records - use durable acid-free paper.

Mapping - indicate permanent reference points, scale, direction, and
date.

Cataloging of specimens - use MGS D/A system and forms (described in
Appendix 111) for sites on lands owned or
controlled by the state unless otherwise
specified in the Antiquity Permit.

Disposition of cataloged artifacts and field notes - with MGS D/A
for lands owned or controlled by the state unless speci-
fied otherwise in the Antiquity Permit.

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Standards for Archeological Resource Managerwrit Reports

The following special requirements were developed to facilitate review
of Preliminary Reconnaissance and Intensive Survey archeological rpsource
management reports. Reports will not be accepted for review unless these
minimum standards are adhered to.

Title page that clearly identifies the principal author(s) by name(s):
date of report.

Abstract.

Description of field procedures.

Description of field findings, including individual features, and
relevant natural environment.

Standard site numbers as issued by MIGS must be incorporated into the
text for all sites in project area.

Quantify artifacts by provenience, material, type; illustrate diagnostics.

Assessment of possible impact.

Discussion of National Register eli'gibility, when appropriate.

Specific recommendations, includinq budget, for further work, if needed.

List of references cited and documents consulted.

Maps that include (all with scale, directional arrow, and source):

regional location of project (approximating entire state)
project limits and all sites -in and near the project indicated
on appropriate section of 7.5' USGS quadrangles
project specific plans (may be combined with project limit map
on USGS quadrangle) to show areas actually investigated in the
field; quantify naturelintensity of investigation and field
conditions for each area (preferably by map symbol rather than
narrative text).
intra-site - show test units, artifact raw data distribution,
natural features, datum point.

Scope of Work.

Antiquity Permit approval date, it' work 4s on lar,,,J, ow;,ed or controlled
by state.

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Indicate dispositon of field records and artifacts.

Standard Maryland archeological site survey forms with-attached portions
of 7.5' USGS quad (completed forms may be submitted separately from
the report, but must accompany or precede it).

More detailed discussion of report requirements is provided in Section II.
Innovation and variability beyond these minimum standards are encouraged.

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I Phases of Archeologi(:al Work

Archeological work normally falls within one of five phases or steps:

A. Pre-Fieldwork Preparation

B. Preliminary Archeological Reconnaissance

C. Intensive Archeological Survey

D. Preliminary Site Examination, and

E. Full Scale Excavation.

The phases are detailed below.

The investigation ordinarily progresses in the order listed above, but
in many cases it does not proceed beyond Intensive Archeological Survey
when it is concluded that the archeological resources for any of a number
of reasons do not warrant further investigation. Among the reasons that
may decide that further investigation is not needed are research priorities,
resource conservation needs, deletion of potential adverse project impact
(including project modification), and non-significance in terms of National
Register eligibility criteria.

Archeological considerations, project needs (such as planning stage),
and available funds will indicate the appropriate phases and how they should
be combined or omitted. For example, work on an area or site already well-
known might begin with Preliminary Site Examination and include a minimum
of Pre-Fieldwork Preparation. In other cases, as with urban archeology,
the Pre-Fieldwork Preparation is normally a major independent project in
itself.

A. Background Research. Investigations appropriate to both historic and
prehistoric archeology should be pursued for each project unless one
has been done previously. Urban archeology presents special problems
addressed in a separate Subsection below.

Pre-Fieldwork Preparation: the general situation.

1) Purpose: to inventory known sites and to develop predictions
of the locations of historic and prehistoric archeological
sites thtounh a search of relevant document.s and maps prior
to the initIdLion of the fieldwork.

2) Goals:

a. th- identification of potential historic archeological sites

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based on early maps, atlases, and documented standing structures,
b. a description of historic and prehistoric settlement patterns
and land use trends for the study area based on literature
and maps,
c. identification of possible areas of racial and ethnic diversity,
d. the identification of industry, commerce and growth in the
study area and its relationship to regional patterns,
e. a predictive model for prehi.storic site location based on
available water, soil drainage, lithic resources, topography,
cultural processes, and known site locations.

3) Sources to be Considered:

a. project p-lanning maps
b. Maryland Archeological Site Survey (MASS) which consists of:

(1) a file of site forms and supplementarydata for each
numbered site
(2) 7.5' USGS quadrangles with site locations marked
(3) a checklist of numbered sites
(4) miscellaneous data on reported but unconfirmed sites
c. reports on previous archeological investigations
d. relevant biogeographic data
e. National Register of Historic Places
f. Inventory of Historic Sites at the Maryland Historical Trust
g. early state and county maps and atlases
h. early USGS topographic quadrangles (15' and 7.5')
i. local collectors (some information available at D/A)
j. consult with the offices of the State Archeologist and SHPO
k. county soil maps (available for all counties from U.S. Soil
Conservation Service)
1. ' county geologic maps (for sale by MGS, available for about
half of-the counties)
m. aerial photos (complete state coverage by USDA about every
decade since the late 1930's)
n. environmental reconstructions (local andregional)
o. ecological area maps
p. slope and erosion maps
q. county tax maps (since 1950's)
r. county planning and zoning maps (available from county
planning offices)
s. vegetation maps (e.g. Brush, et al. 1976)

4) Included in the B,ckground Research section of the Report
(see Section II - Archeolooical Report Guidelines)

a. statement of methodolo*.,gy and resources utilized
b. descriptive prehistoric and historic overviews
c. predictive models for historic and prehistoric archeological
site location
d. recomm-lations (i.e., alignment alternatives, fieldwork,
archival research)

-7-

e. a series of maps showing the project location within the
state, a base map at 1:24,000 (OSGS 7.5' quad) showing the
project and known potential site locations, and more detailed
maps or sketches as appropriate

Pre-Fieldwork Preparation: the urban situation.

1) Purpose: to inventory and locate or predict,through archival
study, prehistoric and historic sites occuring within a pre-
scribed sampling area. Prehistoric archeological site locations
in urban areas should be predicted by utilizing available site
data information in the Maryland Archeological Site Survey (MASS)
files in conjunction with early maps to delineate potential un-
disturbed (unbuilt) areas. Potential historic archeological site
locations in urban areas can be identified by comparing early
maps, directories, etc. with the modern situation.

2) Goals: Archeological research within the urban environment should
be conducted within the framework of a specific set of research
objectives. 'This approach should include the perspective of tile
city or urban area as the archeological site (Salwen 1973).
The following provide suggestions for structuring archival re-
search:

a. determine the evolutionary growth of the area
b. identify the range of social and economic activities
that have taken place in the area
c. identify social groups associated with each activity
d. identify the types of property that may be associated
with each social group
e. identify past construction activities which might have
destroyed various types of archeological resources in
the study area
A f. development of research quPstions that will assist in
assigning significance to DartiCUlar properties once
they are discovered
g. determination of significant
_yp�s of historic archeological
sites in the Project area

3) Archival Sources to be Considered.

a. city archives
b. insurance records and maps
c. early maps and atlases
d. ?arly lithographs
e. taA maps
f. court reco-ds (deeds and mortqages)
g. port r,-,urds I-specially shin nianifests)
h. real property records @IIncluding city plats)
i. ordinances and resolutions
J. rail and freight record,@;
k. city histories
1. city directories

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m. wills and probate records
n. census records
o. health department records
p. utility company records

These resources may be found in.the following repositories:

- Maryland Historical Society (library and manuscript
collection)
- Baltimore City Museum
- Pratt Library (Maryland Room)
- National Archives
- Library of Congress
- Industrial Museum Files
- Hall of Records (Annapolis)

4) Urban Background Research Report should conform to Section II
(Archeological@Report Guidelines) and should include

a. statement of methodology and resources utiliz'ed
b. descriptive prehistoric and historic overviews
c. predi.ctive models for prehistoric and historic archeological
site location
d. satisfaction of archeological research questions (a - g)
e. recommendations (i.e., alignment alternatives, further
archival research, and/or Intensive Archeological Survey)
If Intensive Archeologidal Survey is recommended,"it
must be justified by the archeological research and
subsequent model development. Research and sampling
designs, scope of work and an estimated budget are
required.

B. Preliminary Archeological Reconnaissance

1) Purpose: to locate and describe significant or potentially signi-
ficant sites and areas by conducting an on-the-ground surface and
sub-surface examination of the study area, adequate to assess the
nature and number of archeological resources present. The reconnais-
sance should be sufficiently thorough to indicate if any potentially
significant archeological resources are present, but not necessarily
of such intensity as to locate all such sites. Determinations of
National Register eligibility are usually not possible in this phase.

