[Federal Register Volume 62, Number 110 (Monday, June 9, 1997)]
[Notices]
[Pages 31492-31506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-15001]



[[Page 31491]]

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Part V





Department of Defense





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Department of the Army



Corps of Engineers



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Regulatory Guidance Letters Issued by the Corps of Engineers; Notice

  Federal Register / Vol. 62, No. 110 / Monday, June 9, 1997 / 
Notices  

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DEPARTMENT OF DEFENSE

Department of the Army
Corps of Engineers


Regulatory Guidance Letters Issued by the Corps of Engineers

AGENCY: U.S. Army Corps of Engineers, DoD.

ACTION: Notice.

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SUMMARY: The purpose of this notice is to provide current Regulatory 
Guidance Letters (RGL's) to all interested parties. RGL's are used by 
the U.S. Army Corps of Engineers Headquarters as a means to transmit 
guidance on the permit program (33 CFR 320-330) to its division and 
district engineers (DE's). Each future RGL will be published in the 
Notice Section of the Federal Register as a means to insure widest 
dissemination of this information while reducing costs to the Federal 
Government. The Corps no longer maintains a mailing list to furnish 
copies of the RGL's to the public.

FOR FURTHER INFORMATION CONTACT:
Mr. Ralph Eppard, Regulatory Branch, Office of the Chief of Engineers 
at (202) 761-1783.

SUPPLEMENTARY INFORMATION: RGL's were developed by the Corps as a 
system to organize and track written guidance issued to its field 
agencies. RGL's are normally issued as a result of evolving policy; 
judicial decisions and changes to the Corps regulations or another 
agency's regulations which affect the permit program. RGL's are used 
only to interpret or clarify existing Regulatory Program policy, but do 
provide mandatory guidance to the Corps district offices. RGL's are 
sequentially numbered and expire on a specified date. However, unless 
superseded by specific provisions of subsequently issued regulations or 
RGL's, the guidance provided in RGL's generally remains valid after the 
expiration date. The Corps incorporates most of the guidance provided 
by RGL's whenever it revises its permit regulations.
    We are hereby publishing all current RGL's beginning with RGL 92-1 
and ending with RGL 96-2. RGL 91-1 expired on December 31, 1996, and 
RGL 92-4 expired on January 21, 1997, and both have been removed from 
this publication. We will continue to publish each RGL in the Notice 
Section of the Federal Register upon issuance and in early 1998, we 
will again publish the complete list of all current RGL's.

    Dated: May 28, 1997.

    For the Commander.
Robert W. Burkhardt,
Colonel, Corps of Engineers, Executive Director of Civil Works.

Regulatory Guidance Letter (RGL 92-1)

RGL 92-1 Date: 13 May 1992, Expires: 31 December 1997
Subject: Federal Agencies Roles and Responsibilities.
1. Purpose
    The purpose of this guidance is to clarify the Army Corps of 
Engineers leadership and decision-making role as ``project manager'' 
for the evaluation of permit applications pursuant to Section 404 of 
the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act. 
This guidance is also intended to encourage effective and efficient 
coordination among prospective permittees, the Corps, and the Federal 
resource agencies (i.e., Environmental Protection Agency (EPA), Fish 
and Wildlife Service (FWS), and National Marine Fisheries Service 
(NMFS)). Implementation of this guidance will help to streamline the 
permit process by minimizing delays and ensuring more timely decisions, 
while providing a meaningful opportunity for substantive input from all 
Federal agencies.
2. Background
    (a) The Department of the Army Regulatory Program must operate in 
an efficient manner in order to protect the aquatic environment and 
provide fair, equitable, and timely decisions to the regulated public. 
Clear leadership and a predictable decision-making framework will 
enhance the public acceptance of the program and allow the program to 
meet the important objective of effectively protecting the Nation's 
valuable aquatic resources.
    (b) On August 9, 1991, the President announced a comprehensive plan 
for improving the protection of the Nation's wetlands. The plan seeks 
to balance two important objectives--the protection, restoration, and 
creation of wetlands and the need for sustained economic growth and 
development. The plan, which is designed to slow and eventually stop 
the net loss of wetlands, includes measures that will improve and 
streamline the current wetlands regulatory system. This Regulatory 
Guidance Letter is issued in accordance with the President's plan for 
protecting wetlands.
    (c) The intent of this guidance is to express clearly that the 
Corps is the decision-maker and project manager for the Department of 
Army's Regulatory Program. The Corps will consider, to the maximum 
extent possible, all timely, project-related comments from other 
Federal agencies when making regulatory decisions. Furthermore, the 
Corps and relevant Federal agencies will maintain and improve as 
necessary their working relationships.
    (d) The Federal resource agencies have reviewed and concurred with 
this guidance and have agreed to act in accordance with these 
provisions. While this guidance does not restrict or impair the 
exercise of legal authorities vested in the Federal resource agencies 
or States under the CWA or other statutes and regulations (e.g., EPA's 
authority under section 404(c), section 404(f), and CWA geographic 
jurisdiction and FWS/NMFS authorities under the Fish and Wildlife 
Coordination Act and the Endangered Species Act (ESA)), agency comments 
on Department of the Army permit applications must be consistent with 
the provisions contained in this regulatory letter.
3. The Corps Project Management/Decision Making Role
    (a) The Corps is solely responsible for making final permit 
decisions pursuant to section 10 and section 404(a), including final 
determinations of compliance with the Corps permit regulations, the 
Section 404(b)(1) Guidelines, and Section 7(a)(2) of the ESA. As such, 
the Corps will act as the project manager for the evaluation of all 
permit applications. The Corps will advise potential applicants of its 
role as the project manager and decision-maker. This guidance does not 
restrict EPA's authority to make determinations of compliance with the 
Guidelines in carrying out its responsibilities under Sections 309 and 
404(c) of the Clean Water Act.
    (b) As the project manager, the Corps is responsible for requesting 
and evaluating information concerning all permit applications. The 
Corps will obtain and utilize this information in a manner that moves, 
as rapidly as practical, the regulatory process towards a final permit 
decision. The Corps will not evaluate applications as a project 
opponent or advocate--but instead will maintain an objective 
evaluation, fully considering all relevant factors.
    (c) The Corps will fully consider other Federal agencies' project-
related comments when determining compliance with the National 
Environmental Policy Act (NEPA), the Section 404(b)(1) Guidelines, the 
ESA, the National Historic Preservation Act, and other relevant 
statutes, regulations, and policies. The Corps will also fully consider 
the agencies' views when determining whether to issue the permit, to 
issue the permit with

[[Page 31493]]

conditions and/or mitigation, or to deny the permit.
4. The Federal Resource Agencies' Role
    (a) It is recognized that the Federal resource agencies have an 
important role in the Department of the Army Regulatory Program under 
the CWA, NEPA, ESA, Magnuson Fisheries Conservation and Management Act, 
and other relevant statutes.
    (b) When providing comments, Federal resource agencies will submit 
to the Corps only substantive, project-related information on the 
impacts of activities being evaluated by the Corps and appropriate and 
practicable measures to mitigate adverse impacts. The comments will be 
submitted within the time frames established in interagency agreements 
and regulations. Federal resource agencies will limit their comments to 
their respective areas of expertise and authority to avoid duplication 
with the Corps and other agencies and to provide the Corps with a sound 
basis for making permit decisions. The Federal resource agencies should 
not submit comments that attempt to interpret the Corps regulations or 
for the purposes of section 404(a) make determinations concerning 
compliance with the Section 404(b)(1) Guidelines. Pursuant to its 
authority under Section 404(b)(1) of the CWA, the EPA may provide 
comments to the Corps identifying its views regarding compliance with 
the Guidelines. While the Corps will fully consider and utilize agency 
comments, the final decision regarding the permit application, 
including a determination of compliance with the Guidelines, rests 
solely with the Corps.
5. Pre-Application Consultation
    (a) To provide potential applicants with the maximum degree of 
relevant information at an early phase of project planning, the Corps 
will increase its efforts to encourage pre-application consultations in 
accordance with regulations at 33 CFR 325.1(b). Furthermore, while 
encouraging pre-application consultation, the Corps will emphasize the 
need for early consultation concerning mitigation requirements, if 
impacts to aquatic resources may occur. The Corps is responsible for 
initiating, coordinating, and conducting pre-application consultations 
and other discussions and meetings with applicants regarding Department 
of the Army permits. This may not apply in instances where the 
consultation is associated with the review of a separate permit or 
license required from another Federal agency (e.g., the Federal Energy 
Regulatory Commission or the Nuclear Regulatory Commission) or in 
situations where resource agencies perform work for others outside the 
context of a specific Department of the Army permit application (e.g., 
the Conservation Reserve Program and technical assistance to applicants 
of Federal grants).
    (b) For those pre-application consultations involving activities 
that may result in impacts to aquatic resources, the Corps will provide 
EPA, FWS, NMFS (as appropriate), and other appropriate Federal and 
State agencies, a reasonable opportunity to participate in the pre-
application process. The invited agencies will participate to the 
maximum extent possible in the pre-application consultation, since this 
is generally the best time to consider alternatives for avoiding or 
reducing adverse impacts. To the extent practical, the Corps and the 
Federal resource agencies will develop local procedures (e.g., 
teleconferencing) to promote reasonable and effective pre-application 
consultations within the logistical constraints of all affected 
parties.
6. Applications for Individual Permits
    (a) The Corps is responsible for determining the need for, and the 
coordination of, interagency meetings, requests for information, and 
other interactions between permit applicants and the Federal 
Government. In this regard, Federal resource agencies will contact the 
Corps to discuss and coordinate any additional need for information 
from the applicant. The Corps will cooperate with the Federal resource 
agencies to ensure, to the extent practical, that information necessary 
for the agencies to carry out their responsibilities is obtained. If it 
is determined by the Corps that an applicant meeting is necessary for 
the exchange of information with a Federal resource agency and the 
Corps chooses not to participate in such a meeting, the Federal 
resource agency will apprise the Corps, generally in writing, of that 
agency's discussions with the applicant. Notwithstanding such meetings, 
the Corps is solely responsible for permit requirements, including 
mitigation and other conditions--the Federal resource agencies must not 
represent their views as regulatory requirements. In circumstances 
where the Corps meets with the applicant and develops information that 
will affect the permit decision, the Corps will apprise the Federal 
resource agencies of such information.
    (b) Consistent with 33 CFR part 325, the Corps will ensure that 
public notices contain sufficient information to facilitate the timely 
submittal of project-specific comments from the Federal resource 
agencies. The resource agencies comments will provide specific 
information and/or data related to the proposed project site. The Corps 
will fully consider comments regarding the site from a watershed or 
landscape scale, including an evaluation of potential cumulative and 
secondary impacts.
    (c) The Corps must consider cumulative impacts in reaching permit 
decisions. In addition to the Corps own expertise and experience, the 
Corps will fully consider comments from the Federal resource agencies, 
which can provide valuable information on cumulative impacts. 
Interested Federal agencies are encouraged to provide periodically to 
the Corps generic comments and assessments of impacts (outside the 
context of a specific permit application) on issues within the 
agencies' area of expertise.
7. General Permits
    (a) The Corps is responsible for proposing potential general 
permits, assessing impacts of and comments on proposed general permits, 
and deciding whether to issue general permits. The Corps will consider 
proposals for general permits from other sources, including the Federal 
resource agencies, although the final decision regarding the need to 
propose a general permit rests with the Corps. Other interested Federal 
agencies should provide comments to the Corps on proposed general 
permits. These Federal agency comments will be submitted consistent 
with established agreements and regulations and will focus on the 
Federal agencies' area(s) of expertise. The Corps will fully consider 
such agencies' comments in deciding whether to issue general permits, 
including programmatic general permits.
    (b) The Corps is responsible for initiating and conducting meetings 
that may be necessary in developing and evaluating potential general 
permits. Any discussions with a State or local Government regarding 
proposed programmatic general permits will be coordinated through and 
conducted by the Corps. Prior to issuing a programmatic general permit, 
the Corps will ensure that the State or local program, by itself or 
with appropriate conditions, will protect the aquatic environment, 
including wetlands, to the level required by the section 404 program.
    8. This guidance expires 31 December 1997 unless sooner revised or 
rescinded.


