Subchapter H—Ocean Dumping

SUBCHAPTER H—OCEAN DUMPING

PART 220—GENERAL of the Act, the regulations and criteria included in this subchapter H apply the Sec. standards and criteria binding upon the 220.1 Purpose and scope. United States under the Convention on 220.2 Definitions. the Prevention of Marine Pollution by 220.3 Categories of permits. Dumping of Wastes and Other Matter 220.4 Authorities to issue permits. to the extent that application of such AUTHORITY: 33 U.S.C. 1412 and 1418. standards and criteria do not relax the requirements of the Act. SOURCE: 42 FR 2468, Jan. 11, 1977, unless (c) Exclusions—(1) Fish wastes. This otherwise noted. subchapter H does not apply to, and no § 220.1 Purpose and scope. permit hereunder shall be required for, the transportation for the purpose of (a) General. This subchapter H estab- dumping or the dumping in ocean wa- lishes procedures and criteria for the ters of fish wastes unless such dumping issuance of permits by EPA pursuant occurs in: to section 102 of the Act. This sub- (i) Harbors or other protected or en- chapter H also establishes the criteria closed coastal waters; or to be applied by the Corps of Engineers (ii) Any other location where the Ad- in its review of activities involving the ministrator finds that such dumping transportation of dredged material for may reasonably be anticipated to en- the purpose of dumping it in ocean wa- danger health, the environment or eco- ters pursuant to section 103 of the Act. logical systems. Except as may be authorized by a per- (2) Fisheries resources. This submit issued pursuant to this subchapter chapter H does not apply to, and no H, or pursuant to section 103 of the permit hereunder shall be required for, Act, and subject to other applicable the placement or deposit of oyster regulations promulgated pursuant to shells or other materials for the pur- section 108 of the Act: pose of developing, maintaining or har- (1) No person shall transport from vesting fisheries resources; provided, the United States any material for the such placement or deposit is regulated purpose of dumping it into ocean wa- under or is a part of an authorized ters; State or Federal program certified to (2) In the case of a vessel or aircraft EPA by the agency authorized to en- registered in the United States or fly- force the regulation, or to administer ing the United States flag or in the the program, as the case may be; and case of a United States department, provided further, that the National agency, or instrumentality, no person Oceanic and Atmospheric Administra- shall transport from any location any tion, the U.S. Coast Guard, and the material for the purpose of dumping it U.S. Army Corps of Engineers concur into ocean waters; and in such placement or deposit as it may (3) No person shall dump any mate- affect their responsibilities and such rial transported from a location out- concurrence is evidenced by letters of side the United States: concurrence from these agencies. (i) Into the territorial sea of the (3) Vessel propulsion and fixed struc- United States; or tures. This subchapter H does not apply (ii) Into a zone contiguous to the ter- to, and no permit hereunder shall be ritorial sea of the United States, ex- required for: tending to a line twelve nautical miles (i) Routine discharges of effluent in- seaward from the base line from which cidental to the propulsion of vessels or the breadth of the territorial sea is the operation of motor-driven equip- measured, to the extent that it may af- ment on vessels; or fect the territorial sea or the territory (ii) Construction of any fixed struc- of the United States. ture or artificial island, or the inten- (b) Relationship to international agree- tional placement of any device in ments. In accordance with section 102(a) ocean waters or on or in the submerged

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land beneath such waters, for a purpose (e) Dumping means a disposition of other than disposal when such con- material: Provided, That it does not struction or such placement is other- mean a disposition of any effluent from wise regulated by Federal or State law any outfall structure to the extent or made pursuant to an authorized that such disposition is regulated Federal or State program certified to under the provisions of the FWPCA, EPA by the agency authorized to en- under the provisions of section 13 of force the regulations or to administer the River and Harbor Act of 1899, as the program, as the case may be. amended (33 U.S.C. 407), or under the (4) Emergency to safeguard life at sea. provisions of the Atomic Energy Act of This subchapter H does not apply to, 1954, as amended (42 U.S.C. 2011), nor and no permit hereunder shall be re- does it mean a routine discharge of ef- quired for, the dumping of material fluent incidental to the propulsion of, into ocean waters from a vessel or air- or operation of motor-driven equip- craft in an emergency to safeguard life ment on, vessels: Provided further, That at sea to the extent that the person it does not mean the construction of owning or operating such vessel or air- any fixed structure or artificial island craft files timely reports required by nor the intentional placement of any § 224.2(b). device in ocean waters or on or in the submerged land beneath such waters, § 220.2 Definitions. for a purpose other than disposal, when such construction or such placement is As used in this subchapter H: otherwise regulated by Federal or (a) Act means the Marine Protection, State law or occurs pursuant to an au- Research, and Sanctuaries Act of 1972, thorized Federal or State program; And as amended (33 U.S.C. 1401); provided further, That it does not in- (b) FWPCA means the Federal Water clude the deposit of oyster shells, or Pollution Control Act, as amended (33 other materials when such deposit is U.S.C. 1251); made for the purpose of developing, (c) Ocean or ocean waters means those maintaining, or harvesting fisheries re- waters of the open seas lying seaward sources and is otherwise regulated by of the baseline from which the terri- Federal or State law or occurs pursu- torial sea is measured, as provided for ant to an authorized Federal or State in the Convention on the Territorial program. Sea and the Contiguous Zone (15 UST (f) Sewage Treatment Works means 1606; TIAS 5639); this definition in- municipal or domestic waste treatment cludes the waters of the territorial sea, facilities of any type which are pub- the contiguous zone and the oceans as licly owned or regulated to the extent defined in section 502 of the FWPCA. that feasible compliance schedules are (d) Material means matter of any determined by the availability of fund- kind or description, including, but not ing provided by Federal, State, or local limited to, dredged material, solid governments. waste, incinerator residue, garbage, (g) Criteria means the criteria set sewage, sewage sludge, munitions, radi- forth in part 227 of this subchapter H. ological, chemical, and biological war- (h) Dredged Material Permit means a fare agents, radioactive materials, permit issued by the Corps of Engi- chemicals, biological and laboratory neers under section 103 of the Act (see waste, wreck or discarded equipment, 33 CFR 209.120) and any Federal rock, sand, excavation debris, indus- projects reviewed under section 103(e) trial, municipal, agricultural, and of the Act (see 33 CFR 209.145). other waste, but such term does not (i) Unless the context otherwise re- mean sewage from vessels within the quires, all other terms shall have the meaning of section 312 of the FWPCA. meanings assigned to them by the Act. Oil within the meaning of section 311 of the FWPCA shall constitute ‘‘mate- § 220.3 Categories of permits. rial’’ for purposes of this subchapter H This § 220.3 provides for the issuance only to the extent that it is taken on of general, special, emergency, and re- board a vessel or aircraft for the pri- search permits for ocean dumping mary purpose of dumping. under section 102 of the Act.

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(a) General permits. General permits part of a research project when it is de- may be issued for the dumping of cer- termined that the scientific merit of tain materials which will have a mini- the proposed project outweighs the po- mal adverse environmental impact and tential environmental or other damage are generally disposed of in small quan- that may result from the dumping. Re- tities, or for specific classes of mate- search permits shall specify an expira- rials that must be disposed of in emer- tion date no later than 18 months from gency situations. General permits may the date of issue. be issued on application of an inter- (f) Permits for incineration at sea. Per- ested person in accordance with the mits for incineration of wastes at sea procedures of part 221 or may be issued will be issued only as research permits without such application whenever the until specific criteria to regulate this Administrator determines that type of disposal are promulgated, ex- issuance of a general permit is nec- cept in those cases where studies on essary or appropriate. the waste, the incineration method and (b) Special permits. Special permits vessel, and the site have been con- may be issued for the dumping of mate- ducted and the site has been designated rials which satisfy the Criteria and for incineration at sea in accordance shall specify an expiration date no with the procedures of § 228.4(b) of this later than three years from the date of chapter. In all other respects the re- issue. quirements of parts 220 through 228 (c) Emergency permits. For any of the apply. materials listed in § 227.6, except as trace contaminants, after consultation [42 FR 2468, Jan. 11, 1977; 43 FR 1071, Jan. 6, with the Department of State with re- 1978; 73 FR 74986, Dec. 10, 2008] spect to the need to consult with par- § 220.4 Authorities to issue permits. ties to the Convention on the Preven- tion of Marine Pollution by Dumping (a) Determination by Administrator. of Wastes and Other Matter that are The Administrator, or such other EPA likely to be affected by the dumping, employee as he may from time to time emergency permits may be issued to designate in writing, shall issue, deny, dump such materials where there is modify, revoke, suspend, impose condi- demonstrated to exist an emergency tions on, initiate and carry out en- requiring the dumping of such mate- forcement activities and take any and rials, which poses an unacceptable risk all other actions necessary or proper relating to human health and admits of and permitted by law with respect to no other feasible solution. As used general, special, emergency, or re- herein, ‘‘emergency’’ refers to situa- search permits. tions requiring action with a marked (b) Authority delegated to Regional Ad- degree of urgency, but is not limited in ministrators. Regional Administrators, its application to circumstances re- or such other EPA employees as they quiring immediate action. Emergency may from time to time designate in permits may be issued for other mate- writing, are delegated the authority to rials, except those prohibited by § 227.5, issue, deny, modify, revoke, suspend, without consultation with the Depart- impose conditions on, initiate and ment of State when the Administrator carry out enforcement activities, and determines that there exists an emer- take any and all other actions nec- gency requiring the dumping of such essary or proper and permitted by law materials which poses an unacceptable with respect to special permits for: risk to human health and admits of no (1) The dumping of material in those other feasible solution. portions of the territorial sea which (d) [Reserved] are subject to the jurisdiction of any (e) Research permits. Research permits State within their respective Regions, may be issued for the dumping of any and in those portions of the contiguous materials, other than materials speci- zone immediately adjacent to such fied in § 227.5 or for any of the mate- parts of the territorial sea; and in the rials listed in § 227.6 except as trace oceans with respect to approved waste contaminants, unless subject to the ex- disposal sites designated pursuant to clusion of § 227.6(g), into the ocean as part 228 of this subchapter H, and

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(2) Where transportation for dumping § 221.1 Applications for permits. is to originate in one Region and dump- Applications for general, special, ing is to occur at a location within an- emergency, and research permits under other Region’s jurisdiction conferred section 102 of the Act may be filed with by order of the Administrator, the Re- the Administrator or the appropriate gion in which transportation is to Regional Administrator, as the case originate shall be responsible for re- may be, authorized by § 220.4 of this view of the application and shall pre- chapter to act on the application. Ap- pare the technical evaluation of the plications shall be made in writing and need for dumping and alternatives to shall contain, in addition to any other ocean dumping. The Region having ju- material which may be required, the risdiction over the proposed dump site following: shall take all other actions required by (a) Name and address of applicant; this subchapter H with respect to the (b) Name of the person or firm trans- permit application, including without porting the material for dumping, the limitation, determining to issue or name of the person(s) or firm(s) pro- deny the permit, specifying the condi- ducing or processing all materials to be tions to be imposed, and giving public transported for dumping, and the name notice. If both Regions do not concur or other identification, and usual loca- in the disposition of the permit appli- tion, of the conveyance to be used in the transportation and dumping of the cation, the Administrator will make material to be dumped, including infor- the final decision on all issues with re- mation on the transporting vessel’s spect to the permit application, includ- communications and navigation equip- ing without limitation, issuance or de- ment; nial of the permit and the conditions to (c) Adequate physical and chemical be imposed. description of material to be dumped, (c) Review of Corps of Engineers including results of tests necessary to Dredged Material Permits. Regional Ad- apply the Criteria, and the number, ministrators have the authority to re- size, and physical configuration of any view, to approve or to disapprove or to containers to be dumped; propose conditions upon Dredged Mate- (d) Quantity of material to be rial Permits for ocean dumping of dumped; dredged material at locations within (e) Proposed dates and times of dis- the respective Regional jurisdictions. posal; Regional jurisdiction to act under this (f) Proposed dump site, and in the paragraph (c) of § 220.4 is determined by event such proposed dump site is not a the Administrator in accordance with dump site designated in this sub- § 228.4(e). chapter H, detailed physical, chemical and biological information relating to [42 FR 2468, Jan. 11, 1977, as amended at 73 the proposed dump site and sufficient FR 74986, Dec. 10, 2008] to support its designation as a site according to the procedures of part 228 of PART 221—APPLICATIONS FOR this subchapter H; OCEAN DUMPING PERMITS (g) Proposed method of releasing the UNDER SECTION 102 OF THE material at the dump site and means ACT by which the disposal rate can be controlled and modified as required; Sec. (h) Identification of the specific proc- 221.1 Applications for permits. ess or activity giving rise to the pro- 221.2 Other information. duction of the material; 221.3 Applicant. (i) Description of the manner in 221.4 Adequacy of information in applica- which the type of material proposed to tion. be dumped has been previously dis- 221.5 Processing fees. posed of by or on behalf of the person(s) or firm(s) producing such material; AUTHORITY: 33 U.S.C. 1412 and 1418. (j) A statement of the need for the SOURCE: 42 FR 2470, Jan. 11, 1977, unless proposed dumping and an evaluation of otherwise noted. short and long term alternative means

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of disposal, treatment or recycle of the § 221.4 Adequacy of information in ap- material. Means of disposal shall in- plication. clude without limitation, landfill, well No permit issued under this sub- injection, incineration, spread of mate- chapter H will be valid for the trans- rial over open ground; biological, portation or dumping of any material chemical or physical treatment; recov- which is not accurately and adequately ery and recycle of material within the described in the application. No per- plant or at other plants which may use mittee shall be relieved of any liability the material, and storage. The state- which may arise as a result of the ment shall also include an analysis of transportation or dumping of material the availability and environmental im- which does not conform to information pact of such alternatives; and provided in the application solely by (k) An assessment of the anticipated virtue of the fact that such informa- environmental impact of the proposed tion was furnished by an applicant dumping, including without limitation, other than the permittee. the relative duration of the effect of the proposed dumping on the marine § 221.5 Processing fees. environment, navigation, living and non-living marine resource exploi- (a) A processing fee of $1,000 will be tation, scientific study, recreation and charged in connection with each appli- other uses of the ocean. cation for a permit for dumping in an existing dump site designated in this [42 FR 2470, Jan. 11, 1977, as amended at 73 subchapter H. FR 74986, Dec. 10, 2008] (b) A processing fee of an additional § 221.2 Other information. $3,000 will be charged in connection with each application for a permit for In the event the Administrator, Re- dumping in a dump site other than a gional Administrator, or a person des- dump site designated in this sub- ignated by either to review permit ap- chapter H. plications, determines that additional (c) Notwithstanding any other provi- information is needed in order to apply sion of this § 221.5, no agency or instru- the Criteria, he shall so advise the ap- mentality of the United States or of a plicant in writing. All additional infor- State or local government will be re- mation requested pursuant to this quired to pay the processing fees speci- § 221.2 shall be deemed part of the appli- fied in paragraphs (a) and (b) of this cation and for purposes of applying the section. time limitation of § 222.1, the application will not be considered complete until such information has been filed. PART 222—ACTION ON OCEAN DUMPING PERMIT APPLICATIONS § 221.3 Applicant. UNDER SECTION 102 OF THE Any person may apply for a permit ACT under this subchapter H even though the proposed dumping may be carried Sec. on by a permittee who is not the appli- 222.1 General. cant; provided however, that the Ad- 222.2 Tentative determinations. ministrator or the Regional Adminis- 222.3 Notice of applications. trator, as the case may be, may, in his 222.4 Initiation of hearings. 222.5 Time and place of hearings. discretion, require that an application 222.6 Presiding Officer. be filed by the person or firm producing 222.7 Conduct of public hearing. or processing the material proposed to 222.8 Recommendations of Presiding Offi- be dumped. Issuance of a permit will cer. not excuse the permittee from any 222.9 Issuance of permits. civil or criminal liability which may 222.10 Appeal to adjudicatory hearing. attach by virtue of his having trans- 222.11 Conduct of adjudicatory hearings. ported or dumped materials in viola- 222.12 Appeal to Administrator. 222.13 Computation of time. tion of the terms or conditions of a permit, notwithstanding that the per- AUTHORITY: 33 U.S.C. 1412 and 1418. mittee may not have been the appli- SOURCE: 42 FR 2471, Jan. 11, 1977, unless cant. otherwise noted.

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§ 222.1 General. (3) A brief description of the procedures set forth in § 222.5 for requesting Decisions as to the issuance, denial, a public hearing on the application in- or imposition of conditions on general, cluding specification of the date by special, emergency, and research per- which requests for a public hearing mits under section 102 of the Act will must be filed; be made by application of the criteria of parts 227 and 228 of this chapter. (4) A brief statement of the factors Final action on any application for a considered in reaching the tentative permit will, to the extent practicable, determination with respect to the per- be taken within 180 days from the date mit and, in the case of a tentative de- a complete application is filed. termination to issue the permit, the reasons for the choice of the particular [73 FR 74986, Dec. 10, 2008] permit conditions selected; and (5) The location at which interested § 222.2 Tentative determinations. persons may obtain further informa- (a) Within 30 days of the receipt of tion on the proposed dumping, includ- his initial application, an applicant ing copies of any relevant documents. shall be issued notification of whether (b) Publication—(1)(1) Special and re- his application is complete and what, if search permits. Notice of every complete any, additional information is re- application for special and research quired. No such notification shall be permits shall be given by: deemed to foreclose the Administrator (i) Publication in a daily newspaper or the Regional Administrator, as the of general circulation in the State in case may be, from requiring additional closest proximity to the proposed dump information at any time pursuant to site; and § 221.2. (ii) Publication in a daily newspaper (b) Within 30 days after receipt of a of general circulation in the city in completed permit application, the Ad- which is located the office of the Ad- ministrator or the Regional Adminis- ministrator or the Regional Adminis- trator, as the case may be, shall pub- trator, as the case may be, giving no- lish notice of such application includ- tice of the permit application. ing a tentative determination with re- (2) General permits. Notice of every spect to issuance or denial of the per- complete application for a general permit. If such tentative determination is mit or notice of action proposed to be to issue the permit, the following addi- taken by the Administrator to issue a tional tentative determinations will be general permit, without an application, made: shall be given by publication in the (1) Proposed time limitations, if any; FEDERAL REGISTER. (2) Proposed rate of discharge from (3) Emergency permits. Notice of every the barge or vessel transporting the complete application for an emergency waste; permit shall be given by publication in (3) Proposed dumping site; and accordance with paragraphs (b)(1)(i) (4) A brief description of any other and (ii) of this section; Provided, how- proposed conditions determined to be ever, That no such notice and no ten- appropriate for inclusion in the permit tative determination in accordance in question. with § 222.2 shall be required in any case in which the Administrator deter- § 222.3 Notice of applications. mines: (a) Contents. Notice of every complete (i) That an emergency, as defined in application for a general, special, paragraph (c) of § 220.3 exists; emergency and research permit shall, (ii) That the emergency poses an un- in addition to any other material, in- acceptable risk relating to human clude the following: health; (1) A summary of the information in- (iii) That the emergency admits of no cluded in the permit application; other feasible solution; and (2) Any tentative determinations (iv) That the public interest requires made pursuant to paragraph (b) of the issuance of an emergency permit as § 222.2; soon as possible.

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Notice of any determination made by trator or the Regional Administrator, the Administrator pursuant to this as the case may be, consult with appro- paragraph (b)(3) shall be given as soon priate regional officials of the Depart- as practicable after the issuance of the ments of Commerce and Interior, the emergency permit by publication in ac- Regional Director of the NMFS-NOAA, cordance with paragraphs (b)(1)(i) and and the agency exercising administra- (ii) and with paragraphs (a), (c) tive jurisdiction over the fish and wild- through (i) of this section. life resources of the States subject to (c) Copies of notice sent to specific per- any dumping prior to the issuance of a sons. In addition to the publication of permit under this subchapter H. Copies notice required by paragraph (b) of this of the notice shall be sent to the per- section, copies of such notice will be sons noted in paragraph (g) of this sec- mailed by the Administrator or the Re- tion. gional Administrator, as the case may (h) Copies of notice sent to Food and be, to any person, group or Federal, Drug Administration. In addition to the State or local agency upon request. publication of notice required by para- Any such request may be a standing re- graph (b) of this section, copies of such quest for copies of such notices and notice will be mailed to Food and Drug shall be submitted in writing to the Administration, Shellfish Sanitation Administrator or to any Regional Ad- Branch (HF–417), 200 C Street SW., ministrator and shall relate to all or Washington, DC 20204. any class of permit applications which (i) Failure to give certain notices. Fail- may be acted upon by the Adminis- ure to send copies of any public notice trator or such Regional Administrator, in accordance with paragraphs (c) as the case may be. through (h) of this section shall not in- (d) Copies of notice sent to States. In validate any notice given pursuant to addition to the publication of notice this section nor shall such failure in- required by paragraph (b) of this sec- validate any subsequent administrative tion, copies of such notice will be proceeding. mailed to the State water pollution (j) Failure of consulted agency to re- control agency and to the State agency spond. Unless advice to the contrary is responsible for carrying out the Coast- received from the appropriate Federal al Zone Management Act, if such agen- or State agency within 30 days of the cy exists, for each coastal State within date copies of any public notice were 500 miles of the proposed dumping site. dispatched to such agency, such agency (e) Copies of notice sent to Corps of En- will be deemed to have no objection to gineers. In addition to the publication the issuance of the permit identified in of notice required by paragraph (b) of the public notice. this section, copies of such notice will [42 FR 2471, Jan. 11, 1977, as amended at 73 be mailed to the office of the appro- FR 74986, Dec. 10, 2008] priate District Engineer of the U.S. Army Corps of Engineers for purposes § 222.4 Initiation of hearings. of section 106(c) of the Act, (pertaining (a) In the case of any permit applica- to navigation, harbor approaches, and tion for which public notice in advance artificial islands on the outer conti- of permit issuance is required in ac- nental shelf). cordance with paragraph (b) of § 222.3, (f) Copies of notice sent to Coast Guard. any person may, within 30 days of the In addition to the publication of notice date on which all provisions of para- required by paragraph (b) of this sec- graph (b) of § 222.3 have been complied tion, copies of such notice will be sent with, request a public hearing to con- to the appropriate district office of the sider the issuance or denial of, or the U.S. Coast Guard for review and pos- conditions to be imposed upon, such sible suggestion of additional condi- permit. Any such request for a public tions to be included in the permit to fa- hearing shall be in writing, shall iden- cilitate surveillance and enforcement. tify the person requesting the hearing, (g) Fish and Wildlife Coordination Act. shall state with particularity any ob- The Fish and Wildlife Coordination jections to the issuance or denial of, or Act, Reorganization Plan No. 4 of 1970, to the conditions to be imposed upon, and the Act require that the Adminis- the proposed permit, and shall state

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the issues which are proposed to be employed in the Enforcement Division raised by such person for consideration or any Regional enforcement office. at a hearing. [42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3, (b) Whenever (1) a written request 1977] satisfying the requirements of paragraph (a) of this section has been re- § 222.7 Conduct of public hearing. ceived and the Administrator or Re- gional Administrator, as the case may The Presiding Officer shall be respon- be, determines that such request pre- sible for the expeditious conduct of the sents genuine issues, or (2) the Admin- hearing. The hearing shall be an infor- istrator or Regional Administrator, as mal public hearing, not an adversary the case may be, determines in his dis- proceeding, and shall be conducted so cretion that a public hearing is nec- as to allow the presentation of public essary or appropriate, the Adminis- comments. When the Presiding Officer trator or the Regional Administrator, determines that it is necessary or ap- as the case may be, will set a time and propriate, he shall cause a suitable place for a public hearing in accord- record, which may include a verbatim ance with § 222.5, and will give notice of transcript, of the proceedings to be such hearing by publication in accord- made. Any person may appear at a pub- ance with § 222.3. lic hearing convened pursuant to § 222.5 (c) In the event the Administrator or whether or not he requested the hear- the Regional Administrator, as the ing, and may be represented by counsel case may be, determines that a request or any other authorized representative. filed pursuant to paragraph (a) of this The Presiding Officer is authorized to section does not comply with the re- set forth reasonable restrictions on the quirements of such paragraph (a) of nature or amount of documentary ma- this section or that such request does terial or testimony presented at a pub- not present substantial issues of public lic hearing, giving due regard to the interest, he shall advise, in writing, the relevancy of any such information, and person requesting the hearing of his de- to the avoidance of undue repetitive- termination. ness of information presented.

§ 222.5 Time and place of hearings. § 222.8 Recommendations of Presiding Officer. Hearings shall be held in the State in closest proximity to the proposed dump Within 30 days following the adjourn- site, whenever practicable, and shall be ment of a public hearing convened pur- set for the earliest practicable date no suant to § 222.5, or within such addi- less than 30 days after the receipt of an tional period as the Administrator or appropriate request for a hearing or a the Regional Administrator, as the determination by the Administrator or case may be, may grant to the Pre- the Regional Administrator, as the siding Officer for good cause shown, case may be, to hold such a hearing and after full consideration of the com- without such a request. ments received at the hearing, the Pre- siding Officer will prepare and forward § 222.6 Presiding Officer. to the Administrator or to the Re- A hearing convened pursuant to this gional Administrator, as the case may subchapter H shall be conducted by a be, written recommendations relating Presiding Officer. The Administrator to the issuance or denial of, or condi- or Regional Administrator, as the case tions to be imposed upon, the proposed may be, may designate a Presiding Of- permit and the record of the hearing, if ficer. For adjudicatory hearings held any. Such recommendations shall con- pursuant to § 222.11, the Presiding Offi- tain a brief statement of the basis for cer shall be an EPA employee who has the recommendations including a de- had no prior connection with the per- scription of evidence relied upon. Cop- mit application in question, including ies of the Presiding Officer’s rec- without limitation, the performance of ommendations shall be provided to any investigative or prosecuting functions interested person on request, without or any other functions, and who is not charge. Copies of the record will be

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provided in accordance with 40 CFR of any permit pursuant to § 222.9 after a Part 2. hearing held pursuant to § 222.7, any interested person who participated in [42 FR 2471, Jan. 11, 1977; 42 FR 6583, Feb. 3, 1977] such hearing may request that an adjudicatory hearing be held pursuant to § 222.9 Issuance of permits. § 222.11 for the purpose of reviewing (a) Within 30 days following receipt such determination, or any part thereof the Presiding Officer’s recommenda- of. Any such request for an adjudica- tions or, where no hearing has been tory hearing shall be filed with the Ad- held, following the close of the 30-day ministrator or the Regional Adminis- period for requesting a hearing as pro- trator, as the case may be, and shall be vided in § 222.4, the Administrator or in writing, shall identify the person re- the Regional Administrator, as the questing the adjudicatory hearing and case may be, shall make a determina- shall state with particularity the tion with respect to the issuance, de- objections to the determination, the nial, or imposition of conditions on, basis therefor and the modification any permit applied for under this Sub- requested. chapter H and shall give notice to the (b) Whenever a written request satis- applicant and to all persons who reg- fying the requirements of paragraph (a) istered their attendance at the hearing of this section has been received and by providing their name and mailing the Administrator or Regional Admin- address, if any, by mailing a letter istrator, as the case may be, deter- stating the determination and stating mines that an adjudicatory hearing is the basis therefor in terms of the Cri- warranted, the Administrator or the teria. Regional Administrator, as the case (b) Any determination to issue or may be, will set a time and place for an deny any permit after a hearing held adjudicatory hearing in accordance pursuant to § 222.7 shall take effect no with § 222.5, and will give notice of such sooner than: hearing by publication in accordance (1) 10 days after notice of such deter- with § 222.3. mination is given if no request for an (c) Prior to the conclusion of the ad- adjudicatory hearing is filed in accord- judicatory hearing and appeal process, ance with § 222.10(a); or the Administrator or the Regional Ad- (2) 20 days after notice of such deter- ministrator, as the case may be, in his mination is given if a request for an ad- discretion may extend the duration of judicatory hearing is filed in accord- a previously issued permit until a final ance with paragraph (a) of § 222.10 and determination has been made pursuant the Administrator or the Regional Ad- to § 222.11 or § 222.12. ministrator, as the case may be, denies (d) In the event the Administrator or such request in accordance with para- the Regional Administrator, as the graph (c) of § 222.10; or case may be, determines that a request (3) The date on which a final deter- filed pursuant to paragraph (a) of this mination has been made following an section does not comply with the re- adjudicatory hearing held pursuant to quirements of such paragraph (a) of § 222.11. this section or that such request does (c) The Administrator or Regional not present substantial issues of public Administrator, as the case may be, interest, he shall advise, in writing, the may extend the term of a previously person requesting the adjudicatory issued permit pending the conclusion of hearing of his determination. the proceedings held pursuant to (e) Any person requesting an adju- §§ 222.7 through 222.9. dicatory hearing or requesting admis- (d) A copy of each permit issued shall sion as a party to an adjudicatory be sent to the appropriate District Of- hearing shall state in his written re- fice of the U.S. Coast Guard. quest, and shall by filing such request consent, that he and his employees and § 222.10 Appeal to adjudicatory hear- agents shall submit themselves to di- ing. rect and cross-examination at any such (a) Within 10 days following the re- hearing and to the taking of an oath ceipt of notice of the issuance or denial administered by the Presiding Officer.