2) Goals:

a. determine the presence/absence.,of archeological resources in the
project area from, a representative sample, or, in the case of
a small area, locate all sites
b. interpretation (i.e., cultural affiliation, site size, site
function and possible significance as can be determined). In

0-20

the case of historic sites, where information is availahle and
relevant, socio economics, race and ethnicity, and their relation-
ship to the region and standing structures should be discussed.
c. assess the project impact on sites (direct and indirect)
d. determine the need for further work
e. recommend alternate alignments

3) Fieldwork: consists of a selective examination of the project area
including the use of shovel test-pitting, usually within an explicit
sampling framework. The fieldwork should be designed to furnish
complete coverage of areas with high archeological potential, and should
provide an agency or applicant with an overview of project impacts
and recommendations for completing the required level of investigation.

4) Report: See Section II.

C. Intensive Archeological Survey

1) Purpose: to identify and delineate all sites -in an area previously
subject to a Preliminary Archeoloqical Reconnaissance which, for
reasons of heavy ground cover, property entry problems, and limitations
of time and funds, requires a more intensive investigation. The
investigation will consist of a surface and sub-surface examination
of the entire area thought to require additional work. The area must
have at least a moderate potential for significant archeological
sites to warrant such work. In some instances, this may be the first
field investigation required.

2) Goals:

a. inventory all sites in the project area
b. interpret sites in context of study area and region
c. evaluate impact on archeology by the project
d. develop recommendations for eligibility or non-eligibility for,
the National Register, if possible
e. determine the need for further work
f. evaluate predictive mqdels of site location
3) Fieldwork: Should be designed to provide complete ground coverage
of the project area or those areas 'previously determined by a Pre-
liminary Archeological Reconnaissance survey to be of high archeo-
logical potential. The work should be sufficient to document whether
individual archeological sites meet National Register criteria.

4) Report: See '-tion II.

D. Preliminary Site E,,.ami-.-,,, :on

1) Purpose: to further, examine sites previously identified as having
potentic' ;ignificance in order to provide sufficient information
Lo allow a determination of effect and a determination of eligibility
for inclusion into 'the National Register of Historic Places.

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_10-

2) Goals

a. to delimit the horizontal and vertical extent of each site in
relation to the proposed alignments
b. interpretation of cultural affiliations and time span of the
component(s) of the site, site functions and significance
c. develop reasons for recommending eligibility or non-eligibility
for National Register of Historic Places
d. hypotheses testing
e. to determine need for further arqheological investigation

3) Background research

a. review previous studies
b. examine local collections
c. deed searches in the case of historic sites

4) Fieldwork: should employ a research design that utilizes controlled
surface collecting and/or test excavations to satisfy the above-
mentioned goals. The fieldwork should also relate to areas outside
the right-of-way and should also document the vertical and horizontal
integrity of the remains.

5) Report: See Section 1 1.

E. Full Scale Excavation

1) Purpose: to recover the maximum amount of archeological and environ-
mental data (e.g., artifactual, floral, faunal, geomorphological ...
through full-scale archeological excavation as a mitigation aterna-
tive prior to the destruction of a site.

2) Goals:

a. maximize data retrieval
b. determination of intra and inter-site variability
c. hypotheses testing

3) Background Res6arch

a. summarize previous work
b. analyze known collections from site
c. formulation.of hypotheses to be tested
d. excavation strategies suitable for particular project

4) Fieldwork: total excivation or a system of excavation units that
intensively samples all areas of the site. If the site will not
be completely destroyed, the salvage may be limited to the area of
the site within the project righL-of-way with other areas sampled
if critical to interpretation. Archeologists are encouraged to
maximize data minimize costs through well-thought-out sampling.

5) Report: See Section 11.

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II. ARCHEOLOGICAL REPORT GUIDELINES

Reports should be lucid and succinct with emphasis on procedures arid
findings.

Suggested basic outline:

Title Page
Abstract
Table of Contents
Introduction
Project Location and Description
Culture History and Paleo-ecological Setting
Background Research-Previous Trivpstigatioris
Research Goal s
Field Investigation/Descriptive Artifact Analysis
Interpretation
Assessment of Possible Impact.
National Register Eligibility
Recommendations
References Cited and/or Examined
Appendices
Qualifications of investigators
Glossary
Budget for additional work
Scope of work (as prepared/approved by sponsoring agency)
Artifact proven ience/category
Correspondence from SHPO, State Archeologist, etc.
Other
Maps (location of project within state; entire project and site(s)
on USGS 7.5' quads; project mans showing specific sites;
site plans)
Standard Maryland site survey forms
Illustrations (figures, plates) (May be incorporated in text)

A. Title Page
1) titleof report including name and location of project
2) author(s) and/or principal investigator(s)
3) organizational affiliation of aUthor(s)/-Irivestigator(s)
4) agency report was prepared for
5) date of report

B. Abstract
I ')- Notiwlilyone-haif page or ](,-,ss in length and concisely stating:

a. findings
b. significan.-e
c. r) ro'-i-t impact
recoiidiK-ndations

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_12-

C. Table of Contents: useful for any report of over 20 pages

0. Introduction

1) reason for survey
2) project administration and organization; identify sponsors
3) description of proposed project and qeneral location
4) date(s) when survey was conducted
5) size of crew
6) survey constraints
7) methodology

E. Project Location and Description

1) physical features of the project area: geomorphology, soil types
and hydrology
2) present land use patterns: commercial, industrial, residential,
and agricultural
3) general description of ground cover
4) past features of the land (if known), e.g., early historic vegetation,
structures and land use

F. Culture History and Paleo-ecological Setting

1) concise synopsis of the prehistoric and historic cultural record
of the physiographic area and archeological research unit in which
the project is located
the paleo-ecological setting should attempt to reconstruct the
changing pattern of the environment by culture period for the
specific study area, based on recently published regional recon-
structions Of past environments
3) treatment of 1 and 2 should allow predictions to be made of areas
with high potential for archeological remains within the project
area

G. Previous Investigations

1) descriptions of types and extent of previous investigations
2) when and by whom
3) indicate communication with local residents, amateurs, collectors, etc.
4) review of Maryland Archeological Site Survey and Historic Sites
Inventory
5) communic'ation with the State Archeologist and SHPO staff archeologist
concerning project area

H. Research Goals: research plan and objectives (must address all the
,archeological resourc-s.)

1. Field Investigations

1) description anO justification for the method of survey chosen,
the I imi ts -F the total project area versus the area actually
@:.urveyed, sampling design used and reason for choice, intensity

0-24

-13-

and method of surface examination, testing n*,thod used.

2) site description

a. setting, nearest water ' probable extent (horizontal-vertical)
b. ground cover and percent of exposed ground
c. findings
d. show site locations, study area, and proposed project on maps
(preferably on appropriate portions of USGS 7.5' quads) -
e. descriptive artifact inventory (type, context, material) in-
cluding:

- artifact quantification by provenience unit
- artifact tables which show context, type and material
- historic and'prehistoric artifact identification should
include the reference cited (e.g., Ivor Noel Hume 1976)
- diagnostic artifacts important to the interpretations
of the site must be photographed (with metric scale
included) or drawn with concise line or stipple drawings
which show the visible attributes of the artifacts. Out-
line drawings are not acceptable.
- in the case of Intensive Survey, Preliminary Site Exam-
ination and Full Scale Excavation this section should
include artifact interpretation based on spatial, temporal
and artifact class data.

3) disposition of the data

J. Interpretations

1) discussion of how sites relate to the archeological record of the
area
2) predict site locations (if only percentaqe of area sampled)
3) general theories or models (if relevant)
4) reliability of data
5) where possible and/or relevant, a descriotion of historic artifacts
should include information on socio economic, race and ethnicity,
relationship to region and standing structure
6) results related to stated goals
7) future research potential

K. Assessment of Possible Impact

1) direct impact: which sites will be directly impacted by the pro-
posed construction; what percentage of each site will be impacted;
show site(s) on map (ca. V-200' scale) showing site location in
relation tc proprs,---d project
2) indirect impact: poss@ljlity of im.1pact by associated or resulting
projects
3) assec, if effect may be adverse (See: "Guidelines for Making
'Adverse Effect' and 'No Adverse Effect' Determinations for Archeo-
logical Resources in Accordance with 36 CFR 800")

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National Register Eligibility

1) assessment of a site's significance may be premature or undeter-
minable at the preliminary reconnaissance levels, although a
statement as to potential significance is usually possible. See
"Archeological Property Nominations" by Tom King in 11593 vol. 1,
no. 2, pp. 7-9 (1976).
2) sufficient documentation must be provided at the Preliminary Site
Examination stage to enable the SHPO to make an opinion as to
site eligibility
3) if the archeologist at any stage feels the site(s) are not eligible
to the National'Register, documentation must be provided to support
this conviction.