[[Page 31494]]


    For the Commander.
Arthur E. Williams,
Major General, USA, Director of Civil Works.

Regulatory Guidance Letter (92-3)

RGL 92-3, Date: 19 Aug 92, Expires: 31 Dec 97
Subject: Extension of Regulatory Guidance Letter (RGL) 86-10 RGL 86-10, 
subject: ``Special Area Management Plans (SAMP's)'' is extended until 
31 December 1997 unless sooner revised or rescinded.

    For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

RGL 96-10
Special Area Management Plans (SAMP's)
Issued 10/2/86, Expired 12/31/88

    1. The 1980 Amendments to the Coastal Zone Management Act define 
the SAMP process as ``a comprehensive plan providing for natural 
resource protection and reasonable coastal-dependent economic growth 
containing a detailed and comprehensive statement of policies, 
standards and criteria to guide public and private uses of lands and 
waters; and mechanisms for timely implementation in specific geographic 
areas within the coastal zone.'' This process of collaborative 
interagency planning within a geographic area of special sensitivity is 
just as applicable in non-coastal areas.
    2. A good SAMP reduces the problems associated with the traditional 
case-by-case review. Developmental interests can plan with 
predictability and environmental interests are assured that individual 
and cumulative impacts are analyzed in the context of broad ecosystem 
needs.
    3. Because SAMP's are very labor intensive, the following 
ingredients should usually exist before a district engineer becomes 
involved in a SAMP:
    a. The area should be environmentally sensitive and under strong 
developmental pressure.
    b. There should be a sponsoring local agency to ensure that the 
plan fully reflects local needs and interests.
    c. Ideally there should be full public involvement in the planning 
and development process.
    d. All parties must express a willingness at the outset to conclude 
the SAMP process with a definitive regulatory product (see next 
paragraph).
    4. An ideal SAMP would conclude with two products: (1) Appropriate 
local/State approvals and a Corps general permit (GP) or abbreviated 
processing procedure (APP) for activities in specifically defined 
situations; and (2) a local/State restriction and/or an environmental 
Protection Agency (EPA) 404(c) restriction (preferably both) for 
undesirable activities. An individual permit review may be conducted 
for activities that do not fall into either category above. However, it 
should represent a small number of the total cases addressed by the 
SAMP. We recognize that an ideal SAMP is difficult to achieve, and, 
therefore, it is intended to represent an upper limit rather than an 
absolute requirement.
    5. Do not assume that an environmental impact statement is 
automatically required to develop a SAMP.
    6. EPA's program for advance identification of disposal areas found 
at 40 CFR 230.80 can be integrated into a SAMP process.
    7. In accordance with this guidance, district engineers are 
encouraged to participate in development of SAMP's. However, since 
development of a SAMP can require a considerable investment of time, 
resources, and money, the SAMP process should be entered only if it is 
likely to result in a definitive regulatory product as defined in 
paragraph 4. above.
    8. This guidance expires 31 December 1988 unless sooner revised or 
rescinded.

    For the Chief of Engineers.
Peter J. Offringa,
Brigadier General, USA, Deputy Director of Civil Works.

Regulatory Guidance Letter (RGL 92-5)

RGL 92-5, Date: 29 October 1992, Expires: 31 December 1997
Subject: Alternatives Analysis Under the Section 404(b)(1) Guidelines 
for Projects Subject to Modification Under the Clean Air Act.

    1. Enclosed for implementation is a joint Army Corps of Engineers/
Environmental Protection Agency Memorandum to the Field on alternatives 
analysis for existing power plants that must be modified to meet 
requirements of the 1990 Clean Air Act. This guidance was developed 
jointly by the Corps and EPA.
    2. This guidance expires 31 December 1997 unless sooner revised or 
rescinded.

    For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

EPA/Corps Joint Memorandum for the Field
Subject: Alternatives Analysis under the Section 404(b)(1) Guidelines 
for Projects Subject to Modification Under the Clean Air Act

    1. The 1990 Clean Air Act (CAA) amendments require most electric 
generating plants to reduce emissions of sulfur dioxide in phases 
beginning in 1995 and requiring full compliance by 2010. The 
congressional endorsement of the industry's ability to select the most 
effective compliance method (e.g., sulfur dioxide scrubbers, low sulfur 
coal, or other methods) recognizes the expertise of the industry in 
these cases and is a fundamental element in the CAA market-based 
pollution control program. Given the need for cooling water, a 
substantial number of electric power generating plants are located 
adjacent, or in close proximity, to waters of the United States, 
including wetlands. Depending on the method chosen by the plants to 
reduce emissions, we expect that these facilities will be applying for 
Clean Water Act Section 404 permits for certain proposed activities.
    2. The analysis and regulation under Section 404 of the Clean Water 
Act of activities in waters of the United States conducted by specific 
power plants to comply with the 1990 Clean Air Act amendments must 
ensure protection of the aquatic environment consistent with the 
requirements of the Clean Water Act. The review of applications for 
such projects will fully consider, consistent with requirements under 
the Section 404(b)(1) Guidelines, all practicable alternatives 
including non-aquatic alternatives, for proposed discharges associated 
with the method selected by the utility to comply with the 1990 Clean 
Air Act amendments. For the purposes of the Section 404(b)(1) 
Guidelines analysis, the project purpose will be that pollutant 
reduction method selected by the permit applicant.
    3. For example, a utility may have decided to install sulfur 
dioxide scrubbers on an existing power plant in order to meet the new 
1990 Clean Air Act standards. The proposed construction of the 
scrubbers, treatment ponds and a barge unloading facility could impact 
wetlands. In this case, the Section 404 review would evaluate 
practicable alternative locations and configurations for the scrubbers, 
ponds and of the docking facilities. The analysis will also consider 
practicable alternatives which satisfy the project purpose (i.e., 
installing scrubbers) but which have a less adverse impact on the 
aquatic environment or do not involve discharges into waters of the 
United States. However, in order to best effectuate Congressional 
intent reflected in the CAA that electric utilities retain

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flexibility to reduce sulfur dioxide emissions in the most cost 
effective manner, the Section 404 review should not evaluate 
alternative methods of complying with the Clean Air Act standards not 
selected by the applicant (e.g., in this example use of low sulfur 
coal).
    4. In evaluating the scope of practicable alternatives which 
satisfy the project purpose (e.g., constructing additional scrubber 
capacity), the alternatives analysis should not be influenced by the 
possibility that, based on a conclusion that practicable upland 
alternatives are available to the applicant, the project proponent may 
decide to pursue other options for meeting Clean Air Act requirements. 
Continuing the above example, a Corps determination that practicable 
upland alternatives are available for scrubber waste disposal should 
not be affected by the possibility that an applicant may subsequently 
decide to select a different method for meeting the Clean Air Act 
standards (e.g., use of low sulfur coal that reduces waste generated by 
scrubbers).
    5. The Corps and EPA will also recognize the tight time-frames 
under which the industry must meet these new air quality standards.
Robert H. Wayland,
Director, Office of Wetlands, Oceans and Watersheds.

John P. Elmore,
Chief, Operations, Construction and Readiness Division; Directorate of 
Civil Works.

Regulatory Guidance Letter (RGL 93-1)

RGL 93-1, Issued: April 20, 1993, Expires: December 31, 1998 CECW-OR
Subject: Provisional Permits

    1. Purpose: The purpose of this guidance is to establish a process 
that clarifies for applicants when the U.S. Army Corps of Engineers has 
completed its evaluation and at what point the applicant should contact 
the State concerning the status of the Section 401 Water Quality 
Certification and/or Coastal Zone Management (CZM) consistency 
concurrence. This process also allows for more accurate measurement of 
the total length of time spent by the Corps in evaluating permit 
applications (i.e., from receipt of a complete application until the 
Corps reaches a permit decision). For verification of authorization of 
activities under regional general permits, the Corps will use the 
appropriate nationwide permit procedures at 33 CFR 330.6.
    2. Background: a. A Department of the Army permit involving a 
discharge of dredged or fill material cannot be issued until a State 
Section 401 Water Quality Certification has been issued or waived. 
Also, a Department of the Army permit cannot be issued for an activity 
within a State with a federally-approved Coastal Management Program 
when that activity that would occur within, or outside, a State's 
coastal zone will affect land or water uses or natural resources of the 
State's coastal zone, until the State concurs with the applicant's 
consistency determination, or concurrence is presumed. In many cases, 
the Corps completes its review before the State Section 401 Water 
Quality Certification or CZM concurrence requirements have been 
satisfied. In such cases, applicants and the public are often confused 
regarding who to deal with regarding resolution of any State issues.
    b. The ``provisional permit'' procedures described below will 
facilitate a formal communication between the Corps and the applicant 
to clearly indicate that the applicant should be in contact with the 
appropriate State agencies to satisfy the State 401 Water Quality 
Certification or CZM concurrence requirements. In addition, the 
procedures will allow for a more accurate measurement of the Corps 
permit evaluation time.
    3. Provisional Permit Procedures: The provisional permit procedures 
are optional and may only be used in those cases where: (i) The 
District Engineer (DE) has made a provisional individual permit 
decision that an individual permit should be issued, and, (ii) the only 
action(s) preventing the issuance of that permit is that the State has 
not issued a required Section 401 Water Quality Certification (or 
waiver has not occurred) or the State has not concurred in the 
applicant's CZM consistency determination (or there is not a presumed 
concurrence). In such cases, the DE may, using these optional 
procedures, send a provisional permit to the applicant.
    a. First, the DE will prepare and sign the provisional permit 
decision document. Then the provisional permit will be sent to the 
applicant by transmittal letter. (The sample transmittal letter at 
enclosure 1 contains the minimum information that must be provided.)
    b. Next, the applicant would obtain the Section 401 Water Quality 
Certification (or waiver) and/or CZM consistency concurrence (or 
presumed concurrence). Then the applicant would sign the provisional 
permit and return it to the DE along with the appropriate fee and the 
Section 401 Water Quality Certification (or proof of waiver) and/or the 
CZM consistency concurrence (or proof of presumed concurrence).
    c. Finally, the Corps would attach any Section 401 Water Quality 
Certification and/or CZM consistency concurrence to the provisional 
permit, then sign the provisional permit (which then becomes the issued 
final permit), and forward the permit to the applicant.
    d. This is the same basic process as the normal standard permit 
transmittal process except that the applicant is sent an unsigned 
permit (i.e., a provisional permit) prior to obtaining the Section 401 
Water Quality Certification (or waiver) and/or CZM consistency 
concurrence (or presumed concurrence). (See enclosure 2.) A permit can 
not be issued (i.e., signed by the Corps) until the Section 401 and CZM 
requirements are satisfied.
    4. Provisional Permit: A provisional permit is a standard permit 
document with a cover sheet. The cover sheet must clearly indicate the 
following: that a provisional permit is enclosed, that the applicant 
must obtain the Section 401 Water Quality Certification or CZM 
concurrence from the State, that these documents must be sent to the 
Corps along with the provisional permit signed by the applicant, and 
that the Corps will issue the permit upon receipt of these materials. 
The issued permit is the provisional permit signed by the applicant and 
the Corps. The provisional permit must contain a statement indicating 
that the applicant is required to comply with the Section 401 Water 
Quality Certification, including any conditions, and/or the CZM 
consistency concurrence, including any conditions. At enclosure 3 is a 
sample cover sheet for the provisional permit.
    5. Provisional Permit Decision: The DE may reach a final decision 
that a permit should be issued provided that the State issues a Section 
401 Water Quality Certification and/or a CZM concurrence. In order to 
reach such a decision the DE must complete the normal standard permit 
evaluation process, prepared and sign a decision document, and prepare 
a standard permit, including any conditions or mitigation (i.e., a 
provisional permit). The decision document must include a statement 
that the DE has determined that the permit will be issued if the State 
issues a Section 401 Water Quality Certification or waiver and/or a CZM 
concurrence, or presumed concurrence. The standard permit will not 
contain a condition that requires or provides for the applicant to 
obtain a Section 401 Water Quality Certification and/or CZM