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§ 222.11 Conduct of adjudicatory hear- (3) Disputed issues of law; ings. (4) Admissibility of any evidence; (a) Parties. Any interested person (5) Hearing procedures including sub- may at a reasonable time prior to the mission of oral or written direct testi- commencement of the hearing submit mony, conduct of cross-examination, to the Presiding Officer a request to be and the opportunity for oral argu- admitted as a party. Such request shall ments; be in writing and shall set forth the in- (6) Any other matter which may ex- formation which would be required to pedite the hearing or aid in disposition be submitted by such person if he were of any issues raised therein. requesting an adjudicatory hearing. (e) Adjudicatory hearing procedures. (1) Any such request to be admitted as a The burden of going forward with the party which satisfies the requirements evidence shall: of this paragraph (a) shall be granted (i) In the case of any adjudicatory and all parties shall be informed at the hearing held pursuant to § 222.10(b)(1), commencement of the adjudicatory be on the person filing a request under hearing of the parties involved. Any § 222.10(a) as to each issue raised by the party may be represented by counsel or request; and other authorized representative. EPA (ii) In the case of any adjudicatory staff representing the Administrator or hearing held pursuant to § 223.2 or pur- Regional Administrator who took ac- suant to part 226, be on the Environ- tion with respect to the permit applica- mental Protection Agency. tion shall be deemed a party. (2) The Presiding Officer shall have (b) Filing and service. (1) An original the duty to conduct a fair and impar- and two (2) copies of all documents or tial hearing, to take action to avoid papers required or permitted to be filed unnecessary delay in the disposition of shall be filed with the Presiding Offi- proceedings, and to maintain order. He cer. shall have all powers necessary or ap- (2) Copies of all documents and pa- propriate to that end, including with- pers filed with the Presiding Officer out limitation, the following: shall be served upon all other parties (i) To administer oaths and affirma- to the adjudicatory hearing. tions; (c) Consolidation. The Administrator, (ii) To rule upon offers of proof and or the Regional Administrator in the receive relevant evidence; case of a hearing arising within his Re- (iii) To regulate the course of the gion and for which he has been dele- hearing and the conduct of the parties gated authority hereunder, may, in his and their counsel; discretion, order consolidation of any (iv) To consider and rule upon all adjudicatory hearings held pursuant to procedural and other motions appro- this section whenever he determines priate to the proceedings; and that consolidation will expedite or sim- (v) To take any action authorized by plify the consideration of the issues these regulations and in conformance presented. The Administrator may, in with law. his discretion, order consolidation and (3) Parties shall have the right to designate one Region to be responsible cross-examine a witness who appears at for the conduct of any hearings held an adjudicatory hearing to the extent pursuant to this section which arise in that such cross-examination is nec- different Regions whenever he deter- essary or appropriate for a full disclo- mines that consolidation will expedite sure of the facts. In multi-party pro- or simplify the consideration of the ceedings the Presiding Officer may issues presented. limit cross-examination to one party (d) Pre-hearing conference. The Pre- on each side if he is satisfied that the siding Officer may hold one or more cross-examination by one party will prehearing conferences and may issue a adequately protect the interests of prehearing order which may include other parties. without limitation, requirements with (4) When a party will not be unfairly respect to any or all of the following: prejudiced thereby, the Presiding Offi- (1) Stipulations and admissions; cer may order all or part of the evi- (2) Disputed issues of fact; dence to be submitted in written form.

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(5) Rulings of the Presiding Officer on ommendations, the Administrator or the admissibility of evidence, the pro- the Regional Administrator, as the priety of cross-examination, and other case may be, shall make a determina- procedural matters, shall be final and tion with respect to all issues raised at shall appear in the record. such hearing and shall affirm, reverse (6) Interlocutory appeals may not be or modify the previous or proposed de- taken. termination, as the case may be. No- (7) Parties shall be presumed to have tice of such determination shall set taken exception to an adverse ruling. forth the determination for each such (8) The proceedings of all hearings issue, shall briefly state the basis shall be recorded by such means as the therefor and shall be given by mail to Presiding Officer may determine. The all parties to the adjudicatory hearing. original transcript of the hearing shall be a part of the record and the sole offi- § 222.12 Appeal to Administrator. cial transcript. Copies of the transcript (a)(1) The Administrator delegates to shall be available from the Environ- the Environmental Appeals Board au- mental Protection Agency in accord- thority to issue final decisions in ap- ance with 40 CFR part 2. peals filed under this part. An appeal (9) The rules of evidence shall not directed to the Administrator, rather apply. than to the Environmental Appeals (f) Decision after adjudicatory hearing. Board, will not be considered. This del- (1) Within 30 days after the conclusion egation of authority to the Environ- of the adjudicatory hearing, or within mental Appeals Board does not pre- such additional period as the Adminis- clude the Environmental Appeals trator or the Regional Administrator, Board from referring an appeal or a as the case may be, may grant to the motion filed under this part to the Ad- Presiding Officer for good cause shown, ministrator for decision when the Envi- the Presiding Officer shall submit to ronmental Appeals Board, in its discre- the Administrator or the Regional Ad- tion, deems it appropriate to do so. ministrator, as the case may be, pro- When an appeal or motion to referred posed findings of fact and conclusions to the Administrator, all parties shall of law, his recommendation with re- be so notified and the rules in this sec- spect to any and all issues raised at the tion referring to the Environmental hearing, and the record of the hearing. Appeals Board shall be interpreted as Such findings, conclusions and rec- referring to the Administrator. ommendations shall contain a brief (2) Within 10 days following receipt of statement of the basis for the rec- the determination of the Regional Ad- ommendations. Copies of the Presiding ministrator pursuant to paragraph Officer’s proposed findings of fact, con- (f)(2) of § 222.11, any party to an adju- clusions of law and recommendations dicatory hearing held in accordance shall be provided to all parties to the with § 222.11 may appeal such deter- adjudicatory hearing on request, with- mination to the Environmental Ap- out charge. peals Board by filing a written notice (2) Within 20 days following submis- of appeal, or the Environmental Ap- sion of the Presiding Officer’s proposed peals Board may, on its own initiative, findings of fact, conclusions of law and review any prior determination. recommendations, any party may sub- (b) The notice of appeal shall be no mit written exceptions, no more than more than 40 pages in length and shall 30 pages in length, to such proposed contain: findings, conclusions and recommenda- (1) The name and address of the per- tions and within 30 days following the son filing the notice of appeal; submission of the Presiding Officer’s (2) A concise statement of the facts proposed findings, conclusions and rec- on which the person relies and appro- ommendations any party may file writ- priate citations to the record of the ad- ten comments, no more than 30 pages judicatory hearing; in length, on another party’s excep- (3) A concise statement of the legal tions. Within 45 days following the sub- basis on which the person relies; mission of the Presiding Officer’s pro- (4) A concise statement setting forth posed findings, conclusions and rec- the action which the person proposes

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that the Environmental Appeals Board day, or legal holiday. Intermediate take; and Saturdays, Sundays and legal holidays (5) A certificate of service of the no- shall be excluded from the computa- tice of appeal on all other parties to tion when the period of time prescribed the adjudicatory hearing. or allowed is seven days or less. (c) The effective date of any determination made pursuant to paragraph PART 223—CONTENTS OF PERMITS; (f)(2) of § 222.11 may be stayed by the Environmental Appeals Board pending REVISION, REVOCATION OR LIM- final determination by it pursuant to ITATION OF OCEAN DUMPING this section upon the filing of a notice PERMITS UNDER SECTION 104(d) of appeal which satisfies the require- OF THE ACT ments of paragraph (b) of this section or upon initiation by the Environ- Subpart A—Contents of Ocean Dumping mental Appeals Board of review of any Permits Issued Under Section 102 of determination in the absence of such the Act notice of appeal. (d) Within 20 days following the filing Sec. of a notice of appeal in accordance with 223.1 Contents of special, emergency, general, and research permits; posting re- this section, any party to the adjudica- quirements. tory hearing may file a written memorandum, no more than 40 pages in Subpart B—Procedures for Revision, Rev- length, in response thereto. ocation or Limitation of Ocean Dump- (e) Within 45 days following the filing ing Permits Under Section 104(d) of the of a notice of appeal in accordance with Act this section, the Environmental Ap- peals Board shall render its final deter- 223.2 Scope of these rules. mination with respect to all issues 223.3 Preliminary determination; notice. raised in the appeal to the Environ- 223.4 Request for, scheduling and conduct of mental Appeals Board and shall affirm, public hearing; determination. reverse, or modify the previous deter- 223.5 Request for, scheduling and conduct of adjudicatory hearing; determination. mination and briefly state the basis for its determination. AUTHORITY: Secs. 102, 104, 107, 108, Marine (f) In accordance with 5 U.S.C. sec- Protection Research, and Sanctuaries Act of tion 704, the filing of an appeal to the 1972, as amended (33 U.S.C. 1412, 1414, 1417, 1418) Environmental Appeals Board pursuant to this section shall be a prerequisite SOURCE: 42 FR 60702, Nov. 28, 1977, unless to judicial review of any determination otherwise noted. to issue or impose conditions upon any permit, or to modify, revoke or suspend Subpart A—Contents of Ocean any permit, or to take any other Dumping Permits Issued Under enforcement action, under this sub- Section 102 of the Act chapter H. [42 FR 2471, Jan. 11, 1977, as amended at 57 § 223.1 Contents of special, emergency, FR 5346, Feb. 13, 1992] general, and research permits; posting requirements. § 222.13 Computation of time. (a) All special, emergency and re- In computing any period of time pre- search permits shall be displayed on scribed or allowed in this part, except the vessel engaged in dumping and unless otherwise provided, the day on shall include the following: which the designated period of time be- (1) Name of permittee; gins to run shall not be included. The (2) Means of conveyance and methods last day of the period so computed is to and procedures for release of the mate- be included unless it is a Saturday, rials to be dumped; Sunday, or a legal holiday in which the (3) The port through or from which Environmental Protection Agency is such material will be transported for not open for business, in which event dumping; the period runs until the end of the (4) A description of relevant physical next day which is not a Saturday, Sun- and chemical properties of the materials to be dumped; 200

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(5) The quantity of the material to be ently with the criteria and other fac- dumped expressed in tons; tors required to be applied in evalu- (6) The disposal site; ating the permit application.’’ (7) The times at which the permitted (b) In the absence of specific provi- dumping may occur and the effective sions in these rules, and where appro- date and expiration date of the permit; priate, questions arising at any stage (8) Special provisions which, after of the proceedings shall be resolved at consultation with the Coast Guard, are the discretion of the Presiding Officer, deemed necessary for monitoring or the Regional Administrator, or the Ad- surveillance of the transportation or ministrator, as appropriate. dumping; (9) Such monitoring relevant to the § 223.3 Preliminary determination; no- assessment of the impact of permitted tice. dumping activities on the marine envi- (a) General. Any general, special, ronment at the disposal site as the Ad- emergency, or research permit issued ministrator or Regional Administrator, pursuant to section 102 of the Act shall as the case may be, determine to be be subject to revision, revocation or necessary or appropriate; and limitation, in whole or in part, as the (10) Any other terms and conditions result of a determination by the Ad- determined by the Administrator, or ministrator or Regional Administrator Regional Administrator, as the case that: may be, to be necessary or appropriate, including, without limitation, release (1) The cumulative impact of the per- procedures and requirements for the mittee’s dumping activities or the ag- continued investigation or develop- gregate impact of all dumping activi- ment of alternatives to ocean dumping. ties at the dump site designated in the (b) General permits shall contain permit should be categorized as Impact such terms and conditions as the Ad- Category I, as defined in § 228.10(c)(1) of ministrator deems necessary or appro- this subchapter; or priate. (2) There has been a change in cir- (c) [Reserved] cumstances relating to the management of the disposal site designated in [42 FR 60702, Nov. 28, 1977, as amended at 73 the permit; or FR 74986, Dec. 10, 2008] (3) The dumping authorized by the permit would violate applicable water Subpart B—Procedures for Revi- quality standards; or sion, Revocation or Limitation (4) The dumping authorized by the of Ocean Dumping Permits permit can no longer be carried out Under Section 104(d) of the consistent with the criteria set forth in Act parts 227 and 228. (b) Preliminary determination. When- § 223.2 Scope of these rules. ever any person authorized by the Ad- (a) These rules of practice shall gov- ministrator or Regional Administrator ern all proceedings under section 104(d) to (1) periodically review permits pur- of the Marine Protection, Research, suant to section 104(d) of the Act or (2) and Sanctuaries Act of 1972, as amend- otherwise assess the need for revision, ed (33 U.S.C. 1414(d)), to revise, revoke revocation or limitation of a permit or limit the terms and conditions of makes any of the determinations listed any permit issued pursuant to section in paragraph (a) of this section with re- 102 of the Act. Section 104(d) provides spect to a permit issued pursuant to that ‘‘the Administrator * * * may section 102 of the Act, and additionally limit or deny the issuance of permits, determines that revision, revocation or or he may alter or revoke partially or limitation of such permit is warranted, entirely the terms of permits issued by the Administrator or Regional Admin- him under this title, for the transpor- istrator, as the case may be, shall pro- tation for dumping, or for the dumping, vide notification of such proposed revi- or both of specified materials or classes sion, revocation or limitation to the of materials, where he finds that such permittee named in the permit, if any, materials cannot be dumped consist- the public, and any cognizant Federal/

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State agencies pursuant to paragraph gional Administrator, as appropriate, (c) of this section. determines that such request presents (c) Form of notification. Notice of any genuine issues, or (2) the Adminis- proposed revision, revocation or trator or Regional Administrator, as limitation of a permit shall be sent to the case may be, determines in his dis- the permittee by certified mail, return cretion that a public hearing is nec- receipt requested, and shall be pub- essary or appropriate, the Adminis- lished and otherwise disseminated in trator or Regional Administrator, as the manner described in § 222.3 (b) the case may be, will set a time and through (h). place for a public hearing in accord- (d) Contents of notice. The notice of ance with paragraph (c) of this section any proposed revision, revocation or and will give notice of such hearing by limitation of a permit issued pursuant publication in accordance with to paragraph (b) of this section shall § 223.3(c). In the event the Adminis- include, in addition to any other mate- trator or the Regional Administrator, rials, the following: as the case may be, determines that a (1) A brief description of the contents request filed pursuant to paragraph (a) of the permit, as set forth in § 223.1; of this section does not comply with (2) A description of the proposed revi- the requirements of paragraph (a) or sion, revocation, or limitation; that such request does not present gen- (3) A statement of the reason for such uine issues, he shall advise, in writing, proposed revision, revocation, or limi- the person requesting the hearing of tation; and (4) A statement that within thirty his determination. (30) days of the date of dissemination of (c) Time and place of hearing. Any the notice, any person may request a hearing authorized pursuant to this public hearing on the proposed revi- Section by the Administrator or Re- sion, revocation or limitation. gional Administrator, as the case may be, shall be held in the city in which [42 FR 60702, Nov. 28, 1977, as amended at 73 the Environmental Protection Agency FR 74986, Dec. 10, 2008] Regional Office which issued the per- § 223.4 Request for, scheduling and mit is located, whenever practicable, conduct of public hearing; deter- and shall be set for the earliest prac- mination. ticable date, but in no event less than (a) Request for hearing. Within thirty thirty (30) days after the receipt of an (30) days of the date of the dissemina- appropriate request for a hearing or a tion of any notice required by § 223.2(b), determination by the Administrator or any person may request the Adminis- the Regional Administrator, as the trator or Regional Administrator, as case may be, to hold such a hearing appropriate, to hold a public hearing without such a request. on the proposed revision, revocation or (d) Presiding Officer. Any hearing con- limitation by submitting a written re- vened pursuant to this part shall be quest containing the following: conducted by a Presiding Officer, who (1) Identification of the person re- shall be either a Regional Judicial Offi- questing the hearing and his interest in cer or a person having the qualifica- the proceeding; tions of the members of the Environ- (2) A statement of any objections to mental Appeals Board (described in 40 the proposed revision, revocation or CFR 1.25(e)) if assigned by the Adminis- limitation or to any facts or reasons trator or the qualifications of a Re- identified as supporting such revision, gional Judicial Officer if assigned by revocation or limitation; and the Regional Administrator, as appro- (3) A statement of the issues which priate. Such person shall be an attor- such person proposes to raise for con- ney who is a permanent or temporary sideration at such hearing. employee of the Agency, who is not (b) Grant or denial of hearing; notifica- employed by the Region’s or Head- tion. Whenever (1) a written request quarter’s Water Programs Division, satisfying the requirements of para- Surveillance and Analysis Division, or graph (a) of this section has been re- Enforcement Division, and who has had ceived, and the Administrator or Re- no connection with the preparation or

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presentation of evidence for any hear- record will be provided in accordance ing in which he participates as Judicial with 40 CFR part 2. Officer. (g) Determination of the Administrator (e) Conduct of the public hearing. The or Regional Administrator. Upon receipt Presiding Officer shall be responsible of the Presiding Officer’s recommenda- for the expeditious conduct of the hear- tions or, where no hearing has been ing. The hearing shall be an informal held, upon termination of the thirty public hearing, not an adversary pro- (30)-day period for requesting a hearing ceeding, and shall be conducted so as to provided in paragraph (a) of this sec- allow the presentation of public com- tion, the Administrator or the Re- ments. When the Presiding Officer de- gional Administrator, as the case may termines that it is necessary or appro- be, shall make a determination with priate, he shall cause a suitable record, respect to the modification, revocation which may include a verbatim tran- or suspension of the permit. Such de- script, of the proceedings to be made. termination shall include a description Any person may appear at a public of the permit revision, revocation or hearing convened pursuant to this sec- limitation, the basis therefor, and the tion whether or not he requested the effective date. A copy of such deter- hearing, and may be represented by mination shall be mailed to the per- counsel or any other authorized rep- mittee and each person who registered resentative. The Presiding Officer is his attendance at the hearing by pro- authorized to set forth reasonable re- viding his name and mailing address. strictions on the nature or amount of documentary material or testimony [42 FR 60702, Nov. 28, 1977, as amended at 57 presented at a public hearing, giving FR 5346, Feb. 13, 1992] due regard to the relevancy of any such § 223.5 Request for, scheduling and information, and to the avoidance of conduct of adjudicatory hearing; undue repetitiveness of information determination. presented. (f) Recommendations of Presiding Offi- Within ten (10) days following the re- cer. Within 30 days following the ad- ceipt of the Administrator’s or Re- journment of a public hearing convened gional Administrator’s determination pursuant to this section or within such issued pursuant to § 223.4(g), any person additional period as the Administrator who participated in the public hearing or the Regional Administrator, as the held pursuant to § 223.4 may request case may be, may grant to the Pre- that an adjudicatory hearing be held siding Officer for good cause shown, for the purpose of reviewing such deter- and after full consideration of the com- mination or any part thereof. Such re- ments received at the hearing, the Pre- quest shall be submitted and disposed siding Officer will prepare and forward of, and any adjudicatory hearing con- to the Administrator or to the Re- vened shall be conducted in accordance gional Administrator, as the case may with the procedures set forth in be, written recommendations relating §§ 222.10 (a), (b), (d), and (e) and 222.11. to the revision, revocation or limitation of the permit and the record of the PART 224—RECORDS AND REPORTS hearing, if any. Such recommendations REQUIRED OF OCEAN DUMPING shall contain a brief statement of the PERMITTEES UNDER SECTION 102 basis therefor, including a description OF THE ACT of evidence relied upon (1) to support any finding made pursuant to § 223.3(a); Sec. (2) to justify any proposed revision, 224.1 Records of permittees. revocation or limitation of the permit; 224.2 Reports. and (3) to justify any proposed revision, revocation or limitation which differs AUTHORITY: 33 U.S.C. 1412 and 1418. from that set forth in the notice issued pursuant to § 223.3(b). Copies of the Pre- § 224.1 Records of permittees. siding Officer’s recommendations shall Each permittee named in a special, be provided to any interested person on emergency or research permit under request, without charge. Copies of the section 102 of the Act and each person

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availing himself of the privilege con- Mariners the dumping location, the ferred by a general permit, shall main- type of containers, and whether the tain complete records of the following contents are toxic or explosive. Notifi- information, which will be available cation shall also be given to the Food for inspection by the Administrator, and Drug Administration, Shellfish Regional Administrator, the Com- Sanitation Branch, Washington, DC mandant of the U.S. Coast Guard, or 20204, as soon as possible. their respective designees: (a) The physical and chemical char- [42 FR 2474, Jan. 11, 1977] acteristics of the material dumped pursuant to the permit; PART 225—CORPS OF ENGINEERS (b) The precise times and locations of DREDGED MATERIAL PERMITS dumping; (c) Any other information required as Sec. a condition of a permit by the Adminis- 225.1 General. trator or the Regional Administrator, 225.2 Review of Dredged Material Permits. as the case may be. 225.3 Procedure for invoking economic impact. [42 FR 2474, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008] 225.4 Waiver by Administrator. AUTHORITY: 33 U.S.C. 1412 and 1418. § 224.2 Reports. SOURCE: 42 FR 2475, Jan. 11, 1977, unless (a) Periodic reports. Information re- otherwise noted. quired to be recorded pursuant to § 224.1 shall be reported to the Administrator § 225.1 General. or the Regional Administrator, as the case may be, for the periods indicated Applications and authorizations for within 30 days of the expiration of such Dredged Material Permits under sec- periods: tion 103 of the Act for the transpor- (1) For each six-month period, if any, tation of dredged material for the pur- following the effective date of the per- pose of dumping it in ocean waters will mit; be evaluated by the U.S. Army Corps of (2) For any other period of less than Engineers in accordance with the cri- six months ending on the expiration teria set forth in part 227 and processed date of the permit; and in accordance with 33 CFR 209.120 with (3) As otherwise required in the con- special attention to § 209.120(g)(17) and ditions of the permit. 33 CFR 209.145. (b) Reports of emergency dumping. If material is dumped without a permit § 225.2 Review of Dredged Material Permits. pursuant to paragraph (c)(4) of § 220.1, the owner or operator of the vessel or (a) The District Engineer shall send a aircraft from which such dumping oc- copy of the public notice to the appro- curs shall as soon as feasible inform priate Regional Administrator, and set the Administrator, Regional Adminis- forth in writing all of the following in- trator, or the nearest Coast Guard dis- formation: trict of the incident by radio, tele- (1) The location of the proposed dis- phone, or telegraph and shall within 10 posal site and its physical boundaries; days file a written report with the Ad- (2) A statement as to whether the ministrator or Regional Administrator site has been designated for use by the containing the information required Administrator pursuant to section under § 224.1 and a complete description 102(c) of the Act; of the circumstances under which the (3) If the proposed disposal site has dumping occurred. Such description not been designated by the Adminis- shall explain how human life at sea was trator, a statement of the basis for the in danger and how the emergency proposed determination why no pre- dumping reduced that danger. If the viously designated site is feasible and a material dumped included containers, description of the characteristics of the the vessel owner or operator shall im- proposed disposal site necessary for its mediately request the U.S. Coast designation pursuant to part 228 of this Guard to publish in the local Notice to subchapter H;

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(4) The known historical uses of the Permit for the dumping of dredged ma- proposed disposal site; terial into ocean waters has been re- (5) Existence and documented effects jected by a Regional Administrator of other authorized dumpings that have upon application of the Criteria, the been made in the dumping area (e.g., District Engineer may determine heavy metal background reading and whether, under section 103(d) of the organic carbon content); Act, there is an economically feasible (6) An estimate of the length of time alternative method or site available during which disposal will continue at other than the proposed dumping in the proposed site; ocean waters. If the District Engineer (7) Characteristics and composition makes any such preliminary deter- of the dredged material; and mination that there is no economically (8) A statement concerning a prelimi- feasible alternative method or site nary determination of the need for and/ available, he shall so advise the Re- or availability of an environmental im- gional Administrator setting forth his pact statement. reasons for such determination and (b) The Regional Administrator will shall submit a report of such deter- within 15 days of the date the public mination to the Chief of Engineers in notice and other information required accordance with 33 CFR 209.120 and to be submitted by paragraph (a) of 209.145. § 225.2 are received by him, review the (b) If the decision of the Chief of En- information submitted and request gineers is that ocean dumping at the from the District Engineer any addi- designated site is required because of tional information he deems necessary the unavailability of feasible alter- or appropriate to evaluate the proposed natives, he shall so certify and request dumping. that the Secretary of the Army seek a (c) Using the information submitted waiver from the Administrator of the by the District Engineer, and any other Criteria or of the critical site designa- information available to him, the Re- tion in accordance with § 225.4. gional Administrator will within 15 days after receipt of all requested in- § 225.4 Waiver by Administrator. formation, make an independent evaluation of the proposed dumping in ac- The Administrator shall grant the re- cordance with the criteria and respond quested waiver unless within 30 days of to the District Engineer pursuant to his receipt of the notice, certificate paragraph (d) or (e) of this section. The and request in accordance with para- Regional Administrator may request graph (b) of § 225.3 he determines in ac- an extension of this 15 day period to 30 cordance with this section that the days from the District Engineer. proposed dumping will have an unac- (d) When the Regional Administrator ceptable adverse effect on municipal determines that the proposed dumping water supplies, shellfish beds and fish- will comply with the criteria, he will ery areas (including spawning and so inform the District Engineer in breeding areas), wildlife, or rec- writing. reational areas. Notice of the Adminis- (e) When the Regional Administrator trator’s final determination under this determines that the proposed dumping section shall be given to the Secretary will not comply with the criteria he of the Army. shall so inform the District Engineer in writing. In such cases, no Dredged Ma- PART 227—CRITERIA FOR THE terial Permit for such dumping shall be EVALUATION OF PERMIT APPLI- issued unless and until the provisions CATIONS FOR OCEAN DUMPING of § 225.3 are followed and the Adminis- OF MATERIALS trator grants a waiver of the criteria pursuant to § 225.4. Subpart A—General

§ 225.3 Procedure for invoking eco- Sec. nomic impact. 227.1 Applicability. (a) When a District Engineer’s deter- 227.2 Materials which satisfy the environ- mination to issue a Dredged Material mental impact criteria of subpart B.