M. Recommendations

1) clear project, no impact on archeological resources (support why),
2) additional work to determine National Register eligibility and
. appropriate mitigation alternatives (support why),
3) mitigation alternatives (support why): realign project to avoid
site(s), monitor, Full Scale Excavation,
4) other kinds of cultural resources (architecture, folklore, etc.)
appropriate for study by other specialists,
5) append a proposed budget, suggested scope of work, and timetable
for the further work at each site to be impacted.

N. References

1) references cited
2) additional bibliography of items examined
3) maps consulted .
4) personal communications
5) artifact collections examined

0. Appendices

1) qualifications of investigator(s)

a. at minimum, include principal investigator and principal
assistants
b. include education, years of experience, area of experience,
membership in SOPA or other accredited organizations

2) glossary (directn_d at the non-archeologist)
3) budget for additional work: include hourly rates for each class
of worker broken down @y background, field, and lab time; travel;
per diem; field and lab suppiies; report duplication. Do not
include overhead, indirect expenses, profit, etc., as*these vary
among arch 7ogists.

0-26

4) scope of work: copy of original documents as agreed to by con-
sultant and sponsor
5) artifact provenience data: tabulations of all artifacts by site
and excavation unit not included -in text
6) documentation of private artifact collections
7) correspondence
8) standard Maryland Site Forms (required in all reports for SHPO
approval)
9) illustrations (figures, maps, plates)

a. each report should include a state map showing project location
on Council for Maryland Archeology's Research Unit Map and USGS
1:24,000 (7.5') vicinity maps
b. large scale site specific maps or sketches should be included
as appropriate (should include: field conditions, actual areas
investigated, and archeological sites)
c. maps must include title, legend, metric scale, and directional
arrow
d. photographic plates must include metric scale, and caption (on
facing pages if no room on plate)
e. of particular interest are: soil Profiles, archeological cross
sections, artifact sketches, artifact distribution maps, and
site plan maps (must show test units and datum).

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III. CRITERIA FOR REVIEW OF ARCHEOLOGICAL REPORTS

Are all methods used detailed in full?

- Was the work related to the research design?

- Was the methodology appropriate for the level of investigation?

- Are the findings properly related to the environmental/cultural settings?

- Are the historical/archival data adequately integrated into the overall
interpretation of the survey area and sites investigated?

- Are the previous investigations adequately detailed?

Is the current work properly related to previous investigations/findings?

- Are all sites adequately described?

- Are artifact inventories and appropriate statistical manipulations
presented?

- Are all artifacts identified in an acceptable, correct and thorough manner?

- Are the artifact categories, type names and nomenclature used in the report
those which are standard and acceptable in professional archeology?

- Are artifactual data (type, style, function, distribution, etc.) garnered
into interpretation/site definition?

Are objects/features interpreted in terms of human behavior?

Are all of the sites rela ted to an archeoloqical context?

Is site significance adequately assessed based on data manipulation,
context, interpretation, integrity, etc.?

Is potential impact fully detailed for every site?

- Are recommendations appropriate based on amount/degree of impact?

- Are recommendations appropriate based on site significance?

- Are recommendations appropria-te based on cost-effectiveness?

- Is the report-properly illustrated?

- Are the maps adequate?

- Were appropriate re._@-ences/persons consulted?

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APPENDIX I. STATE ARCHEOLOGICAL SITE NUMBER AND SITE SURVEY FORMS

The Maryland Archeological Site Survey, other records, and the
collections at the Division of Archeology are numbered according to
the trinomial system in wide use by archeologists in the United States.
The first unit is a numerical prefix identifying the state (18 is the
designation for Maryland); the second unit consists of two letters
identifying the county; and the third unit is the inventory number of the
particular site in the county. Site numbers for Maryland are issued only
by the Division of Archeology. Persons requesting a site number must
complete D/A's Maryland Archeological Site Survey form and attach a photo-
copy of the relevant portion of a 7.5' USGS quad with the site marked on
it before a number will be assigned. Blocks of numbers will not be
assigned to investigators in advance of a project. Use of D/A site num-
bers is mandatory for all final reports. All requests for site numbers
will be expedited quickly upon receipt of the completed site forms.
Requests should be sent to the attention of Lois Brown at Maryland Geo-
logical Survey, Division of Archeology, Merryman Hall, Johns Hopkins
University, Baltimore, Maryland 21218.

APPENDIX II. HANDLING OF SKELETAL REMAINS

All archeologists working in Maryland should adhere to the policy
statement prepared by the Council for Maryland Archeology on 6 September
1980 concerning the proper handling of human skeletal remains. It was
agreed that:

1) all burials will be treated with respect;
2) matters concerning the 'excavation and dispositon of
human remains will be handled on a case by case
basis; and
3) a reasonable effort will be made to notify appropriate
representatives of ethnic groups within the State of
Maryland that have expressed concern.

In the event of locating human remains in the course of survey or excava-
tion, the archeologist should notify the State Archeologist's office at
once.

APPENDIX III. NOTES ON CURATION

Both the Division of Archeology and the Maryland Historical Trust
have the capacity to curate collections. Both agencies use the trinomial
system for site numbering and use that number in cataloging each specimen
from a site. The 11,_-) systems differ in the assigning of lot numbers and
catalog guidelines are available from each agency. If the collectlons are
to be donated to either -7ehcy, the contracting firm should procure the
respective catalog as a guide. The items, presented below apply to either
agency or if the firm doing the work has the capacity to curate the collec-
tic?,. Sterac f the collections in the state repository (MGS) is encouraged,
pat Licularly for smal ler ccllections.

0-29

A Bagging.

1) outer bags - heavy brown paper (or cloth) on which label can be
written
2) inner bags - use small plastic bag (medium weight) to separate
I i ke i tems: glass, metal , bone, etc. (f ragi 1 e i tems shoul d be
placed in plastic vials)

B. Labeling of bags: use permanent felt marker only, and include the
following information on every outer bag:

1) Maryland trinomial site number
2) provenience within site

a. square coordinates
b. feature number (if any)
c. depth below surface (level or layer number)
d. additional information - soil color or texture, etc.

3) date
4) names of excavators

C. Cleaning: artifacts should be cleaned and cataloged before shipping
to D/A lab:

1) pottery and glass wash carefully with small brush, do not soak;
air dry
2) mineralized glass brush carefully
3) bc.ie - brush off loose dirt (soft/mushy bone should be left in situ
and allowed to dry slowly or treated with PVA (polyvinyl acJ_at_e7_-
the latter treatment should not be used on objects intended for
C-14 dating
4) metal - brush gently, do not handle more than necessary. If some
objects are wet upon excavation - let dry out slowly, do not place
in direct sunlight.

D. Artifact numbering

Each artifact (or group of artifacts) is to be marked with a trinomen,
example 18 CE 29:
18 refers to Maryland
CE refers to the County (here, Cecil)
29 refers to the 29th site recorded in the county

Under the trinomen (18 CE 29) go the Lot numbers,which are recorded on
the catalog sheets along with the artifact description. The lot number
can refer to one object, to a group of objects from one provenience
unit, such.as the excavated level, or one section of a surface collec-
tion.

0-30@

_19-

E. Artifact Marking Procedures

1) Materials list:

a. permanent black ink (such as Koh-i-Noor, Rapidograph, Pelican
or Higgins)
b. pen with small metal quill point (such as Hunt's Crowquill
#104 pen point) (as points wear rapidly from the abrasion of
rough surfaces, extra points are needed)
c. gesso or white hyplar (acrylic polymer emulsion artists'
medium such as Liquitex)
d. short-bristled, moderately stiff brushes (at least 2) 1/4 inch
wide
e. plastic bags, heavy weight, assorted small and medium sizes
f. small plastic vials, assorted sizes
g. acid-free paper for labels
h. small tags with strong strings (such as used by water repair-
men)

2) Marking description

After object is cleaned and thoroughly dry, it is ready for
labeling. Some artifacts, such as bone and glazed ceramics, can
be marked on directly with ink. However, most aboriginal material
(sandstone, quartz, pottery, etc., is dark and has porous, rough
surfaces, and therefore needs a base on which to write. With
white gesso, a small rectangular patch is applied in an unobtrusive
position on the artifact. When the patch is dry, the site and lot
numbers can be applied in ink. Then a sealer of gloss polymer
should be put on, in one single stroke to avoid smearing the ink.

Some artifacts, due to the small size or uneven surfaces, are
not practical to label and should be placed in plastic vials or
bags with a label cut to fit from acid-free paper. Some objects
can be tagged in lieu of actual on-surface marking or bagging.