[[Page 31496]]

concurrence. Once the decision document is signed, the applicant has 
the right to a DA permit if the State issues a Section 401 Water 
Quality Certification or waiver and/or a CZM concurrence, or if 
concurrence is presumed. Once the decision document is signed, the 
permittee's right to proceed can only be changed by using the 
modification, suspension and revocation procedures of 33 CFR 325.7, 
unless the State denies the Section 401 Water Quality Certification or 
nonconcurs with the applicant's CZM consistency determination.
    6. Enforcement: In some cases, applicants might proceed with the 
project upon receipt of the provisional permit. The provisional permit 
is not a valid permit. In such cases, the Corps has a discretionary 
enforcement action to consider and should proceed as the DE determines 
to be appropriate. This occurs on occasion during the standard permit 
transmittal process. Since the Corps is not changing the normal process 
of sending unsigned permits to the applicant for signature, there 
should not be an increase in the occurrence of such unauthorized 
activities.
    7. Modification: a. In most cases the Section 401 Water Quality 
Certification, including conditions, and/or CZM consistency 
concurrence, including conditions, will be consistent with the 
provisional permit. In such cases, the DE will simply sign the final 
permit and enclose the 401 water quality certification and/or CZM 
consistency concurrence with the final permit (i.e., the signed 
provisional permit).
    b. In a few cases such State approval may necessitate modifications 
to the Corps preliminary permit decision. Such modifications will be 
processed in accordance with 33 CFR 325.7.
    (1) When the modifications are minor and the DE agrees to such 
modifications, then a supplement to the provisional decision document 
may be prepared, as appropriate, and the permit issued with such 
modifications. (This should usually be done by enclosing the State 401 
Water Quality Certification and/or CZM consistency concurrence to the 
permit, but in a few cases may require a revision to the permit 
document itself.)
    (2) When the modification results in substantial change or 
measurable increase in adverse impacts or the Corps does not initially 
agree with the change, then the modification will be processed and 
counted as a separate permit action for reporting purposes. This may 
require a new public notice or additional coordination with appropriate 
Federal and/or state agencies. The provisional decision document will 
be supplemented or may be completely rewritten, as necessary.
    8. Denial: If the State denies the Section 401 Water Quality 
Certification and/or the State nonconcurs with the applicant's CZM 
consistency determination, then the Corps permit is denied without 
prejudice.
    9. This guidance expires 31 December 1998 unless sooner revised or 
rescinded.

    For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

3 Encls

Sample

Provisional Permit

Transmittal Letter

    Dear: ____________:
    We have completed our review of your permit application 
identified as [File No., appl. name, etc.] for the following 
proposed work:

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

near/in/at ____________.
    Enclosed is a ``PROVISIONAL PERMIT.'' The provisional permit is 
NOT VALID and does not authorize you to do your work. The 
provisional permit describes the work that will be authorized, and 
the General and Special Conditions [if any] which will be placed on 
your final Department of the Army (DA) permit, if the State of  
____________________ Water Quality Certification and/or Coastal Zone 
Management (CZM) consistency requirements are satisfied as described 
below. No work is to be performed in the waterway or adjacent 
wetlands until you have received a validated copy of the DA permit.
    By Federal law no DA permit can be issued until a State Section 
401 Water Quality Certification has been issued or has been waived 
and/or the State has concurred with a permit applicant's CZM 
consistency determination or concurrence has been presumed. As of 
this date the [State 401 certification agency] has not issued a 
Section 401 Water Quality Certification for your proposed work. If 
the [State 401 certification agency] fails or refuses to act by 
[date 401 certification must be issued] the Section 401 Water 
Quality Certification requirement will be automatically waived. 
Also, as of this date the [State CZM agency] has not concurred with 
your CZM consistency determination. If the State does not act by 
[six months from receipt by the State of the applicant's CZM 
consistency determination] then concurrence with your CZM 
consistency determination will automatically be presumed.
    Conditions of the State Section 401 Water Quality Certification 
and/or the State CZM concurrence will become conditions to the final 
DA permit. Should the State's action on the required certification 
or concurrence preclude validation of the provisional permit in its 
current form, a modification to the provisional permit will be 
evaluated and you will be notified as appropriate. Substantial 
changes may require a new permit evaluation process, including 
issuing a new public notice.

Enclosure 1

Final Permit Actions

Normal Permit Process

1. Corps completes permit decision, and state 401/CZM issued/waived
2. Corps sends unsigned permit to applicant
3. Applicant signs permit and returns with fee
4. Corps signs permit

Draft Permit Process

1. Corps completes permit decision, but state 401/CZM not complete
2. Corps sends draft permit to applicant
3. State 401/CZM issued waived
4. Applicant signs permit and returns with fee and 401/CZM action
5. Corps reviews 401/CZM action and signs permit

    1. The signed draft permit with the attached 401/CZM action is 
to be treated as the applicant's request for a permit subject to any 
401/CZM certification/concurrence including any conditions.
    2. If the 401/CZM action results in a modification to the draft 
permit, then step 4. would be treated as a request for such 
modification and if we agree with the modification, then the permit 
would be issued with the modification and the decision document 
supplemented, as appropriate. If the Corps does not initially agree 
with the modification, or it involves a substantial change or 
measurable increase in adverse impacts, then the modification would 
be processed as a separate permit action for reporting purposes.

Enclosure 2

    Once the State has issued the required Section 401 Water Quality 
Certification and/or concurred with your CZM consistency 
determination or the dates above have passed without the State 
acting, and you agree to the terms and conditions of the provisional 
permit, you should sign and date both copies and return them to us 
[along with your $100.00/$10.00 permit fee]. Your DA permit will not 
be valid until we have returned a copy to you bearing both your 
signature and the signature of the appropriate Corps official.
    If the State denies the required Section 401 Water Quality 
Certification and/or nonconcurs with your CZM consistency 
determination, then the DA permit is denied without prejudice. If 
you should subsequently obtain a Section 401 Water Quality 
Certification and/or a CZM consistency determination concurrence, 
you should contact this office to determine how to proceed with your 
permit application.
    If you have any questions concerning your State Section 401 
Water Quality Certification, please contact (State 401 certification 
contact.
    If you have any questions concerning your CZM consistency 
determination, please contact (State CZM contact).

[[Page 31497]]

    If you have any other questions concerning your application for 
a DA permit, please contact [Corps contact] at [Corps contact 
telephone number].

Provisional Permit

Not Valid

Do Not Begin Work

    This Provisional Permit is Not Valid until:
    (1) You obtain: ____________________ a Section 401 Water Quality 
Certification (from State Agency).
    ____________________ a Coastal Zone Consistency determination 
concurrence from (State Agency).
    (2) You sign and return the enclosed provisional permit with the 
State Section 401 Water Quality Certification and/or CZM concurrence 
and the appropriate permit fee as indicated below:

____________________ $10.00
____________________ $100.00
 No fee required

    (3) The Corps signs the permit and returns it to you. Your 
permit is denied without prejudice, if the State denies your Section 
401 Water Quality Certification and/or nonconcurs with your Coastal 
Zone Management consistency determination.

Do Not Begin Work

REGULATORY GUIDANCE LETTER (RGL 93-2)

RGL 93-2, Date: 23 August 1993, Expires: 31 December 1998
Subject: Guidance on Flexibility of the 404(b)(1) Guidelines and 
Mitigation Banking.

    1. Enclosed are two guidance documents signed by the Office of the 
Assistant Secretary of the Army (Civil Works) and the Environmental 
Protection Agency. The first document provides guidance on the 
flexibility that the U.S. Army Corps of Engineers should be utilizing 
when making determinations of compliance with the Section 404(b)(1) 
Guidelines, particularly with regard to the alternatives analysis. The 
second document provides guidance on the use of mitigation banks as a 
means of providing compensatory mitigation for Corps regulatory 
decisions.
    2. Both enclosed guidance documents should be implemented 
immediately. These guidance documents constitute an important aspect of 
the President's plan for protecting the Nation's wetlands, ``Protecting 
America's Wetlands: A Fair, Flexible and Effective Approach'' 
(published on 24 August 1993).
    3. This guidance expires 31 December 1998 unless sooner revised or 
rescinded.