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227.3 Materials which do not satisfy the en- Subpart A—General vironmental impact criteria set forth in subpart B. § 227.1 Applicability. Subpart B—Environmental Impact (a) Section 102 of the Act requires that criteria for the issuance of ocean 227.4 Criteria for evaluating environmental disposal permits be promulgated after impact. consideration of the environmental ef- 227.5 Prohibited materials. fect of the proposed dumping oper- 227.6 Constituents prohibited as other than ation, the need for ocean dumping, al- trace contaminants. ternatives to ocean dumping, and the 227.7 Limits established for specific wastes effect of the proposed action on es- or waste constituents. thetic, recreational and economic val- 227.8 Limitations on the disposal rates of ues and on other uses of the ocean. toxic wastes. These parts 227 and 228 of this sub- 227.9 Limitations on quantities of waste materials. chapter H together constitute the cri- 227.10 Hazards to fishing, navigation, shore- teria established pursuant to section lines or beaches. 102 of the Act. The decision of the Ad- 227.11 Containerized wastes. ministrator, Regional Administrator or 227.12 Insoluble wastes. the District Engineer, as the case may 227.13 Dredged materials. be, to issue or deny a permit and to impose specific conditions on any permit Subpart C—Need for Ocean Dumping issued will be based on an evaluation of the permit application pursuant to the 227.14 Criteria for evaluating the need for criteria set forth in this part 227 and ocean dumping and alternatives to ocean upon the requirements for disposal site dumping. management pursuant to the criteria 227.15 Factors considered. set forth in part 228 of this subchapter 227.16 Basis for determination of need for ocean dumping. H. (b) With respect to the criteria to be Subpart D—Impact of the Proposed Dump- used in evaluating disposal of dredged ing on Esthetic, Recreational and Eco- materials, this section and subparts C, nomic Values D, E, and G apply in their entirety. To determine whether the proposed dump- 227.17 Basis for determination. ing of dredged material complies with 227.18 Factors considered. subpart B, only §§ 227.4, 227.5, 227.6, 227.19 Assessment of impact. 227.9, 227.10 and 227.13 apply. An applicant for a permit to dump dredged ma- Subpart E—Impact of the Proposed terial must comply with all of subparts Dumping on Other Uses of the Ocean C, D, E, G and applicable sections of B, 227.20 Basis for determination. to be deemed to have met the EPA cri- 227.21 Uses considered. teria for dredged material dumping 227.22 Assessment of impact. promulgated pursuant to section 102(a) of the Act. If, in any case, the Chief of Subpart F [Reserved] Engineers finds that, in the disposition of dredged material, there is no eco- Subpart G—Definitions nomically feasible method or site available other than a dumping site, 227.27 Limiting permissible concentration the utilization of which would result in (LPC). noncompliance with the criteria estab- 227.28 Release zone. lished pursuant to subpart B relating 227.29 Initial mixing. to the effects of dumping or with the 227.30 High-level radioactive waste. restrictions established pursuant to 227.31 Applicable marine water quality cri- section 102(c) of the Act relating to teria. 227.32 Liquid, suspended particulate, and critical areas, he shall so certify and solid phases of a material. request that the Secretary of the Army seek a waiver from the Administrator AUTHORITY: 33 U.S.C. 1412 and 1418. pursuant to part 225. SOURCE: 42 FR 2476, Jan. 11, 1977, unless (c) The Criteria of this part 227 are otherwise noted. established pursuant to section 102 of

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the Act and apply to the evaluation of this part, the Administrator or the Re- proposed dumping of materials under gional Administrator, as the case may title I of the Act. The Criteria of this be, will deny the permit application. part 227 deal with the evaluation of proposed dumping of materials on a [73 FR 74987, Dec. 10, 2008] case-by-case basis from information supplied by the applicant or otherwise Subpart B—Environmental Impact available to EPA or the Corps of Engi- neers concerning the characteristics of § 227.4 Criteria for evaluating environ- the waste and other considerations re- mental impact. lating to the proposed dumping. This subpart B sets specific environ- (d) After consideration of the provi- mental impact prohibitions, limits, sions of §§ 227.28 and 227.29, no permit and conditions for the dumping of ma- will be issued when the dumping would terials into ocean waters. If the appli- result in a violation of applicable cable prohibitions, limits, and condi- water quality standards. tions are satisfied, it is the determination of EPA that the proposed disposal § 227.2 Materials which satisfy the environmental impact criteria of sub- will not unduly degrade or endanger part B. the marine environment and that the (a) If the applicant satisfactorily disposal will present: demonstrates that the material pro- (a) No unacceptable adverse effects posed for ocean dumping satisfies the on human health and no significant environmental impact criteria set damage to the resources of the marine forth in subpart B, a permit for ocean environment; dumping will be issued unless: (b) No unacceptable adverse effect on (1) There is no need for the dumping, the marine ecosystem; and alternative means of disposal are (c) No unacceptable adverse per- available, as determined in accordance sistent or permanent effects due to the with the criteria set forth in subpart C; dumping of the particular volumes or or concentrations of these materials; and (2) There are unacceptable adverse ef- (d) No unacceptable adverse effect on fects on esthetic, recreational or eco- the ocean for other uses as a result of nomic values as determined in accord- direct environmental impact. ance with the criteria set forth in subpart D; or § 227.5 Prohibited materials. (3) There are unacceptable adverse ef- The ocean dumping of the following fects on other uses of the ocean as de- materials will not be approved by EPA termined in accordance with the cri- or the Corps of Engineers under any teria set forth in subpart E. circumstances: (b) If the material proposed for ocean dumping satisfies the environmental (a) High-level radioactive wastes as impact criteria set forth in subpart B, defined in § 227.30; but the Administrator or the Regional (b) Materials in whatever form (in- Administrator, as the case may be, de- cluding without limitation, solids, liq- termines that any one of the consider- uids, semi-liquids, gases or organisms) ations set forth in paragraph (a)(1), (2) produced or used for radiological, or (3) of this section applies, he or she, chemical or biological warfare; as the case may be, will deny the per- (c) Materials insufficiently described mit application. by the applicant in terms of their com- positions and properties to permit ap- [42 FR 2476, Jan. 11, 1977, as amended at 73 FR 74986, Dec. 10, 2008] plication of the environmental impact criteria of this subpart B; § 227.3 Materials which do not satisfy (d) Persistent inert synthetic or nat- the environmental impact criteria ural materials which may float or re- set forth in subpart B. main in suspension in the ocean in If the material proposed for ocean such a manner that they may interfere dumping does not satisfy the environ- materially with fishing, navigation, or mental impact criteria of subpart B of other legitimate uses of the ocean.

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§ 227.6 Constituents prohibited as waters at or near the dumping site other than trace contaminants. which would be present in the absence (a) Subject to the exclusions of para- of dumping, by not more than 50 per- graphs (f), (g) and (h) of this section, cent; and the ocean dumping, or transportation (2) Bioassay results on the suspended for dumping, of materials containing particulate phase of the waste do not the following constituents as other indicate occurrence of significant mor- than trace contaminants will not be tality or significant adverse sublethal approved on other than an emergency effects due to the dumping of wastes basis: containing the constituents listed in (1) Organohalogen compounds; paragraph (a) of this section. These (2) Mercury and mercury compounds; bioassays shall be conducted with ap- (3) Cadmium and cadmium com- propriate sensitive marine organisms pounds; as defined in § 227.27(c) using procedures (4) Oil of any kind or in any form, infor suspended particulate phase bio- cluding but not limited to petroleum, assays approved by EPA, or, for oil sludge, oil refuse, crude oil, fuel oil, dredged material, approved by EPA and heavy diesel oil, lubricating oils, hy- the Corps of Engineers. Procedures ap- draulic fluids, and any mixtures con- proved for bioassays under this section taining these, transported for the pur- will require exposure of organisms for a pose of dumping insofar as these are sufficient period of time and under ap- not regulated under the FWPCA; propriate conditions to provide reason- (5) Known carcinogens, mutagens, or able assurance, based on consideration teratogens or materials suspected to be of the statistical significance of effects carcinogens, mutagens, or teratogens at the 95 percent confidence level, that, by responsible scientific opinion. when the materials are dumped, no sig- (b) These constituents will be consid- nificant undesirable effects will occur ered to be present as trace contami- due to chronic toxicity of the constitu- nants only when they are present in ents listed in paragraph (a) of this sec- materials otherwise acceptable for tion; and ocean dumping in such forms and (3) Bioassay results on the solid amounts in liquid, suspended particu- phase of the wastes do not indicate oc- late, and solid phases that the dumping currence of significant mortality or of the materials will not cause sig- significant adverse sublethal effects nificant undesirable effects, including due to the dumping of wastes con- the possibility of danger associated taining the constituents listed in para- with their bioaccumulation in marine graph (a) of this section. These bio- organisms. assays shall be conducted with appro- (c) The potential for significant un- priate sensitive benthic marine orga- desirable effects due to the presence of nisms using benthic bioassay proce- these constituents shall be determined dures approved by EPA, or, for dredged by application of results of bioassays material, approved by EPA and the on liquid, suspended particulate, and Corps of Engineers. Procedures ap- solid phases of wastes according to pro- proved for bioassays under this section cedures acceptable to EPA, and for will require exposure of organisms for a dredged material, acceptable to EPA sufficient period of time to provide rea- and the Corps of Engineers. Materials sonable assurance, based on consider- shall be deemed environmentally ac- ations of statistical significance of ef- ceptable for ocean dumping only when fects at the 95 percent confidence level, the following conditions are met: that, when the materials are dumped, (1) The liquid phase does not contain no significant undesirable effects will any of these constituents in concentra- occur due either to chronic toxicity or tions which will exceed applicable ma- to bioaccumulation of the constituents rine water quality criteria after allow- listed in paragraph (a) of this section; ance for initial mixing; provided that and mercury concentrations in the disposal (4) For persistent organohalogens not site, after allowance for initial mixing, included in the applicable marine may exceed the average normal ambi- water quality criteria, bioassay results ent concentrations of mercury in ocean on the liquid phase of the waste show

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that such compounds are not present in not endanger human health or that of concentrations large enough to cause domestic animals. significant undesirable effects due (h) The prohibitions and limitations either to chronic toxicity or to bioac- of this section do not apply to the con- cumulation in marine organisms after stituents identified in paragraph (a) of allowance for initial mixing. this section for the granting of permits (d) When the Administrator, Re- for the transport of these substances gional Administrator or District Engi- for the purpose of incineration at sea if neer, as the case may be, has reason- the applicant can demonstrate that the able cause to believe that a material stack emissions consist of substances proposed for ocean dumping contains which are rapidly rendered harmless by compounds identified as carcinogens, physical, chemical or biological proc- mutagens, or teratogens for which cri- esses in the sea. Incinerator operations teria have not been included in the ap- shall comply with requirements which plicable marine water quality criteria, will be established on a case-by-case he may require special studies to be basis. done prior to issuance of a permit to determine the impact of disposal on [42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, human health and/or marine eco- 1978, as amended at 59 FR 26572, May 20, 1994; systems. Such studies must provide in- 59 FR 52652, Oct. 18, 1994; 73 FR 74987, Dec. 10, formation comparable to that required 2008] under paragraph (c)(3) of this section. (e) The criteria stated in paragraphs § 227.7 Limits established for specific wastes or waste constituents. (c)(2) and (3) of this section are mandatory. The availability of acceptable Materials containing the following procedures was announced in the FED- constituents must meet the additional ERAL REGISTER in 1991 and 1996. limitations specified in this section to (f) The prohibitions and limitations be deemed acceptable for ocean dump- of this section do not apply to the con- ing: stituents identified in paragraph (a) of (a) Liquid waste constituents immis- this section when the applicant can cible with or slightly soluble in sea- demonstrate that such constituents are water, such as benzene, xylene, carbon (1) present in the material only as disulfide and toluene, may be dumped chemical compounds or forms (e.g., only when they are present in the inert insoluble solid materials) non- waste in concentrations below their toxic to marine life and non-bio- solubility limits in seawater. This pro- accumulative in the marine environ- vision does not apply to materials ment upon disposal and thereafter, or which may interact with ocean water (2) present in the material only as to form insoluble materials; chemical compounds or forms which, at (b) Radioactive materials, other than the time of dumping and thereafter, those prohibited by § 227.5, must be con- will be rapidly rendered non-toxic to tained in accordance with the provi- marine life and non-bioaccumulative in sions of § 227.11 to prevent their direct the marine environment by chemical dispersion or dilution in ocean waters; or biological degradation in the sea; (c) Wastes containing living orga- provided they will not make edible ma- nisms may not be dumped if the orga- rine organisms unpalatable; or will not nisms present would endanger human endanger human health or that of domestic animals, fish, shellfish, or wild- health or that of domestic animals, life. fish, shellfish and wildlife by: (g) The prohibitions and limitations (1) Extending the range of biological of this section do not apply to the con- pests, viruses, pathogenic microorga- stituents identified in paragraph (a) of nisms or other agents capable of infest- this section for the granting of re- ing, infecting or extensively and per- search permits if the substances are manently altering the normal popu- rapidly rendered harmless by physical, lations of organisms; chemical or biological processes in the (2) Degrading uninfected areas; or sea; provided they will not make edible (3) Introducing viable species not in- marine organisms unpalatable and will digenous to an area.

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(d) In the dumping of wastes of high- § 227.10 Hazards to fishing, navigation, ly acidic or alkaline nature into the shorelines or beaches. ocean, consideration shall be given to: (a) Wastes which may present a seri- (1) The effects of any change in acid- ous obstacle to fishing or navigation ity or alkalinity of the water at the may be dumped only at disposal sites disposal site; and and under conditions which will insure (2) The potential for synergistic ef- no unacceptable interference with fish- fects or for the formation of toxic coming or navigation. pounds at or near the disposal site. Al- (b) Wastes which may present a haz- lowance may be made in the permit ard to shorelines or beaches may be conditions for the capability of ocean dumped only at sites and under condi- waters to neutralize acid or alkaline tions which will insure no unacceptable wastes; provided, however, that dump- danger to shorelines or beaches. ing conditions must be such that the average total alkalinity or total acid- § 227.11 Containerized wastes. ity of the ocean water after allowance (a) Wastes containerized solely for for initial mixing, as defined in § 227.29, transport to the dumping site and ex- may be changed, based on stoichio- pected to rupture or leak on impact or metric calculations, by no more than shortly thereafter must meet the ap- 10 percent during all dumping oper- propriate requirements of §§ 227.6, 227.7, ations at a site to neutralize acid or al- 227.8, 227.9, and 227.10. kaline wastes. (b) Other containerized wastes will be (e) Wastes containing biodegradable approved for dumping only under the constituents, or constituents which following conditions: consume oxygen in any fashion, may be (1) The materials to be disposed of dumped in the ocean only under condi- decay, decompose or radiodecay to en- tions in which the dissolved oxygen vironmentally innocuous materials within the life expectancy of the con- after allowance for initial mixing, as tainers and/or their inert matrix; and defined in § 227.29, will not be depressed (2) Materials to be dumped are by more than 25 percent below the nor- present in such quantities and are of mally anticipated ambient conditions such nature that only short-term local- in the disposal area at the time of ized adverse effects will occur should dumping. the containers rupture at any time; and § 227.8 Limitations on the disposal rates of toxic wastes. (3) Containers are dumped at depths and locations where they will cause no No wastes will be deemed acceptable threat to navigation, fishing, shore- for ocean dumping unless such wastes lines, or beaches. can be dumped so as not to exceed the limiting permissible concentration as § 227.12 Insoluble wastes. defined in § 227.27; Provided, That this (a) Solid wastes consisting of inert § 227.8 does not apply to those wastes natural minerals or materials compat- for which specific criteria are estab- ible with the ocean environment may lished in § 227.11 or § 227.12. Total quan- be generally approved for ocean dump- tities of wastes dumped at a site may ing provided they are insoluble above be limited as described in § 228.8. the applicable trace or limiting permissible concentrations and are rapidly § 227.9 Limitations on quantities of and completely settleable, and they are waste materials. of a particle size and density that they Substances which may damage the would be deposited or rapidly dispersed ocean environment due to the quan- without damage to benthic, demersal, tities in which they are dumped, or or pelagic biota. which may seriously reduce amenities, (b) Persistent inert synthetic or nat- may be dumped only when the quan- ural materials which may float or re- tities to be dumped at a single time main in suspension in the ocean as pro- and place are controlled to prevent hibited in paragraph (d) of § 227.5 may long-term damage to the environment be dumped in the ocean only when they or to amenities. have been processed in such a fashion

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that they will sink to the bottom and mentally acceptable for ocean dumping remain in place. only under the following conditions: (1) The material is in compliance § 227.13 Dredged materials. with the requirements of § 227.6; and (a) Dredged materials are bottom (2)(i) All major constituents of the sediments or materials that have been liquid phase are in compliance with the dredged or excavated from the navi- applicable marine water quality cri- gable waters of the United States, and teria after allowance for initial mixing; or their disposal into ocean waters is reg- (ii) When the liquid phase contains ulated by the U.S. Army Corps of Engi- major constituents not included in the neers using the criteria of applicable applicable marine water quality cri- sections of parts 227 and 228. Dredged teria, or there is reason to suspect syn- material consists primarily of natural ergistic effects of certain contami- sediments or materials which may be nants, bioassays on the liquid phase of contaminated by municipal or indus- the dredged material show that it can trial wastes or by runoff from terres- be discharged so as not to exceed the trial sources such as agricultural limiting permissible concentration as lands. defined in paragraph (a) of § 227.27; and (b) Dredged material which meets the (3) Bioassays on the suspended par- criteria set forth in the following para- ticulate and solid phases show that it graphs (b)(1), (2), or (3) of this section is can be discharged so as not to exceed environmentally acceptable for ocean the limiting permissible concentration dumping without further testing under as defined in paragraph (b) of § 227.27. this section: (d) For the purposes of paragraph (1) Dredged material is composed pre- (c)(2) of this section, major constitu- dominantly of sand, gravel, rock, or ents to be analyzed in the liquid phase any other naturally occurring bottom are those deemed critical by the Dis- material with particle sizes larger than trict Engineer, after evaluating and silt, and the material is found in areas considering any comments received of high current or wave energy such as from the Regional Administrator, and streams with large bed loads or coastal considering known sources of dis- areas with shifting bars and channels; charges in the area. or (2) Dredged material is for beach Subpart C—Need for Ocean nourishment or restoration and is com- Dumping posed predominantly of sand, gravel or shell with particle sizes compatible § 227.14 Criteria for evaluating the with material on the receiving beaches; need for ocean dumping and alter- or natives to ocean dumping. (3) When: (i) The material proposed This subpart C states the basis on for dumping is substantially the same which an evaluation will be made of as the substrate at the proposed dis- the need for ocean dumping, and alter- posal site; and natives to ocean dumping. The nature (ii) The site from which the material of these factors does not permit the proposed for dumping is to be taken is promulgation of specific quantitative far removed from known existing and criteria of each permit application. historical sources of pollution so as to These factors will therefore be evalu- provide reasonable assurance that such ated if applicable for each proposed material has not been contaminated by dumping on an individual basis using such pollution. the guidelines specified in this subpart (c) When dredged material proposed C. for ocean dumping does not meet the criteria of paragraph (b) of this section, § 227.15 Factors considered. further testing of the liquid, suspended The need for dumping will be deter- particulate, and solid phases, as de- mined by evaluation of the following fined in § 227.32, is required. Based on factors: the results of such testing, dredged ma- (a) Degree of treatment useful and terial can be considered to be environ- feasible for the waste to be dumped,

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and whether or not the waste material petitive with the costs of ocean dump- has been or will be treated to this de- ing, taking into account the environ- gree before dumping; mental benefits derived from such ac- (b) Raw materials and manufacturing tivity, including the relative adverse or other processes resulting in the environmental impacts associated with waste, and whether or not these mate- the use of alternatives to ocean dump- rials or processes are essential to the ing. provision of the applicant’s goods or (c) The duration of permits issued services, or if other less polluting ma- under subchapter H and other terms terials or processes could be used; and conditions imposed in those per- (c) The relative environmental risks, mits shall be determined after taking impact and cost for ocean dumping as into account the factors set forth in opposed to other feasible alternatives including but not limited to: this section. Notwithstanding compli- (1) Land fill; ance with subparts B, D, and E of this (2) Well injection; part 227 permittees may, on the basis (3) Incineration; of the need for and alternatives to (4) Spread of material over open ocean dumping, be required to termi- ground; nate all ocean dumping by a specified (5) Recycling of material for reuse; date, to phase out all ocean dumping (6) Additional biological, chemical, over a specified period or periods, to or physical treatment of intermediate continue research and development of or final waste streams; alternative methods of disposal and (7) Storage. make periodic reports of such research (d) Irreversible or irretrievable con- and development in order to provide sequences of the use of alternatives to additional information for periodic re- ocean dumping. view of the need for and alternatives to ocean dumping, or to take such other § 227.16 Basis for determination of action as the Administrator, the Re- need for ocean dumping. gional Administrator, or District Engi- (a) A need for ocean dumping will be neer, as the case may be, determines to considered to have been demonstrated be necessary or appropriate. when a thorough evaluation of the factors listed in § 227.15 has been made, and the Administrator, Regional Ad- Subpart D—Impact of the Pro- ministrator or District Engineer, as posed Dumping on Esthetic, the case may be, has determined that Recreational and Economic the following conditions exist where Values applicable: (1) There are no practicable improve- § 227.17 Basis for determination. ments which can be made in process (a) The impact of dumping on es- technology or in overall waste treat- thetic, recreational and economic val- ment to reduce the adverse impacts of ues will be evaluated on an individual the waste on the total environment; basis using the following consider- (2) There are no practicable alterations: native locations and methods of dis- (1) Potential for affecting rec- posal or recycling available, including reational use and values of ocean wa- without limitation, storage until treat- ters, inshore waters, beaches, or shore- ment facilities are completed, which lines; have less adverse environmental impact or potential risk to other parts of (2) Potential for affecting the rec- the environment than ocean dumping. reational and commercial values of liv- (b) For purposes of paragraph (a) of ing marine resources. this section, waste treatment or im- (b) For all proposed dumping, full provements in processes and alter- consideration will be given to such native methods of disposal are prac- nonquantifiable aspects of esthetic, ticable when they are available at rea- recreational and economic impact as: sonable incremental cost and energy (1) Responsible public concern for the expenditures, which need not be com- consequences of the proposed dumping;

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(2) Consequences of not authorizing made based on the effect on esthetic, the dumping including without limita- recreational and economic values based tion, the impact on esthetic, rec- on the factors set forth in this subpart reational and economic values with re- D, including where applicable, en- spect to the municipalities and indus- hancement of these values, and the re- tries involved. sults of the assessment will be expressed, where possible, on a quan- § 227.18 Factors considered. titative basis, such as percentage of a The assessment of the potential for resource lost, reduction in use days of impacts on esthetic, recreational and recreational areas, or dollars lost in economic values will be based on an commercial fishery profits or the prof- evaluation of the appropriate charac- itability of other commercial enter- teristics of the material to be dumped, prises. allowing for conservative rates of dilution, dispersion, and biochemical deg- Subpart E—Impact of the Pro- radation during movement of the mate- posed Dumping on Other rials from a disposal site to an area of Uses of the Ocean significant recreational or commercial value. The following specific factors § 227.20 Basis for determination. will be considered in making such an (a) Based on current state of the art, assessment: consideration must be given to any (a) Nature and extent of present and possible long-range effects of even the potential recreational and commercial most innocuous substances when use of areas which might be affected by dumped in the ocean on a continuing the proposed dumping; basis. Such a consideration is made in (b) Existing water quality, and na- evaluating the relationship of each pro- ture and extent of disposal activities, posed disposal activity in relationship in the areas which might be affected by to its potential for long-range impact the proposed dumping; on other uses of the ocean. (c) Applicable water quality stand- (b) An evaluation will be made on an ards; individual basis for each proposed (d) Visible characteristics of the ma- dumping of material of the potential terials (e.g., color, suspended particu- for effects on uses of the ocean for pur- lates) which result in an unacceptable poses other than material disposal. The estetic nuisance in recreational areas; factors to be considered in this evalua- (e) Presence in the material of patho- tion include those stated in subpart D, genic organisms which may cause a but the evaluation of this subpart E public health hazard either directly or will be based on the impact of the pro- through contamination of fisheries or posed dumping on specific uses of the shellfisheries; ocean rather than on overall esthetic, (f) Presence in the material of toxic recreational and economic values. chemical constituents released in volumes which may affect humans di- § 227.21 Uses considered. rectly; An appraisal will be made of the na- (g) Presence in the material of chem- ture and extent of existing and poten- ical constituents which may be bio- tial uses of the disposal site itself and accumulated or persistent and may of any areas which might reasonably be have an adverse effect on humans di- expected to be affected by the proposed rectly or through food chain inter- dumping, and a quantitative and quali- actions; tative evaluation made, where feasible, (h) Presence in the material of any of the impact of the proposed dumping constituents which might significantly on each use. The uses considered shall affect living marine resources of rec- include, but not be limited to: reational or commercial value. (a) Commercial fishing in open ocean areas; § 227.19 Assessment of impact. (b) Commercial fishing in coastal An overall assessment of the pro- areas; posed dumping and possible alternative (c) Commercial fishing in estuarine methods of disposal or recycling will be areas;

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(d) Recreational fishing in open terial to justify the use of an applica- ocean areas; tion factor other than 0.01 as specified (e) Recreational fishing in coastal in paragraph (a)(2) of this section, such areas; alternative application factor shall be (f) Recreational fishing in estuarine used in calculating the LPC. areas; (b) The limiting permissible con- (g) Recreational use of shorelines and centration of the suspended particulate beaches; and solid phases of a material means (h) Commercial navigation; that concentration which will not (i) Recreational navigation; cause unreasonable acute or chronic (j) Actual or anticipated exploitation of living marine resources; toxicity or other sublethal adverse ef- (k) Actual or anticipated exploi- fects based on bioassay results using tation of non-living resources, includ- appropriate sensitive marine orga- ing without limitation, sand and gravel nisms in the case of the suspended par- places and other mineral deposits, oil ticulate phase, or appropriate sensitive and gas exploration and development benthic marine organisms in the case and offshore marine terminal or other of the solid phase; and which will not structure development; and cause accumulation of toxic materials (l) Scientific research and study. in the human food chain. Suspended particulate phase bioaccumulation § 227.22 Assessment of impact. testing is not required. These bioassays The assessment of impact on other are to be conducted in accordance with uses of the ocean will consider both procedures approved by EPA, or, in the temporary and long-range effects with- case of dredged material, approved by in the state of the art, but particular EPA and the Corps of Engineers. emphasis will be placed on any irre- (c) Appropriate sensitive marine orga- versible or irretrievable commitment nisms means at least one species each of resources that would result from the representative of phytoplankton or proposed dumping. zooplankton, crustacean or mollusk, and fish species chosen from among the Subpart F [Reserved] most sensitive species documented in the scientific literature or accepted by Subpart G—Definitions EPA as being reliable test organisms to determine the anticipated impact of § 227.27 Limiting permissible concen- the wastes on the ecosystem at the dis- tration (LPC). posal site. Bioassays, except on (a) The limiting permissible con- phytoplankton or zooplankton, shall be centration of the liquid phase of a ma- run for a minimum of 96 hours under terial is: temperature, salinity, and dissolved (1) That concentration of a con- oxygen conditions representing the ex- stituent which, after allowance for ini- tremes of environmental stress at the tial mixing as provided in § 227.29, does disposal site. Bioassays on not exceed applicable marine water phytoplankton or zooplankton may be quality criteria; or, when there are no run for shorter periods of time as ap- applicable marine water quality cri- propriate for the organisms tested at teria, (2) That concentration of waste or the discretion of EPA, or EPA and the dredged material in the receiving Corps of Engineers, as the case may be. water which, after allowance for initial (d) Appropriate sensitive benthic marine mixing, as specified in § 227.29, will not organisms means two or more species exceed a toxicity threshold defined as that together represent filter-feeding, 0.01 of a concentration shown to be deposit-feeding, and burrowing charac- acutely toxic to appropriate sensitive teristics. These organisms shall be cho- marine organisms in a bioassay carried sen from among the species that are out in accordance with approved EPA most sensitive for each type they rep- procedures. resent, and that are documented in the (3) When there is reasonable sci- scientific literature and accepted by entific evidence on a specific waste ma- EPA as being reliable test organisms to