0-31

-20-

APPENDIX IV. GUIDE TO ORDERING OF ARTIFACTS FOR THE CATALOG

ABORIGINAL INDIAN ARTIFACTS (List first unless SITE, not just a particular
lot number, is primarily Historic)

Ceramics Other stone
sherds hematite
pipes fossils
fire-fractured rock
-Chipped Stone
points & spears Bone Artifacts
knives awl
drills fishook
other bifaces (blanks, preforms)
scrapers Shell Artifacts
cores beads
choppers pendants
cobble or pebble tools trade goods (separate from Euro-
flakes and chips American artifacts
only if their use by
Ground Stone Indians is established)
gorget
banherstone Faunal & Floral Remains
-cel-t bones (including teeth)
ax seeds and nuts
pestle charcoal
grinding stone or muller shell
grinding basin
abrading stone
pitted stone
1hammerstone

HISTORIC ARTIFACTS (List first if there are few or no Aboriginal artifacts
from SITE, not a particular lot)

Ceramics Bone
historic sherds buttons
pipes combs
bricks etc.
mortar
glass Shell
buttons
Metal etc.
buttons
buckles Stone
other ornaments gunflints
knives whetstones
nails
etc. Faunal & Floral Remains
bones (including teeth)
seeds and nuts
charcoal
shells

0-@-3 2'

APPENDIX V. MARYLAND REVIEW/RESOURCE AGENCIES

The D/A is specifically mandated to regulate archeological investiga-
tions on state lands and to coordinate archeological action in the state;
it serves as the lead agency for archeological matters in the DNR. The
MHT is responsible for administering the National Historic Preservation
Act in Maryl'and, including project review, development of a state plan,
administering grant-in-aids, advising of eligibility and effect of sites,
National Register Program, and coordination of archeological research.

Together, the Division of Archeology (D/A) and the Maryland Historical
Trust (MHT) serve as formal review agencies for archeological work con-
ducted in the state.

A. DIVISION OF ARCHEOLOGY (D/A)

The Division of Archeology was created by the Maryland Archeological
Resources Act of 1968 (Natural Resources Title 2, Subtitle 3, revised
1977). The Division of Archeology is part of the Maryland Geological
Survey, an agency of the Department of Natural Resources. Personnel at
D/A consist of three state merit system employees paid by annual general
fund appropriations from the state legislature (the State Archeologist
and two archeologists). Other personnel (archeologists,collections manager,
field assistants, and clerical help) are employed subject to availability
of funds from other sources to pursue specific projects such as highway
survey, archeological resource management,- and rpqional survey. The State
Archeologist is directly responsible to the Director of the Maryland
Geological Survey. The Survey is advised on archeological matters at
quarterly meetings of the Advisory Committee on Archeology which consists
of five persons knowledgeable in archeology.

The purpose of the Division of Archeology is to increase and dissem-
inate knowledge of Maryland's prehistoric and historic archeology through
a program of research, conservation, publication, public education, and
coordination. Legislatively-assigned duties (NR Title 2, Subtitle 3,
Section 303) include:

1) encourage, coordinate, and engage in fundamental research
2) cooperate with other state agencies in archeological excavations
3) work for the preservation of archeological sites on private lands
4) curate archeological objects discovered during public construction
5) cooperate with and assist other organizations in preserving archeo-
logical materials
6) make archeological materials available for demonstration to organi-
zations in I @e state
7) make archeological exhibits availablf@ to schools and assi-f in
instruction
8) make available information on archeolcgy
9) enforce tile state's antiquities law
Adc,@_uue funding has not been available to carry out all of the tasks
assigned, and recent years have seen an increasing emphasis on management
of cultural resources.

0-33

-22-

The Division of Archeology assigns site numbers to all prehistoric
and historic archeological sites reported in the state, and maintains
a file on each site. The Division is the principal repository for arti-
facts and field records from survey and/or excavations either sponsored
by state agencies or on state property. The Division of Archeology also
reviews Department of Natural Resources internal clearinghouse documents,
most of which pertain to acquisition or development of state and other
public lands with federal Program Open Space funds. Upon request, the'
Division of Archeology reviews the work of professional archeologists
conducting cultural resource management studies in Maryland.

Resources available to professional archeologists at the Division of
Archeology are:

1) The Maryland Archeological Site Survey consists of site survey
forins and a set of USGS 7.5' topographic quadrangles showing
the locations of all prehistoric and historic archeological
sites reported to the Division of Archeology; areas surveyed
are also shown on the maps.
2) field notes, collection catalogs, photographs, maps, and other
records for some sites
3) extensive collections from Maryland
4) a library containing essentially all known published and unpub-
listed archeological and related reports for Maryland, many
published and unpublished reports from surrounding Middle
Atlantic states, selected journals, historic maps, atlases,
environmental information, and selected Maryland Geological
Survey publications
5) Maryland Geological Survey county geologic and topographic maps
as well as several editions of USGS 15' and 7.5' quadrangle
maps (current editions of the latter are for sale at MGS).
6) technical advice from the State Archeologist's staff

The Division issues a quarterly newsletter, Current Maryland Archeology,
reporting on archeological activity in the state, and has a formal monograph
series and,some popular leaflets. Much of the Division's work is reported
in a limited edition, informal series of "File Reports"; a list with map
key of these reports is available upon request.

B. MARYLAND HISTORICAL TRUST (MHT)

The Maryland Historical Trust, an agency of the Department of Economic
and Community Development, was created'in 1961 to guide preservation
activity in the State. The Trust maintains a continuing inventory of the
State's-historic sites and provides technical advice and information on
preservation to private anj public agencies and to individuals. Through
its association with local and county historical groups, the MHT encourages
public awareness of the import@@nce of historic preservation. Under its
acquisition program,all federally funded, licensed, permitted or loan
related projects in the state must be reviewed by the State Historic Pre-
servation Officer fL their effect on architectural and archeological

0-34

24 21 16
"2 2 19
23 15
18
17

%13
Numbers Designate '7%
Maryland Archeological 12 7 5
Research Units
(Council for Maryland Archeology)

0
9
un 0 !0 20

,:,.&;-A@ ;-AIN PROVINCE APPALACJ11A.N PROVINCE
Unit 18 Catoctin Creek Drainage
'a" Unit 19 Ant, e ta@ C,eek-Conococheague
unit 3 e m'-,'T.., .,,,k1n- Crep, Drainaqes
S se x Jr..nages
Unit ?0 LiCkin; C,,?ek-Tomoloway Creek.
Unit 4 Fifteenmi'.e Creek Drainages
unit i !in 1 t 21 Tow, Crepi Crainage
Unit 6 Unit 22 Nicholas Creek-Georges Creek
S.,.-.jenenna Drainages Drainages
L)m i t 7 j,x@.,je,-Middle-Back-Patepsco- Unit 23 :10t0mac-Savage Drainages
0a gr t @ y -Seve r- Sout h -Rhode -Wes t Unit 24 Youghiogheny-Casselman Drainages
@'rs-agts
J-it 8 Patuxent Drainage
Ur..4t 9 Es*@q,ina Patuxent Drainage
Un j t jr@ st,a,ine Potomac Drainage
Unit 0' -@Pe Potomac Drainage

@:'-IYJNT PROVINCE
Unit 2 Drainage
@A,..Yprt Drainage
Unit 4 @,atjpsco-Back-Middle )rainages
Unit 15 @j-adpr-Bush Draima@es
Unit 16 Svio@e anne-Elk-Northeast

Unit il tionocacy Drainage

_23-

resources. All reports resulting from such research and issues dealing
with determination of effect and significance of the sites discovered
must be reviewed by the State Historic Preservation Officer. Such
reviews are coordinated by the Staff Archeologist of the Maryland
Historical Trust. To facilitate this work, Regional Preservation Offices
with staff archeologists have been established in St. Mary's City and
Salisbury,with others being planned. Archeologists working within the
area of the established regional centers are encouraged to contact the
regional center archeologist concerning planned research within the area
(Regional Center Map).

Personnel at the State Historic Preservation Office, in addition to
the State and.Deputy State Historic Preservation Officer, consists of
two staff archeologists, four architectural historians and one National
Register Coordinator. Additional archeologists are employed to conduct
research funded by grants, private contributions, or state and local
government contributions. The collections and records resulting from
these investigations are stored at the Maryland Historical Trust.

Resources available at the MHT to the professional archeologist
include:

1) inventory and records of National Register of Historic Places
in Maryland
2) Maryland Inventory of Historic Sites (county site distribution
maps available to purchase)
3) a library containing county histories, county atlases, regional
histories, architectural histories, and biographical accounts
4) the qHT staff archeologist's office includes

a. a copy of the Maryland Archeological Site Survey (updated on
a monthly basis) and locations of areas that have been sur-
veyed by professionals
b. published and unpublished archeological reports for Maryland
and selected published and unpublished regional reports
c. various historic and environmental maps
d. archeological collections
e. technical advice on historic preservation and compliance
issues

The Trust issues a monthly newsletter, SWAP (Some Words About Pre-
servation) which includes reports on archeological activities in the State.
The Trust also has a formal monograph, technical papers and manuscript
series for the dissemination of significant architectural and archeological
research and management reports. In addition,the Trust puts out popular and
technical brochures on various preservation-related issues.