    For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

2 Encls

Memorandum to the field
Subject: Appropriate level of analysis required for evaluating 
compliance with the section 404(b)(1) guidelines alternatives 
requirements

    1. Purpose: The purpose of this memorandum is to clarify the 
appropriate level of analysis required for evaluating compliance with 
the Clean Water Act Section 404(b)(1) Guidelines' (Guidelines) 
requirements for consideration of alternatives. 40 CFR 230.10(a). 
Specifically, this memorandum describes the flexibility afforded by the 
Guidelines to make regulatory decisions based on the relative severity 
of the environmental impact of proposed discharges of dredged or fill 
material into waters of the United States.
    2. Background: The Guidelines are the substantive environmental 
standards by which all Section 404 permit applications are evaluated. 
The Guidelines, which are binding regulations, were published by the 
Environmental Protection Agency at 40 CFR Part 230 on December 24, 
1980. The fundamental precept of the Guidelines is that discharges of 
dredged or fill material into waters of the United States, including 
wetlands, should not occur unless it can be demonstrated that such 
discharges, either individually or cumulatively, will not result in 
unacceptable adverse effects on the aquatic ecosystem. The Guidelines 
specifically require that ``no discharge of dredged or fill material 
shall be permitted if there is a practicable alternative to the 
proposed discharge which would have less adverse impact on the aquatic 
ecosystem, so long as the alternative does not have other significant 
adverse environmental consequences.'' 40 CFR 230.10(a). Based on this 
provision, the applicant is required in every case (irrespective of 
whether the discharge site is a special aquatic site or whether the 
activity associated with the discharge is water dependent) to evaluate 
opportunities for use of non-aquatic areas and other aquatic sites that 
would result in less adverse impact on the aquatic ecosystem. A permit 
cannot be issued, therefore, in circumstances where a less 
environmentally damaging practicable alternative for the proposed 
discharge exists (except as provided for under Section 404(b)(2)).
    3. Discussion: The Guidelines are, as noted above, binding 
regulations. It is important to recognize, however, that this 
regulatory status does not limit the inherent flexibility provided in 
the Guidelines for implementing these provisions. The preamble to the 
Guidelines is very clear in this regard:

    Of course, as the regulation itself makes clear, a certain 
amount of flexibility is still intended. For example, while the 
ultimate conditions of compliance are ``regulatory'', the Guidelines 
allow some room for judgment in determining what must be done to 
arrive at a conclusion that those conditions have or have not been 
met.

    Guidelines Preamble, ``Regulation versus Guidelines'', 45 Federal 
Register 85336 (December 24, 1980).
    Notwithstanding this flexibility, the record must contain 
sufficient information to demonstrate that the proposed discharge 
complies with the requirements of Section 230.10(a) of the Guidelines. 
The amount of information needed to maker such a determination and the 
level of scrutiny required by the Guidelines is commensurate with the 
severity of the environmental impact (as determined by the functions of 
the aquatic resource and the nature of the proposed activity) and the 
scope/cost of the project.
    a. Analysis Associated with Minor Impacts:
    The Guidelines do not contemplate that the same intensity of 
analysis will be required for all types of projects but instead 
envision a correlation between the scope of the evaluation and the 
potential extent of adverse impacts on the aquatic environment. The 
introduction to Section 230.10(a) recognizes that the level of analysis 
required may vary with the nature and complexity of each individual 
case:

    Although all requirements in Sec. 230.10 must be met, the 
compliance evaluation procedures will vary to reflect the 
seriousness of the potential for adverse impacts on the aquatic 
ecosystems posed by specific dredged or fill material discharge 
activities.

40 CFR 230.10
    Similarly, Section 230.6 (``Adaptability'') makes clear that the 
Guidelines:

allow evaluation and documentation for a variety of activities, 
ranging from those with large, complex impacts on the aquatic 
environment to those for which the impact is likely to be innocuous. 
It is unlikely that the Guidelines will apply in their entirety to 
any one activity, no matter how complex. It is anticipated that 
substantial numbers of permit applications will be for minor, 
routine activities that have little, if any, potential for 
significant degradation of the aquatic environment. It generally is 
not intended or

[[Page 31498]]

expected that extensive testing, evaluation or analysis will be 
needed to make findings of compliance in such routine cases.

40 CFR 230.6(9) (emphasis added)
    Section 230.6 also emphasizes that when making determinations of 
compliance with the Guidelines, users:

must recognize the different levels of effort that should be 
associated with varying degrees of impact and require or prepare 
commensurate documentation. The level of documentation should 
reflect the significance and complexity of the discharge activity.

40 CFR 230.6(b) (emphasis added)
    Consequently, the Guidelines clearly afford flexibility to adjust 
the stringency of the alternatives review for projects that would have 
only minor impacts. Minor impacts are associated with activities that 
generally would have little potential to degrade the aquatic 
environment and include one, and frequently more, of the following 
characteristics: are located in aquatic resources of limited natural 
function; are small in size and cause little direct impact; have little 
potential for secondary or cumulative impacts; or cause only temporary 
impacts. It is important to recognize, however, that in some 
circumstances even small or temporary fills result in substantial 
impacts, and that in such cases a more detailed evaluation is 
necessary. The Corps Districts and EPA Regions will, through the 
standard permit evaluation process, coordinate with the U.S. Fish and 
Wildlife Service, National Marine Fisheries Service and other 
appropriate state and Federal agencies in evaluating the likelihood 
that adverse impacts would result from a particular proposal. It is not 
appropriate to consider compensatory mitigation in determining whether 
a proposed discharge will cause only minor impacts for purposes of the 
alternatives analysis required by Section 230.10(a).
    In reviewing projects that have the potential for only minor 
impacts on the aquatic environment, Corps and EPA field offices are 
directed to consider, in coordination with state and Federal resource 
agencies, the following factors:

    (i) Such projects by their nature should not cause or contribute 
to significant degradation individually or cumulatively. Therefore, 
it generally should not be necessary to conduct or require detailed 
analyses to determine compliance with Section 230.10(c).
    (ii) Although sufficient information must be developed to 
determine whether the proposed activity is in fact the least 
damaging practicable alternative, the Guidelines do not require an 
elaborate search for practicable alternatives if it is reasonably 
anticipated that there are only minor differences between the 
environmental impacts of the proposed activity and potentially 
practicable alternatives. This decision will be made after 
consideration of resource agency comments on the proposed project. 
It often makes sense to examine first whether potential alternatives 
would result in no identifiable or discernible difference in impact 
on the aquatic ecosystem. Those alternatives that do not may be 
eliminated from the analysis since Section 230.10(a) of the 
Guidelines only prohibits discharges when a practicable alternative 
exists which would have less adverse impact on the aquatic 
ecosystem. Because evaluating practicability is generally the more 
difficult aspect of the alternatives analysis, this approach should 
save time and effort for both the applicant and the regulatory 
agencies.\1\ By initially focusing the alternatives analysis on the 
question of impacts on the aquatic ecosystem, it may be possible to 
limit (or in some instances eliminate altogether) the number of 
alternatives that have to be evaluated for practicability.
---------------------------------------------------------------------------

    \1\ In certain instances, however, it may be easier to examine 
practicability first. Some projects may be so site-specific (e.g., 
erosion control, bridge replacement) that no offsite alternative 
could be practicable. In such cases the alternatives analysis may 
appropriately be limited to onsite options only.
---------------------------------------------------------------------------

    (iii) When it is determined that there is no identifiable or 
discernible difference in adverse impact on the environment between 
the applicant's proposed alternative and all other practicable 
alternatives, then the applicant's alternative is considered as 
satisfying the requirements of Section 230.10(a).
    (iv) Even where a practicable alternative exists that would have 
less adverse impact on the aquatic ecosystem, the Guidelines allow 
it to be rejected if it would have ``other significant adverse 
environmental consequences.'' 40 CFR 230.10(a) As explained in the 
preamble, this allows for consideration of ``evidence of damages to 
other ecosystems in deciding whether there is a `better' 
alternative.'' Hence, in applying the alternatives analysis required 
by the Guidelines, it is not appropriate to select an alternative 
where minor impacts on the aquatic environment are avoided at the 
cost of substantial impacts to other natural environmental values.
    (v) in cases of negligible or trivial impacts (e.g., small 
discharges to construct individual driveways), it may be possible to 
conclude that no alternative location could result in less adverse 
impact on the aquatic environment within the meaning of the 
Guidelines. In such cases, it may not be necessary to conduct an 
offsite alternatives analysis but instead require only any 
practicable onsite minimization.

    This guidance concerns application of the Section 404(b)(1) 
Guidelines to projects with minor impacts. Projects which may cause 
more than minor impacts on the aquatic environment, either individually 
or cumulatively, should be subjected to a proportionately more detailed 
level of analysis to determine compliance or noncompliance with the 
Guidelines. Projects which cause substantial impacts, in particular, 
must be thoroughly evaluated through the standard permit evaluation 
process to determine compliance with all provisions of the Guidelines.
    b. Relationship between the Scope of Analysis and the Scope/Cost of 
the Proposed Project:
    The Guidelines provide the Corps and EPA with discretion for 
determining the necessary level of analysis to support a conclusion as 
to whether or not an alternative is practicable. Practicable 
alternatives are those alternatives that are ``available and capable of 
being done after taking into consideration cost, existing technology, 
and logistics in light of overall project purposes.'' 40 CFR 
230.10(a)(2). The preamble to the Guidelines provides clarification on 
how cost is to be considered in the determination of practicability.

    Our intent is to consider those alternatives which are 
reasonable in terms of the overall scope/cost of the proposed 
project. The term economic [for which the term ``cost'' was 
substituted in the final rule] might be construed to include 
consideration of the applicants financial standing, or investment, 
or market share, a cumbersome inquiry which is not necessarily 
material to the objectives of the Guidelines.

Guidelines Preamble, ``Alternatives'', 45 FR 85339 (December 24, 1980) 
(emphasis added).
    Therefore, the level of analysis required for determining which 
alternatives are practicable will vary depending on the type of project 
proposed. The determination of what constitutes an unreasonable expense 
should generally consider whether the projected cost is substantially 
greater than the costs normally associated with the particular type of 
project. Generally, as the scope/cost of the project increases, the 
level of analysis should also increase. To the extent the Corps obtains 
information on the costs associated with the project, such information 
may be considered when making a determination of what constitutes an 
unreasonable expense.
    The preamble to the Guidelines also states that ``[i]f an alleged 
alternative is unreasonably expensive to the applicant, the alternative 
is not `practicable.''' Guidelines Preamble, ``Economic Factors'', 45 
FR 85343 (December 24, 1980). Therefore, to the extent that individual 
homeowners and small businesses may typically be associated with small 
projects with minor impacts, the nature of the applicant may also be a 
relevant consideration in determining what constitutes a practicable 
alternative. It is important to emphasize, however, that it

[[Page 31499]]

is not a particular applicant's financial standing that is the primary 
consideration for determining practicability, but rather 
characteristics of the project and what constitutes a reasonable 
expense for these projects that are most relevant to practicability 
determinations.
    4. The burden of proof to demonstrate compliance with the 
Guidelines rests with the applicant' where insufficient information is 
provided to determine compliance, the Guidelines require that no permit 
be issued. 400 CFR 230.12(a)(3)(iv).
    5. A reasonable, common sense approach in applying the requirements 
of the Guidelines' alternatives analysis is fully consistent with sound 
environmental protection. The Guidelines clearly contemplate that 
reasonable discretion should be applied based on the nature of the 
aquatic resource and potential impacts of a proposed activity in 
determining compliance with the alternatives test. Such an approach 
encourages effective decisionmaking and fosters a better understanding 
and enhanced confidence in the Section 404 program.
    6. This guidance is consistent with the February 6, 1990 
``Memorandum of Agreement Between the Environmental Protection Agency 
and the Department of the Army Concerning the Determination of 
Mitigation under the Clean Water Act Section 404(b)(1) Guidelines.''

    Signed August 23, 1993.
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S. 
Environmental Protection Agency.

    Signed August 23, 1993.
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department 
of the Army.