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determine the anticipated impact on (1) The liquid and suspended particu- the site. late phases of the dumped waste may [42 FR 2476, Jan. 11, 1977; 43 FR 1071, Jan. 6, be assumed to be evenly distributed 1978, as amended at 59 FR 26572, May 20, 1994; after four hours over a column of water 59 FR 52652, Oct. 18, 1994; 61 FR 51203, Sept. bounded on the surface by the release 30, 1996; 65 FR 47325, Aug. 2, 2000; 73 FR 74987, zone and extending to the ocean floor, Dec. 10, 2008] thermocline, or halocline if one exists, or to a depth of 20 meters, whichever is § 227.28 Release zone. shallower, and The release zone is the area swept (2) The solid phase of a dumped waste out by the locus of points constantly may be assumed to settle rapidly to 100 meters from the perimeter of the the ocean bottom and to be distributed conveyance engaged in dumping activi- evenly over the ocean bottom in an ties, beginning at the first moment in area equal to that of the release zone which dumping is scheduled to occur as defined in § 227.28. and ending at the last moment in (c) When there is reasonable sci- which dumping is scheduled to occur. entific evidence to demonstrate that No release zone shall exceed the total other methods of estimating a reason- surface area of the dumpsite. able allowance for initial mixing are appropriate for a specific material, § 227.29 Initial mixing. such methods may be used with the (a) Initial mixing is defined to be concurrence of EPA after appropriate that dispersion or diffusion of liquid, scientific review. suspended particulate, and solid phases of a waste which occurs within four § 227.30 High-level radioactive waste. hours after dumping. The limiting permissible concentration shall not be ex- High-level radioactive waste means ceeded beyond the boundaries of the the aqueous waste resulting from the disposal site during initial mixing, and operation of the first cycle solvent ex- shall not be exceeded at any point in traction system, or equivalent, and the the marine environment after initial concentrated waste from subsequent mixing. The maximum concentration extraction cycles, or equivalent, in a of the liquid, suspended particulate, facility for reprocessing irradiated re- and solid phases of a dumped material actor fuels or irradiated fuel from nu- after initial mixing shall be estimated clear power reactors. by one of these methods, in order of § 227.31 Applicable marine water qual- preference: ity criteria. (1) When field data on the proposed dumping are adequate to predict initial Applicable marine water quality cri- dispersion and diffusion of the waste, teria means the criteria given for ma- these shall be used, if necessary, in rine waters in the EPA publication conjunction with an appropriate math- ‘‘Quality Criteria for Water’’ as pub- ematical model acceptable to EPA or lished in 1976 and amended by subse- the District Engineer, as appropriate. quent supplements or additions. (2) When field data on the dispersion and diffusion of a waste of characteris- § 227.32 Liquid, suspended particulate, tics similar to that proposed for dis- and solid phases of a material. charge are available, these shall be (a) For the purposes of these regula- used in conjunction with an appro- tions, the liquid phase of a material, priate mathematical model acceptable subject to the exclusions of paragraph to EPA or the District Engineer, as ap- (b) of this section, is the supernatant propriate. remaining after one hour undisturbed (3) When no field data are available, settling, after centrifugation and fil- theoretical oceanic turbulent diffusion tration through a 0.45 micron filter. relationships may be applied to known The suspended particulate phase is the characteristics of the waste and the supernatant as obtained above prior to disposal site. centrifugation and filtration. The solid (b) When no other means of esti- phase includes all material settling to mation are feasible. the bottom in one hour. Settling shall

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be conducted according to procedures PART 228—CRITERIA FOR THE MAN- approved by EPA. AGEMENT OF DISPOSAL SITES (b) For dredged material, other mate- FOR OCEAN DUMPING rial containing large proportions of insoluble matter, materials which may Sec. interact with ocean water to form in- 228.1 Applicability. soluble matter or new toxic com- 228.2 Definitions. pounds, or materials which may release 228.3 Disposal site management responsibil- toxic compounds upon deposition, the ities. Administrator, Regional Adminis- 228.4 Procedures for designation of sites. trator, or the District Engineer, as the 228.5 General criteria for the selection of sites. case may be, may require that the sep- 228.6 Specific criteria for site selection. aration of liquid, suspended particu- 228.7 Regulation of disposal site use. late, and solid phases of the material 228.8 Limitations on times and rates of dis- be performed upon a mixture of the posal. waste with ocean water rather than on 228.9 Disposal site monitoring. the material itself. In such cases the 228.10 Evaluating disposal impact. following procedures shall be used: 228.11 Modification in disposal site use. (1) For dredged material, the liquid 228.12 [Reserved] 228.13 Guidelines for ocean disposal site phase is considered to be the baseline or trend assessment surveys centrifuged and 0.45 micron filtered su- under section 102 of the Act. pernatant remaining after one hour un- 228.14 [Reserved] disturbed settling of the mixture re- 228.15 Dumping sites designated on a final sulting from a vigorous 30-minute agi- basis. tation of one part bottom sediment AUTHORITY: 33 U.S.C. 1412 and 1418. from the dredging site with four parts SOURCE: 42 FR 2482, Jan. 11, 1977, unless water (vol/vol) collected from the otherwise noted. dredging site or from the disposal site, as appropriate for the type of dredging § 228.1 Applicability. operation. The suspended particulate The criteria of this part 228 are es- phase is the supernatant as obtained tablished pursuant to section 102 of the above prior to centrifugation and fil- Act and apply to the evaluation of pro- tration. The solid phase is considered posed ocean dumping under title I of to be all material settling to the bot- the Act. The criteria of this part 228 tom within one hour. Settling shall be deal with the evaluation of the pro- conducted by procedures approved by posed dumping of material in ocean EPA and the Corps of Engineers. waters in relation to continuing re- (2) For other materials, the propor- quirements for effective management tion of ocean water used shall be the of ocean disposal sites to prevent un- minimum amount necessary to produce reasonable degradation of the marine the anticipated effect (e.g., complete environment from all wastes being neutralization of an acid or alkaline dumped in the ocean. This part 228 is waste) based on guidance provided by applicable to dredged material disposal EPA on particular cases, or in accord- sites only as specified in §§ 228.4(e), ance with approved EPA procedures. 228.9, and 228.12. For such materials the liquid phase is § 228.2 Definitions. the filtered and centrifuged supernatant resulting from the mixture (a) The term disposal site means a fi- after 30 minutes of vigorous shaking nally approved and precise geo- followed by undisturbed settling for graphical area within which ocean one hour. The suspended particulate dumping of wastes is permitted under phase is the supernatant as obtained conditions specified in permits issued above prior to centrifugation and fil- under sections 102 and 103 of the Act. Such sites are identified by boundaries tration. The solid phase is the insol- established by coordinates of latitude uble material settling to the bottom in and longitude for each corner, or by co- that period. ordinates of latitude and longitude for

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the center point and a radius in nau- piled on a routine basis by the Federal tical miles from that point. Boundary or State agency responsible for com- coordinates shall be identified as pre- piling such statistics for the general cisely as is warranted by the accuracy geographical area impacted, or which with which the site can be located with are under current study by such Fed- existing navigational aids or by the im- eral or State agencies for potential de- plantation of transponders, buoys or velopment for commercial or rec- other means of marking the site. reational use. (b) The term baseline or trend assess- (h) Normal ambient value means that ment survey means the planned sam- concentration of a chemical species pling or measurement of parameters at reasonably anticipated to be present in set stations or in set areas in and near the water column, sediments, or biota disposal sites for a period of time suffi- in the absence of disposal activities at cient to provide synoptic data for de- the disposal site in question. termining water quality, benthic, or bi- [42 FR 2482, Jan. 11, 1977, as amended at 73 ological conditions as a result of ocean FR 74987, Dec. 10, 2008] disposal operations. The minimum requirements for such surveys are given § 228.3 Disposal site management re- in § 228.13. sponsibilities. (c) The term disposal site evaluation (a) Management of a site consists of study means the collection, analysis, regulating times, rates, and methods of and interpretation of all pertinent in- disposal and quantities and types of formation available concerning an ex- materials disposed of; developing and isting disposal site, including but not maintaining effective ambient moni- limited to, data and information from toring programs for the site; con- trend assessment surveys, monitoring ducting disposal site evaluation and surveys, special purpose surveys of designation studies; and recommending other Federal agencies, public data ar- modifications in site use and/or des- chives, and social and economic studies ignation (e.g., termination of use of the and records of affected areas. site for general use or for disposal of (d) The term disposal site designation specific wastes). study means the collection, analysis (b) Each site, upon final designation, and interpretation of all available per- will be assigned to either an EPA Re- tinent data and information on a pro- gional office or to EPA Headquarters posed disposal site prior to use, includ- for management. These designations ing but not limited to, that from base- will be consistent with the delegation line surveys, special purpose surveys of of authority in § 220.4 of this chapter. other Federal agencies, public data ar- The designated management authority chives, and social and economic studies is fully responsible for all aspects of and records of areas which would be af- the management of sites within the fected by use of the proposed site. general requirements specified in § 220.4 (e) The term management authority and this chapter. Specific requirements means the EPA organizational entity for meeting the management respon- assigned responsibility for imple- sibilities assigned to the designated menting the management functions management authority for each site identified in § 228.3. are outlined in §§ 228.5 and 228.6. (f) Statistical significance shall mean [42 FR 2482, Jan. 11, 1977, as amended at 59 the statistical significance determined FR 61129, Nov. 29, 1994; 73 FR 74987, Dec. 10, by using appropriate standard tech- 2008] niques of multivariate analysis with results interpreted at the 95 percent § 228.4 Procedures for designation of confidence level and based on data re- sites. lating species which are present in suf- (a) General Permits. Geographical ficient numbers at control areas to per- areas or regions within which mate- mit a valid statistical comparison with rials may be dumped under a general the areas being tested. permit will be published as part of the (g) Valuable commercial and rec- promulgation of each general permit. reational species shall mean those spe- (b) Special permits. Areas where ocean cies for which catch statistics are com- dumping is permitted subject to the

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specific conditions of individual special the appropriate requirements of §§ 228.5 permits, will be designated by promul- and 228.6, except that: gation in this part 228, and such des- (i) Baseline or trend assessment re- ignation will be made based on envi- quirements may be developed on a ronmental studies of each site, regions case-by-case basis from the results of adjacent to the site, and on historical research, including that now in knowledge of the impact of waste dis- progress by the Corps of Engineers. posal on areas similar to such sites in (ii) An environmental impact assess- physical, chemical, and biological ment for all sites within a particular characteristics. All studies for the geographic area may be prepared based evaluation and potential selection of on complete disposal site designation dumping sites will be conducted in ac- or evaluation studies on a typical site cordance with the requirements of or sites in that area. In such cases, suf- §§ 228.5 and 228.6. The Administrator ficient studies to demonstrate the ge- may, from time to time, designate spe- neric similarity of all sites within such cific locations for temporary use for a geographic area will be conducted. disposal of small amounts of materials (2) In those cases where a rec- under a special permit only without ommended disposal site has not been disposal site designation studies when designated by the Administrator, or such materials satisfy the Criteria and where it is not feasible to utilize a rec- the Administrator determines that the ommended disposal site that has been quantities to be disposed of at such designated by the Administrator, the sites will not result in significant im- District Engineer shall, in consultation pact on the environment. Such des- with EPA, select a site in accordance ignations will be done by promulgation with the requirements of §§ 228.5 and in this part 228, and will be for a speci- 228.6(a). Concurrence by EPA in per- fied period of time and for specified mits issued for the use of such site for quantities of materials. the dumping of dredged material at the (c) Emergency Permits. Dumping sites site will constitute EPA approval of for materials disposed of under an the use of the site for dredged material emergency permit will be specified by disposal only. the Administrator as a permit condi- (3) Sites designated for the ocean tion and will be based on an individual dumping of dredged material in accord- appraisal of the characteristics of the ance with the procedures of paragraph waste and the safest means for its (e) (1) or (2) of this section shall be used disposal. only for the ocean dumping of dredged (d) Research Permits. Dumping sites material under permits issued by the for research permits will be determined U.S. Army Corps of Engineers. by the nature of the proposed study. [42 FR 2482, Jan. 11, 1977, as amended at 73 Dumping sites will be specified by the FR 74987, Dec. 10, 2008] Administrator as a permit condition. (e) Dredged Material Permits. (1) Areas § 228.5 General criteria for the selec- where ocean dumping of dredged mate- tion of sites. rial is permitted subject to the specific (a) The dumping of materials into the conditions of Dredged Material permits ocean will be permitted only at sites or issued by the U.S. Army Corps of Engi- in areas selected to minimize the inter- neers will be designated by EPA pro- ference of disposal activities with mulgation in this part 228, and such other activities in the marine environ- designation will be made based on envi- ment, particularly avoiding areas of ronmental studies of each site, regions existing fisheries or shellfisheries, and adjacent to the site, and on historical regions of heavy commercial or rec- knowledge of the impact of dredged reational navigation. material disposal on areas similar to (b) Locations and boundaries of dis- such sites in physical, chemical, and posal sites will be so chosen that tem- biological characteristics. All studies porary perturbations in water quality for the evaluation and potential selec- or other environmental conditions dur- tion of dredged material disposal sites ing initial mixing caused by disposal will be conducted in accordance with operations anywhere within the site

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can be expected to be reduced to nor- salination, fish and shellfish culture, mal ambient seawater levels or to areas of special scientific importance undetectable contaminant concentra- and other legitimate uses of the ocean; tions or effects before reaching any (9) The existing water quality and beach, shoreline, marine sanctuary, or ecology of the site as determined by known geographically limited fishery available data or by trend assessment or shellfishery. or baseline surveys; (c) [Reserved] (10) Potentiality for the development (d) The sizes of ocean disposal sites or recruitment of nuisance species in will be limited in order to localize for the disposal site; identification and control any imme- (11) Existence at or in close prox- diate adverse impacts and permit the imity to the site of any significant nat- implementation of effective moni- ural or cultural features of historical toring and surveilance programs to importance. prevent adverse long-range impacts. (b) The results of a disposal site eval- The size, configuration, and location of uation and/or designation study based any disposal site will be determined as on the criteria stated in paragraphs a part of the disposal site evaluation or (b)(1) through (11) of this section will designation study. be presented in support of the site des- (e) EPA will, wherever feasible, designation promulgation as an environ- ignate ocean dumping sites beyond the mental assessment of the impact of the edge of the continental shelf and other use of the site for disposal, and will be such sites that have been historically used in the preparation of an environ- used. mental impact statement for each site [42 FR 2482, Jan. 11, 1977, as amended at 73 where such a statement is required by FR 74987, Dec. 10, 2008] EPA policy. By publication of a notice in accordance with this part 228, an en- § 228.6 Specific criteria for site selec- vironmental impact statement, in draft tion. form, will be made available for public (a) In the selection of disposal sites, comment not later than the time of in addition to other necessary or ap- publication of the site designation as propriate factors determined by the proposed rulemaking, and a final EIS Administrator, the following factors will be made available at the time of will be considered: final rulemaking. (1) Geographical position, depth of water, bottom topography and distance § 228.7 Regulation of disposal site use. from coast; Where necessary, disposal site use (2) Location in relation to breeding, will be regulated by setting limitations spawning, nursery, feeding, or passage on times of dumping and rates of dis- areas of living resources in adult or charge, and establishing a disposal site juvenile phases; monitoring program. (3) Location in relation to beaches and other amenity areas; § 228.8 Limitations on times and rates (4) Types and quantities of wastes of disposal. proposed to be disposed of, and pro- Limitations as to time for and rates posed methods of release, including of dumping may be stated as part of methods of packing the waste, if any; the promulgation of site designation. (5) Feasibility of surveillance and The times and the quantities of per- monitoring; mitted material disposal will be regu- (6) Dispersal, horizontal transport lated by the EPA management author- and vertical mixing characteristics of ity so that the limits for the site as the area, including prevailing current specified in the site designation are not direction and velocity, if any; exceeded. This will be accomplished by (7) Existence and effects of current the denial of permits for the disposal of and previous discharges and dumping some materials, by the imposition of in the area (including cumulative appropriate conditions on other per- effects); mits and, if necessary, the designation (8) Interference with shipping, fish- of new disposal sites under the proce- ing, recreation, mineral extraction, de- dures of § 228.4. In no case may the

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total volume of material disposed of at be incorporated into the overall moni- any site under special permits cause toring program insofar as feasible. the concentration of the total materials or any constituent of any of the § 228.10 Evaluating disposal impact. materials being disposed of at the site (a) Impact of the disposal at each site to exceed limits specified in the site designated under section 102 of the Act designation. will be evaluated periodically and a report will be submitted as appropriate [73 FR 74987, Dec. 10, 2008] as part of the Annual Report to Con- § 228.9 Disposal site monitoring. gress. Such reports will be prepared by or under the direction of the EPA man- (a) The monitoring program, if agement authority for a specific site deemed necessary by the Regional Ad- and will be based on an evaluation of ministrator or the District Engineer, all data available from baseline and as appropriate, may include baseline or trend assessment surveys, monitoring trend assessment surveys by EPA, surveys, and other data pertinent to NOAA, other Federal agencies, or con- conditions at and near a site. tractors, special studies by permittees, (b) The following types of effects, in and the analysis and interpretation of addition to other necessary or appro- data from remote or automatic sam- priate considerations, will be consid- pling and/or sensing devices. The pri- ered in determining to what extent the mary purpose of the monitoring pro- marine environment has been impacted gram is to evaluate the impact of dis- by materials disposed of at an ocean posal on the marine environment by disposal site: referencing the monitoring results to a (1) Movement of materials into estu- set of baseline conditions. When dis- aries or marine sanctuaries, or onto posal sites are being used on a con- oceanfront beaches, or shorelines; tinuing basis, such programs may con- (2) Movement of materials toward sist of the following components: productive fishery or shellfishery (1) Trend assessment surveys con- areas; ducted at intervals frequent enough to (3) Absence from the disposal site of assess the extent and trends of environ- pollution-sensitive biota characteristic mental impact. Until survey data or of the general area; other information are adequate to (4) Progressive, non-seasonal, show that changes in frequency or changes in water quality or sediment scope are necessary or desirable, trend composition at the disposal site, when assessment and baseline surveys should these changes are attributable to mate- generally conform to the applicable rials disposed of at the site; requirements of § 228.13. These surveys (5) Progressive, non-seasonal, shall be the responsibility of the changes in composition or numbers of Federal government. pelagic, demersal, or benthic biota at (2) Special studies conducted by the or near the disposal site, when these permittee to identify immediate and changes can be attributed to the effects short-term impacts of disposal oper- of materials disposed of at the site; ations. (6) Accumulation of material con- (b) These surveys may be supple- stituents (including without limita- mented, where feasible and useful, by tion, human pathogens) in marine data collected from the use of auto- biota at or near the site. matic sampling buoys, satellites or in (c) The determination of the overall situ platforms, and from experimental severity of disposal at the site on the programs. marine environment, including without (c) EPA will require the full partici- limitation, the disposal site and adja- pation of permittees, and encourage cent areas, will be based on the evalua- the full participation of other Federal tion of the entire body of pertinent and State and local agencies in the de- data using appropriate methods of data velopment and implementation of dis- analysis for the quantity and type of posal site monitoring programs. The data available. Impacts will be cat- monitoring and research programs egorized according to the overall condi- presently supported by permittees may tion of the environment of the disposal

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site and adjacent areas based on the de- waste interaction, is consistently iden- termination by the EPA management tified in toxic concentrations above authority assessing the nature and ex- normal ambient values outside the dis- tent of the effects identified in para- posal site more than 4 hours after dis- graph (b) of this section in addition to posal. other necessary or appropriate consid- (2) Impact Category II: The effects of erations. The following categories shall activities at the disposal site which are be used: not categorized in Impact Category I (1) Impact Category I: The effects of shall be categorized in Impact Cat- activities at the disposal site shall be egory II. categorized in Impact Category I when one or more of the following conditions § 228.11 Modification in disposal site is present and can reasonably be attrib- use. uted to ocean dumping activities; (a) Modifications in disposal site use (i) There is identifiable progressive which involve the withdrawal of des- movement or accumulation, in detect- ignated disposal sites from use or per- able concentrations above normal am- manent changes in the total specified bient values, of any waste or waste quantities or types of wastes permitted constituent from the disposal site to be discharged to a specific disposal within 12 nautical miles of any shore- site will be made through promulga- line, marine sanctuary designated tion of an amendment to the disposal under title III of the Act, or critical site designation set forth in this part area designated under section 102(c) of 228 and will be based on the results of the Act; or the analyses of impact described in (ii) The biota, sediments, or water § 228.10 or upon changed circumstances column of the disposal site, or of any concerning use of the site. area outside the disposal site where (b) Modifications in disposal site use any waste or waste constituent from promulgated pursuant to paragraph (a) the disposal site is present in detect- of this section shall not automatically able concentrations above normal am- modify conditions of any outstanding bient values, are adversely affected by permit issued pursuant to this sub- the toxicity of such waste or waste chapter H, and provided further that constituent to the extent that there unless the EPA management authority are statistically significant decreases for such site modifies, revokes or sus- in the populations of valuable commer- pends such permit or any of the terms cial or recreational species, or of spe- or conditions of such permit in accord- cific species of biota essential to the ance with the provisions of § 232.2 based propagation of such species, within the on the results of impact analyses as de- disposal site and such other area as scribed in § 228.10 or upon changed cir- compared to populations of the same cumstances concerning use of the site, organisms in comparable locations out- such permit will remain in force until side such site and area; or its expiration date. (iii) Solid waste material disposed of (c) When the EPA management au- at the site has accumulated at the site thority determines that activities at a or in areas adjacent to it, to such an disposal site have placed the site in Im- extent that major uses of the site or of pact Category I, the Administrator or adjacent areas are significantly im- the Regional Administrator, as the paired and the Federal or State agency case may be, shall place such limita- responsible for regulating such uses tions on the use of the site as are nec- certifies that such significant impair- essary to reduce the impacts to accept- ment has occurred and states in its cer- able levels. tificate the basis for its determination of such impairment; or (d) The determination of the Admin- (iv) There are adverse effects on the istrator as to whether to terminate or taste or odor of valuable commercial or limit use of a disposal site will be recreational species as a result of dis- based on the impact of disposal at the posal activities; or site itself and on the Criteria. (v) When any toxic waste, toxic waste [42 FR 2482, Jan. 11, 1977; 43 FR 1071, Jan. 6, constituent, or toxic byproduct of 1978]

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§ 228.12 [Reserved] the immediate and long-term impact of pollutants on the environment at the § 228.13 Guidelines for ocean disposal disposal site and adjacent land or site baseline or trend assessment water areas. An initial disposal site surveys under section 102 of the evaluation or designation study should Act. provide an immediate baseline ap- The purpose of a baseline or trend as- praisal of a particular site, but it sessment survey is to determine the should also be regarded as the first of a physical, chemical, geological, and bio- series of studies to be continued as logical structure of a proposed or exist- long as the site is used for waste ing disposal site at the time of the sur- disposal. vey. A baseline or trend assessment (a) Timing. Baseline or trend assess- survey is to be regarded as a comment surveys will be conducted with prehensive synoptic and representative due regard for climatic and seasonal picture of existing conditions; each impact on stratification and other con- such survey is to be planned as part of ditions in the upper layers of the water a continual monitoring program column. Where a choice of season is through which changes in conditions at feasible, trend assessment surveys a disposal site can be documented and should be made during those months assessed. Surveys will be planned in co- when pollutant accumulation within ordination with the ongoing programs disposal sites is likely to be most se- of NOAA and other Federal, State, vere, or when pollutant impact within local, or private agencies with missions disposal sites is likely to be most in the marine environment. The field noticeable. survey data collection phase of a dis- (1) Where disposal sites are near large posal site evaluation or designation riverine inflows to the ocean, surveys study shall be planned and conducted will be done with due regard for the to obtain a body of information both seasonal variation in river flow. In representative of the site at the time of some cases several surveys at various study and obtained by techniques re- river flows may be necessary before a producible in precision and accuracy in site can be approved. future studies. A full plan of study (2) When initial surveys show that which will provide a record of sam- seasonal variation is not significant pling, analytical, and data reduction and surveys at greater than seasonable procedures must be developed, docu- intervals are adequate for character- mented and approved by the EPA man- izing a site, resurveys shall be carried agement authority. Plans for all sur- out in climatic conditions as similar to veys which will produce information to those of the original surveys as pos- be used in the preparation of environ- sible, particularly in depths less than mental impact statements will be ap- 200 meters. proved by the Administrator or his des- (b) Duration. The actual duration of a ignee. This plan of study also shall be field survey will depend upon the size incorporated as an appendix into a and depth of the site, weather condi- technical report on the study, together tions during the survey, and the types with notations describing deviations of data to be collected. For example, from the plan required in actual oper- for a survey of an area of 100 square ations. Relative emphasis on individual miles on the continental shelf, includ- aspects of the environment at each site ing an average dump site and the re- will depend on the type of wastes dis- gion contiguous to it, an on-site oper- posed of at the site and the manner in ation would be scheduled for comple- which such wastes are likely to affect tion within one week of weather suit- the local environment, but no major able for on-site operations. More on- feature of the disposal site may be ne- site operating time may be scheduled glected. The observations made and the for larger or highly complex sites. data obtained are to be based on the in- (c) Numbers and locations of sampling formation necessary to evaluate the stations. The numbers and locations of site for ocean dumping. The param- sampling stations will depend in part eters measured will be those indic- on the local bathymetry with min- ative, either directly or indirectly, of imum numbers of stations per site

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fixed as specified in the following sec- quired, depending on the present or in- tions. Where the bottom is smooth or tended use of the site. Additional pa- evenly sloping, stations for water col- rameters may be selected based on the umn measurements and benthic sam- materials likely to be in wastes pling and collections, other than dumped at the site, and on parameters trawls, shall be spaced throughout the likely to be affected by constituents of survey area in a manner planned to such wastes. Analysis for other con- provide maximum coverage of both the stituents characteristic of wastes dis- disposal site and contiguous control charged to a particular disposal site, or areas, considering known water move- of the impact of such wastes on water ment characteristics. Where there are quality, will be included in accordance major irregularities in the bottom to- with the approved plan of study. pography, such as canyons or gullies, (2) Water quality sampling require- or in the nature of the bottom, sam- ments. The number of samples collected pling stations for sediments and from the water column should be suf- benthic communities shall be spaced to ficient to identify representative provide representative sampling of the changes throughout the water column major different features. such as to avoid short-term impact due Sampling shall be done within the to disposal activities. The following dump site itself and in the contiguous key locations should be considered in area. Sufficient control stations out- selecting water column depths for sam- side a disposal site shall be occupied to pling: characterize the control area environ- (i) Surface, below interference from ment at least as well as the disposal surface waves; site itself. Where there are known per- (ii) Middle of the surface layer; sistent currents, sampling in contig- (iii) Bottom of the surface layer; uous areas shall include at least two (iv) Middle of the thermocline or stations downcurrent of the dump site, halocline, or both if present; and at least two stations upcurrent of (v) Near the top of the stable layer the site. beneath a thermocline or halocline; (d) Measurements in the water column (vi) Near the middle of a stable layer; at and near the dump site—(1) Water (vii) As near the bottom as feasible; quality parameters measured. These shall (viii) Near the center of any zone include the major indicators of water showing pronounced biological activity quality, particularly those likely to be or lack thereof. affected by the waste proposed to be In very shallow waters where only a dumped. Specifically included at all few of these would be pertinent, as a stations are measurements of tempera- minimum, surface, mid-depth and bot- ture, dissolved oxygen, salinity, sus- tom samples shall be taken, with sam- pended solids, turbidity, total organic ples at additional depths being added carbon, pH, inorganic nutrients, and as indicated by local conditions. At dis- chlorophyll a. posal sites far enough away from the (i) At one station near the center of influence of major river inflows, ocean the disposal site, samples of the water or coastal currents, or other features column shall be taken for the analysis which might cause local perturbations of the following parameters: Mercury, in water chemistry, a minimum of 5 cadmium, copper, chromium, zinc, water chemistry stations should be oc- lead, arsenic, selenium, vanadium, be- cupied within the boundaries of a site. ryllium, nickel, pesticides, petroleum Additional stations should be added hydrocarbons, and persistent organoha- when the area to be covered in the sur- logens. These samples shall be pre- vey is more than 20 square miles or served for subsequent analysis by or when local perturbations in water under the direct supervision of EPA chemistry may be expected because of laboratories in accordance with the ap- the presence of one of the features proved plan of study. mentioned above. In zones where such (ii) These parameters are the basic impacts are likely, stations shall be requirements for all sites. For the eval- distributed so that at least 3 stations uation of any specific disposal site ad- are occupied in the transition from one ditional measurements may be re- stable regime to another. Each water

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column chemistry station shall be rep- Lesser numbers of replicates may be al- licated a minimum of 2 times during a lowed in water deeper than 200 meters, survey except in waters over 200 meters at those sites where pollution impacts deep. on the bottom are unlikely in the judg- (3) Water column biota. Sampling sta- ment of the EPA management author- tions for the biota in the water column ity. shall be as near as feasible to stations (ii) Selection of bottom stations will used for water quality; in addition at be based to a large extent on the bot- least two night-time stations in the tom topography and hydrography as disposal site and contiguous area are determined by the bathymetric survey. required. At each station vertical or On the continental shelf, where the oblique tows with appropriately- bottom has no significant discontinu- meshed nets shall be used to assess the ities, a bottom station density of at microzooplankton, the nekton, and the least three times the water column sta- macrozooplankton, Towing times and tions is recommended, depending on distances shall be sufficient to obtain the type of site being evaluated. Where representative samples of organisms there are significant differences in bot- near water quality stations. Organisms tom topography, additional stations shall be sorted and identified to taxo- shall be occupied near the disconti- nomic levels necessary to identify nuity and on each side of it. Beyond dominant organisms, sensitive or indi- the continental shelf, lesser densities cator organisms, and organism diver- may be used. sity. Tissue samples of representative (2) Bathymetric survey. Sufficient species shall be analyzed for pesticides, tracklines shall be run to develop com- persistent organohalogens, and heavy plete bottom coverage of bathymetry metals. Discrete water samples shall with reasonable assurance of accurate also be used to quantitatively assess coverage of bottom topography, with the phytoplankton at each station. trackline direction and spacing as These requirements are the minimum close as available control allows. The necessary in all cases. Where there are site itself is to be developed at the discontinuities present, such as greatest density possible, with data to thermoclines, haloclines, convergences, be collected to a suitable distance or upwelling, additional tows shall be about the site as is required to identify made in each water mass as appro- major changes in bathymetry which priate. might affect the site. Specifications for (e) Measurements of the benthic re- each bathymetric survey will vary, de- gion—(1) Bottom sampling. Samples of pending on control, bottom com- the bottom shall be taken for both plexity, depths, equipment, and map sediment composition and structure, scale required. In most cases, a bathy- and to determine the nature and num- metric map at a scale of 1:25,000 to bers of benthic biota. 1:10,000 will be required, with a minimum of 1–5 meter contour interval ex- (i) At each station sampling may cept in very flat areas. When the fore- consist of core samples, grab samples, going bathymetric detail is available dredge samples, trawls, and bottom from recent surveys of the disposal photography or television, where avail- site, bathymetry during a baseline or able and feasible, depending on the na- trend assessment survey may be lim- ture of the bottom and the type of dis- ited to sonar profiles of bathymetry on posal site. Each type of sampling shall transects between sampling stations. be replicated sufficiently to obtain a representative set of samples. The min- (3) Nature of bottom. The size distribu- imum numbers of replicates of success- tion of sediments, mineral character ful samples at each continental shelf and chemical quality of the bottom station for each type of device men- will be determined to a depth appro- tioned above are as follows: priate for the type of bottom. The following parameters will be measured at Cores ...... 3. Grabs ...... 5. all stations: Particle size distribution, Dredge ...... 3. major mineral constituents, texture, Trawl ...... 20-min. tow. settling rate, and organic carbon.