0-36

APPENDIX VII
MARYLAND ARCHEOLOGICAL SITE SURVEY

Name of site Number

Other designations County

Type of site Cultural affiliation

How to teachvsite

Landmarks to aid in finding site

Position of site with respect to surrounding terrain

Latitude north. Longitude West.

for distance from printed edge of map bottom edge right edge

Map used (name. producer, scale, date)

Owner/tenant of site, address and attude toward investigation

Description of site (size, depth, soil, features, test pits)

Present use and condition of site, erosion

Reports or evidence of disturbance by excavation, construction or pothunting"

Nature, direction and distance of natural water supply (fresh or salt)

Natural fauna and flora

Specimens collected (specify kinds and quantities of artifacts and materials)

Specimens observed owner, address

Specimens reported, owner, address

Other records (notes, photos, maps, biboqraphy)

Recommendations for further investigations

Informant Address Date

Site visited by Date

Recorded by Address Date

(Use, reverse side of sheet and additional pages for sketches of site and contacts)

Send completed form to: State Archeologist, Maryland Geoliogical Survey
The Johns Hopkins University, Baltimore, Md 21218

APPENDIX VIII

ARCHEOLOGICAL SPECIMEN CATALOG Site number:
Division of Archeology, Maryland Geological Survev

Name of site: County-

Collector
Lot Date andlor
Number Provenience Description (and old number) Collected Donor

0-38

APPENDIX I

BALTIMORE CITY GUIDELINES

.1-

EVELOPMENT

Ipppp,
UIDEBOOK:

---equirements
for Building
in Baltimore
City

REQUIREMENTS FOR BUILDING
IN BALTIMORE CITY APPL* to HCD FOR
BUILDING PERMIT
The Development Guidebook is a digest
of the most frequently encountered reg-
ulations required to build in Baltimore.
It is designed to help you understand
how plans are reviewed and what to
expect at each stage of review. APPLICATION MADE TO:
:-,AN PROJECT NO- 1. CITY COUNCIL 2. BOARD OF MUNICIPAL
In a City as diverse as Baltimore, we BE BUILT UNDER OBTAIN PROPER Zone Changes AND ZONING APPEALS
cannot anticipate all conditions which EXISTING ZONING? ZONING OR Conditional Uses (BMZA)
RELATED Housing for Elderly Conditional Uses
you may encounter as you try to build. YE APPROVALS Nursing Homes Variances
Therefore, the Development Guidebook Hospitals
also provides information on those City Parking Lots
agencies best equipped to provide Open Parking Areas
answers and assistance. Franchises

The Development Guidebook is a part of IS PROJECT YES
Baltimore's continuing effort to IN A SPECIAL MEET Urban Renewal Area
improve the review process and to reduce DISTRICT? REQUIREMENTS Historic District
the time required to issue permits. IMPOSED BY THE Flood District
I welcome your suggestions about how to NO SPECIAL DISTRICT Parking Lot District
improve this process.
7
Mayor DOES PROJECT YES
REQUIRE SPECIAL Demolition
K) PERMIT? OBTAWSPECIAL Grading
I NO PERMIT Minor Privilege

REVIEW BY CITY
AGENCIES
SITE PLAN REVIEW
COMMITTEE

PERMIT ISSUED
@@Y E,'

CONSTRUCTION

Prepared by the Baltimore City Department of Planning March 19al

DEVELOPERS CHECK LIST
If you are contemplating any new construction or major alterations to an existing building,
you will need a:
DBUILDING PERMIT See Page 2
Before a building permit will be issued, all necessary regulations must be met. If your
development involves any of the following, you must make sure you have met all of their
requirements:
ZONE CHANGE OR CONDITIONAL USE APPROVAL (CITY COUNCIL) See Page 4

SUBDIVISION OR DEVELOPMENT PLAN See Page 6
OVARIANCE OR CONDITIONAL USE APPROVAL (13MZA) See Page 7

DEMOLITION PERMIT See Page 8

GRADING PERMIT See Page 9
FJ FRANCHISES AND MINOR PRIVILEGES See Page 9

STREET CLOSING See Page 9

SALE OF CITY PROPERTY See Page 10

If your property is in a "special area," you may require additional review and may need to
meet development standards. If the development lies in a:
DURBAN RENEWAL AREA See Page 10
F-1 HISTORIC AREAS AND LANDMARKS See Page 12

FLOOD HAZARD AREA See Page 12

PARKING LOT DISTRICT See Page 12

JILDING PERMITS
City requires developers to obtain HCD circulates the building permit 2. Six (6) copies of a sediment
lding permits to guarantee compli- application and accompanying drawings and erosion control plan, if
e with ordinances concerning access, to all appropriate agencies for review. 5,000 square feet or more of
'-street parking, setbacks, fire and Site plans are reviewed by a special earth are to be disturbed.
-lding codes, plumbing code, National interagency group, the Site Plan Review
ctrical Code, and with State and Committee. If any of the review agencies 3. Nine (9) copies of site plan.
eral laws, including regulations on has significant problems with the plans, Add three (3) copies if the site
ess to buildings by the handicapped. HCD will not issue a building permit plan includes new driveways, curb
until the matter has been settled. cuts, or parking areas.
lding permit applications are handled
the Department of Housing and Commu- The following drawings are required when In addition, if a street or utilities
y Development (HCD). The process filing abuilding permit application: must be extended to serve the develop-
ins with submission of an application ment, it will be necessary to execute
the HCD Zoning Enforcement Officer 1. Three (3) sets of construction a Developers Agreement with thP Depart-
6-4126), Room 100, 222 East Saratoga drawings, including architectural, ment of Public Works to assure that
eet. structural, plumbing, electrical work is done according to City
and mechanical plans. requirements and specifications.

10CESS APPLICANT PROCESSING AGENCY
Obtains application and instruction' Checks if proposed use is in compliance
sheet; prepares required plans and maps. with existing zoning requirements; if
not, refers for Zone Change or Condi-
Zoning tional Use (page 6) or for Variance or
Enforcement (HCD) Conditional Use (page 9).

Checks if project is in an area subject
to additional review and/or development
standards, such as: Urban Renewal Area
Special (page 12); Historic Area or Landmark
(page 14); Flood Hazard Area (page 14),
Referrals (HCD) Parking Lot District (page 14).

Reviews plans for completeness of
structural calculations, materials
specifications, engineers' certificate,
etc. Issues receipt for plans. Sends
Plans copies to review agencies and keeps
Examining(HCD) record of stage of plan review.

meets with agency if necessary to answer Plans reviewed by some or all of the
A questions about plans. following:

Department of Public Works (DPW)
Property Location Section
Other Agencies Plan and Records Section
Grades and Studies Section
Highway Design Section
Sediment and Erosion Control
Waste Water Division (Permits and
Records Section)
water Supply Division
Consumer Services Division
(Footways)
c Health Department
Fire Department

Agency will communicate directly with
applicant if there are questions about
the plans. Approved plans are returned
to HCD Plans Examining.
2
3

Q-5

4
B
Site Plan
Review
Committee
Because several agencies are concerned will visit the site to obtain a better capacity of surrounding streets
with site design issues, the City estab- understanding of the property and its and intersections.
lished a special interagency committee relationship to neighboring properties.
to review the site plans which accompany other site design matters may come up
Building Permit applications, Subdivi- The most frequent matters commented on because of special conditions unique to
sion and Development Plans, Zone Change by the Committee include: an individual property.
and Conditional Use requests, and
Variances and Conditional use appeals. 1. pedestrian safety Call the Planning Department (396-5900),
The Committee consists of representa- 2. access for the handicapped Room 800, 222 East Saratoga Street for
tives of the Departments of Transit and 3. fire lanes further information.
Traffic, Public Works, Housing and Ccm- 4. driveway location and design
munity Development, and Planning. By 5. parking lot standards and layout If requested by the applicant, the
meeting regularly, the Committee pro- 6. off-street loading Site Plan Review Committee will review
vides a "one-stop" service on site plan 7. landscaping prelimina@y plans befoie an application
related issues. If necessary, the Com- 8. street and alley closings/openings is formally submitted in order to
mittee will invite the applicant to 9. impact of traffic generated by the expedite the approval process.
explain the proposed development and development on the design and ------
PROCESS APPLICANT PROCESSING AGENCY
Pays fees and receives building permit. Notifies applicant when processing is
complete. Calculates fees. Prepares and
issues building permits.
Plans
Examining(HCD)

At various stages in construction, Construction inspections by:
developer MUST notify City so work can HCD, Building Inspections
be inspected before it is covered over. DPW, Sediment and erosion control
DPW, Utility connections
Construction DPW, Footways and driveways
Inspections (HCD)

Pays fee for certificate of completion. Building inspector certifies adequacy
and completion of work.