Memorandum to the Field
Subject: Establishment and Use of Wetland Mitigation Banks in the Clean 
Water Act Section 404 Regulatory Program

    1. This memorandum provides general guidelines for the 
establishment and use of wetland mitigation banks in the Clean Water 
Act Section 404 regulatory program. This memorandum serves as interim 
guidance pending completion of Phase I of by the Corps of Engineers' 
Institute for Water Resources study on wetland mitigation banking,\2\ 
at which time this guidance will be reviewed and any appropriate 
revisions will be incorporated into final guidelines.
---------------------------------------------------------------------------

    \2\ The Corps of Engineers Institute for Water Resources, under 
the authority of Section 307(d) of the Water Resources Development 
Act of 1990, is undertaking a comprehensive two-year review and 
evaluation of wetland mitigation banking to assist in the 
development of a national policy on this issue. The interim summary 
report documenting the results of the first phase of the study is 
scheduled for completion in the fall of 1993.
---------------------------------------------------------------------------

    2. For purposes of this guidance, wetland mitigation banking refers 
to the restoration, creation, enhancement, and, in exceptional 
circumstances, preservation of wetlands or other aquatic habitats 
expressly for the purpose of providing compensatory mitigation in 
advance of discharges into wetlands permitted under the Section 404 
regulatory program. Wetland mitigation banks can have several 
advantages over individual mitigation projects, some of which are 
listed below:
    (a) Compensatory mitigation can be implemented and functioning in 
advance of project impacts, thereby reducing temporal losses of wetland 
functions and uncertainty over whether the mitigation will be 
successful in offsetting wetland losses.
    (b) It may be more ecologically advantageous for maintaining the 
integrity of the aquatic ecosystem to consolidate compensatory 
mitigation for impacts to many smaller, isolated or fragmented habitats 
into a single large parcel or contiguous parcels.
    (c) Development of a wetland mitigation bank can bring together 
financial resources and planning and scientific expertise not 
practicable to many individual mitigation proposals. This consolidation 
of resources can increase the potential for the establishment and long-
term management of successful mitigation.
    (d) Wetland mitigation banking proposals may reduce regulatory 
uncertainty and provide more cost-effective compensatory mitigation 
opportunities.
    3. The Section 404(b)(1) Guidelines (Guidelines), as clarified by 
the ``Memorandum of Agreement Concerning the Determination of 
Mitigation under the Section 404(b)(1) Guidelines'' (Mitigation MOA) 
signed February 6, 1990, by the Environmental Protection Agency and the 
Department of the Army, establish a mitigation sequence that is used in 
the evaluation of individual permit applications. Under this sequence, 
all appropriate and practicable steps must be undertaken by the 
applicant to first avoid and then minimize adverse impacts to the 
aquatic ecosystem. Remaining unavoidable impacts must then be offset 
through compensatory mitigation to the extent appropriate and 
practicable. Requirements for compensatory mitigation may be satisfied 
through the use of wetland mitigation banks, so long as their use is 
consistent with standard practices for evaluating compensatory 
mitigation proposals outlined in the Mitigation MOA. It is important to 
emphasize that, given the mitigation sequence requirements described 
above, permit applicants should not anticipate that the establishment 
of, or participation in, a wetland mitigation bank will ultimately lead 
to a determination of compliance with the Section 404(b)(1) Guidelines 
without adequate demonstration that impacts associated with the 
proposed discharge have been avoided and minimized to the extent 
practicable.
    4. The agencies' preference for on-site, in-kind compensatory 
mitigation does not preclude the use of wetland mitigation banks where 
it has been determined by the Corps, or other appropriate permitting 
agency, in coordination with the Federal resource agencies through the 
standard permit evaluation process, that the use of a particular 
mitigation bank as compensation for proposed wetland impacts would be 
appropriate for offsetting impacts to the aquatic ecosystem. In making 
such a determination, careful consideration must be given to wetland 
functions, landscape position, and affected species populations at both 
the impact and mitigation bank sites. In addition, compensation for 
wetland impacts should occur, where appropriate and practicable, within 
the same watershed as the impact site. Where a mitigation bank is being 
developed in conjunction with a wetland resource planning initiative 
(e.g., Special Area Management Plan, State Wetland Conservation Plan) 
to satisfy particular wetland restoration objectives, and permitting 
agency will determine, in coordination with the Federal resource 
agencies, whether use of the bank should be considered an appropriate 
form of compensatory mitigation for impacts occurring within the same 
watershed.
    5. Wetland mitigation banks should generally be in place and 
functional before credits may be used to offset permitted wetland 
losses. However, it may be appropriate to allow incremental 
distribution of credits corresponding to the appropriate stage of 
successful establishment of wetland functions. Moreover, variable 
mitigation ratios (credit acreage to impacted wetland acreage) may be 
used in such circumstances to reflect the wetland functions attained at 
a bank site at a particular point in time. For example,

[[Page 31500]]

higher ratios would be required when a bank is not yet fully functional 
at the time credits are to be withdrawn.
    6. Establishment of each mitigation bank should be accompanied by 
the development of a formal written agreement (e.g., memorandum of 
agreement) among the Corps, EPA, other relevant resource agencies, and 
those parties who will own, develop, operate or otherwise participate 
in the bank. The purpose of the agreement is to establish clear 
guidelines for establishment and use of the mitigation bank. A wetlands 
mitigation bank may also be established through issuance of a Section 
404 permit where establishing the proposed bank involves a discharge of 
dredged or fill material into waters of the United States. The banking 
agreement or, where applicable, special conditions of the permit 
establishing the bank should address the following considerations, 
where appropriate:

(a) Location of the mitigation bank
(b) Goals and objectives for the mitigation bank project;
(c) Identification of bank sponsors and participants;
(d) Development and maintenance plan;
(e) Evaluation methodology acceptable to all signatories to 
establish bank credits and assess bank success in meeting the 
project goals and objectives;
(f) Specific accounting procedures for tracking crediting and 
debiting;
(g) Geographic area of applicability;
(h) Monitoring requirements and responsibilities;
(i) Remedial action responsibilities including funding; and
(j) Provisions for protecting the mitigation bank in perpetuity.

Agency participation in a wetlands mitigation banking agreement may 
not, in any way, restrict or limit the authorities and responsibilities 
of the agencies.
    7. An appropriate methodology, acceptable to all signatories, 
should be identified and used to evaluate the success of wetland 
restoration and creation efforts within the mitigation bank and to 
identify the appropriate stage of development for issuing mitigation 
credits. A full range of wetland functions should be assessed. 
Functional evaluations of the mitigation bank should generally be 
conducted by a multi-disciplinary team representing involved resource 
and regulatory agencies and other appropriate parties. The same 
methodology should be used to determine the functions and values of 
both credits and debits. As an alternative, credits and debits can be 
based on acres of various types of wetlands (e.g., National Wetland 
Inventory classes). Final determinations regarding debits and credits 
will be made by the Corps, or other appropriate permitting agency, in 
consultation with Federal resource agencies.
    8. Permit applicants may draw upon the available credits of a third 
party mitigation bank (i.e., a bank developed and operated by an entity 
other than the permit applicant). The Section 404 permit, however, must 
state explicitly that the permittee remains responsible for ensuring 
that the mitigation requirements are satisfied.
    9. To ensure legal enforceability of the mitigation conditions, use 
of mitigation bank credits must be conditioned in the Section 404 
permit by referencing the banking agreement or Section 404 permit 
establishing the bank; however, such a provision should not limit the 
responsibility of the Section 404 permittee for satisfying all legal 
requirements of the permit.

    Signed August 23, 1993.
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S. 
Environmental Protection Agency.

    Signed August 23, 1993.
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department 
of the Army.

Regulatory Guidance Letter (RGL 93-3)

RGL 93-3, Issued: September 13, 1993, Expires: not applicable
Subject: Rescission of Regulatory Guidance Letters (RGL) 90-5, 90-7, 
and 90-8

    1. On 25 August 1993 the final ``Excavation Rule'' was published in 
the Federal Register (58 FR 45008) and becomes effective on 24 
September 1993. This regulation modifies the definition of ``Discharge 
of Dredged Material'' to address landclearing activities (see 33 CFR 
323.2(d)); modifies the definitions of ``Fill Material'' and 
``Discharge of Fill Material'' to address the placement of pilings (see 
33 CFR 323.2 (e) and (f) and 323.3(c)); and modifies the definition of 
``waters of the United States'' to address prior converted cropland 
(see 33 CFR 328.(a)(8)).
    2. Therefore, RGL 90-5, Subject: ``Landclearing Activities Subject 
to Section 404 Jurisdiction''; RGL 90-7, Subject: ``Clarification of 
the Phrase `Normal Circumstances' as it pertains to Cropped Wetlands''; 
and RGL 90-8, Subject: ``Applicability of Section 404 to Pilings''; are 
hereby rescinded effective 24 September 1993. Furthermore, although RGL 
90-5, Subject: ``Landclearing Activities Subject to Section 404 
Jurisdiction'' expired on 31 December 1992 it should continue to be 
applied until 24 September 1993.
    3. In addition, RGL's 90-5, 90-7, and 90-8 as of 24 September 1993 
will no longer be used for guidance since the guidance contained in 
those RGL's has been superseded by the regulation.

    For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter (RGL 94-1)
Issued: 23 May 1994, Expires: 31 December 1999
Subject: Expiration of Geographic Jurisdictional Determinations.

    1. Regulatory Guidance Letter (RGL) 90-6, Subject: ``Expiration 
Dates for Wetlands Jurisdictional Delineations'' is extended until 31 
December 1999, subject to the following revisions.
    2. This guidance should be applied to all jurisdictional 
determinations for all waters of the United States made pursuant to 
Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the 
Clean Water Act, and Section 103 of the Marine Protection Research and 
Sanctuaries Act of 1972.
    3. To be consistent with paragraph IV.A. of the 6 January 1994, 
interagency Memorandum of Agreement Concerning the Delineation of 
Wetlands for Purposes of Section 404 of the Clean Water Act and 
Subtitle B of the Food Security Act, all U.S. Army Corps of Engineers 
geographic jurisdictional determinations shall be in writing and 
normally remain valid for a period of five years. The Corps letter (see 
paragraph 4.(d) of RGL 90-6) should include a statement that the 
jurisdictional determination is valid for a period of five years from 
the date of the letter unless new information warrants revision of the 
determination before the expiration date.
    4. For wetland jurisdictional delineations the ``effective date of 
this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 was and 
remains 14 August 1990. For jurisdictional determinations, other than 
wetlands jurisdictional delineations, the ``effective date of this 
RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 will be the date of 
this RGL.
    5. Previous Corps written jurisdictional determinations, including 
wetland jurisdictional delineations, with a validity period of three 
years remain valid for the stated period of three years. The district 
engineer is not required to issue new letters to extend such period 
from three years to a total of five years. However, if requested to do 
so, the district engineer will normally extend the three year period to 
a total of five years unless new

[[Page 31501]]

information warrants a new jurisdictional determination.
    6. Districts are not required to issue a public notice on this 
guidance but may do so at their discretion.
    7. This guidance expires on 31 December 1999 unless sooner revised 
or rescinded.

    For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division Directorate of 
Civil Works.