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(i) At several stations near the center water movement to such a feature of the disposal site, samples of sedi- shall be characterized. ments shall be taken for the analysis of (i) Current measurements. When cur- the following parameters: Mercury, rent meters are used as the primary cadmium, copper, chromium, zinc, source of hydrodynamic data, at least 4 lead, arsenic, selenium, vanadium, be- current meter stations with at least 3 ryllium, nickel, pesticides, persistent meters at depths appropriate for the organohalogens, and petroleum hydro- observed or expected discontinuities in carbons. These samples shall be pre- the water column should be operated served for subsequent analysis by or for as long as possible during the sur- under the direct supervision of EPA vey. Where feasible, current meters laboratories in accordance with the ap- should be deployed at the initiation of proved plan of study. the survey and recovered after its com- (ii) These parameters are the basic pletion. Stations should be at least a requirements for all sites. For the eval- mile apart, and should be placed along uation of any specific disposal site ad- the long axis of the dumping site. For ditional measurements may be re- dumping sites more than 10 miles along quired, depending on the present or in- the long axis, one current meter sta- tended use of the site. Additional pation every 5 miles should be operated. rameters may be selected based on the Where there are discontinuities in sur- materials likely to be in wastes face layers, e.g., due to land runoff, dumped at the site, and on parameters stations should be operated in each likely to be affected by constituents of water mass. such wastes. Such additional param- (ii) Water mass movement. Acceptable eters will be selected by the EPA management authority. methods include: dye, drogues, surface drifters, side scan sonar, bottom drift- (4) Benthic biota. This shall consist of ers, and bottom photography or tele- a quantitative and qualitative evalua- vision. When such techniques are the tion of benthic communities including macroinfauna and macroepifauna, primary source of hydrodynamic data, meiobenthos, and microbenthos, and coverage should be such that all sig- should include an appraisal, based on nificant hydrodynamic features likely existing information, of the sensitivity to affect waste movement are meas- of indigenous species to the waste pro- ured. posed to be discharged. Organisms, (2) Sea state. Observations of sea state shall be sorted, and identified to taxo- and of standard meteorological param- nomic levels necessary to identify eters shall be made at 8-hour intervals. dominant organisms, sensitive or indi- (3) Surface phenomena. Observations cator organisms, and organism diver- shall be made of oil slicks, floating ma- sity. Tissue samples of the following terials, and other visible evidence of types of organisms shall be analyzed pollution; and, where possible, collec- for persistent organohalogens, pes- tions of floating materials shall be ticides, and heavy metals: made. (i) A predominant species of demersal (g) Survey procedures and techniques. fish; Techniques and procedures used for (ii) The most abundant macroin- sampling and analysis shall represent faunal species; and the state-of-the-art in oceanographic (iii) A dominant epifaunal species, survey and analytical practice. Survey with particular preference for a species plans shall specify the methods to be of economic importance. used and will be subject to approval by (f) Other measurements—(1) Hydro- EPA. dynamic features. The direction and (h) Quality assurance. The EPA man- speed of water movement shall be char- agement authority may require that acterized at levels appropriate for the certain samples be submitted on a rou- site and type of waste to be dumped. tine basis to EPA laboratories for anal- Where depths and climatic conditions ysis as well as being analyzed by the are great enough for a thermocline or surveyor, and that EPA personnel par- halocline to exist, the relationship of ticipate in some field surveys.

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§ 228.14 [Reserved] (iv) Primary use: Dredged material disposal. § 228.15 Dumping sites designated on a (v) Period of use: Continuing use. final basis. (vi) Restriction: Disposal shall be lim- (a)(1) The sites identified in this sec- ited to dredged material. Disposal shall tion are approved for dumping the indi- comply with conditions set forth in the cated materials. Designation of these most recent approved Site Manage- sites was based on environmental stud- ment and Monitoring Plan. ies conducted in accordance with the (4) Central Long Island Sound provisions of this part 228, and the sites Dredged Material Disposal Site (CLIS). listed in this section have been found (i) Location: Corner Coordinates (NAD to meet the site designation criteria of 1983) 41°9.5′ N., 72°54.4′ W.; 41°9.5′ N., §§ 228.5 and 228.6. 72°51.5′ W.; 41°08.4′ N., 72°54.4′ W.; 41°08.4′ (2) Unless otherwise specifically N., 72°51.5′ W. noted, site management authority for (ii) Size: A 1.1 by 2.2 nautical mile each site set forth in this section is rectangular area, about 2.42 square delegated to the EPA Regional office nautical miles in size. under which the site entry is listed. (iii) Depth: Ranges from 56 to 77 feet (3) Unless otherwise specifically (17 to 23.5 meters). noted, all ocean dumping site coordi- (iv) Primary use: Dredged material nates are based upon the North Amer- disposal. ican Datum of 1927. (v) Period of use: Continuing use, ex- (b) Region I Final Dredged Material cept as provided in paragraph (b)(4)(vi) Sites. of this section. (1) Portland, Maine, Dredged Mate- (vi) Restrictions: The designation in rial Disposal Site. this paragraph (b)(4) sets forth condi- (i) Location: 43°33′36″N., 70°02′42″W.; tions for the use of Central Long Island 43°33′36″N., 70°01′18″W.; 43°34′36″N., Sound (CLIS) and Western Long Island 70°02′42″W.; 43°34′36″N., 70°01′18″W. Sound (WLIS) Dredged Material Dis- (ii) Size: One square nautical mile. posal Sites. These conditions apply to (iii) Depth: 50 meters. all disposal subject to the MPRSA, (iv) Primary use: Dredged material. namely all federal projects and non- (v) Period of use: Continuing use. federal projects greater than 25,000 (vi) Restriction: Disposal shall be lim- cubic yards. All references to ‘‘permit- ited to dredged material. tees’’ shall be deemed to include the (2) Massachusetts Bay Disposal Site. Army Corps of Engineers (USACE) (i) Location: Center coordinates (NAD when it is authorizing its own dredged 1983) 42°25.1′ north latitude, 70°35.0′ west material disposal from a USACE dredg- latitude. ing project. The conditions for this des- (ii) Size: 2 nautical mile diameter. ignation are as follows: (iii) Depth: Average 90 meters. (A) Disposal shall be limited to (iv) Exclusive Use: Dredged material. dredged material from Long Island (v) Period of Use: Continuing. Sound and vicinity. (vi) Restriction: Disposal shall be lim- (B) Disposal shall comply with condi- ited to dredged material which meets tions set forth in the most recent ap- the requirements of the MPRSA and its proved Site Management and Moni- accompanying regulations. Disposal- toring Plan. and-capping is prohibited at the MBDS (C) Except as provided in paragraphs until its efficacy can be effectively (b)(4)(vi)(D) and (E) of this section, the demonstrated. disposal of dredged material at the (3) Rhode Island Sound Disposal Site CLIS and WLIS sites pursuant to this (RISDS). designation shall not be allowed begin- (i) Location: Corner Coordinates (NAD ning eight (8) years after July 5, 2005 1983): 41°14′21″ N, 71°23′29″ W; 41°14′21″ N, unless a regional dredged material 71°22′09″ W; 41°13′21″ N, 71°23′29″ W; management plan (DMMP) for Long Is- 41°13′21″ N, 71°22′09″ W. land Sound has been completed by the (ii) Size: One square nautical mile. North Atlantic Division of the USACE, (iii) Depth: Ranges from 115 to 128 in consultation with the State of New feet (35 to 39 meters). York, State of Connecticut and EPA,

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with a goal of reducing or eliminating tains the written agreement of the the disposal of dredged material in USACE, the State of Connecticut (De- Long Island Sound, and the EPA there- partment of Environmental Protec- after amends this site designation to tion) and the State of New York (De- incorporate procedures and standards partment of State). that are consistent with those rec- (E) The EPA may extend the eight- ommended in the DMMP. 1 Completion year deadline in paragraph (b)(4)(vi)(C) of the DMMP means finishing the of this section by up to one year (on items listed in the work plan (except one occasion only) if it determines in for any ongoing long-term studies), in- writing that the parties participating cluding the identification of alter- in the development of the DMMP have natives to open-water disposal, and the attempted in good faith to meet the development of procedures and stand- deadline, but that the deadline has not ards for the use of practicable alter- been met due to factors beyond the natives to open-water disposal. If the parties’ control (including funding). completion of the DMMP does not Such an extension may be in addition occur within eight years of July 5, 2005 to any extension(s) granted under para- (plus any extensions under paragraphs graph (b)(4)(vi)(D) of this section. (b)(4)(vi)(D) and (E) of this section), use (F) The EPA will conduct an annual of the sites shall be prohibited. How- review of progress in developing the ever, if the DMMP is thereafter com- DMMP. If the EPA finds that the pleted within one year, disposal of DMMP is being unreasonably delayed dredged material at the sites may re- by one or more parties, the EPA resume. serves the right to take the following (D) The EPA may extend the eight- actions as appropriate: (1) Suspend use year deadline in paragraph (b)(4)(vi)(C) of the sites even prior to the deadlines of this section for any reasonable pe- established in paragraphs (b)(4)(vi)(C) riod (on one or more occasions) if it ob- through (E) of this section through an amended rulemaking or (2) Exercise 1 If the EPA has acted in good faith to through rulemaking its statutory and adopt substantially all procedures and stand- regulatory authorities regarding des- ards for the use of the sites and the use of ignation of ocean disposal sites. practicable alternatives to open-water dis- (G) Upon completion of the DMMP, posal recommended in the DMMP, termi- disposal of dredged material at the des- nation of the use of the sites based on the ignated sites pursuant to the designa- EPA not adopting all procedures and stand- tion in this paragraph (b)(4) shall be al- ards shall not occur unless a party first files a petition with the EPA pursuant to item 7 lowed only from permittees that com- setting forth in detail each procedure or ply with procedures and standards con- standard that the party believes the EPA sistent with the recommendations of must adopt in order to be consistent with the the DMMP, and consistent with appli- DMMP, and the EPA has an opportunity to cable law, for the use of the sites and act on the petition. Termination of the use for the use of practicable alternatives of the sites shall not occur if in response to to open-water disposal, so as to reduce a petition the EPA determines that it has adopted substantially all procedures and or eliminate the disposal of dredged standards for the use of the sites and the use material in Long Island Sound. Upon of practicable alternatives to open-water dis- the completion of the DMMP, the EPA posal recommended in the DMMP, unless and will within 60 days propose and within until otherwise directed by a court. Termi- 120 days (subject to consideration of nation of the use of the sites shall not occur public comments) issue a legally bind- based on not adopting a DMMP provision if ing amendment to the designation in the DMMP provision is not consistent with this paragraph (b)(4) describing all such applicable law. Termination of the use of the procedures and standards and speci- sites shall not occur based on the EPA not meeting the 60 and 120 day rulemaking dead- fying that they must be complied with 2 lines set forth in item 7, but use of the sites as part of this designation. If any shall be suspended if the EPA misses either deadline, until the EPA issues a final rule. 2 The EPA must preserve its discretion, in Termination of the use of the sites shall not response to public comments, not to adopt occur based on the EPA adopting procedures such an amendment to this designation. The and standards which are stricter than the EPA understands that the State of New York recommendations of the DMMP. Continued

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party (or the EPA on its own initia- water disposal may add additional tive) is not satisfied that the final costs. Disposal of dredged material at DMMP recommends sufficient proce- the designated sites pursuant to this dures and standards to reduce or elimi- paragraph (b)(4) shall not be allowed if nate disposal of dredged material in a practicable alternative is available. Long Island Sound to the greatest ex- Any project subject to this restriction tent practicable, or if any party is not must be permitted or authorized prior satisfied with the EPA’s amendment to the completion of the DMMP and adopting such procedures and stand- completed within two years after the ards, the party may petition the EPA completion of the DMMP. to do a rulemaking to amend the des- (J) Disposal shall be limited to ignation to establish different or addi- dredged sediments that comply with tional standards. The EPA will act on the Ocean Dumping Regulations. any such petition within 120 days. (K) Disposal of dredged material at (H) Disposal not subject to the re- the designated sites pursuant to the strictions in paragraphs (b)(4)(vi)(C) through (G) or (b)(4)(vi)(I) of this sec- designation in this paragraph (b)(4) tion shall be permitted only for mate- shall not be allowed for any materials rials resulting from currently author- subject to a waiver under 33 U.S.C. ized or permitted dredging projects at 1413(d) unless, for any project where a Norwalk, Rye and New Rochelle. Such waiver is sought, the New England or disposal must meet all applicable stat- New York District of the USACE pro- utory and regulatory requirements. All vides notification, by certified mail at phases of any of these project must be least thirty (30) days before making the initiated within four (4) years from the waiver request, to the Governors of the date of the designation, or the project states of Connecticut and New York will become subject to paragraph and the North Atlantic Division of the (b)(4)(vi)(I) of this section. USACE that it will be requesting a (I) Except for the projects covered by waiver. paragraph (b)(4)(vi)(H) of this section (L) Transportation of dredged mate- and until completion of the DMMP, rial to the sites shall only be allowed disposal of dredged material at the des- when weather and sea conditions will ignated sites pursuant to the designa- not interfere with safe transportation tion in this paragraph (b)(4) shall be al- and will not create risk of spillage, lowed only if, after full consideration leak or other loss of dredged material of recommendations provided by an es- in transit. No disposal trips shall be tablished Regional Dredging Team 3 initiated when the National Weather (RDT), the USACE finds (and the EPA Service has issued a gale warning for does not object to such finding), based local waters during the time period on a fully documented analysis, that necessary to complete dumping oper- for a given dredging project: ations. (1) There are no practicable alter- (M) The parties participating in the natives (as defined in 40 CFR 227.16(b)) DMMP will need to seek additional to open-water disposal in Long Island funding in order to develop the DMMP. Sound and that any available prac- Nothing in the designation in this ticable alternative to open-water dis- paragraph (b)(4) or elsewhere guaran- posal will be fully utilized for the max- tees that any agency will be able to ob- imum volume of dredged material prac- tain funding for the DMMP. This des- ticable; ignation shall not be interpreted as or (2) Determinations relating to para- constitute a commitment that the graph (b)(4)(vi)(I)(1) of this section will United States will obligate or expend recognize that any alternative to open- funds in contravention of the Anti-De- ficiency Act, 31 U.S.C. 1341. Rather, the has reserved its rights to revive its objection sole remedy for any failure to meet the to this designation if the DMMP procedures conditions specified in this paragraph and standards are not adopted. 3 A Regional Dredging Team (RDT) com- (b)(4)(vi) shall be the restriction of the prised of regulatory and coastal policy spe- authority to dispose of dredged mate- cialists from state and federal agencies will rial, as provided in this paragraph be formed. (b)(4).

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(N) Nothing in the designation in this (i) Location: 40°34′32″N., 73°39′14″W.; paragraph (b)(4) or elsewhere precludes 40°34′32″N., 73°37′06″W.; 40°33′48″N., the EPA from exercising its statutory 73°37′06″W.; 40°33′48″N., 73°39′14″W. authority to designate other ocean dis- (ii) Size: Approximately 1.19 square posal sites, not subject to the restric- nautical miles. tions in paragraph (b)(4)(vi), or taking (iii) Depth: Ranges from 7 to 10 me- any subsequent action to modify the ters. site designation in paragraph (b)(4), (iv) Primary use: Dredged material provided that the EPA makes any such disposal. designation or takes such subsequent (v) Period of use: Continuing use. action through a separate rulemaking (vi) Restrictions: Disposal shall be in accordance with all applicable legal limited to dredged material from Jones requirements. Nothing in this designa- Island Inlet, Long Island, New York. tion shall be interpreted to restrict the (3) East Rockaway Inlet, Long Island EPA’s authorities under the MPRSA or NY Dredged Material Disposal Site. the implementing regulations or to (i) Location: 40°34′36″N., 73°49′00″W.; amend the implementing regulations. 40°35′06″N., 73°47′06″W.; 40°34′10″N., (5) Western Long Island Sound 73°48′6″W.; 40°34′12″N., 73°47′17″W. Dredged Material Disposal Site (WLIS). (ii) Size: Approximately 0.81 square (i) Location: Corner Coordinates (NAD nautical miles. ° ′ ° ′ ° ′ 1983) 41 00.1 N., 73 29.8 W.; 41 00.1 N., (iii) Depth: Ranges from 6 to 9 me- ° ′ ° ′ ° ′ ° ′ 73 28.1 W.; 40 58.9 N., 73 29.8 W.; 40 58.9 ters. N., 73°28.1′ W. (iv) Primary use: Dredged material (ii) Size: A 1.2 by 1.3 nautical mile disposal. rectangular area, about 1.56 square (v) Period of use: Continuing use. nautical miles in size. (vi) Restrictions: Disposal shall be (iii) Depth: Ranges from 79 to 118 feet limited to dredged material from East (24 to 36 meters). Rockaway Inlet, Long Island, New (iv) Primary use: Dredged material York. disposal. (v) Period of use: Continuing use ex- (4) Rockaway Inlet, Long Island, New cept as provided in paragraph (b)(5)(vi) York Dredged Material Disposal Site. ° ′ ″ ° ′ ″ of this section. (i) Location: 40 32 30 N., 73 55 00 W.; ° ′ ″ ° ′ ″ ° ′ ″ (vi) Restrictions: See 40 CFR 40 32 30 N., 73 54 00W ; 40 32 00 N., ° ′ ″ ° ′ ″ ° ′ ″ 228.15(b)(4)(vi). 73 54 00 W.; 40 32 00 N., 73 55 00 W. (c) Region I Final Other Wastes (ii) Size: Approximately 0.38 square Sites. nautical miles. (1) No final sites. (iii) Depth: Ranges from 8 to 11 me- (2) [Reserved] ters. (d) Region II Final Dredged Material (iv) Primary use: Dredged material Sites. disposal. (1) Fire Island Inlet, Long Island, (v) Period of use: Continuing use. New York Dredged Material Disposal (vi) Restrictions: Disposal shall be Site. limited to dredged material from Rock- (i) Location: 40°36′49″N., 73°23′50″W.; away Inlet, Long Island, New York. 40°37′12″N., 73°21′30″W.; 40°36′41″N., (5) Shark River, New Jersey Dredged 73°21′20″W.; 40°36′10″N., 73°23′40″W. Material Disposal Site. (ii) Size: Approximately 1.09 square (i) Location: 40°12′48″N., 73°59′45″W.; nautical miles. 40°12′44″N., 73°59′06″W.; 40°11′36″N., (iii) Depth: Ranges from 7 to 10 me- 73°59′28″W.; 40°11′42″N., 74°00′12″W. ters. (ii) Size: Approximately 0.6 square (iv) Primary Use: Dredged material nautical miles. disposal. (iii) Depth: Approximately 12 meters. (v) Period of Use: Continuing use. (iv) Primary use: Dredged material (vi) Restrictions: Disposal shall be disposal. limited to dredged material from Fire (v) Period of use: Continuing use. Island Inlet, Long Island, New York. (vi) Restrictions: Disposal shall be (2) Jones Inlet, Long Island, New limited to dredged material from York Dredged Material Disposal Site. Shark River Inlet, New Jersey.

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(6) Historical Area Remediation Site 15.7 square nautical mile area located (HARS) Designation/Mud Dump Site approximately 3.5 nautical miles east Termination. of Highlands, New Jersey and 7.7 nau- (i) Status of Former Mud Dump Site: tical miles south of Rockaway, Long The Mud Dump Site, designated as an Island. The HARS consists of a Pri- Impact Category I site on May 4, 1984, mary Remediation Area (PRA), a Buff- is terminated. er Zone, and a No Discharge Zone. The (ii) Location: (A) The HARS (which HARS is bounded by the following co- includes the 2.2 square nautical mile ordinates: area of the former Mud Dump Site) is a

Latitude Longitude Latitude Longitude Point DMS DMS DDM DDM

A ...... 40° 25′ 39″ N ...... 73° 53′ 55″ W ...... 40° 25.65′ N ...... 73° 53.92′ W. M ...... 40° 25′ 39″ N ...... 73° 48′ 58″ W ...... 40° 25.65′ N ...... 73° 48.97″ W. P ...... 40° 21′ 19″ N ...... 73° 48′ 57″ W ...... 40° 21.32′ N ...... 73° 48.95′ W. R ...... 40° 21′ 19″ N ...... 73° 52′ 30″ W ...... 40° 21.32′ N ...... 73° 52.50′ W. S ...... 40° 21′ 52″ N ...... 73° 53′ 55″ W ...... 40° 21.87′ N ...... 73° 53.92′ W. V ...... 40° 21′ 52″ N ...... 73° 52′ 30″ W ...... 40° 21.87′ N ...... 73° 52.50′ W. DMS = Degrees, Minutes, Seconds. DDM = Degrees, Decimal Minutes.

(B) The PRA, is a 9.0 square nautical Remediation. The PRA is bounded by mile area to be remediated with at the following coordinates: least a 1 meter cap of the Material for

Latitude Longitude Latitude Longitude Point DMS DMS DDM DDM

B ...... 40° 25′ 23″ N ...... 73° 53′ 34″ W ...... 40° 25.38′ N ...... 73° 53.57′ W. D ...... 40° 25′ 22″ N ...... 73° 52′ 08″ W ...... 40° 25.37′ N ...... 73° 52.13′ W. F ...... 40° 23′ 13″ N ...... 73° 52′ 09″ W ...... 40° 23.22′ N ...... 73° 52.15″ W. G ...... 40° 23′ 13″ N ...... 73° 51′ 28″ W ...... 40° 23.22′ N ...... 73° 51.47′ W. H ...... 40° 22′ 41″ N ...... 73° 51′ 28″ W ...... 40° 22.68′ N ...... 73° 51.47′ W. I ...... 40° 22′ 41″ N ...... 73° 50′ 43″ W ...... 40° 22.68′ N ...... 73° 50.72′ W. L ...... 40° 25′ 22″ N ...... 73° 50′ 44″ W ...... 40° 25.37′ N ...... 73° 50.73′ W. N ...... 40° 25′ 22″ N ...... 73° 49′ 19″ W ...... 40° 25.37′ N ...... 73° 49.32′ W. O ...... 40° 21′ 35″ N ...... 73° 49′ 19″ W ...... 40° 21.58′ N ...... 73° 49.32′ W. Q ...... 40° 21′ 36″ N ...... 73° 52′ 08″ W ...... 40° 21.60′ N ...... 73° 52.13′ W. T ...... 40° 22′ 08″ N ...... 73° 52′ 08″ W ...... 40° 22.13′ N ...... 73° 52.13′ W. U ...... 40° 22′ 08″ N ...... 73° 53′ 34″ W ...... 40° 22.13′ N ...... 73° 53.57′ W. DMS = Degrees, Minutes, Seconds. DDM = Degrees, Decimal Minutes.

(iii) Size: 15.7 square nautical miles. Placement of Material for Remediation (iv) Depth: Ranges from 12 to 42 me- within the PRA is not allowed in a 0.27 ters. nautical mile radius around the fol- (v) Restrictions on Use: lowing coordinates due to the presence (A) The site will be managed so as to of shipwrecks: 40° 25.30′ W, 73° 52.80′ N; reduce impacts within the PRA to ac- 40° 25.27′ W, 73° 52.13′ N; 40° 25.07′ W, 73° ceptable levels in accordance with 40 50.05′ N; 40° 22.46′ W, 73° 53.27′ N. CFR 228.11(c). Use of the site will be re- (C) No placement of material may stricted to dredged material suitable take place within the Buffer Zone, al- for use as the Material for Remedi- though this zone may receive material ation. This material shall be selected that incidentally spreads out of the so as to ensure it will not cause signifi- PRA. The Buffer Zone is an approxi- cant undesirable effects including mately 5.7 square nautical mile area through bioaccumulation or unaccept- (0.27 nautical mile wide band around able toxicity, in accordance with 40 the PRA), which is bounded by the fol- CFR 227.6. lowing coordinates: (B) Placement of Material for Reme- diation will be limited to the PRA.

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Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM

A ...... 40°25′39″ N ...... 73°53′55″ W ...... 40°25.65′ N ...... 73°53.92′ W. B ...... 40°25′23″ N ...... 73°53′34″ W ...... 40°25.38′ N ...... 73°53.57′ W. C ...... 40°25′39″ N ...... 73°51′48″ W ...... 40°25.65′ N ...... 73°51.80′ W. D ...... 40°25′22″ N ...... 73°52′08″ W ...... 40°25.37′ N ...... 73°52.13′ W. E ...... 40°23′48″ N ...... 73°51′48″ W ...... 40°23.80′ N ...... 73°51.80′ W. F ...... 40°23′13″ N ...... 73°52′09″ W ...... 40°23.22′ N ...... 73°52.15′ W. G ...... 40°23′13″ N ...... 73°51′28″ W ...... 40°23.22′ N ...... 73°51.47′ W. H ...... 40°22′41″ N ...... 73°51′28″ W ...... 40°22.68′ N ...... 73°51.47′ W. I ...... 40°22′41″ N ...... 73°50′43″ W ...... 40°22.68′ N ...... 73°50.72′ W. J ...... 40°23′48″ N ...... 73°51′06″ W ...... 40°23.80′ N ...... 73°51.10′ W. K ...... 40°25′39″ N ...... 73°51′06″ W ...... 40°25.65′ N ...... 73°51.10′ W. L ...... 40°25′22″ N ...... 73°50′44″ W ...... 40°25.37′ N ...... 73°50.73′ W. M ...... 40°25′39″ N ...... 73°48′58″ W ...... 40°25.65′ N ...... 73°48.97′ W. N ...... 40°25′22″ N ...... 73°49′19″ W ...... 40°25.37′ N ...... 73°49.32′ W. O ...... 40°21′35″ N ...... 73°49′19″ W ...... 40°21.58′ N ...... 73°49.32′ W. P ...... 40°21′19″ N ...... 73°48′57″ W ...... 40°21.32′ N ...... 73°48.95′ W. Q ...... 40°21′36″ N ...... 73°52′08″ W ...... 40°21.60′ N ...... 73°52.13′ W. R ...... 40°21′19″ N ...... 73°52′30″ W ...... 40°21.32′ N ...... 73°52.50′ W. S ...... 40°21′52″ N ...... 73°53′55″ W ...... 40°21.87′ N ...... 73°53.92′ W. T ...... 40°22′08″ N ...... 73°52′08″ W ...... 40°22.13′ N ...... 73°52.13′ W. U ...... 40°22′08″ N ...... 73°53′34″ W ...... 40°22.13′ N ...... 73°53.57′ W. V ...... 40°21′52″ N ...... 73°52′30″ W ...... 40°21.87′ N ...... 73°52.50′ W. DMS = Degrees, Minutes, Seconds. DDM = Degrees, Decimal Minutes.