Construction
Inspections (HCD)

ZONE CHANGES AND CONDITIONAL USES /CITY COUNCIL
information on zoning standards, on how the Zoning Ordinance aftects use The applicant and/or his attorney must
including permitted and conditional and development of a property is arrange for preparation of plats and a
uses, set-back requirements, allowable available in this office as well as at statement explaining why the rezoning
building heights, and parking is to be the Planning Department (396-5171), or conditional use approval is desired,
found in the Zoning Ordinance, which is Room 800, 222 East Saratoga Street. for posting the property, and for
available from the Twentieth Century advertising for the public hearing.
Printing Company, Inc., 406 W. Redwood Zoning of a property can be changed
Street. Maps showing the zoning only by an ordinance passed by City The Department of Legislative Reference
district boundaries are available from Council and signed by the Mayor. Some (396-4732), Room 626, City Hall, will
the DPW Surveys and Records Section conditional uses also require an ordi- provide assistance in preparing the
(396-3643), Room 309, Municipal Build- nance. Builders should understand text of an ordinance for introduction.
ing, Lexington and Holliday Streets. that it is often difficult to obtain a The City Council Secretary (396-4800
change of zoning, especially when Room 409, City Hall, will schedule
The HCD Zoning Enforcement officer opposed by nearby interests. the time of hearing with the consent
(396-4126), Room 100, 222 East Saratoga of the chairman of the Judiciary
Street maintains a file, by address, of As a courtesy to constituents, Council Committee and will provide the forms
the zoning classification and use of representatives will introduce zone and instructions for advertising the
each property in the City. Guidance change and conditional use requests. public hearing.

PROCESS APPLICANT PROCESSING AGENCY
Prepares ordinance plats and statement After introduction by the Council
.required for introduction. Requests representative, Council Secretary
City Council Council representative to introduce refers ordinance to the Planning Com-
Introduction zone change or conditional use mission, the Board of municipal and
K:) ordinance. zoning Appeals, and other agencies for
(1st Reader) recommendations.

Provides information to assist agency Agency staff studies proposed zone
A review, may be asked to meet with change or conditional use and submits
neighborhood groups to explain pro- recommendations to the Council.
posal.
Agency Review

Attends Planning Commission meeting Planning Department staff analyzes pro-
B to answer questions posed by Commis- posal and prepares report for Planning
Planning sioners; answers questions posed by Commission which hears the proposal at
staff prior to meeting. a public meeting and sends its recom-
Commission mendation to the Council. Staff
Review notifies applicant of meeting date and
2
2 time.

Arranges for "public hearing notice" Council Secretary schedules hearing;.
sign to be placed on the property and Council hears discussion for and
for a legal notice to be published in a against rezoning or conditional use
City Council newspaper at least fifteen days before proposal.
Public Hearing the hearing which is open to the public.

City Council makes recommendation; favorable report
allows for printing in final form.
Judiciary Unfavorable report usually is indica-
Committee Report tion passage is not likely.
(2nd Reader)

Final vote on bill. City Council
President signs ordinance after passage
City Council by Council. Ordinance sent to mayor
K) for signature.
I Passage
00 Ord Reader)
r
Mayor
(Signature)

After Mayor has signed ordinance,
copies are sent to the City Treasurer's
office for official record.

A limited number of copies of approved
ordinances are available from the City
Council Secretary or from the Department
of Legislative Reference.
3
4
5
a

SUBDIVISION AND DEVELOPMENT PLANS
The Planning Commission is required, by parcel. Through review of a development streets or utilities must be extended,
the City Charter, to approve subdivision plan, City agencies can provide guidance it will be necessary to execute a
and development plans. on requirements for zoning, driveway Developers Agreement with the Depart-
and road construction, parking lot lay- ment of Public Works to assure that
A subdivision plan is required when an out, landscaping, on-site vehicular work is done according to City
owner wants to divide a property into circulation, public and private utility requirements and specifications.
two or more parcels, each of which may services, public safety services, and
be sold separately. A development plan, related matters. Review of subdivision plans or develop
showing where the building will be lo- ment plans begins at the City Planning
cated, may be required whenever there In addition, if *the proposed develop- Department (396-5171), Room 800,
is substantial new construction on a ment covers two or more lots or if 222.East Saratoga Street.

PROCESS APPLICANT PROCESSING AGENCY
Retains engineer, architect, and/or Planning Department staff provides in-
surveyor to prepare plans. Pre- formation on subdivision and developmeni
Preliminary Review: liminary sketch of property showing plan requirements. Staff arranges for
Site Plan Review subdivision lines, buildings, parking preliminary plan review by the Site Plar
Committee areas, changes in grading, location of Review Committee.
utility lines and significant landscape
(Planning features should be shown to the Site
Plan Review Committee. Six (6) copies
Department) of the preliminary plan are required.

Prepares plans for review by City Planning staff refers plans to:
agencies including revisions suggested Department of Public Works (DPW)
by the preliminary review. Submits Property Location Section
Review by fourteen (14) paper prints and Plats and Records Section
three (3) opaque linen prints for Grades and Studies Section
City Agencies subdivision plan review, and four- Highway Design Section
teen (14) paper prints for development Sediment and Erosion Control
plan review. Section
Waste Water Division (Permits and
Records Section)
Water Supply Division
Consumer Services Division
(Footways Section)
Street Lighting - Conduit Section
Health Department
Fire Department

At@ends Planning Commission meeting to Planning staff schedules time for sub-
provide information on the proposed division and/or development plans to be
Planning subdivision and/or.development plan considered by the Planning Commission
and to answer questions asked by the after agency comments are received.
Commission Commissioners. Notifies applicant and community groups
Review of date and time of the Commission
meeting. Planning staff presents sig-
nificant agency comments and recommends
approval, conditional approval, or
2

disapproval of the plans.
SUBDIVISION PLAN: Files three (3) Planning staff marks drawings as approved
linen copies of approved plan at Land or approved with conditions. Sends
Records, Superior Court of Baltimore approval letter with plans and agency
City. Informs Planning Department of comments to applicant.
reference number of the recorded plan.

DFVF.T.0PMFWT PT.nK! O@p (1) @nnv r.+,ir-A

VARIANCES AND CONDITIONAL USES/
BOARD OF MUNICIPAL AND ZONING APPEALS (BMZA)
variances are approved exceptions from the Board o!7 Municipal and Zoning Although variances and conditional uses
the specified requirements of the zoning Appeals. Ex&-,ples of activities which must be approved by the BMZA, processing
ordinance. Examples of variances in- require conditional use approval include: begins with the HCD Zoning Enforcement
clude: reduction in the required size gasoline staticns; day nurseries; pri- Officer (396-4126). Room 100, 222 East
of front,-side, or rear yards; increases vate non-profit clubs in residentially Saratoga Stre t.
tt_
in the allowable ground coverage of zoned areas.
buildings; reductions in the number of For the full list of variances and Applicants for variances and conditional
required parking spaces. uses must file nine (9) copies of the
conditional uses, see the Zoning present and/or proposed building floor
Conditional uses generally are activi- Ordinance or discuss with the HCD Zoning plans at a scale of one-quarter inch
ties compatible with the permitted uses Enforcement Officer (396-4126), Room 100, equals one foot, and sixteen (16)
in a classification but, because of I an 222 EastSaratoga Street, the Board of copies of an area plat showing the
unique characteristic of the use such Municipal and Zoning Appeals (396-4301). general neighborhood affected by the
as noise, odor, or heavy traffic gen- Room 701, 222 East Saratoga Street, or appeal. In the case of variances, the
eration,require special permission of thePlanning Department, Current applicant must file thirteen (13)
Planning Section (396-5171), Room 800, copies of the area plat.
222 East Saratoga Street.
PROCESS APPLICANT PROCESSING AGENCY
Obtains instructions and application Refers application to the BMZA and
for variance or conditional uses. Pre- other City agencies for review. Directs
pares and submits required plans applicant to the BMZA office to obtain
Zoning and maps. instructions for the appeal.
Enforcement (HCD)
C) Obtains application and instructions; Holds appeal application until agency
A prepares and files application. reports are received.
After receiving agency reports,
notifies applicant by letter to come
to BMZA office to make arrangements
BMZA for the hearing.