Regulatory Guidance Letter (RGL 94-2)

Issued: 17 AUGUST 1994, Expires: 31 DEC 1999
Subject: Superfund Projects

    1. Regulatory Guidance Letter (RGL) 85-07, subject: ``Superfund 
Projects'' is hereby reissued (copy enclosed).
    2. This RGL was previously extended by RGL 89-2. Although the 
extension expired, RGL 85-07 has continued to be U.S. Army Corps of 
Engineers policy.
    3. This guidance expires 31 December 1999 unless sooner revised or 
rescinded.

    For the Director of Civil Works.

John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Encl

Regulatory Guidance Letter (RGL 85-7)

Issued: 5 July 1985, Expires DEC 1987
Subject: Superfund Projects

    1. Recently, the Chief Counsel, Mr. Lester Edelman, responded to a 
letter from Mr. William N. Hedeman, Jr., Director, Office of Emergency 
and Remedial Response, Environmental Protection Agency (EPA) which 
dealt with the need for Department of Army authorizations for the 
Comprehensive Environmental Response, Compensation and Liability Act 
(CERCLA) actions. This letter summarizes Mr. Edelman's opinion and 
provides operating guidance for field interaction with the EPA.
    2. The EPA's basic position is that Congress did not intend for 
CERCLA response actions to be subject to other environmental laws. 
Rather, as a matter of sound practice, CERCLA response actions 
generally should meet the standards established by those laws. 
Consequently, it is the EPA's position that neither it nor the states, 
in pursuing response actions at the location of the release or 
threatened release under the authority of CERCLA, are required to 
obtain permits under Section 404 of the Clean Water Act or Section 10 
of the Rivers and Harbors Act for those actions.
    3. Mr. Edelman stated in part that he has some reservations about 
the position that the EPA has taken. Nevertheless, he recognizes that 
the EPA has the primary authority for the interpretation and 
application of CERCLA, and therefore would defer to the EPA's reading 
of its own statutory authorities, at least for the time being.
    4. In light of this legal opinion, FOAs should not require 
applications for the EPA or state response actions at the location of 
the release or threatened release in pursued under the authority of 
CERCLA. Any permit applications in process should be terminated.
    5. Both the EPA and OCE believe that the FOAs expertise in 
assessing the public interest factors for dredging and filling 
operations can contribute to the overall quality of the CERCLA response 
action. The Director of Civil Works will be establishing a group from 
his staff to work with the EPA staff to develop a framework for 
integrating the Corps Section 10, Section 404 and, if appropriate, 
Section 103 concerns into the EPA's substantive Superfund reviews.
    6. Until specific guidance is provided from OCE, FOAs should 
provide technical support to the EPA regions and/or the states on 
matters within their field of expertise.

    For the Chief of Engineers.
C.E. Edgar III

Regulatory Guidance Letter (RGL 95-1)

Issued: 31 March 1995, Expires: 31 December 2000
Subject: Guidance on Individual Permit Flexibility for Small Landowners

    1. Enclosed is a memorandum for the field signed by the Acting 
Assistant Secretary of the Army (Civil Works) and the Environmental 
Protection Agency dated 6 March 1995. This memorandum provides guidance 
on flexibility that the U.S. Army Corps of Engineers should apply when 
making determinations of compliance with the Section 404(b)(1) 
Guidelines with regard to the alternatives analysis.
    2. This memorandum should be implemented immediately. It 
constitutes an important aspect of the President's Plan for protecting 
the Nation's wetlands, ``Protecting America's Wetlands: A Fair, 
Flexible, and Effective Approach'' (published on 24 August 1993).
    3. This guidance expires on 31 December 2000 unless sooner revised 
or rescinded.

    For the Director of Civil Works.
Daniel R. Burns,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.
Encl
United States Environmental Protection Agency
Office of Water
Washington, DC 20460
United States Department of the Army
Office of the Assistant Secretary
Washington, DC 20310-0103
Memorandum for the Field, March 6, 1995
Subject: Individual Permit Flexibility for Small Landowners

    In order to clearly affirm the flexibility afforded to small 
landowners under Section 404 of the Clean Water Act, this policy 
clarifies that for discharges of dredged or fill material affecting up 
to two acres of non-tidal wetlands for the construction or expansion of 
a home or farm building, or expansion of a small business, it is 
presumed that alternatives located on property not currently owned by 
the applicant are not practicable under the Section 404(b)(1) 
Guidelines. Specifically, for those activities involving discharges of 
dredged or fill material affecting up to two acres into jurisdictional 
wetlands for:
    (1) The construction or expansion of a single family home and 
attendant features, such as a driveway, garage, storage shed, or septic 
field;
    (2) The construction or expansion of a barn or other farm building; 
or
    (3) The expansion of a small business facility; which are not 
otherwise covered by a general permit, it is presumed that alternatives 
located on property not currently owned by the applicant are not 
practicable under the Section 404(b)(1) Guidelines. The Guidelines' 
requirements to appropriately and practicably minimize and compensate 
for any adverse environmental impacts of such activities remain.
Discussion
    The Clean Water Act Section 404 regulatory program provides that 
the Army Corps of Engineers evaluate permit applications for the 
discharge of dredged or fill material into waters of the U.S., 
including wetlands, in accordance with regulatory requirements of the 
Section 404(b)(1) Guidelines (Guidelines). The Guidelines are 
substantive environmental criteria used in evaluating discharges of 
dredged or fill material.
    The Section 404(b)(1) Guidelines establish a mitigation sequence 
that provides a sound framework to ensure that the environmental 
impacts of permitted actions are acceptable. Under this framework, 
there is a three-step

[[Page 31502]]

sequence for mitigating potential adverse impacts to the aquatic 
environment associated with a proposed discharge--first avoidance, then 
minimization, and lastly compensation for unavoidable impacts to 
aquatic resources.
    The Guideline's mitigation sequence is designed to establish a 
consistent approach to be used in ensuring that all practicable 
measures have been taken to reduce potential adverse impacts associated 
with proposed projects in wetlands and other aquatic systems. The 
Guidelines define the term ``practicable'' as ``available and capable 
of being done [by the applicant] after taking into consideration cost, 
existing technology, and logistics in light of overall project 
purposes'' (40 CFR 230.3(q)). The first step in the sequence requires 
the evaluation of potential alternative sites under Sec. 230.10(a) of 
the Guidelines, to locate the proposed project so that aquatic impacts 
are avoided to the extent practicable.
    This policy statement clarifies that, for the purposes of the 
alternatives analysis, it is presumed that practicable alternatives are 
limited to property owned by the permit applicant in circumstances 
involving certain small projects affecting less than two acres of non-
tidal wetlands. This presumption is consistent with the practicability 
considerations required under the Guidelines and reflects the nature of 
the projects to which the presumption applies--specifically, the 
construction or expansion of a single family home and attendant 
features, the construction or expansion of a barn or other farm 
building, or the expansion of a business. For such small projects that 
would solely expand an existing structure, the basic project purpose is 
so tied to the existing structures owned by the applicant, that it 
would be highly unusual that the project could be practicably located 
on other sites not owned by the applicant. In these cases, such as 
construction of driveways, garages, or storage sheds, or with home and 
barn additions, proximity to the existing structure is typically a 
fundamental aspect of the project purpose.
    In the evaluation of potential practicable alternatives, the 
guidelines do not exclude the consideration of sites that, while not 
currently owned by the permit applicant, could reasonably be obtained 
to satisfy the project purpose. However, it is the experience of the 
Army Corps of Engineers and EPA that areas not currently owned by the 
applicant have, in the great majority of circumstances, not been 
determined to be practicable alternatives in cases involving the small 
landowner activities described above. Cost, availability, and 
logistical and capability considerations inherent in the determination 
of practicability under the guidelines have been the basis for this 
conclusion by the agencies.
    The agencies recognize that the presumption characterized in this 
policy statement may be rebutted in certain circumstances. For example, 
a more thorough review of practicable alternatives would be warranted 
for individual sites comprising a subdivision of homes, if following 
issuance of this policy statement, a real estate developer subdivided a 
large, contiguous wetlands parcel into numerous parcels. In addition, 
the presumption is applicable to the expansion of existing small 
business facilities. Small businesses are typically confined to only 
one location and with economic and logistical limitations that 
generally preclude the availability of practicable alternative 
locations to meet their expansion needs. Conversely, larger businesses 
with multiple locations and greater resources are expected to consider 
opportunities to practicably avoid adverse aquatic impacts by 
evaluating off-site alternatives.
    Finally,it is important to note that this presumption of 
practicable alternatives is intended to apply to the individual permit 
process. Alternatives are not evaluated for activities covered by 
general permits. Many activities related to the construction or 
expansion of a home, farm, or business, are already covered by a 
general permit. In addition, in conjunction with the issuance of this 
policy statement, a nationwide general permit authorizing discharges 
related to single family residential development is being proposed and 
will be available for public comment.
    If you have any questions regarding this memorandum, please contact 
Gregory Peck of EPA's Wetlands Division at (202) 260-8794 or Michael 
Davis of the Corps of Engineer's Regulatory Branch at (202) 272-0199.

Robert Perciasepe,
Assistant Administrator for Water, U.S. Environmental Protection 
Agency.

John Zirschky,
Acting Assistant Secretary of the Army (Civil Works).

Regulatory Guidance Letter (RGL 96-1)

Issued: 5 November 1996, EXPIRES: 31 December 2001
Subject: Use of Nationwide Permit Number 23 for U.S. Coast Guard 
Categorical Exclusions

    1. We have concurred with the categorical exclusions (CE) 
(enclosure) submitted by the United States Coast Guard (Coast Guard) 
pursuant to the subject nationwide permit number 23 at 33 CFR Part 330, 
including a notification requirement for CE numbers (6) and (8). The 
U.S. Army Corps of Engineers published the Coast Guard CEs in 61 FR 
18573, April 26, 1996, for comment regarding the applicability of 
nationwide permit number 23 for those activities requiring Department 
of the Army authorization. This Regulatory Guidance Letter supersedes 
the Coast Guard CEs previously approved under nationwide permit number 
23 in accordance with Regulatory Guidance Letter 83-5, dated 18 April 
1983.
    2. The Corps has conditioned the nationwide permit to require 
notification to the appropriate Corps office prior to beginning work 
under Coast Guard CE number (6) to address potential impacts to 
wetlands (notification is only required to the Corps for projects where 
wetland impacts are proposed) and number (8) to address potential 
impacts/encroachment on Federal navigation projects. The District 
Engineer will review the notification and will either verify whether 
the activity meets the terms and conditions of nationwide permit 23, 
will require evaluation under standard permit procedures, or that 
additional conditioning of the activity is necessary to ensure that no 
unacceptable adverse effects will result to wetlands for projects under 
CE number (6) or to a Federal navigation project under CE number (8). 
Authorization of the Coast Guard CEs does not restrict the Division or 
District Engineers' authorities to exercise discretionary authority, or 
the Corps modification, suspension or revocation procedures. 
Development of local procedures to streamline coordination is 
encouraged where a Corps division or district further conditions the 
nationwide permit to require a notification for additional activities.
    3. It should be noted that the Coast Guard provided a complete 
listing of CEs, including many that do not require Department of the 
Army authorization. However, to reduce confusion when referencing the 
CE number, we have included all Coast Guard CEs in the enclosure.
    4. This guidance expires 31 December 2001 unless sooner revised or 
rescinded.