(D) No placement or incidental mately 1.0 square nautical mile area, spread of the material is allowed with- bounded by the following coordinates: in the No Discharge Zone, an approxi-

Point Latitude DMS Longitude DMS Latitude DDM Longitude DDM

C ...... 40°25′39″ N ...... 73°51′48″ W ...... 40°25.65′ N ...... 73°51.80′ W. E ...... 40°23′48″ N ...... 73°51′48″ W ...... 40°23.80′ N ...... 73°51.80′ W. J ...... 40°23′48″ N ...... 73°51′06″ W ...... 40°23.80′ N ...... 73°51.10′ W. K ...... 40°25′39″ N ...... 73°51′06″ W ...... 40°25.65′ N ...... 73°51.10′ W. DMS = Degrees, Minutes, Seconds. DDM = Degrees, Decimal Minutes.

(E) HARS-specific Polychlorinated (i) Location: 40°06′36″N., 74°01′34″W.; Biphenyl (PCB) Tissue Criterion: Total 40°06′19″N., 74°01′39″W.; 40°06′18″N., PCB bioaccumulation worm test re- 74°01′53″W.; 40°06′41″N., 74°01′51″W. sults for dredged material approved for (ii) Size: Approximately 0.11 square placement at the HARS as Material for nautical miles. Remediation shall not exceed the (iii) Depth: Approximately 18 meters. HARS-specific PCB tissue criterion of (iv) Primary Use: Dredged material 113 ppb. This HARS-specific PCB tissue disposal. criterion will be applied to the arith- (v) Period of Use: Continuing use. metic mean concentration reported for (vi) Restrictions: Disposal shall be the analyses of the worm tissue rep- limited to dredged material from licates exposed to the tested sediments, Manasquan Inlet, New Jersey. without the use of statistical con- (8) Absecon Inlet, NJ Dredged Mate- fidence limits. rial Disposal Site. (vi) Period of Use: Continuing use (i) Location: 39°20′39″N., 74°18′43″W.; until EPA determines that the PRA 39°20′30″N., 74°18′25″W.; 39°20′03″N., has been sufficiently capped with at 74°18′43″W.; 39°20′12″N., 74°19′01″W. least 1 meter of the Material for Reme- (ii) Size: Approximately 0.28 square diation. At that time, EPA will under- nautical miles. take any necessary rulemaking to de- (iii) Depth: Approximately 17 meters. designate the HARS. (iv) Primary Use: Dredged material (7) Manasquan, New Jersey Dredged disposal. Material Disposal Site. (v) Period of Use: Continuing use.

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(vi) Restrictions: Disposal shall be (vi) Restrictions: Disposal shall be limited to dredged material from Abse- limited to dredged material from Ma- con Inlet, New Jersey. yaguez Harbor, PR. (9) Cold Spring Inlet, NJ Dredged Ma- (13) Ponce Harbor, PR Dredged Mate- terial Disposal Site. rial Disposal Site. (i) Location: 38°55′52″N., 74°53′04″W.; (i) Location: 17°54′00″ N., 66°37′43″ W.; 38°55′37″N., 74°52′55″W.; 38°55′23″N., 17°54′00″ N., 66°36′41″ W.; 17°53′00″ N., 74°53′27″W.; 38°55′36″N., 74°53′36″W. 66°36′41″ W.; 17°53′00″ N., 66°37′43″ W. (ii) Size: Approximately 0.13 square (ii) Size: Approximately 1 square nau- nautical miles. tical mile. (iii) Depth: Approximately 9 meters. (iii) Depth: Ranges from 329 to 457 (iv) Primary Use: Dredged material meters. disposal. (iv) Primary Use: Dredged material (v) Period of Use: Continuing use. disposal. (vi) Restrictions: Disposal shall be (v) Period of Use: Continuing use. limited to dredged material from Cold (vi) Restrictions: Disposal shall be Spring Inlet, New Jersey. limited to dredged material from (10) San Juan Harbor, PR, Dredged Ponce Harbor, PR. Material Site. (14) Yabucoa Harbor, PR Dredged Ma- (i) Location: 18°30′10″N., 66°09′31″W.; terial Disposal Site. 18°30′10″N., 66°08′29″W.; 18°31′10″N., (i) Location: 18°03′42″ N., 65°42′49″ W.; 66°08′29″W.; 18°31′10″N., 66°09′31″W. 18°03′42″ N., 65°41′47″ W.; 18°02′42″ N., (ii) Size: 0.98 square nautical mile. 65°41′47″W.; 18°02′42″ N., 65°42′49″ W. (iii) Depth: Ranges from 200 to 400 (ii) Size: Approximately 1 square nau- meters. tical mile. (iv) Primary Use: Dredged material. (iii) Depth: Ranges from 549 to 914 (v) Period of Use: Continuing use. meters. (vi) Restriction: Disposal shall be lim- (iv) Primary Use: Dredged material ited to dredged material from the Port disposal. of San Juan, Puerto Rico, and coastal (v) Period of Use: Continuing use. areas within 20 miles of said port en- (vi) Restrictions: Disposal shall be trance. limited to dredged material from (11) Arecibo Harbor, PR Dredged Ma- Yabucoa Harbor, PR. terial Disposal Site. (e) Region II Final Other Wastes (i) Location: 18°31′00″ N., 66°43′47″ W.; Sites. 18°31′00″ N., 66°42′ 45″ W.; 18°30′00″ N., (1) No final sites. 66°42′45″W.; 18°30′00″ N., 66°43′47″ W. (2) [Reserved] (ii) Size: Approximately 1 square nau- (f) Region III Final Dredged Material tical mile. Sites. (iii) Depth: Ranges from 101 to 417 (1) Dam Neck, Virginia, Dredged Ma- meters. terial Disposal Site. (iv) Primary Use: Dredged material (i) Location: 36°51′24.1″ N., 75°54′41.4″ disposal. W.; 36°51′24.1″ N., 75°53′02.9″ W.; (v) Period of Use: Continuing use. 36°50′52.0″ N., 75°52′49.0″W.; 36°46′27.4″ N., (vi) Restrictions: Disposal shall be 75°51′39.2″ W.; 36°46′27.5″ N., 75°54′19.0″ limited to dredged material from Are- W.; 36°50′05.0″ N., 75°54′19.0″ W. cibo Harbor, PR. (ii) Size: 8 square nautical miles. (12) Mayaguez Harbor, PR Dredged (iii) Depth: Averages 11 meters. Material Disposal Site. (iv) Primary Use: Dredged Material. (i) Location: 18°15′30″ N., 67°16′13″ W.; (v) Period of Use: Continuing use. 18°15′30″ N., 67°15′11″ W.; 18°14′30″ N., (vi) Restriction: Disposal shall be lim- 67°15′11″ W.; 18°14′30″ N., 67°16′13″ W. ited to dredged material from the (ii) Size: Approximately 1 square nau- mouth of Chesapeake Bay. tical mile. (2) Norfolk, VA, Dredged Material (iii) Depth: Ranges from 351 to 384 Disposal Site. meters. (i) Location: Center point: Latitude— (iv) Primary Use: Dredged material 36°59′00″ N., Longitude—75°39′00″ W. disposal. (ii) Size: Circular with a radius of 7.4 (v) Period of Use: Continuing use. kilometers (4 nautical miles).

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(iii) Depth: Ranges from 13.1 to 26 me- (i) Location: 32°38′06″N., 79°41′57″W.; ters. 32°40′42″N., 79°47′30″W.; 32°39′04″N., (iv) Primary Use: Dredged material. 79°49′21″W.; 32°36′28″N., 79°43′48″W. (v) Period of Use: Continuing use. (ii) Size: 11.8 square nautical miles. (vi) Restrictions: Site shall be limited (iii) Depth: Averages 11 meters. to suitable dredged material which (iv) Primary use: Dredged material passed the criteria for ocean dumping. from the Charleston Harbor deepening (g) Region III Final Other Wastes project. Sites. (v) Period of Use: Continued use. (1) No final sites. (vi) Restriction: Disposal shall be (2) [Reserved] limited to dredged material from the (h) Region IV Final Dredged Material Charleston Harbor area. All dredged Sites. materials must be placed within the (1) Morehead City, NC Dredged Mate- box defined by the following four cor- rial Disposal Site. ner coordinates (NAD83): 32.65663° N, (i) Location: 34°38′30″ N., 76°45′0″ W.; 79.75716° W; 32.64257° N, 79.72733° W; 34°38′30″ N., 76°41′42″ W.; 34°38′09″ N., 32.61733° N, 79.74381° W; and 32.63142° N, 76°41′0″ W.; 34°36′0″ N., 76°41′0″ W.; 79.77367° W. Additionally, all disposals 34°36′0″ N., 76°45′0″ W. shall be in accordance with all provi- (ii) Size: 8 square nautical miles. sions of disposal placement as specified (iii) Depth: Average 12.0 meters. by the Site Management Plan, which is (iv) Primary Use: Dredged material. periodically updated. (v) Period of Use: Continuing use. (6) Savannah, GA Dredged Material (vi) Restriction: Disposal shall be lim- Disposal Site. ited to dredged material from the (i) Location: 31°55′53″N., 80°44′20″W.; Morehead City Harbor, North Carolina 31°57′55″N., 80°46′48″W.; 31°57′55″N., area. All material disposed must sat- 80°44′20″W.; 31°55′53″N., 80°46′48″W. isfy the requirements of the ocean (ii) Size: 4.26 square nautical miles. dumping regulations. (iii) Depth: Averages 11.4 meters. (2) Wilmington, NC Dredged Material (iv) Primary use: Dredged material. Disposal Site. (v) Period of use: Continuing use. (i) Location: 33°49′30″ N., 78°03′06″ W.; (vi) Restriction: Disposal shall be lim- 33°48′18″ N., 78°01′39″ W.; 33°47′19″ N., ited to dredged material from the Sa- 78°02′48″ W.; 33°48′30″ N., 78°04′16″ W. vannah Harbor area. (ii) Size: 2.3 square nautical miles. (7) Brunswick Harbor, Brunswick, (iii) Depth: Averages 13 meters. Georgia Ocean Dredged Material Dis- (iv) Primary Use: Dredged material. posal Site. (v) Period of Use: Continuing use. (i) Location: 31°02′35″N., 81°17′40″W.; (vi) Restriction: Disposal shall be lim- 31°02′35″N., 81°16′30″W.; 31°00′30″N., ited to the dredged material from Wil- 81°16′30″W.; 31°00′30″N., 81°17′42″W. mington Harbor area. (ii) Size: Approximately 2 square nau- (3) Georgetown Harbor; Georgetown, tical miles. South Carolina: Ocean Dredged Mate- (iii) Depth: Average 9 meters. rial Disposal Site. (iv) Primary use: Dredged material. (i) Location: 33°11′18″ N., 79°07′20″ W.; (v) Period of use: Continuing use. 33°11′18″ N., 79°05′23″ W.; 33°10′38″ N., (vi) Restrictions: Disposal shall be 79°05′24″ W.; 33°10′38″ N., 79°07′21″ W. limited to suitable dredged material (ii) Size: 1 square nautical mile. from the greater Brunswick, Georgia, (iii) Depth: 6 to 11 meter range. vicinity. (iv) Primary use: Dredged material. (8) Fernandina Beach, FL Dredged (v) Period of use: Continuing use. Material Disposal Site. (vi) Restriction: Disposal shall be lim- (i) Location: 30°33′00″N., 81°16′52″W.; ited to suitable dredged material from 30°31′00″N., 81°16′52″W.; 30°31′00″N., the greater Georgetown, South Caro- 81°19′08″W.; 30°33′00″N., 81°19′08″W. lina, area. (ii) Size: Four square nautical miles. (4) [Reserved] (iii) Depth: Average 16 meters. (5) Charleston, SC, Ocean Dredged (iv) Primary use: Dredged material. Material Disposal Site. (v) Period of use: Continuing Use.

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(vi) Restriction: Disposal shall be lim- (iv) Primary use: Dredged material. ited to dredged material which meets (v) Period of use: Continuing use. the criteria given in the Ocean Dump- (vi) Restriction: Disposal shall be lim- ing Regulations in 40 CFR part 227. ited to dredged materials which are (9) Jacksonville, FL Dredged Mate- shown to be predominantly sand (de- rial Site. fined by a median grain size greater (i) Location: 30°21′30″N., 81°18′34″W.; than 0.125 mm and a composition of 30°21′30″N., 81°17′26″W.; 30°20′30″N., less than 10% fines) and meet the 81°17′26″W.; 30°20′30″N., 81°18′34″W. Ocean Dumping Criteria. (ii) Size: One square nautical mile. (13) Pensacola, Florida Ocean (iii) Depth: Ranges from 12 to 16 me- Dredged Material Disposal Site, i.e. the ters. Pensacola (Offshore) Ocean Dredged (iv) Primary use: Dredged material. Material Disposal Site. (v) Period of use: Continuing use. (i) Location: 30°08′50″N., 87°19′30″W.; (vi) Restriction: Disposal shall be lim- 30°08′50″N., 87°16′30″W.; 30°07′05″″N., ited to dredged material from the 87°16′30″W.; 30°07′05″N., 87°19′30″W. Jacksonville, Florida, area. (ii) Size: Approximately 6 square stat- (10) Canaveral Harbor, FL, Dredged ute miles. Material Dumpsite. (iii) Depth: Ranges from 65 to 80 feet. ° ′ ″ ° ′ ″ (i) Location: 28 20 15 N., 80 31 11 W.; (iv) Primary Use: Dredged material. ° ′ ″ ° ′ ″ ° ′ ″ 28 18 51 N., 80 29 15 W.; 28 17 13 N., (v) Period of Use: Continuing use. ° ′ ″ ° ′ ″ ° ′ ″ 80 30 53 W.; 28 18 36 N., 80 32 45 W. (vi) Restrictions: Disposal is restricted ° ′ ″ Center coordinates: 28 18 44 N., to predominantly fine-grained dredged ° ′ ″ 80 31 00 W. (NAD 27). material from the greater Pensacola, (ii) Size: 4 square nautical miles. Florida area that meets the Ocean (iii) Depth: Range 47 to 55 feet. Dumping Criteria but is not suitable (iv) Primary Use: Dredged material. for beach nourishment or disposal at (v) Period of Use: Continuing use. the existing EPA designated Pensacola (vi) Restriction: Disposal shall be lim- (Nearshore) ODMDS (§ 228.15(h)(11)). ited to suitable dredged material from The Pensacola (Nearshore) ODMDS is the greater Canaveral, Florida, vicin- restricted to suitable dredged material ity. with a median grain size of > 0.125 mm (11) Fort Pierce Harbor, FL, Fort and a composition of < 10% fines. Pierce, FL, Ocean Dredged material (14) Mobile, Alabama Dredged Mate- Disposal Site. rial Disposal Site. (i) Location: 27°28′00″ N., 80°12′33″ W.; (i) Location: 30°10′00″N., 88°07′42″W.; 27°28′00″ N., 80°11′27″ W.; 27°27′00″ N., 30°10′24″N., 88°05′12″W.; 30°09′24″N., 80°11′27″ W.; and 27°27′00″ N., 80°12′33″ W. 88°04′42″W.; 30°08′30″N., 88°05′12″W.; (ii) Size: 1 square nautical mile. 30°08′30″N., 88°08′12″W. (iii) Depth: Average range 40 to 54 (ii) Size: 4.8 square nautical miles. feet. (iv) Primary Use: Dredged material. (iii) Depth: Average 14 meters. (v) Period of Use: Continuing use. (iv) Primary use: Dredged material. (vi) Restrictions: Disposal shall be (v) Period of use: Continuing use. limited to suitable dredged material (vi) Restriction: Disposal shall be lim- from the greater Fort Pierce Harbor vi- ited to dredged materials which meet cinity. All dredged material consisting the Ocean Dumping Criteria. of greater than 10% fine grained mate- (15) Pascagoula, MS, Ocean Dredged rial (grain size of less than 0.047mm) by Material Dumpsite. weight shall be limited to that part of (i) Location: 30°12′06″N., 88°44′30″W.; the site east of 80°12′00″W. and south of 30°11′42″N., 88°33′24″W.; 30°08′30″N., 27°27′20″N. 88°37′00″W.; and 30°08′18″N., 88°41′54″W. (12) Pensacola Nearshore, FL Dredged Center coordinates: 30°10′09″N., Material Disposal Site. 88°39′12″W. (i) Location: 30°17′24″N., 87°18′30″W.; (ii) Size: 18.5 square nautical miles. 30°17′00″N., 87°19′50″W.; 30°15′36″N., (iii) Depth: Average 46 feet, range 38– 87°17′48″W.; 30°15′15″N., 87°19′18″W. 52 feet. (ii) Size: 2.48 square nautical miles. (iv) Primary Use: Dredged material. (iii) Depth: Averages 11 meters. (v) Period of Use: Continuing use.

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(vi) Restriction: Disposal shall be lim- (v) Period of use: Continuing use. ited to suitable material from the Mis- (vi) Restriction: Disposal shall be sissippi Sound and vicinity. limited to suitable dredged material (16) Gulfport, Mississippi Dredged from the greater Miami, Florida vicin- Material Disposal Site—Eastern Site ity. Disposal shall comply with condi- (i) Location: 30°11′10″N., 88°58′24″W.; tions set forth in the most recent ap- 30°11′12″N., 88°57′30″W.; 30°07′36″N., proved Site Management and Moni- 88°54′24″W.; 30°07′24″N., 88°54′48″W. toring Plan. (ii) Size: 2.47 square nautical miles. (20) New Wilmington, NC; Ocean (iii) Depth: 9.1 meters. Dredged Material Disposal Site. (iv) Primary use: Dredged material. (i) Location: (v) Period of use: Continuing use. 33°46′ N ...... 78°02.5′ W. (vi) Restriction: Disposal shall be lim- 33°46′ N ...... 78°01′ W. ited to materials which meet the Ocean 33°41′ N ...... 78°01′ W. Dumping Criteria. 33°41′ N ...... 78°04′ W. (17) Gulfport, MS Dredged Material Disposal Site—Western Site. (ii) Size: Approximately 9.4 square (i) Location: 30°12′00″N., 89°00′30″W.; nautical miles. 30°12′00″N., 88°59′30″W.; 30°11′00″N., (iii) Depth: Ranges from 35–52 feet. 89°00′00″W.; 30°07′00″N., 88°56′30″W.; (iv) Primary use: Dredged material. 30°06′36″N., 88°57′00″W.; 30°10′30″N., (v) Period of use: Continuing use. 89°00′36″W. (vi) Restriction: Disposal shall be (ii) Size: 5.2 square nautical miles. limited to suitable dredged material (iii) Depth: 8.2 meters. from the greater Wilmington, North (iv) Primary use: Dredged material. Carolina vicinity. Disposal shall com- (v) Period of use: Continuing use. ply with conditions set forth in the (vi) Disposal shall be limited to most recent approved Site Manage- dredged material which meets the ment and Monitoring Plan. Ocean Dumping Criteria. (21) Palm Beach Harbor, FL Ocean (18) Tampa, Florida; Ocean Dredged Dredged Material Disposal Site. Material Disposal Site llll Region (i) Location (NAD83): 26°47′30″ N., IV. 79°57′09″ W.; 26°47′30″ N., 79°56′02″ W.; (i) Location: 27°32′27″N.; 83°06′02″W; 26°46′30″ N., 79°57′09″ W.; 26°46′30″ N., 27°32′27″N.; 83°03′46″W.; 27°30′27″N.; 79°56′02″ W. Center coordinates are 83°06′02″W.; 27°30′27″N.; 83°03′46″W. 26°47′00″ N and 79°56′35″ W. (ii) Size: Approximately 4 square nau- (ii) Size: Approximately 1 square nautical miles. tical mile. (iii) Depth: Approximately 22 meters. (iii) Depth: Ranges from 525 to 625 (iv) Primary use: Dredged material. feet. (v) Period of use: Continuing use. (iv) Primary use: Dredged material. (vi) Restriction: Disposal shall be (v) Period of use: Continuing use. limited to suitable dredged material (vi) Restriction: Disposal shall be from the greater Tampa, Florida vicin- limited to suitable dredged material. ity. Disposal shall comply with condi- Disposal shall comply with conditions tions set forth in the most recent ap- set forth in the most recent approved proved Site Management and Moni- Site Management and Monitoring Plan. toring Plan. (22) Port Everglades Harbor, FL (19) Miami, Florida; Ocean Dredged Ocean Dredged Material Disposal Site. Material Disposal Site. (i) Location (NAD83): 26°07′30″ N., (i) Location: 25°45′30″N.; 80°03′54″W.; 80°02′00″ W.; 26°07′30″ N., 80°01′00″ W.; 25°45′30″N.; 80°02′50″W.; 25°44′30″N.; 26°06′30″ N., 80°02′00″ W.; 26°06′30″ N., 80°03′54″W.; 25°44′30″N.; 80°02′50″W. 80°01′00″ W. Center coordinates are Center coordinates are 25°45′00″ N and 26°07′00″ N and 80°01′30″ W. 80°03′22″ W. (ii) Size: Approximately 1 square nau- (ii) Size: Approximately 1 square nautical mile. tical mile. (iii) Depth: Ranges from 640 to 705 (iii) Depth: Ranges from 130 to 240 feet. meters. (iv) Primary use: Dredged material. (iv) Primary use: Dredged material. (v) Period of use: Continuing use.

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(vi) Restriction: Disposal shall be (i) Location: 29°16′10″N., 89°56′20″W.; limited to suitable dredged material. 29°14′19″N., 89°53′16″W.; 29°14′00″N., Disposal shall comply with conditions 89°53′36″W.; 29°16′29″N., 89°55′59″W. set forth in the most recent approved (ii) Size: 1.4 square nautical miles. Site Management and Monitoring Plan. (iii) Depth: Ranges from 8–20 feet. (23) Port Royal, SC; Ocean Dredged (iv) Primary Use: Dredged material. Material Disposal Site. (v) Period of Use: Continuing use. (i) Location (NAD83): 32°05.00′ N., (vi) Restriction: Disposal shall be lim- 80°36.47′ W.; 32°05.00′ N., 80°35.30′ W.; ited to dredged material from the vi- 32°04.00′ N., 80°35.30′ W.; 32°04.00′ N., cinity of Barataria Bay Waterway. 80°36.47′ W. (4) Houma Navigation Canal, Lou- (ii) Size: Approximately 1.0 square isiana. nautical miles. (i) Location: 29°05′22.3″N., 90°34′43″W.; (iii) Depth: Averages 36 feet. thence following a line 1000 feet west of (iv) Primary use: Dredged material. the channel centerline to 29°02′17.8″N., (v) Period of use: Continuing use. 90°34′28.4″W.; thence to 29°02′12.6″N., (vi) Restriction: Disposal shall be 90°35′27.8″W.; thence to 29°05′30.8″N., limited to suitable dredged material 90°35′27.8″W.; thence to the point of be- from the greater Port Royal, South ginning. Carolina, vicinity. Disposal shall com- (ii) Size: 2.08 square nautical miles. ply with conditions set forth in the (iii) Depth: Ranges from 6 to 30 feet. most recent approved Site Manage- (iv) Primary Use: Dredged material. ment and Monitoring Plan. (v) Period of Use: Continuing use. (i) Region IV Final Other Wastes (vi) Restrictions: Disposal shall be Sites. limited to dredged material from the (1) No final sites. vicinity of Cat Island Pass, Louisiana. (2) [Reserved] (5) Calcasieu, LA Dredged Material (j) Region VI Final Dredged Material Site 1. Sites. ° ′ ″ ° ′ ″ (1) Mississippi River Gulf Outlet, LA. (i) Location: 29 45 39 N., 93 19 36 W.; ° ′ ″ ° ′ ″ 29°42′42″N., 93°19′06″W.; 29°42′36″N., (i) Location: 29 32 35 N., 89 12 38 W.; ° ′ ″ ° ′ ″ ° ′ ″ 29°29′21″N., 89°08′00″W.; 29°24′32″N., 93 19 48 W.; 29 44 42 N., 93 20 12 W.; ° ′ ″ ° ′ ″ ° ′ ″ 29°44′42″N., 93°20′24″W.; 29°45′27″N., 88 59 23 W.; 29 24 28 N., 88 59 39 W.; ° ′ ″ 29°28′59″N., 89°08′19″W.; 29°32′15″N., 93 20 33 W. 89°12′57″W.; thence to point of begin- (ii) Size: 1.76 square nautical miles. ning. (iii) Depth: Ranges from 2 to 8 me- (ii) Size: 6.03 square nautical miles. ters. (iii) Depth: Ranges from 20 to 40 feet. (iv) Primary Use: Dredged material. (iv) Primary use: Dredged material. (v) Period of Use: Continuing use. (v) Period of use: Continuing use. (vi) Restriction: Disposal shall be lim- (vi) Restrictions: Disposal shall be ited to dredged material from the vi- limited to dredged material from the cinity of the Calcasieu River and Pass vicinity of Mississippi River Gulf Out- Project. let. (6) Calcasieu, LA Dredged Material (2) Southwest Pass—Mississippi Site 2. River, LA. (i) Location: 29°44′31″N., 93°20′43″W.; (i) Location: 28°54′12″N., 89°27′15″W.; 29°39′45″N., 93°19′56″W.; 29°39′34″N., 28°54′12″N., 89°26′00″W.; 28°51′00″N., 93°20′46″W.; 29°44′25″N., 93°21′33″W. 89°27′15″W.; 28°51′00″N., 89°26′00″W. (ii) Size: 3.53 square nautical miles. (ii) Size: 3.44 square nautical miles. (iii) Depth: Ranges from 2 to 11 me- (iii) Depth: Ranges from 2.7 to 32.2 ters. meters. (iv) Primary Use: Dredged material. (iv) Primary use: Dredged material. (v) Period of Use: Continuing use. (v) Period of Use: Continuing use. (vi) Restriction: Disposal shall be lim- (vi) Restrictions: Disposal shall be ited to dredged material from the vi- limited to dredged material from the cinity of the Calcasieu River and Pass vicinity of the Southwest Pass Chan- Project. nel. (7) Calcasieu, LA Dredged Material (3) Barataria Bay Waterway, LA. Site 3.