Provides agencies with information as Reviews by the Departments of Health,
B requested. Public Works, Transit and Traffic,
Fire, Planning and Housing and Com-
munity Development (in renewal areas),
Review by and the Site Plan Review Cormnittee.
City Agencies
Arranges for posting of property prior
to the hearing.

Sends resolution approving, approving
BMZA Hearing Attends hearing. with conditions, or disapproving appeal.

if appeal approved or approved with
conditions, it is still necessary to
2
2
3

obtain a Building Permit and/or an
Occupancy Certificate.

DEMOLITION PERMIT
A permit is required for razing any Actual demolition work mustbe done by a 3. Parking Lot District (Page 14)
structure. The applicant must protect licensed and bonded demolition contractor.
adjacent buildings, must fill any exca- Special review will be required prior Review of applications for demolition
vation with clean fill and plant grass, permits begins at HCD S@pecial Referrals
and must parge the exposed walls of to issuance of demolition permits in: (396-3360), Room 100, 222 East Saratoga
adjacent structures with a waterproof Street.
material. Environmental Protective Agency 1. Urban Renewal Areas (Page 12)
requirements for control of hazardous 2. Historic Areas and Landmarks
airpollutants must be complied with. (Page 14)
P R 0 C Em- S S APPLICANT PROCESSING AGENCY
Obtains application and instructions; Refers for special review if property
notifys adjoining property owners of is an Historic Landmark or is located
proposed demolition; prepares and files in an Historic Area, Urban Renewal
Special application. Area, or Parking Lot District.
Referrals (HCD) or

Sends application on for routine
processing.

Application reviewed by:
Department of Finance
Bureau of Collections
K) Department of Public Works
Waste Water Division
Agency Review Water Supply Division
Footways Section

Pays fees and receives demolition Issues demolition permit.
permit.
Inspects work in progress and after
Arranges for cut-off and capping of all completion.
Building utilities -
Electric
Inspection (HCD) Gas
Telephone
Water
Sewers and drains
2
3

GRADING PERMITS
Grading permits are required for any Franchises of all costs and to hold the City harm-
work which alters 5,000 square feet For projections which exceed those less from any claims which may be made
or more of earth. The permit is which are listed as minor privileges, a against the City for closing of a
required for basement, foundation and franchise ordinance approved by the street.
footing excavations, as well as for Mayor and City Council is required.
earth removal and filling activity. Bridgeways between two buildings, under- The whole process of closing and sellir
ground electric conduits, and under- a street may take from six months to
Review of an application for a grading ground electric snow melting systems are several years because of the many legal
permit begins at HCD Plans Examining examples of work for which a franchise requirements for advertising and for
(396-3460) Room 100, 222 East Saratoga ordinance is required. hearings. In addition, if the title
Street. The City's Sediment Control search indicates that other parties
Representative (396-3175) 3rd floor, 231 The process for introducing a franchise have rights to the bed of the street,
E.Baltimore Street is responsiblefo .rthe ordinance is similar to that described it will be necessary for the applicant
detailed review of the grading permit in Zone Changes and Conditional Uses to negotiate suriender of those rights
application, site inspection and en- (pages 6-7). Franchise fees are
forcement, and referral to the State approved by the Board of Estimates. After a street closing ordinance is
Department of Natural Resources if a passed, there is an opportunity for
Surface Mining Permit is required in appeals to be made to the Board of Mu-
addition to the City's grading permit. Further information on franchises is nicipal and Zoning Appeals contesting
available from the DPW Contracts and the right to close the street. If no
Before a Building Permit or Grading Legislation Section (396-3312), appeal is made within the twenty (20)
Permit is issued, it is necessary to Room 600, Municipal Building. day time limit, the street is official'
execute a Sediment Control Agreement closed.
to insure compliance with all City
and State regulations. Further information on street closings
STREET CLOSINGS is available from the DPW Contracts an,
Requests for street closings are sub- Legislation Section (396-3312),
FRANCHISES AND mitted by letter to the Director of Room 600, municipal Building.
MINOR PRIVILEGES Public Works (396-3100), Room 600,
Projection of any private construction Municipal Building, Lexington and
into the area of a public sidewalk or Holliday Streets, stating the reasons
street requires that the City grant a for the request. Twenty (20) copies
limited right to permit encroachment. of a plat showing the street and the
abutting properties must be included.
These rights are given through a Minor
Privilege, which may be approved by a Copies of the request are circulated
resolution of the Board of Estimates,
or through a Franchise, which requires through the Bureaus of Department of
Public Works, the Department of Transit
approval of an ordinance of the Mayor and Traffic and the Planning Department
and City Council. to determine what public interests may
Minor Privileges be affected by the closing.
City@agenc@ies will be particularly
Balconies, entrance canopies, dumpsters, concetned about abandonment and/or
awnings, and sidewalk cafes are some of relocation of utility lines and access
the approximately one hundred (100) to areas of future development. The
projections into the public right-of- applicant for a street closing will
way which may be approved by the Board be responsible for the cost of a title
of Estimates as a minor privilege, for search, payment of the appraised value
which there are set $nnual fees. Con- of the land, the cost of utility abandon-
struction permitted by a minor privi- ment and/or utility relocation, adver-
lege will also require a Building tising and other administrative costs.
Permit, which will not be issued until
after the minor privilege permit is If the agencies which review the street
issued. The owner must sign the appli- closing request indicate their approval,
cation and adjoining property owners the applicant is asked to provide a
must be notified by certified mail, title search to show the rights both the
that permission is being sought to applicant and other parties may have in
construct a projection into the area the street. Prior to introduction and
of the sidewalk or street. Review approval of an ordinance of the Mayor
of minor privilege applications begins and City Council, it is also necessary
at the HCD Minor Privileges (396-3346, for the applicant to enter into an
Room 100, 222 East Saratoga Street. agreement, with the City, for payment

Q-12

A,LE OF CITY PROPERTY URBAN RENEWAL
ile of Properties Acquired Many areas of the City have been desig- Assistance in Housing and
1rough Tax Foreclosure nated for urban renewal, a process Economic Development
which begins with study of need by the The City has established several offices
may of each year, the City holds an HCD Planning Division (396-4220), to promote and assist residential,
iction of properties upon which taxes Room 510, 222 East Saratoga Street .A commercial, and industrial developers.
!re not paid durinq -the previous tax representative neighborhood group,
!ar. Propert1es not redeemed or known as the Project Area Committee Charles Center-Inner Harbor Management,
@herwise acquired by private parties (PAC), is established to participate in Inc. (CCIH) is a private non-profit
-main in City ownership, are Ifore- the renewal plann'ing process. A renewal corporation formed to provide management
.osed" and may be sold by the City. plan, including authorization to acquire services for downtown redevelopment
property, development standards, land projects. Under its contract with the
!sidential tax foreclosed properties disposition controls, and other related City, CCIH provides special marketing,
-e sold through the Home ownership standards must be adopted by the mayor managerial, and planning assistance
%velo2Tent Program (396-4113), Depart- and City Council. Final decisions on required for large commercial and
,nt of Housing and Ccu=unity Develop- interpretation of the renewal standards residential development projects in the
mt, 401 NorthCharles Street. are made by the Commissioner of the Downtown and the Inner Harbor areas.
Department of Housing and Community CCIH offers downtown developers a
.cant lots or commercial tax fore- Development. In many instances, the convenient one-stop contact for all
osed properties axe bandled by the urban renewal plan calls for changes in negotiations with the City, minimi
al Estate Departnxmt [396-4769) zoning. the need to deal with many different
om 304, City Ball. departments and agencies. CCIH can be
Design Advisory Panel reached by calling (301) 837-0862 or by
ale of Surplus City Property The Design Advisory Panel (DAP) is a writing to the President, Charles
needed City-owned buildings, excess board of architects, landscape archi Center-Inner Harbor Management, Inc.,
nd from highway or ot-her condemnation, tects and architectural critics dele 1444 World Trade Center Building,
land which was specifically acquired gated by the Commissioner of HCD to Baltimore, Maryland 21202.
r public development require an ordi- review the design of new devel- The Land Development Division at the
nce of the Mayor and City Council opment and rehabilitation projects in Department of Housing and Community
thorizing their sale. urban renewal areas. The DAP functions Development is responsible for market-
to assure a high standard of design in ing City owned properties, primarily in
-oposals for rense of surplus.proper- the rebuilt areas of the City. Among urban renewal areas. A developer con-
.es are reviewed by the City's Space the concerns of the DAP are the appear- sidering residential or commercial
.ilization Ccumnittee, which also so- ance of structures, the relationship of development on cleared sites, or reha-
cits the views of the City Council, buildings to their surroundings, and bilitation of City owned structures
@e Planning Cnmmission, City agencies, the quality of landscaping. should call (301) 396-4109 or write
@d established community associations. to the Director of Land Development,
:quiries regarding sale of surplus City The Design Advisory Panel will often Dep rtment of Housing and Community
-operty should be addressed to the arrange a field trip to see the site Development, 222 East Saratoga Street,
al Estate Department (396-4769) and its surroundings. It will meet Baltimore, Maryland 21202.
,om 304, City Hall, or the HCD Deve- with the architect and developer on
!pment Center (396-4122), Room 530, three occasions: a pre-drawing confer- The Market Center Development Corporation
?2 East Saratoga Street. ence, a preliminary design conference, (MCDC) is a quasi-public non-profit
and a final design conference. At the corporation under Contract to the Mayor
last stage, the DAP will review samples and City Council to manage planning and
of proposed construction materials. development of the City's retail district.
After each review, the DAP prepares In addition, MCDC is working on developmer
minutes containing its recommendations opportunities for two transit station
for revisions. areas: Reisterstown Road Plaza, and
Penn North Avenues. MCDC can be reached b.
The DAP also reviews the design of calling(301) 752-5400 or by writing to tht
public buildings, planned unit develop- President, Market Center Development
ments and housing for the elderly. corporation, Suite 102, 15 Charles
Plaza, Baltimore, Maryland 21201.
To arrange for design review for develop-
ment in an urban renewal area, call the Finally, the City has established the
HCD Development Center (396-4121), Room Baltimore Economic Development Corpora-
530, 222 East Saratoya Street. For tion (BEDCO), a private non-profit cor-
review of development in other parts of poration to promote industrial develop-
the City, call the Planning Department ment within the City. BEDCO can be
(396-5171), Room 800, 222 East Saratoga reached by calling (301) 837-9305 or by
Street. writing to the President, BEDCO, 22 Light
Street, Baltimore, Maryland 21202.