[[Page 31503]]


    For the Director of Civil Works.
Daniel R. Burns,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Enclosure
U.S. Coast Guard Categorical Exclusion List
    The following is a consolidated list prepared from the U.S. Coast 
Guard Federal Register notices (59 FR 38654, July 29, 1994, 60 FR 
46317, September 6, 1995, 60 FR 32197, June 20, 1995, and 61 FR 13563, 
March 27, 1996). The list does not include the procedures the U.S. 
Coast Guard must follow to determine whether certain activities qualify 
for a categorical exclusion. Notification to the U.S. Army Corps of 
Engineers is required prior to initiation of work for activities 
conducted under numbers (6) (notification is only required to the Corps 
for projects when wetland impacts are proposed) and number (8).
    (1) Routine personnel, fiscal, and administrative activities, 
actions, procedures, and policies which clearly do not have any 
environmental impacts, such as military and civilian personnel 
recruiting, processing, paying, and record keeping.
    (2) Routine procurement activities and actions for goods and 
services, including office supplies, equipment, mobile assets, and 
utility services for routine administration, operations, and 
maintenance.
    (3) Maintenance dredging and debris disposal where no new depths 
are required, applicable permits are secured, and disposal will be at 
an existing approved disposal site.
    (4) Routine repair, renovation, and maintenance actions on aircraft 
and vessels.
    (5) Routine repair and maintenance of buildings, roads, airfields, 
grounds and equipment, and other facilities which do not result in a 
change in functional use, or an impact on a historically significant 
element or settings.
    (6) Minor renovations and additions to buildings, roads, airfields, 
grounds, equipment, and other facilities which do not result in a 
chance in functional use, a historically significant element, or 
historically significant setting. (When wetland impacts are proposed, 
notification is required to the appropriate office of U.S. Army Corps 
of Engineers prior to initiation of work)
    (7) Routine repair and maintenance to waterfront facilities, 
including mooring piles, fixed floating piers, existing piers, and 
unburied power cables.
    (8) Minor renovations and additions to waterfront facilities, 
including mooring piles, fixed floating piers, existing piers, and 
unburied power cables, which do not require special, site-specific 
regulatory permits. (Notification is required to the appropriate office 
of U.S. Army Corps of Engineers prior to initiation of work)
    (9) Routine grounds maintenance and activities at units and 
facilities. Examples include localized pest management actions and 
actions to maintain improved grounds (such as landscaping, lawn care 
and minor erosion control measures) that are conducted in accordance 
with applicable Federal, State and local directives.
    (10) Installation of devices to protect human or animal life, such 
as raptor electrocution prevention devices, fencing to restrict 
wildlife movement on to airfields, and fencing and grating to prevent 
accidental entry to hazardous areas.
    (11) New construction on heavily developed portions of Coast Guard 
property, when construction, use, and operation will comply with 
regulatory requirements and constraints.
    (12) Decisions to decommission equipment or temporarily discontinue 
use of facilities or equipment. This does not preclude the need to 
review decommissioning under section 106 of the National Historic 
Preservation Act.
    (13) Demolition or disposal actions that involve buildings or 
structures when conducted in accordance with regulations applying to 
removal of asbestos, PCB's, and other hazardous materials, or disposal 
actions mandated by Congress. In addition, if the building or structure 
is listed, or eligible for listing, in the National Register of 
Historic Places, then compliance with section 106 of the National 
Historic Preservation Act is required.
    (14) Outleasing of historic lighthouse properties as outlined in 
the Programmatic Memorandum of Agreement between the Coast Guard, 
Advisory Council on Historic Preservation, and the National Conference 
of State Historic Preservation Officers.
    (15) Transfer of real property from the Coast Guard to the General 
Services Administration, Department of the Interior, and other Federal 
departments and agencies, or as mandated by Congress; and the granting 
of leases, permits, and easements where there is no substantial change 
in use of the property.
    (16) Renewals and minor amendments of existing real estate licenses 
or grants for use of government-owned real property where prior 
environmental review has determined that no significant environmental 
effects would occur.
    (17) New grants or renewal of existing grants of license, 
easements, or similar arrangements for the use of existing rights-of-
way or incidental easements complementing the use of existing rights-
of-way for use by vehicles; for such existing rights-of-way as 
electrical, telephone, and other transmission and communications lines; 
water, wastewater, stormwater, and irrigation pipelines, pumping 
stations, and irrigation facilities; and for similar utility and 
transportation uses.
    (18) Defense preparedness training and exercises conducted on other 
than Coast Guard property, where the legal agency or department is not 
Coast Guard or Department of Transportation and the lead agency or 
department has completed its NEPA analysis and documentation 
requirements.
    (19) Defense preparedness training and exercise conducted on Coast 
Guard property that do not involve undeveloped property or increase 
noise levels over adjacent property and that involve a limited number 
of personnel, such as exercises involving primarily electric simulation 
or command post personnel.
    (20) Simulated exercises, including tactical and logistical 
exercises that involve small numbers of personnel.
    (21) Training of an administrative or classroom nature.
    (22) Operations to carry out maritime safety, maritime law 
enforcement, search and rescue, domestic ice breaking, and oil or 
hazardous substance removal programs.
    (23) Actions performed as a part of Coast Guard operations and the 
Aids to Navigation Program to carry out statutory authority in the area 
of establishment of floating and minor fixed aids to navigation, except 
electronic sound signals.
    (24) Routine movement of personnel and equipment, and the routine 
movement, handling, and distribution of nonhazardous materials and 
wastes in accordance with applicable regulations.
    (25) Coast Guard participation in disaster relief efforts under the 
guidance or leadership of another Federal agency that has taken 
responsibility for NEPA compliance.
    (26) Data gathering, information gathering, and studies that 
involve no physical change to the environment. Examples include 
topographic surveys, bird counts, wetland mapping, and other 
inventories.
    (27) Natural and cultural resource management and research 
activities that are in accordance with interagency agreements and which 
are designed to

[[Page 31504]]

improve or upgrade the Coast Guard's ability to manage those resources.
    (28) Contracts for activities conducted at established laboratories 
and facilities, to include contractor-operated laboratories and 
facilities, on Coast Guard-owned property where all airborne emissions, 
waterborne effluents, external radiation levels, outdoor noise, and 
solid and bulk waste disposal practices are in compliance with existing 
applicable Federal, State, and local laws and regulations.
    (29) Approval of recreational activities (such as a Coast Guard 
unit picnic) which do not involve significant physical alteration of 
the environment, increase disturbance by humans of sensitive natural 
habitats, or disturbance of historic properties, and which do not occur 
in, or adjacent to, areas inhabited by threatened or endangered 
species.
    (30) Review of documents, such as studies, reports, and analyses, 
prepared for legislative proposals that did not originate in DOT and 
that relate to matters that are not the primary responsibility of the 
Coast Guard.
    (31) Planning and technical studies which do not contain 
recommendations for authorization or funding for future construction, 
but may recommend further study. This includes engineering efforts or 
environmental studies undertaken to define the elements of a proposal 
or alternatives sufficiently so that the environmental effects may be 
assessed and does not exclude consideration of environmental matters in 
the studies.
    (32) Bridge Administration Program actions which can be described 
as one of the following:
    (a) Modification or replacement of an existing bridge on 
essentially the same alignment or location. Excluded are bridges with 
historic significance or bridges providing access to undeveloped 
barrier islands and beaches. (Approach fills regulated by the U.S. Army 
Corps or Engineers under Section 404 of the Clean Water Act will 
require a separate individual or general permit.)
    (b) Construction of pipeline bridges for transporting potable 
water.
    (c) Construction of pedestrian, bicycle, or equestrian bridges and 
stream gauging cableways used to transport people.
    (d) Temporary replacement of a bridge immediately after a natural 
disaster or a catastrophic failure for reasons of public safety, 
health, or welfare.
    (e) Promulgation of operating regulations or procedures for 
drawbridges.
    (f) Identification of advance approval waterways under 33 CFR 
115.70,
    (g) Any Bridge Program action which is classified as a CE by 
another Department of Transportation agency acting as lead agency for 
such action.
    (33) Preparation of guidance documents that implement, without 
substantive change, the applicable Commandant Instruction or other 
Federal agency regulations, procedures, manuals, and other guidance 
documents.
    (34) Promulgation of the following regulations:
    (a) Regulations which are editorial or procedural, such as those 
updating addresses or establishing application procedures.
    (b) Regulations concerning internal agency functions or 
organization or personnel administration, such as funding, establishing 
Captain of the Port boundaries, or delegating authority.
    (c) Regulations concerning the training, qualifying, licensing, and 
disciplining of maritime personnel.
    (d) Regulations concerning manning, documentation, admeasurement, 
inspection, and equipping of vessels.
    (e) Regulations concerning equipment approval and carriage 
requirements.
    (f) Regulations establishing, disestablishing, or changing the size 
of Special Anchorage Areas or anchorage grounds.
    (g) Regulations establishing, disestablishing, or changing 
Regulated Navigation Areas and security or safety zones.
    (h) Special local regulations issued in conjunction with a regatta 
or marine parade; provided that, if a permit is required, the 
environmental analysis conducted for the permit included an analysis of 
the impact of the regulations.
    (i) Regulations in aid of navigation, such as those concerning 
rules of the road, International Regulations for the Prevention of 
Collisions at Sea (COLREGS), bridge-to-bridge communication, vessel 
traffic services, and marking, of navigation systems.
    (35) Approvals of regatta and marine parade event permits for the 
following events:
    (a) Events that are not located in, proximate to, or above an area 
designated as environmentally sensitive by an environmental agency of 
the Federal, State, or local Government. For example, environmentally 
sensitive areas may include such areas as critical habitats or 
migration routes for endangered or threatened species or important fish 
or shellfish nursery areas.
    (b) Events that are located in, proximate to, or above an area 
designated as environmentally sensitive by an environmental agency of 
the Federal, State, or local Government and for which the Coast Guard 
determines, based on consultation with the Government agency, that the 
event will not significantly affect the environmentally sensitive area.

Regulatory Guidance Letter (RGL 96-2)

Issued 12 December 1997, Expires 31 December 2001
Subject: Applicability of Exemptions under Section 404(f) to ``Deep-
Ripping'' Activities in Wetlands

    1. Enclosed is a memorandum to the field jointly signed by the U.S. 
Environmental Protection Agency and U.S. Army Corps of Engineers. The 
memorandum provides guidance clarifying when ``deep-ripping'' 
activities within wetlands require Department of Army authorization.
    2. This guidance expires 31 December 2001, unless sooner revised or 
rescinded.

    For the Director of Civil Works.
Daniel R. Burns,
Chief, Operations, Construction, and Readiness Division, Directorate of 
Civil Works.