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(i) Location: 29°37′50″N., 93°19′37″W.; 29°37′00″N., 93°50′06″W.; 29°37′46″N., 29°37′25″N., 93°19′33″W.; 29°33′55″N., 93°50′26″W. 93°16′23″W.; 29°33′49″N., 93°16′5″W.; (ii) Size: 4.2 square nautical miles. 29°30′59″N., 93°13′51″W.; 29°29′10″N., (iii) Depth: Ranges from 5–9 meters. 93°13′49″W.; 29°29′05″N., 93°14′23″W.; (iv) Primary Use: Dredged material. 29°30′49″N., 93°14′25″W.; 29°37′26″N., (v) Period of Use: Continuing use. 93°20′24″W.; 29°37′44″N., 93°20′27″W. (vi) Restriction: Disposal shall be lim- (ii) Size: 5.88 square nautical miles. ited to dredged material from the (iii) Depth: Ranges from 11 to 14 me- Sabine-Neches area. ters. (12) Galveston, TX Dredged Material (iv) Primary Use: Dredged material. Site. (v) Period of Use: Continuing use. (i) Location: 29°18′00″N., 94°39′30″W; (vi) Restriction: Disposal shall be lim- 29°15′54″N., 94°37′06″W.; 29°14′24″N., ited to dredged material from the vi- 94°3′8′42″W.; 29°16′54″N., 94°41′30″W. cinity of the Calcasieu River and Pass (ii) Size: 6.6 square nautical miles. Project. (iii) Depth: Ranges from 10 to 15.5 me- (8) Sabine-Neches, TX Dredged Mate- ters. rial Site 1. (iv) Primary Use: Dredged material. (i) Location: 29°28′03″N., 93°41′14″W.; (v) Period of Use: Continuing use. 29°26′11″N., 93°41′14″W.; 29°26′11″N., (vi) Restriction: Disposal shall be lim- 93°44′11″W. ited to dredged material from the Gal- (ii) Size: 2.4 square nautical miles. veston, Texas area. (iii) Depth: Ranges from 11–13 meters. (13) Freeport Harbor, TX, New Work (iv) Primary Use: Dredged material. (45 Foot Project). ° ″ ″ ° ′ ″ (v) Period of Use: Continuing use. (i) Location: 28 50 51 N., 95 13 54 W.; 28°51′44″N., 95°14′49″W.; 28°50′15″N., (vi) Restriction: Disposal shall be lim- 95°16′40″W.; 28°49′22″N., 95°15′45″W. ited to dredged material from the (ii) Size: 2.64 square nautical miles. Sabine-Neches area. (iii) Depth: 54 to 61 feet. (9) Sabine-Neches, TX Dredged Mate- (iv) Primary Use: Construction (new rial Site 2. work) dredged material. (i) Location: 29°30′41″N., 93°43′49″W.; (v) Period of Use: Indefinite period of 29°28′42″N., 93°41′33″W.; 29°28′42″N., time. 93°44′49″W.; 29°30′08″N., 93°46′27″W. (vi) Restriction: Disposal shall be lim- (ii) Size: 4.2 square nautical miles. ited to dredged material from the Free- (iii) Depth: Ranges from 9–13 meters. port Harbor Entrance and Jetty Chan- (iv) Primary Use: Dredged material. nels, Texas. (v) Period of Use: Continuing use. (14) Freeport Harbor, TX, Mainte- (vi) Restriction: Disposal shall be lim- nance (45 Foot Project). ited to dredged material from the (i) Location: 28°54′00″N., 95°15′49″W.; Sabine-Neches area. 28°53′28″N., 95°15′16″W.; 28°52′00″N., (10) Sabine-Neches, TX Dredged Ma- 95°16′59″W.; 28°52′32″N., 95°17′32″W. terial Site 3. (ii) Size: 1.53 square nautical miles. (i) Location: 29°34′24″N., 93°48′13″W.; (iii) Depth: 31 to 38 feet. 29°32′47″N., 93°46′16″W.; 29°32′06″N., (iv) Primary use: Maintenance dredged 93°46′29″W.; 29°31′42″N., 93°48′16″W.; material. 29°32′59″N., 93°49′48″W. (v) Period of Use: Indefinite period of (ii) Size: 4.7 square nautical miles. time. (iii) Depth: 10 meters. (vi) Restriction: Disposal shall be lim- (iv) Primary Use: Dredged material. ited to dredged material from the Free- (v) Period of Use: Continuing use. port Harbor Entrance and Jetty Chan- (vi) Restriction: Disposal shall be lim- nels, Texas. ited to dredged material from the (15) Matagorda Ship Channel, TX. Sabine-Neches area. (i) Location: 28°23′48″N., 96°18′00″W.; (11) Sabine-Neches, TX, Dredged Ma- 28°23′21″N., 96°18′31″W.; 28°22′43″N., terial Site 4. 96°17′52″W.; 28°23′11″N., 96°17′22″W. (i) Location: 29°38′09″N., 93°49′23″W.; (ii) Size: 0.56 square nautical mile. 29°35′53″N., 93°48′18″W.; 29°35′06″N., (iii) Depth: Ranges from 25–40 feet. 93°50′24″W.; 29°36′37″N., 93°51′09″W.; (iv) Primary Use: Dredged Material.

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(v) Period of Use: Indefinite period of (ii) Size: 0.42 square nautical miles. time. (iii) Depth: Ranges from 60–67 feet. (vi) Restriction: Disposal shall be lim- (iv) Primary Use: Dredged material. ited to dredged material from the (v) Period of Use: Indefinite period of Matagorda Ship Channel, Texas. time. (16) Homeport Project, Port Aransas, (vi) Restrictions: Disposal shall be TX. limited to construction material (i) Location: 27°47′42″ N., 97°00′12″ W.; dredged from the Brazos Island Harbor 27°47′15″ N., 96°59′25″ W.; 27°46′17″ N., Entrance Channel, Texas. ° ′ ″ ° ′ ″ ° ′ ″ 97 01 12 W.; 27 45 49 N., 97 00 25 W. (21) Atchafalaya River and Bayous (ii) Size: 1.4 square miles. Chene, Boeuf, and Black, LA (iii) Ranges from 45–55 feet. Depth: (i) Location: 29E20′59.92′ N, 91E 23′ (iv) Primary Use: Dredged material. 33.23″ W; 29E20′43.94″ N, 91E23′09.73″ W; (v) Period of Use: 50 years. 29E08′15.46″ N, 91E34′51.02″ W; and (vi) Restriction: Disposal shall be lim- 29E07′59.43″ N, 91E34′27.51″ W. ited to dredged material from the U.S. Navy Homeport Project, Corpus Chris- (ii) Size: 9.14 square miles. ti/Ingleside, TX. (iii) Depth: Average water depth of 16 (17) Corpus Christi Ship Channel, TX. feet. (i) Location: 27°49′10″N., 97°01′09″W.; (iv) Primary Use: Dredge material. 27°48′42″N., 97°00′21″W.; 27°48′06″N., (v) Period of Use: Indefinite period of 97°00′48″W.; 27°48′33″N., 97°01′36″W. time. (ii) Size: 0.63 square nautical mile. (vi) Restriction: Disposal shall be lim- (iii) Depth: Ranges from 35 to 50 feet. ited to dredged material from the bar (iv) Primary use: Dredged material. channel of the Atchafalaya River and (v) Period of use: Indefinite period of Bayous Chene, Boeuf, and Black, Lou- time. isiana. (vi) Restrictions: Disposal shall be (k) Region VI Final Other Wastes limited to dredged material from the Sites. Corpus Christi Ship Channel, Texas. (1) No final sites. (18) Port Mansfield, TX. (2) [Reserved] (i) Location: 26°34′24″N., 97°15′15″W.; (l) Region IX Final Dredged Material 26°34′26″N., 97°14′17″W.; 26°33′57″N., Sites. 97°14′17″W.; 26°33′55″N., 97°15′15″W. (1) San Diego, CA (LA–5). (ii) Size: 0.42 Square nautical miles. (i) Location: Center coordinates of the (iii) Depth: Ranges from 35–50 feet. site are: 32°36.83′ North Latitude and (iv) Primary Use: Dredged material. 117°20.67′ West Latitude (North Amer- (v) Period of Use: Indefinite period of ican Datum from 1927), with a radius of time. 3,000 feet (910 meters). (vi) Restriction: Disposal shall be lim- (ii) Size: 0.77 square nautical miles. ited to dredged material from the Port (iii) Depth: 460 to 660 feet (145 to 200 Mansfield Entrance Channel, Texas. meters). (19) Brazos Island Harbor, TX. (iv) Primary Use: Ocean dredged mate- (i) Location: 26°04′32″ N., 97°07′26″ W.; 26°04′32″ N., 97°06′30″ W.; 26°04′02″ N., rial disposal. 97°06′30″ W.; 26°04′02″ N., 97°07′26″ W. (v) Period of Use: Continuing use. (ii) Size: 0.42 square nautical miles. (vi) Restrictions: Disposal shall be (iii) Depth: Ranges from 55 to 65 feet. limited to dredged materials that com- (iv) Primary Use: Dredged material. ply with EPA’s Ocean Dumping Regu- (v) Period of Use: Indefinite period of lations and Corps Permitting Regula- time. tions. (vi) Restriction: Disposal shall be lim- (2) Los Angeles/Long Beach, CA (LA– ited to dredged material from the Braz- 2). os Island Harbor Entrance Channel, (i) Location: 33°37.10′ North Latitude Texas. by 118°17.40′ West Longitude (North (20) Brazos Island Harbor (42-Foot American Datum from 1983), with a ra- Project), TX. dius of 3,000 feet (910 meters). (i) Location: 26°04′47″ N., 97°05′07″ W.; (ii) Size: 0.77 square nautical miles. 26°05′16″ N., 97°05′04″ W.; 26°05′10″ N., (iii) Depth: 380 to 1060 feet (110 to 320 97°04′06″ W.; 26°04′42″ N., 97°04′09″ W. meters).

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(iv) Primary use: Ocean dredged mate- (vii) Type and capacity of disposed ma- rial disposal. terials. Site disposal capacity is 4.8 mil- (v) Period of use: Continuing use, sub- lion cubic yards of suitable dredged ject to submission of a revised Consist- material per year for the remaining pe- ency Determination to the California riod of site designation. This limit is Coastal Commission after 5 years of based on considerations in the regional site management and monitoring. Long Term Management Strategy for (vi) Restrictions: Disposal shall be the placement of dredged material limited to dredged sediments that com- within the San Francisco Bay region, ply with EPA’s Ocean Dumping Regu- and on monitoring of site use since the lations. SF-DODS was designated in 1994. (3) San Francisco Deepwater Ocean (viii) Permit/project conditions. Para- Site (SF-DODS) Ocean Dredged Mate- graph (l)(3)(viii)(A) of this section sets rial Disposal Site—Region IX. forth requirements for inclusion in per- (i) Location: Center coordinates of the mits to use the SF-DODS, and in all oval-shaped site are: 37°39.0′ North lati- Army Corps of Engineers federal tude by 123°29.0′ West longitude (North project authorizations. Paragraph American Datum from 1983), with (l)(3)(viii)(B) of this section describes length (north-south axis) and width additional project-specific conditions (west-east axis) dimensions of approxi- that will be required of disposal per- mately 4 nautical miles (7.5 kilo- mits and operations as appropriate. meters) and 2.5 nautical miles (4.5 kilo- Paragraph (l)(3)(viii)(C) of this section meters), respectively. describes how alternative permit con- (ii) Size: 6.5 square nautical miles (22 ditions may be authorized by EPA and square kilometers). the Corps of Engineers. All references (iii) Depth: 8,200 to 9,840 feet (2,500 to to ‘‘permittees’’ shall be deemed to in- 3,000 meters). clude the Army Corps of Engineers (iv) Use Restricted to Disposal of: when implementing a federal dredging Dredged materials. project. (v) Period of Use: Continuing use over (A) Mandatory conditions. All permits 50 years from date of site designation, or federal project authorizations au- subject to restrictions and provisions thorizing use of the SF-DODS shall in- set forth below. clude the following conditions, unless (vi) Restrictions/provisions: The re- approval for an alternative permit con- mainder of this § 228.15(l)(3) (herein- dition is sought and granted pursuant after referred to as ‘‘this section’’) con- to paragraph (l)(3)(viii)(C) of this sec- stitutes the required Site Management tion: and Monitoring Plan (SMMP) for the (1) Transportation of dredged mate- SF-DODS. This SMMP shall be supple- rial to the SF-DODS shall only be al- mented by a Site Management and lowed when weather and sea state con- Monitoring Plan Implementation Man- ditions will not interfere with safe ual (SMMP Implementation Manual) transportation and will not create risk containing more detailed operational of spillage, leak or other loss of guidance. The SMMP Implementation dredged material in transit to the SF- Manual may be periodically revised as DODS. No disposal trips shall be initi- necessary; proposed revisions to the ated when the National Weather Serv- SMMP Implementation Manual shall ice has issued a gale warning for local be made following opportunity for pub- waters during the time period nec- lic review and comment. Adherence to essary to complete dumping oper- the provisions of the most current ations, or when wave heights are 16 SMMP Implementation Manual, in- feet or greater. The permittee must cluding mandatory permit conditions, consult the most current version of the site monitoring activities, and any SMMP Implementation Manual for ad- other condition(s) EPA or the Corps ditional restrictions and/or clarifica- have required as part of the project au- tions regarding other sea state param- thorization or permit, is a requirement eters, including, but not limited to for use of the SF-DODS. SF-DODS use wave period. shall be subject to the following re- (2) All vessels used for dredged mate- strictions and provisions: rial transportation and disposal must

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be loaded to no more than 80 percent bilities are restored. The back-up navi- by volume of the vessel. Before any dis- gation system, with all the capabilities posal vessel departs for the SF-DODS, listed in this condition, must be in an independent quality control inspec- place on the vessel carrying the tor must certify in writing that the dredged material. vessel meets the conditions and re- (8) The permittee shall maintain quirements of a certification checklist daily records of the amount of material that contains all of the substantive ele- dredged and loaded into barges for dis- ments found in the example contained posal, the times that disposal vessel de- in the most current SMMP Implemen- part for, arrive at and return from the tation Manual. For the purposes of SF-DODS, the exact locations and paragraph (l)(3)(viii) of this section, times of disposal, and the volumes of ‘‘independent’’ means not an employee material disposed at the SF-DODS dur- of the permittee or dredging con- ing each vessel trip. The permittee tractor; however, the Corps of Engi- shall further record wind and sea state neers may provide inspectors for Corps observations at intervals to be estab- of Engineers dredged material disposal lished in the permit. projects. (9) For each disposal vessel trip, the (3) Dredged material shall not be permittee shall maintain a computer leaked or spilled from disposal vessels printout from a Global Positioning during transit to the SF-DODS. System or other acceptable navigation (4) Disposal vessels in transit to and system showing transit routes and dis- from the SF-DODS should remain at posal coordinates, including the time least three nautical miles from the and position of the disposal vessel Farallon Islands whenever possible. when dumping was commenced and Closer approaches should occur only in completed. situations where the designated vessel (10) An independent quality control traffic lane enters the area encom- inspector (as defined in paragraph passed by the 3-mile limit, and where (l)(3)(viii)(A)(2)) of this section shall safety may be compromised by staying observe all dredging and disposal oper- outside of the 3-mile limit. In no case ations. The inspector shall verify the may disposal vessels leave the des- information required in paragraphs ignated vessel traffic lane. (l)(3)(viii)(A)(8) and (9) of this section. (5) When dredged material is dis- The inspector shall promptly inform charged within the SF-DODS, no por- permittees of any inaccuracies or dis- tion of the vessel from which the mate- crepancies concerning this information rials are to be released (e.g., hopper and shall prepare summary reports, dredge or towed barge) can be further which summarize all such inaccuracies than 1,900 feet (600 meters) from the and discrepancies, from time to time as center of the target area at 37°39′ N, shall be specified in permits. Such 123°29′ W. summary reports shall be sent by the (6) No more than one disposal vessel permittee to the District Engineer and may be present within the permissible the Regional Administrator within a dumping target area referred to in time interval that shall be specified in paragraph (l)(3)(viii)(A)(5) of this sec- the permit. tion at any time. (11) The permittee shall report any (7) Disposal vessels shall use an ap- anticipated or actual permit violations propriate navigation system capable of to the District Engineer and the Re- indicating the position of the vessel gional Administrator within 24 hours carrying dredged material (for exam- of discovering such violation. If any ple, a hopper dredged vessel or towed anticipated or actual permit violations barge) with a minimum accuracy and occur within the Gulf of the Farallones precision of 100 feet during all disposal or the Monterey Bay National Marine operations. The system must also indi- Sanctuaries, the permittee must also cate the opening and closing of the report any such violation to the respec- doors of the vessel carrying the tive Sanctuary Manager within 24 dredged material. If the positioning hours. In addition, the permittee shall system fails, all disposal operations prepare and submit reports, certified must cease until the navigational capa- accurate by the independent quality

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control inspector, on a frequency that will prevent the spillage of dredged ma- shall be specified in permits, to the terials. District Engineer and the Regional Ad- (2) Permittees may be required to use ministrator setting forth the informa- automated data logging systems for re- tion required by Mandatory Conditions cording navigation and disposal coordi- in paragraphs (l)(3)(viii)(A)(8) and (9) of nates and/or load levels throughout dis- this section. posal trips when such systems are fea- (12) Permittees, and the Corps in its sible and represent an improvement Civil Works projects, must make ar- over manual recording methodologies. rangements for independent observers (3) Any other conditions that EPA or to be present on disposal vessels for the the Corps of Engineers determine to be purpose of conducting shipboard sur- necessary or appropriate to facilitate veys of seabirds and marine mammals. compliance with the requirements of Observers shall employ standardized the MPRSA and this section may be in- monitoring protocols, as referenced in cluded in site use permits. the most current SMMP Implementa- (C) Alternative permit/project condition Manual. At a minimum, permit- tions. Alternatives to the permit condi- tees shall ensure that independent ob- tions specified in paragraph (l)(3)(viii) servers are present on at least one dis- of this section in a permit or federal posal trip during each calendar month project authorization may be author- that disposal occurs, AND on average ized if the permittee demonstrates to at least once every 25 vessel trips to the District Engineer and the Regional the SF-DODS. Administrator that the alternative conditions are sufficient to accomplish (13) At the completion of short-term the specific intended purpose of the dredging projects, at least annually for permit condition in issue and further ongoing projects, and at any other demonstrates that the waiver will not time or interval requested by the Dis- increase the risk of harm to the envi- trict Engineer or Regional Adminis- ronment, the health or safety of per- trator, permittees shall prepare and sons, nor will impede monitoring of submit to the District Engineer and compliance with the MPRSA, regula- Regional Administrator a report that tions promulgated under the MPRSA, includes complete records of all dredg- or any permit issued under the ing, transport and disposal activities, MPRSA. such as navigation logs, disposal co- (ix) Site monitoring. Data shall be col- ordinates, scow certification check- lected in accordance with a three- lists, and other information required tiered site monitoring program which by permit conditions. Electronic data consists of three interdependent types submittals may be required to conform of monitoring for each tier: Physical, to a format specified by the agencies. chemical and biological. In addition, Permittees shall include a report indi- periodic confirmatory monitoring con- cating whether any dredged material cerning potential site contamination was dredged outside the areas author- shall be performed. Specific guidance ized for dredging or was dredged deeper for site monitoring tasks required by than authorized for dredging by their this paragraph shall be described in a permits. Site Management and Monitoring Im- (B) Project-specific conditions. Permits plementation Manual (SMMP Imple- or federal project authorizations au- mentation Manual) developed by EPA. thorizing use of the SF-DODS may in- The SMMP Implementation Manual clude the following conditions, if EPA shall be reviewed periodically and any determines these conditions are nec- necessary revisions to the Manual will essary to facilitate safe use of the SF- be issued for public review under an DODS, the prevention of potential EPA Public Notice. harm to the environment or accurate (A) Tier 1 monitoring activities. Tier 1 monitoring of site use: monitoring activities shall consist of (1) Permittees may be required to the following: limit the speed of disposal vessels in (1) Physical monitoring. Tier 1 Phys- transit to the SF-DODS to a rate that ical Monitoring shall consist of a phys- is safe under the circumstances and ical survey to map the area on the

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seafloor within and in the vicinity of transects within and in the vicinity of the disposal site where dredged mate- the SF-DODS. The periodic shipboard rial has been deposited (the footprint). surveys shall be performed from vessels Such a survey shall use appropriate involved in dredged material disposal technology (for example, sediment pro- operations at the SF-DODS as specified file photography) to determine the in permit conditions imposed pursuant areal extent and thickness of the dis- to paragraph (l)(3)(viii)(A)(12) of this posed dredged material, and to deter- section. The minimum number of sur- mine if any dredged material has de- veys must be sufficient to characterize posited outside of the disposal site the disposal operations for each boundary. project, and, as practicable, provide (2) Chemical monitoring. Tier 1 Chem- seasonal data for an assessment of the ical Monitoring shall consist of col- potential for adverse impacts for the lecting, processing, and preserving one-year period. An appropriate time- boxcore samples of sediments so that series (ordinal), and community anal- such sediments could be subjected to ysis shall be performed using data col- sediment chemistry analysis in the ap- lected during the current year and pre- propriate tier. Samples shall be col- vious years. lected within the dredged material (ii) Benthic communities. Tier 1 Bio- footprint, outside of the dredged mate- logical Monitoring shall include collec- rial footprint, and outside of the dis- tion and preservation of boxcore sam- posal site boundaries. Samples within ples of benthic communities so that the footprint shall be subjected to such samples could be analyzed as a chemical analysis in annual Tier 1 ac- Tier 2 activity. tivity. Samples from outside of the (4) Annual reporting. The results of footprint and outside of the disposal the annual Tier 1 studies shall be com- site boundaries shall be archived and piled in an annual report which will be analyzed only when the criteria requir- available for public review. ing Tier 2 as specified in paragraph (B) Tier 2 monitoring activities. Tier 2 (l)(3)(x) of this section are met. A sufficient number of samples shall be col- monitoring activities shall consist of lected so that the potential for adverse the following: impacts due to elevated chemistry can (1) Physical monitoring. Tier 2 Phys- be assessed with an appropriate time- ical Monitoring shall consist of oceano- series or ordinal technique. graphic studies conducted to validate (3) Biological monitoring. Tier 1 Bio- and/or improve the models used to pre- logical Monitoring shall have two com- dict the dispersion in the water column ponents: Monitoring of pelagic commu- and deposition of dredged material on nities and monitoring of benthic com- the seafloor at the SF-DODS. The ap- munities. propriate physical oceanographic stud- (i) Pelagic communities. Tier 1 Biologi- ies may include: The collection of addi- cal Monitoring shall include regional tional current meter data, deployment surveys of seabirds, marine mammals of sediment traps, and deployment of and mid-water column fish populations surface and subsurface drifters. appropriate for evaluating how these (2) Chemical monitoring. Tier 2 Chem- populations might be affected by dis- ical Monitoring shall consist of per- posal site use. A combination of annual forming sediment chemistry analysis regional and periodic (random) ship- on samples collected and preserved in board surveys of seabirds and marine Tier 1 from outside of the footprint and mammals will be used. The regional outside of the disposal site boundaries. survey designs for each category of (3) Biological monitoring. Tier 2 Bio- biota shall be similar to that used for logical Monitoring shall involve moni- the regional characterization studies toring of pelagic communities and referenced in the Final Environmental monitoring of benthic communities. Impact Statement for Designation of a (i) Pelagic communities. Tier 2 Biologi- Deep Water Ocean Dredged Material cal Monitoring for pelagic commu- Disposal Site off San Francisco, Cali- nities shall include supplemental sur- fornia (August 1993) with appropriate veys of similar type to those in Tier 1, realignments to accommodate or other surveys as appropriate.

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(ii) Benthic communities. Tier 2 Bio- the assessment of benthic body burdens logical Monitoring for benthic commu- of contaminants and correlation with nities shall include a comparison of the comparison of the benthic commu- benthic community within the dredged nities inside and outside of the sedi- material footprint to benthic commu- ment footprint. nities in adjacent areas outside of the (3) Biological monitoring. Tier 3 bio- dredged material footprint. An appro- logical monitoring shall have two com- priate time-series (ordinal) and components: monitoring of pelagic commu- munity analysis shall be performed nities and monitoring of benthic com- using data collected during the current munities. year and previous years to determine (i) Pelagic communities. Tier 3 Biologi- whether there are adverse changes in cal Monitoring shall include advanced the benthic populations outside of the studies of seabirds, marine mammals disposal site which may endanger the and mid-water column fish to evaluate marine environment. (4) Annual reporting. The results of how these populations might be af- any required Tier 2 studies shall be fected by disposal site use. Such stud- compiled in an annual report which ies may include additional sampling will be available for public review. stations, greater frequency of sam- (C) Tier 3 monitoring activities. Tier 3 pling, more advanced sampling meth- monitoring activities shall consist of odologies or equipment, or other addi- the following: tional increased study measures com- (1) Physical monitoring. Tier 3 phys- pared to similar studies conducted in ical monitoring shall consist of ad- Tier 1 or 2. Studies may include evalua- vanced oceanographic studies to study tion of sub-lethal changes in the health the dispersion of dredged material in of pelagic organisms, such as the devel- the water column and the deposition of opment of lesions, tumors, develop- dredged material on the seafloor in the mental abnormality, decreased fecun- vicinity of the SF-DODS. Such phys- dity or other adverse sub-lethal effect. ical monitoring may include addi- (ii) Benthic communities. Tier 3 Bio- tional, intensified studies involving the logical Monitoring shall include ad- collection of additional current meter vanced studies of benthic communities data, deployment of sediment traps, to evaluate how these populations and deployment of surface and sub- might be affected by disposal site use. surface drifters. Such studies may in- Such studies may include additional clude additional sampling stations, sampling stations, greater frequency of greater frequency of sampling, more sampling, more advanced sampling advanced sampling methodologies or methodologies or equipment, or other equipment, or other additional in- additional increased study measures creased study measures compared to compared to similar studies conducted similar studies conducted in Tier 1 or 2. in Tier 2. Studies may include evalua- (2) Chemical monitoring. Tier 3 Chem- tion of sub-lethal changes in the health ical Monitoring shall consist of anal- of benthic organisms, such as the de- ysis of tissues of appropriate field-collected benthic and/or epifaunal orga- velopment of lesions, tumors, develop- nisms to determine bioaccumulation of mental abnormality, decreased fecun- contaminants that may be associated dity or other adverse sub-lethal effect. with dredged materials deposited at (4) Reporting. The results of any re- the SF-DODS. Sampling and analysis quired Tier 3 studies shall be compiled shall be designed and implemented to in a report which will be available for determine whether the SF-DODS is a public review. source of adverse bioaccumulation in (D) Periodic confirmatory monitoring. the tissues of benthic species collected At least once every three years, the at or outside the SF-DODS, compared following confirmatory monitoring ac- to adjacent unimpacted areas, which tivities will be conducted and results may endanger the marine environment. compiled in a report which will be Appropriate sampling methodologies available for public review: Samples of for these tests will be determined and sediments taken from the dredged ma- the appropriate analyses will involve terial footprint shall be subjected to

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bioassay testing using one or more ap- toring shall remain limited to Tier 1 propriate sensitive marine species con- monitoring when Tier 1 monitoring es- sistent with applicable ocean disposal tablishes that no significant amount of testing guidance (‘‘Green Book’’ or re- dredged material has been deposited or lated Regional Implementation Agree- transported outside of the site bound- ments), as determined by the Regional aries. Tier 2 monitoring shall be em- Administrator, to confirm whether ployed when Tier 1 monitoring is insuf- contaminated sediments are being de- ficient to conclude that a significant posited at the SF-DODS despite exten- amount of dredged material as defined sive pre-disposal testing. In addition, in paragraph (l)(3)(x)(A)(4) of this sec- near-surface arrays of appropriate fil- tion has not been deposited or trans- ter-feeding organisms (such as mussels) ported outside of the site boundaries. shall be deployed in at least three loca- (2) Chemical monitoring. (i) Chemical tions in and around the disposal site monitoring shall remain limited to for at least one month during active Tier 1 Chemical Monitoring when the site use, to confirm whether substantial bioaccumulation of contaminants results of Physical Monitoring indicate may be associated with exposure to that a significant amount of dredged suspended sediment plumes from mul- material as defined in paragraph tiple disposal events. One array must (l)(3)(x)(A)(4) of this section has not be deployed outside the influence of been deposited or transported off-site, any expected plumes to serve as a base- and Tier 1 Chemical Monitoring estab- line reference. lishes that dredged sediments deposited (x) Site management actions. Once dis- at the disposal site do not contain lev- posal operations at the site begin, the els of chemical contaminants that are three-tier monitoring program de- significantly elevated above the range scribed in paragraphs (l)(3)(ix) (A) of chemical contaminant levels in through (C) of this section shall be im- dredged sediments that the Regional plemented on an annual basis, through Administrator and the District Engi- December 31, 1998, independent of the neer found to be suitable for disposal at actual volumes disposed at the site. the SF-DODS pursuant to 40 CFR part Thereafter, the Regional Adminis- 227. trator may establish a minimum an- (ii) Tier 2 monitoring shall be em- nual disposal volume (not to exceed 10 ployed when the results of Physical percent of the designated site capacity Monitoring indicate that a significant at any time) below which this moni- amount of dredged material as defined toring program need not be fully im- in paragraph (l)(3)(x)(A)(4) of this sec- plemented. The Regional Adminis- tion has been deposited off-site, and trator shall promptly review moni- Tier 1 Chemical Monitoring is insuffi- toring reports for the SF-DODS along cient to establish that dredged sedi- with any other information available ments deposited at the disposal site do to the Regional Administrator con- not contain levels of chemical concerning site monitoring activities. If taminants that are significantly ele- the information gathered from moni- vated above the range of chemical con- toring at a given monitoring tier is not taminant levels in dredged sediments sufficient for the Regional Adminis- trator to base reasonable conclusions that the Regional Administrator and as to whether disposal at the SF-DODS the District Engineer found to be suit- might be endangering the marine eco- able for disposal at the SF-DODS pur- system, then the Regional Adminis- suant to 40 CFR part 227. trator shall require intensified moni- The Regional Administrator may em- toring at a higher tier. If monitoring at ploy Tier 2 monitoring when available a given tier establishes that disposal at evidence indicates that a significant the SF-DODS is endangering the ma- amount of dredged material as defined rine ecosystem, then the Regional Ad- in paragraph (l)(3)(x)(A)(4) of this sec- ministrator shall require modification, tion has been deposited near the SF- suspension or termination of site use. DODS site boundary. (A) Selection of site monitoring tiers— (iii) Tier 3 monitoring shall be em- (1) Physical monitoring. Physical moni- ployed within and outside the dredged