Q-13

URBAN RENEWAL AREA MAP

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Q-14

41STORIC AREAS
&.ND LANDMARKS FLOOD HAZARD AREAS PARKING LOT@;
't historic area or landmark is one To minimize the incidence of flood Parking Lot District
ihich has been identified by the damage, the City has enacted special The parking lot district covers downtown
Baltimore, several adjacent neighbor-
.ommission for Historical and Architec- provisions of the Building Code, Zoning
-ural Preservation as having particular hoods, and Charles Village. Within this
ordinance, and Subdivision Regulations
iistorical or architectural signifi- applying to all properties which lie district, an ordinance of the Mayor
within flood hazard areas.
ance and has been designated through and City Council is required before a
in ordinance of the Mayor and City property may be used for a parking lot
The Federal Government has defined flood
.ouncil as worthy of protection. or before a permit may be issued for
hazard areas within Baltimore City. demolition of buildings for parking.
)nce an area or landmark has been Those areas are described very generally
.esignated by the City, any exterior on maps which are available for refer- Before the City Council considers an
)ainting or refinishing, alteration, ence at the Zoning Enforcement Officer authorizing ordinance, the Site Plan
,onstruction, or demolition must be (396-4126), Room 100, 222 East Saratoga Review Committee checks all parking lot
ipproved by Commission for Historical Street, or at the Planning Department plans for adherence to access, land-
.nd Architectural Preservation. (396-5171), Room 8 , 222 East Saratoga scaping, drainage, and layout require-
Street. ments.
ncluded among the work and materials
eviewed by the Commission are color of These maps, however, are only approxi- All lots in the parking lot district
aint, restoration of cornices and other mations. If the property is in or near must be screened with masonry walls or
ecorative architectural features, a flood hazard area, the precise eleva- metal grill fences, and landscaping. Use
eplacement of windows and doors, erec- tion of the proposed development must be of the universal parking lot sign is
ion of fences and walls, reconstruction checked in order to determine whether encouraged.
f porches and staircases and similar the proposal is inside a flood hazard
ypes of exterior work. New construc- area and must then conform to the Review of applications for lots in the
ion.is.also subject to review by the special regulations. parking lot district begins at the desk
ommission to insure that the architec- of the HCD Zoning Enforcement Officer
ural design does not detract from or If the property lies within a flood (396-4126), Room 100, 222 East Saratoga
onflict with the overall environment hazard area, all of the special require- eet. The Department of Legislative
nd scale of the historic area. ments of the Building Code, Zoning Teference (396--3732), Room 626, City
ordinance, and Subdivision Regulations Hall will assist in preparing an ordi-
he Commission does not deal with must be met. nance for introduction by the Council
nterior renovations of buildings in representatives'.
istoric areas or of landmarks unless Included among the regulations are:
hey affect the exterior character of a After passage of an ordinance to
tructure. 1. No construction may take place demolish a building in the parking lot
within the floodway. district, it is still necessary to
efore a building permit may be issued obtain a Demolition Permit and a
or any exterior work, or interior work 2. Selection, placement, and stabili- Building Permit.
hich may affect the exterior character, zation of fill materials must be
ae Commission must issue a "notice to done in accordance with the Parking Lots
roceed." Application forms are avail- specifications of the Maryland
ole from the Commission for Histor- Department of Natural In all Residence and Office-Residence
:-al and Architectural Preservation Resources. districts, in the B-1, B-2, and B-4 Busi-
396-4866), Room 601, City Hall. The ness districts, and in the M-1 Industri-
ommission requires plans and samples 3. The lowest floor elevation of res- al district, open parking areas (other
f paint or other materials proposed to idential structures must be above than accessory parking on the same lot
e used in any exterior work. the flood level. with the principal use) must be
approved through an ordinance of the
4. Below grade spaces in non- Mayor and City Council. Further
residential structures must be information on parking lots is avail-
waterproofed. able from the HCD Zoning Enforcement
officer (396-4126), Room 100, 222 East
5. Buildings constructed within the Saratoga Street, or from the Site Plan
flood hazard area must meet Review Committee (396-5900), Room 800,
requirements for resistance to 222 East Saratoga Street.
flotation and ability to resist
hydrostatic forces.

Q-15

PARKING LOT DISTRICT MAP

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Q-16

CREDITS
BALTIMORE CITY

William Donald Schaefer, Mayor information and guidance were provided
by the following agencies:
PLANNING COMMISSION Board of Municipal and zoning Appeals
Charles S. Colson, Chairman
Mark Wasserman, Mayor's Commission for Historical and
Representative Architectural Preservation
Nathan C. Irby, Jr., City Council
Representative Department of Health
Francis W. Kuchta, Department of
Public Works Department of Housing and
Carl M. Adair Community Development
James P. Grant Department of Legislative Reference
Sally James Michel
June Thorne Departm
Thomas C. Barry ent of Public Works

DEPARTMENT OF PLANNING Department of Real Estate
0
Larry Reich, Director Department of Transit and Traffic

This booklet was prepared under the
direction of Sheldon Lynn.

Sol Gerstman gathered the information
and wrote the text.

Alden Christie designed the booklet,
including graphics and typography.
The Graphic Design Section prepared
the mechanicals.

Martha B. Jones provided editorial
assistance.

APPENDIX J

MARYLAND INTERAGENCY DREDGING WORK GROUP MEMBERS,

Terry Anthony Coastal Resources Division , Tidewater Administration (TA),
Department of Natural Resources (DNR)

Vincent Bogucky Waterways Improvement Division, TA, DNR

Harold Cassell Wetlands Division, Water Resources Administration (WRA), DNR

William Chicca Office of Environmental Programs, Department of Health and Mental
Hygiene (DHMH)

Wayne Clark Maryland Historical Trust, Department of Economic and
Community Development (DECD)

Charles DeRose Wetlands Division, WRA, DNR

Mary Dolan Regional Planning Council

William Eichbaum Office of Environmental Programs, DHMH

Paul Farragut Office of Transportation Planning, Department of Transportation (DOT)

Charles Frisbie Tidal Fisheries Division, TA, DNR

Larry Goldstein Wetlands Hearing Administration, Maryland Board of Public Works

William Hellmann Interstate Division for Baltimore City, DOT

Peter Jensen Tidal Fisheries Division, TA, DNR

Jerry Kreiner Interstate Division for Baltimore City, DOT

Frank Oslislo Land Planning Services, Capital Programs Administration, DNR

Alex Sandusky Waterways Improvement Division, TA, DNR

Sarah Taylor Coastal Resources Division, TA, DNR

Alan Tustin Office of Business Liason, DECD

Louis Willette Maryland Port Administration, DOT

Lee Zen! Tidewater Administration, DNR

NOAA COASTAL SERVICES CTR LIBRARY

3 6668 14111400 1

PO 41616 11/82