Enclosure
Department of the Army
U.S. Army Corps of Engineers
United States Environmental Protection Agency
Memorandum to the Field, 12 Dec 1996
Subject: Applicability of Exemptions under Section 404(f) to ``Deep-
Ripping'' Activities in Wetlands
Purpose: The purpose of this memorandum is to clarify the applicability 
of exemptions provided under Section 404(f) of the Clean Water Act 
(CWA) to discharges associated with ``deep-ripping'' and related 
activities in wetlands.\1\
---------------------------------------------------------------------------

    \1\ As this guidance addresses primary agricultural-related 
activities, characterizations of such practices have been developed 
in consultation with experts at the U.S. Department of Agriculture 
(USDA), Natural Resources Conservation Service.
---------------------------------------------------------------------------

Background
    1. Section 404(f)(1) of the CWA exempts from the permit requirement 
certain discharges associated with normal farming, forestry, and 
ranching practices in waters of the United States, including wetlands. 
Discharges into waters subject to the Act associated with farming, 
forestry, and ranching practices identified under Section 404(f)(1) do 
not require a permit except as provided under Section 404(f)(2).
    2. Section 404(f)(1) does not provide a total, automatic exemption 
for all activities related to agricultural, silvicultural, or ranching 
practices.

[[Page 31505]]

Rather, Section 404(f)(1) exempts only those activities specifically 
identified in paragraphs (A) through (F), and ``other activities of 
essentially the same character as named'' [44 FR 34264]. For example, 
Section 404(f)(1)(A) lists discharges of dredged or fill material from 
``normal farming, silvicultural and ranching activities, such as 
plowing, seeding, cultivating, minor drainage, harvesting for the 
production of food, fiber, and forest products, or upland soil and 
water conservation practices.''
    3. Section 404(f)(1)(A) is limited to activities that are part of 
an ``established (i.e., ongoing) farming, silviculture, or ranching 
operation.'' This ``established'' requirement is intended to reconcile 
the dual intent reflected in the legislative history that although 
Section 404 should not unnecessarily restrict farming, forestry, or 
ranching from continuing at a particular site, discharge activities 
which could destroy wetlands or other waters should be subject to 
regulation.
    4. EPA and Corps regulations [40 CFR 230 and 33 CFR 320] and 
preamble define in some detail the specific ``normal'' activities 
listed in Section 404(f)(1)(A). Three points may be useful in the 
current context:

    a. As explained in the preamble to the 1979 proposed 
regulations, the words ``such as'' have been consistently 
interpreted as restricting the section ``to the activities named in 
the statute and other activities of essentially the same character 
as named, ``and'' `preclude the extension of the exemption * * * to 
activities that are unlike those named.'' [44 FR 34264].
    b. Plowing is specifically defined in the regulations not to 
include the redistribution of surface material in a manner which 
converts wetlands areas to uplands [See 40 CFR 
233.35(a)(1)((iii)(D)].
    c. Discharges associated with activities that establish an 
agricultural operation in wetlands where previously ranching had 
been conducted, represents a ``change in use'' within the meaning of 
Section 404(f)(2). Similarly, discharges that establish forestry 
practices in wetlands historically subject to agriculture also 
represent a change in use of the site [See 40 CFR 233.35(c)].

    5. The statute includes a provision at Section 404(f)(2) that 
``recaptures'' or reestablishes the permit requirement for those 
otherwise exempt discharges which:

a. Convert an area of the waters of the U.S. to a new use, and
b. Impair the flow or circulation of waters of the U.S. or reduce the 
reach of waters of the U.S.

Conversion of an area of waters of the U.S. to uplands triggers both 
provisions (a) and (b) above. Thus, at a minimum, any otherwise exempt 
discharge that results in the conversion of waters of the U.S. to 
upland is recaptured under Section 404(f)(2) and requires a permit. It 
should be noted that in order to trigger the recapture provisions of 
Section 404(f)(2), the discharges themselves need not be the sole cause 
of the destruction of the wetland or other change in use or sole cause 
of the reduction or impairment of reach, flow, or circulation of waters 
of the U.S. Rather, the discharges need only be ``incidental to'' or 
``part of'' an activity which is intended to or will foreseeably bring 
about that result. Thus, in applying Section 404(f)(2), one must 
consider discharges in context, rather than isolation.
Issue:
    1. Questions have been raised involving ``deep-ripping'' and 
related activities in wetlands and whether discharges associated with 
these actions fall within the exemptions at Section 404(f)(1)(A). In 
addition, the issue has been raised whether, if such activities fall 
within the exemption, they would be recaptured under Section 404(f)(2).
    2. ``Deep-ripping'' is defined as the mechanical manipulation of 
the soil to break up or pierce highly compacted, impermeable or slowly 
permeable subsurface soil layers, or other similar kinds of restrictive 
soil layers. These practices are typically used to break up these 
subsoil layers (e.g., impermeable soil layer, hardpan) as part of the 
initial preparation of the soil to establish an agricultural or 
silvicultural operation. Deep-ripping and related activities are also 
used in established farming operations to break up highly compacted 
soil. Although deep-ripping and related activities may be required more 
than once, the activity is typically not an annual practice. Deep-
ripping and related activities are undertaken to improve site drainage 
and facilitate deep root growth, and often occur to depths greater than 
16 inches and, in some cases, exceeding 4 feet below the surface. As 
such, it requires the use of heavy equipment, including bulldozers, 
equipped with ripper-blades, shanks, or chisels often several feet in 
length. Deep-ripping and related activities involve extending the 
blades to appropriate depths and dragging them through the soil to 
break up the restrictive layer.
    3. Conversely, plowing is defined in EPA and Corps regulations [40 
CFR part 230 and 33 CFR part 320] as ``all forms of primary tillage * * 
* used * * * for the breaking up, cutting, turning over, or stirring of 
soil to prepare it for the planting of crops'' [40 CFR 232.3(d)(4)]. As 
a general matter, normal plowing activities involve the annual or at 
least regular, preparation of soil prior to seeding or other planting 
activities. According to USDA, plowing generally involves the use of a 
blade, chisel or series of blades, chisels, or discs, usually 8-10 
inches in length, pulled behind farm vehicle to prepare the soil for 
the planting of annual crops or to support an ongoing farming practice. 
Plowing is commonly used to break up the surface of the soil to 
maintain soil tilth and to facilitate infiltration throughout the upper 
root zone.
Discussion
    1. Plowing in wetlands is exempt from regulation consistent with 
the following circumstances:

a. it is conducted as part of an ongoing, established agricultural, 
silvicultural or ranching operation; and
b. the activity is consistent with the definition of plowing in EPA and 
Corps regulations [40 CFR 230 and 33 CFR 320]; and
c. the plowing is not incidental to an activity that results in the 
immediate or gradual conversion of wetlands to non-waters.

    2. Deep-ripping and related activities are distinguishable from 
plowing and similar practices (e.g., discing harrowing) with regard to 
the purposes and circumstances under which it is conducted, the nature 
of the equipment that is used, and its effect, including in particular 
the impacts to the hydrology of the site.
    a. Deep-ripping and related activities are commonly conducted to 
depths exceeding 16 inches, and as deep as 6-8 feet below the soil 
surface to break restrictive soil layers and improve water drainage at 
sites that have not supported deeper rooting crops. Plowing depths, 
according to USDA, rarely exceed one foot into the soil and not deeper 
than 16 inches without the use of special equipment involving special 
circumstances. As such, deep-ripping and related activities typically 
involve the use of specialized equipment, including heavy mechanized 
equipment and bulldozers, equipped with elongated ripping blades 
shanks, or chisels often several feet in length. Moreover, while 
plowing is generally associated with ongoing operations, deep-ripping 
and related activities are typically conducted to prepare a site for 
establishing crops not previously planted at the site. Although deep-
ripping may have to be redone at regular intervals in some 
circumstances to maintain proper soil drainage, the activity is 
typically not an annual or routine practice.

[[Page 31506]]

    b. Frequently, deep-ripping and related activities are conducted as 
a preliminary step for converting a ``natural'' system or for preparing 
rangeland for a new use such as farming or silviculture. In those 
instances, deep ripping and related activities are often required to 
break up naturally-occurring impermeable or slowly permeable subsurface 
soil layers to facilitate proper root growth. For example, for certain 
depressions wetlands types such as vernal pools, the silica-cemented 
hardpan (durapan) or other restrictive layer traps precipitation and 
seasonal runoff creating ponding and saturation conditions at the soil 
surface. The presence of these impermeable or slowly permeable subsoil 
layers is essential to support the hydrology of the system. Once these 
layers are disturbed by activities such as deep-ripping, the hydrology 
of the system is disturbed and the wetland is often destroyed.
    c. In contrast, there are other circumstances where activities such 
as deep-ripping and related activities are a standard practice of an 
established on-going farming operation. For example, in parts of the 
Southeast, where there are deep soils having a high clay content, 
mechanized farming practices can lead to the compaction of the soil 
below the oil surface, it may be necessary to break up, on a regular 
although not annual basis, these restrictive layers in order to allow 
for normal root development and infiltration. Such activities may 
require special equipment and can sometimes occur to depths greater 
than 16 inches. However, because of particular physical conditions, 
including the presence of a water table at or near the surface for part 
of the growing season, the activity typically does not have the effect 
of impairing the hydrology of the system or otherwise altering the 
wetland characteristics of the site.
Conclusion
    1. When deep-ripping and related activities are undertaken as part 
of an established, ongoing agricultural silvicultural or ranching 
operation, to break up compacted soil layers and where the hydrology of 
the site will not be altered such that it would result in conversion of 
waters of the U.S. to upland, such activities are exempt under Section 
404(f)(1)(A).
    2. Deep-ripping and related activities in wetlands are not exempt, 
when such practices are conducted in association with efforts to 
establish for the first time (or when a previously established 
operation was abandoned) an agricultural, silvicultural or ranching 
operation. In addition, deep-ripping and related activities are not 
exempt in circumstances where such practices would trigger the 
``recapture'' provision of Section 404(f)(2):

    (a) Deep-ripping to establish a farming operation at a site 
where a ranching or forestry operation was in place is a change in 
use of such a site. Deep-ripping and related activities that also 
have the effect of altering or removing the wetland hydrology of the 
site would trigger Section 404(f)(2) and such ripping would require 
a permit.
    (b) Deep-ripping a site that has the effect of converting 
wetlands to non-waters would also trigger Section 404(f)(2) and such 
ripping would require a permit.

    3. It is the agencies' experience that certain wetland types are 
particularly vulnerable to hydrological alteration as a result of deep-
ripping and related activities. Depressional wetland systems such as 
prairie potholes, vernal pools and playas whose hydrology is critically 
dependent upon the presence of an impermeable or slowly permeable 
subsoil layer are particularly sensitive to disturbance or alteration 
of this subsoil layer. Based upon this experience, the agencies have 
concluded that, as a general matter, deep-ripping and similar 
practices, consistent with the descriptions above, conducted in prairie 
potholes, vernal pools, playas and similar depressions wetlands destroy 
the hydrological integrity of these wetlands. In these circumstances, 
deep-ripping in prairie potholes, vernal pools, and playas is 
recaptured under Section 404(f)(2) and requires a permit under the 
Clean Water Act.
Robert H. Wayland III,
Director, Office of Wetlands, Oceans and Watersheds, Environmental 
Protection Agency.
Daniel R. Burns,
Cheif, Operations, Construction and Readiness Division, Directorate of 
Civil Works, U.S. Army Corps of Engineers.
[FR Doc. 97-15001 Filed 6-6-97; 8:45 am]
BILLING CODE 3710-92-M