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material footprint when Tier 2 Chem- dredged material accumulation on the ical Monitoring is insufficient to estab- ocean bottom to a thickness of five lish that dredged sediments deposited centimeters shall be considered to be a at the disposal site do not contain lev- significant amount of dredged mate- els of chemical contaminants that are rial. The Regional Administrator may significantly elevated above the range determine that a lesser amount of ac- of chemical contaminant levels in cumulation is significant if available dredged sediments that the Regional evidence indicates that a lesser amount Administrator and the District Engi- of off-site accumulation could endan- neer found to be suitable for disposal at ger marine resources. the SF-DODS pursuant to 40 CFR part (B) Modification, suspension or termi- 227. nation of site use. (1) If the results of (3) Biological monitoring. (i) Pelagic site monitoring or other information communities. Biological monitoring for indicate that any of the following are pelagic communities shall remain lim- occurring as a result of disposal at the ited to Tier 1 monitoring when Tier 1 SF-DODS, then the Regional Adminis- monitoring establishes that disposal at trator shall modify, suspend, or termi- the SF-DODS has not endangered the nate site use overall, or for individual monitored pelagic communities. When projects as appropriate: Tier 1 monitoring is insufficient to (i) Exceedance of Federal marine make reasonable conclusions whether water quality criteria within the SF- disposal at the site has endangered the DODS following initial mixing as de- monitored pelagic communities, then fined in 40 CFR 227.29(a) or beyond the Tier 2 monitoring of pelagic commu- site boundary at any time; nities shall be employed. When Tier 2 (ii) Placement or movement of sig- monitoring is insufficient to make rea- nificant quantities of disposed material sonable conclusions whether disposal outside of site boundaries near or to- at the site has endangered the mon- ward significant biological resource itored pelagic communities, then Tier 3 areas or marine sanctuaries; monitoring of pelagic communities (iii) Endangerment of the marine en- shall be employed. vironment related to potentially sig- (ii) Benthic communities. Biological nificant adverse changes in the struc- monitoring for benthic communities ture of the benthic community outside shall remain limited to Tier 1 moni- the disposal site boundary; toring when physical monitoring estab- (iv) Endangerment to the health, wel- lishes that a significant amount of fare, or livelihood of persons or to the dredged material has not been depos- environment related to potentially sig- ited outside of the site boundaries. If nificant adverse bioaccumulation in or- physical monitoring indicates that a ganisms collected from the disposal significant amount of dredged material site or areas adjacent to the site has been deposited or transported out- boundary compared to the reference side of the site boundaries, then Tier 2 site; analysis of benthic communities shall (v) Endangerment to the health, wel- be performed. If Chemical Monitoring fare, or livelihood of persons related to establishes that there is significant potentially significant adverse impacts bioaccumulation of contaminants in upon commercial or recreational fish- organisms sampled from within or out- eries resources near the site; or side the dredged material footprint, (vi) Endangerment to the health, wel- then Tier 3 Biological Monitoring of fare, or livelihood of persons or to the the disposal site shall be employed. environment related to any other po- Tier 3 Biological Monitoring may re- tentially significant adverse environ- place Tier 3 Chemical Monitoring if ob- mental impacts. served biological effects are established (2) The Regional Administrator shall as surrogate indicators for bioaccumu- modify site use, rather than suspend or lation of chemical contaminants in terminate site use, when site use modi- sampled organisms. fication will be sufficient to eliminate (4) Definition of significant dredged ma- the adverse environmental impacts re- terial accumulation. For purposes of this ferred to in paragraphs (l)(3)(x)(B)(1) (i) paragraph (l)(3)(x)(A) of this section, or (ii) of this section or the

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endangerment to human health, wel- welfare or livelihood to the environ- fare or livelihood to the environment ment referred to in paragraphs referred to in paragraphs (l)(3)(x)(B)(1) (l)(3)(x)(B)(1) (iii) through (vi) of this (iii) through (vi) of this section. Not- section. withstanding the provisions of any per- (4) Channel Bar Site, San Francisco, mit or federal project authorization au- CA (SF–8). thorizing site use, the Regional Admin- (i) Location: 37°44′55″N., 122°37′18″W; istrator shall order, following oppor- 37°45′45″N., 122°34′24″W.; 37°44′24″N., tunity for public comment, any of the 122°37′06″W.; 37°45′15″N., 122°34′12″W. following modifications to site use that (ii) Size: 4,572×914 meters. he or she deems necessary to eliminate (iii) Depth: Ranges from 11 to 14.3 me- the adverse environmental effect or ters. endangerment to human health, wel- (iv) Primary Use: Dredged material. fare, or livelihood or to the environ- (v) Period of Use: Continuing use. ment: (vi) Restriction: Disposal shall be lim- (i) Change or additional restrictions ited to material from required dredging upon the permissible times, rates and operations at the entrance of the San total volume of disposal of dredged ma- Francisco main ship channel which is terial at the SF-DODS; composed primarily of sand having (ii) Change or additional restrictions grain sizes compatible with naturally upon the method of disposal or trans- occurring sediments at the disposal portation of dredged materials for dis- site and containing approximately 5 posal; or percent of particles having grain sizes (iii) Change or additional limitations finer than that normally attributed to upon the type or quality of dredged very fine sand (.075 millimeters). Other materials according to chemical, phys- dredged materials meeting the require- ical, bioassay toxicity, or bioaccumula- ments of 40 CFR 227.13 but having tion characteristics. smaller grain sizes may be dumped at (3) The Regional Administrator shall this site only upon completion of an suspend site use when site use suspen- appropriate case-by-case evaluation of sion is both necessary and sufficient to the impact of such material on the site eliminate any adverse environmental which demonstrates that such impact effect or endangerment to human will be acceptable. health, welfare, or livelihood or to the (5) Hilo, HI. environment referred to in paragraph (i) Location: (center point): Lati- (l)(3)(x)(B)(1) of this section. Notwith- tude—19°48′30″N.; Longitude— standing the provisions of any permit 154°58′30″W. or federal project authorization au- (ii) Size: Circular with a radius of 920 thorizing site use, the Regional Admin- meters. istrator shall order, following oppor- (iii) Depth: Ranges from 330 to 340 tunity for public comment, site use meters. suspension until an appropriate man- (iv) Dredged material. agement action is identified or for a Primary Use: time period that will eliminate the ad- (v) Period of Use: Continuing use. verse environmental effect or (vi) Restriction: Disposal shall be lim- endangerment to human health, wel- ited to dredged material. fare, or livelihood or to the environ- (6) Kahului, HI. ment. (i) Location: (center point): Lati- (4) Notwithstanding the provisions of tude—21°04′42″N.; Longitude— any permit or federal project author- 156°29′00″W. ization authorizing site use, the Re- (ii) Size: Circular with a radius of 920 gional Administrator shall order, fol- meters. lowing opportunity for public com- (iii) Depth: Ranges from 345 to 365 ment, site use permanently terminated meters. if this is the only means for elimi- (iv) Primary Use: Dredged material. nating the adverse environmental im- (v) Period of Use: Continuing use. pacts referred to in paragraphs (vi) Restriction: Disposal shall be lim- (l)(3)(x)(B)(1) (i) or (ii) of this section or ited to dredged material. the endangerment to human health, (7) South Oahu, HI.

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(i) Location: (center point): Lati- Site Management and Monitoring Plan tude—21°15′10″ N.; Longitude—157°56′50″ (SMMP) for the HOODS as incor- W. porated in the Final EIS, and summa- (ii) Size: 2 kilometers wide and 2.6 kil- rized in Section D of this final rule. All ometers long. disposal activities shall be terminated (iii) Depth: Ranges from 400 to 475 if monitoring, as described in the meters. SMMP, is not implemented. The SMMP (iv) Primary Use: Dredged material. may be periodically revised as nec- (v) Period of Use: Continuing use. essary; proposed substantive revisions (vi) Restriction: Disposal shall be lim- to the SMMP shall be made following ited to dredged material. opportunity for public review and com- (8) Nawiliwili, HI. ment. (i) Location: (centerpoint): Latitude— (11) Newport Beach, CA, (LA–3) Ocean 21°55′00″ N. Longitude—159°17′00″ W. Dredged Material Disposal Site—Re- (ii) Size: Circular with a radius of 920 gion IX. meters. (i) Location: Center coordinates of (iii) Depth: Ranges from 840 to 1,120 the circle-shaped site are: 33°31′00″ meters. North Latitude by 117°53′30″ West Lon- (iv) Primary Use: Dredged material. gitude (North American Datum from (v) Period of Use: Continuing use. 1983), with a radius of 3,000 feet (915 me- (vi) Restriction: Disposal shall be lim- ters). ited to dredged material. (ii) Size: 0.77 square nautical miles. (9) Port Allen, HI. (iii) Depth: 1,500 to 1,675 feet (460 to (i) Location: (center point) Latitude— 510 meters). 21°50′00″ N. Longitude—159°35′00″ W. (iv) Use Restricted to Disposal of: (ii) Size: Circular with a radius of 920 Dredged materials. meters. (v) Period of Use: Continuing use. (iii) Depth: Ranges from 1,460 to 1,610 (vi) Restrictions: Disposal shall be meters. limited to dredged materials that com- (iv) Primary Use: Dredged material. ply with EPA’s Ocean Dumping Regu- (v) Period of Use: Continuing use. lations. (vi) Restriction: Disposal shall be lim- (m) Region IX Final Other Wastes ited to dredged material. Sites. (10) Humboldt Open Ocean Disposal (1) Fish Processing Waste Disposal Site (HOODS) Ocean Dredged Material Site, American Samoa. Disposal Site—Region IX. (i) Location: 14°24.00′ South latitude (i) Location: The coordinates of the by 170°38.30′ West longitude (1.5 nau- corners of the square site are: 40°48′25″ tical mile radius). North latitude (N) by 124°16′22″ West (ii) Size: 7.07 square nautical miles. longitude (W); 40°49′03″ N by 124°17′22″ (iii) Depth: 1,502 fathoms (2,746 meters W; 40°47′38″ N by 124°17′22″ N; and or 9,012 feet). 40°48′17″ N by 124°18′12″ W (North Amer- (iv) Primary Use: Disposal of fish ican Datum from 1983). processing wastes. (ii) Size: 1 square nautical mile (3 (v) Period of Use: Continued use. square kilometers). (vi) Restriction: Disposal shall be lim- (iii) Depth: Water depths within the ited to dissolved air flotation (DAF) area range between approximately 160 sludge, presswater, and precooker to 180 feet (49 to 55 meters). water produced as a result of fish proc- (iv) Use Restricted to Disposal of: essing operations at fish canneries gen- Dredged materials. erated in American Samoa. (v) Period of Use: Continuing use (2) [Reserved] over 50 years from date of site designa- (n) Region X Final Dredged Material tion, subject to restrictions and provi- Sites. sions set forth in paragraph (l)(10)(vi) (1) Chetco, OR, Dredged Material of this section. Site. (vi) Restrictions/Provisions: Site (i) Location: 42°01′55″ N., 124°16′37″ W.; management and monitoring activities 42°01′55″ N., 124°16′13″ W.; 42°01′37″ N., shall be implemented during the period 124°16′13″ W.; and 42°01′37″ N., 124°16′37″ of site use and in accordance with the W. (NAD83)

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(ii) Size: 0.09 square nautical mile. (5) Coquille River Entrance, OR. (iii) Depth: 21 meters (average). (i) Location: 43°08′26″ N., 124°26′44″ W.; (iv) Primary Use: Dredged material. 43°08′3″ N., 124°26′08″ W.; 43°08′13″ N., (v) Period of Use: Continuing use. 124°27′00″ W.; 43°07′50″ N., 124°26′23″ W. (vi) Restrictions: Disposal shall be Centroid: 43°08′08″ N., 124°26′34″ W. limited to dredged material determined (ii) Size: 0.17 square nautical miles. to be suitable for unconfined disposal (iii) Depth: 18.3 meters. from the Chetco Estuary and River and (iv) Period of Use: Continuing use. adjacent areas. (v) Restrictions: Disposal shall be lim- (2) Coos Bay, OR Dredged Material ited to dredged material from the Site E. Coquille Estuary and River and adja- (i) Location: 43°21′59″ N., 124°22′45″ cent areas. W.;43°21′48″ N., 124°21′59″ W.; 43°21′35″ N., (6) Rogue River, OR—Dredged Mate- 124°22′05″ W.; 43°21′46″ N., 124°22′51″ W. rial Site (ii) Size: 0.13 square nautical mile. (i) Location: 42° 24′15.40″ N, 124° (iii) Depth: Averages 17 meters. 26′52.39″ W; 42° 24′03.40″ N, 124° 26′39.39″ (iv) Primary Use: Dredged material. W; 42° 23′39.40″ N, 124° 27′17.40″ W; 42° (v) Period of Use: Continuing use. 23′51.40″ N, 124° 27′30.40″ W (NAD 83) (vi) Restriction: Disposal shall be lim- (ii) Size: Approximately 1.1 kilo- ited to dredged material in the Coos meters long and 0.4 kilometers wide Bay area of type 1, as defined in the (iii) Depth: Ranges from approxi- site designation final EIS. mately 15 to 27 meters (3) Coos Bay, OR Dredged Material (iv) Primary Use: Dredged material Site F. (v) Period of Use: Continuing Use (i) Location: 43°22′44″ N., 124°22′18″ W.; (vi) Restrictions: (A) Disposal shall be 43°22′29″ N., 124°21′34″ W.; 43°22′16″ N., limited to dredged material determined 124°21′42″ W.; 43°22′31″ N., 124°22′26″ W. to be suitable for ocean disposal ac- (ii) Size: 0.13 square nautical mile. cording to 40 CFR 227.13, from the (iii) Depth: Averages 24 meters. Rogue River navigation channel and (iv) Primary Use: Dredged material. adjacent areas; (v) Period of Use: Continuing use. (B) Disposal shall be managed by the (vi) Restriction: Disposal shall be lim- restrictions and requirements con- ited to dredged material in the Coos tained in the currently-approved Site Bay area of type 1, as defined in the Management and Monitoring Plan site designation final EIS. (SMMP); (4) Coos Bay, OR Dredged Material (C) Monitoring, as specified in the Site H. SMMP, is required. (i) Location: 43°22′54.8887″ N, (7) Umpqua River, OR—North and 124°19′28.9905″ W; 43°21′32.8735″ N, South Dredged Material Disposal Sites. 124°20′37.7373″ W; 43°22′51.4004″ N, (i) North Umpqua River Site. 124°23′32.4318″ W; 43°23′58.4014″ N, (A) Location: 43°41′23.09″ N, 124°22′35.4308″ W (NAD 83). 124°14′20.28″ W; 43°41′25.86″ N, 124°12′54.61″ (ii) Size: 4.45 kilometers long and 2.45 W; 43°40′43.62″ N, 124°14′17.85″ W; kilometers wide. 43°40′46.37″ N, 124°12′52.74″ W. (iii) Depth: Ranges from 6 to 51 me- (B) Size: Approximately 1.92 kilo- ters. meters long and 1.22 kilometers wide, (iv) Primary Use: Dredged material with a drop zone which is defined as a determined to be suitable for ocean dis- 500-foot setback inscribed within all posal. sides of the site boundary, reducing the (v) Period of Use: Continuing Use. permissible disposal area to a zone 5,300 (vi) Restriction: Disposal shall be lim- feet long by 3,000 feet wide. ited to dredged material determined to (C) Depth: Ranges from approxi- be suitable for unconfined disposal; mately 9 to 37 meters. Disposal shall be managed by the re- (D) Primary Use: Dredged material. strictions and requirements contained (E) Period of Use: Continuing Use. in the currently-approved Site Manage- (F) Restrictions: (1) Disposal shall be ment and Monitoring Plan (SMMP); limited to dredged material determined Monitoring, as specified in the SMMP, to be suitable for ocean disposal ac- is required. cording to 40 CFR 227.13, from the

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Umpqua River navigation channel and (vi) Restriction: Disposal shall be lim- adjacent areas; ited to dredged material determined to (2) Disposal shall be managed by the be suitable for unconfined disposal; restrictions and requirements con- Site use shall be consistent with the tained in the currently-approved Site ability of the site to disperse disposed Management and Monitoring Plan material into the littoral zone. (SMMP); (9) Mouth of the Columbia River, OR/ (3) Monitoring, as specified in the WA Dredged Material Deep Water site. SMMP, is required. (i) Location: Overall Site Coordinates: (ii) South Umpqua River Site. 46°11′03.03″ N, 124°10′01.30″ W; 46°13′09.78″ (A) Location: 43°39′32.31″ N, N, 124°12′39.67″ W; 46°10′40.88″ N, 124°14′35.60″ W; 43°39′35.23″ N, 124°13′11.01″ 124°16′46.48″ W; 46°08′34.22″ N, 124°14′08.07″ W; 43°38′53.08″ N, 124°14′32.94″ W; W (which includes a 3,000-foot buffer); 43°38′55.82″ N, 124°13′08.36″ W. Site Placement Area: 46°11′06.00″ N, (B) Size: Approximately 1.92 kilo- 124°11′05.99″ W; 46°12′28.01″ N, 124°12′48.48″ meters long and 1.22 kilometers wide, W; 46°10′37.96″ N, 124°15′50.91″ W; with a drop zone which is defined as a 46°09′15.99″ N, 124°14′08.40″ W (All NAD, 500-foot setback inscribed within all 83). sides of the site boundary, reducing the (ii) Size: 7.01 kilometers long by 5.18 permissible disposal area to a zone 5,300 kilometers wide or 10.5 square nautical feet long by 3,000 feet wide. mile. (C) Depth: Ranges from approxi- (iii) Depth: Ranges from 58 to 91 me- mately 9 to 37 meters. ters. (D) Primary Use: Dredged material. (iv) Primary Use: Dredged material (E) Period of Use: Continuing Use. determined to be suitable for ocean dis- (F) Restrictions: (1) Disposal shall be posal. limited to dredged material determined (v) Period of Use: Continuing Use or to be suitable for ocean disposal ac- until placed material has mounded to cording to 40 CFR 227.13, from the an average height of 40 feet within the Umpqua River navigation channel and placement area (see restriction 4 adjacent areas; below). (2) Disposal shall be managed by the (vi) Restrictions: Disposal shall be restrictions and requirements contained in the currently-approved Site limited to dredged material determined Management and Monitoring Plan to be suitable for unconfined disposal; (SMMP); Site use shall be consistent with the (3) Monitoring, as specified in the ability of the site to retain disposed SMMP, is required. material on-site; Direct disposal of (8) Mouth of the Columbia River, OR/ dredged material into the identified WA Dredged Material Shallow Water buffer zone is prohibited; and The site. Corps and/or EPA shall undertake spe- (i) Location: Overall Site Coordinates: cific re-evaluation of site capacity once 46°15′31.64″ N, 124°05′09.72″ W; 46°14′17.66″ the site is used and an average mound N, 124°07′14.54″ W; 46°15′02.87″ N, height of 30 feet has accumulated 124°08′11.47″ W; 46°15′52.77″ N, 124°05′42.92″ throughout the placement area. This W. Drop Zone: 46°15′35.36″ N, 124°05′15.55″ evaluation will either confirm the W; 46°14′31.07″ N, 124°07′03.25″ W; original 40-foot height restriction, or 46°14′58.83″ N, 124°07′36.89″ W; 46°15′42.38″ recommend a more technically appro- N, 124°05′26.65″ W (All NAD 83) priate one. (ii) Size: 3.05 kilometers long and 0.32 (10) Grays Harbor Eight Mile Site. to 1.10 kilometers wide or 1.4 square (i) Location: Circle with a 0.40 mile nautical mile. radius around a central coordinate at (iii) Depth: Ranges from 14 to 23 me- 46°57′ N., 124°20.06′ W. ters. (ii) Size: 0.5 square nautical miles. (iv) Primary Use: Dredged Material (iii) Depth: 42–49 meters. determined to be suitable for ocean dis- (iv) Primary use: Dredged material. posal. (v) Period of Use: One time use over (v) Period of Use: Continuing Use. multiple years. Designation of the site

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is anticipated within five years fol- (A) Location: lowing completion of disposal and mon- 44°01′31.03″ N, 124°10′12.92″ W, itoring activities. 44°01′49.39″ N, 124°10′02.85″ W, (vi) Restrictions: Disposal shall be 44°01′31.97″ N, 124°09′01.86″ W, limited to dredged material from ini- 44°01′13.45″ N, 124°09′11.41″ W. tial construction of the Grays Harbor (B) Approximately 1.5 kilo- navigation project. Post-disposal moni- Size: meters long and 0.6 kilometers wide. toring will determine the need and extent of closure requirements. (C) Depth: Ranges from approxi- (11) Grays Harbor Southwest Naviga- mately 9 to 35 meters. tion Site. (D) Primary Use: Dredged material. (i) Location: 46°52.94′ N., 124°13.81′ W; (E) Period of Use: Continuing Use. 46°52.17′ N., 124°12.96′ W.; 46°51.15′ N., (F) Restrictions: (1) Disposal shall be 124°14.19′ W.; 46°51.92′ N., 124°14.95′ W. limited to dredged material determined (ii) Size: 1.25 square nautical miles. to be suitable for ocean disposal ac- (iii) Depth: 30–37 meters (average). cording to 40 CFR 227.13 from the (iv) Primary use: Dredged material. Siuslaw River navigation channel and (v) Period of use: Continuing use. adjacent areas; (vi) Restrictions: Disposal shall be (2) Disposal shall be managed by the limited to dredged material determined restrictions and requirements con- to be suitable for unconfined disposal tained in the currently-approved Site from Grays Harbor estuary and adja- Management and Monitoring Plan cent areas. Additional discharge re- (SMMP); strictions will be contained in the EPA/ (3) Monitoring, as specified in the Corps management plan for the site. SMMP, is required. (12) Nome, AK—East Site. (ii) South Siuslaw River Site (i) Location: 64°29′54″N., 165°24′41″W.; (A) Location: 64°29′45″N., 165°23′27″W.; 64°28′57″N., 44°00′46.72″ N, 124°10′26.55″ W, 165°23′29″W.; 64°29′07″N., 165°24′25″. 44°01′06.41″ N, 124°10′24.45″ W, (ii) Size: 0.37 square nautical mile. 44°01′04.12″ N, 124°09′43.52″ W, (iii) Depth: Ranges from 1 to 12 me- 44°00′44.45″ N, 124°09′45.63″ W. ters. (B) Size: Approximately 0.9 kilo- (iv) Primary use: Dredged material. meters long and 0.6 kilometers wide. (v) Period of use: Continuing use. (C) Depth: Ranges from approxi- (vi) Restrictions: Disposal shall be mately 24 to 38 meters. limited to dredged material from (D) Primary Use: Dredged material. Nome, Alaska, and adjacent areas. Use (E) Period of Use: Continuing Use. will be coordinated with the City of (F) Restrictions: (1) Disposal shall be Nome prior to dredging. limited to dredged material determined (13) Nome, AK—West Site. to be suitable for ocean disposal ac- ° ′ ″ ° ′ ″ (i) Location: 64 30 04 N., 165 25 52 W.; cording to 40 CFR 227.13, from the ° ′ ″ ° ′ ″ ° ′ ″ 64 29 18 N., 165 26 04 W.; 64 29 13 N., Siuslaw River navigation channel and ° ′ ″ ° ′ ″ ° ′ ″ 165 25 22 W.; 64 29 54 N., 165 24 45 W. adjacent areas; (ii) Size: 0.30 nautical miles. (2) Disposal shall be managed by the (iii) Depth: Ranges from 1 to 11 me- restrictions and requirements con- ters. tained in the currently-approved Site (iv) Primary use: Dredged material. Management and Monitoring Plan (v) Period of use: Continuing use. (SMMP); (vi) Restrictions: Disposal shall be (3) Monitoring, as specified in the limited to dredged material from SMMP, is required. Nome, Alaska, and adjacent areas. Use (o) Region X Final Other Wastes will be coordinated with the City of Sites. Nome prior to dredging. Preference (1) No final sites. will be given to placing any material in (2) [Reserved] the inner third of the site to supplement littoral drift, as needed. [59 FR 61130, Nov. 29, 1994] (14) Siuslaw River, OR—North and EDITORIAL NOTE: For FEDERAL REGISTER ci- South Dredged Material Disposal Sites. tations affecting § 228.15, see the List of CFR (i) North Siuslaw River Site Sections Affected, which appears in the

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Finding Aids section of the printed volume registered in the United States or fly- and on GPO Access. ing the United States flag and all de- EFFECTIVE DATE NOTE: At 75 FR 33712, June partments, agencies, or instrumental- 15, 2010, § 228.15 was amended by revising ities of the United States are hereby paragraphs (n)(3) and (n)(4), effective Aug. 16, granted a general permit to transport 2010. For the convenience of the user, the re- human remains from any location for vised text is set forth as follows: the purpose of burial at sea and to bury § 228.15 Dumping sites designated on a final such remains at sea subject to the basis. following conditions: (1) Except as herein otherwise pro- * * * * * vided, human remains shall be prepared (n) * * * for burial at sea and shall be buried in (3) Coos Bay, OR Dredged Material Site F accordance with accepted practices and (i) Location: 43°22′54.8887″ N., 124°19′28.9905″ requirements as may be deemed appro- W.; 43°21′32.8735″ N., 124°20′37.7373″ W.; priate and desirable by the United 43°22′51.4004″ N., 124°23′32.4318″ W.; States Navy, United States Coast 43°23′58.4014″ N., 124°22′35.4308″ W. (NAD 83). Guard, or civil authority charged with (ii) Size: 4.45 kilometers long and 2.45 kilo- the responsibility for making such ar- meters wide. (iii) Depth: Ranges from 6 to 51 meters. rangements; (iv) Primary Use: Dredged material deter- (2) Burial at sea of human remains mined to be suitable for ocean disposal. which are not cremated shall take (v) Period of Use: Continuing use. place no closer than 3 nautical miles (vi) Restriction: Disposal shall be limited to from land and in water no less than one dredged material determined to be suitable hundred fathoms (six hundred feet) for unconfined disposal; Disposal shall be deep and in no less than three hundred managed by the restrictions and requirements contained in the currently-approved fathoms (eighteen hundred feet) from Site Management and Monitoring Plan (i) 27°30′00″ to 31°00′00″ North Latitude (SMMP); Monitoring, as specified in the off St. Augustine and Cape Canaveral, SMMP, is required. Florida; (ii) 82°20′00″ to 84°00′00″ West (4) Coos Bay, OR Dredged Material Site H Longitude off Dry Tortugas, Florida; (i) Location: 43°23′53″ N., 124°22′48″ W.; and (iii) 87°15′00″ to 89°50′00″ West Lon- ° ′ ″ ° ′ ″ ° ′ ″ ° ′ ″ 43 23 42 N., 124 23 01 W.; 43 24 16 N., 124 23 26 gitude off the Mississippi River Delta, W.; 43°24′05″ N., 124°23′38″ W. (ii) Size: 0.13 square nautical mile. Louisiana, to Pensacola, Florida. All (iii) Depth: Averages 55 meters. necessary measures shall be taken to (iv) Primary Use: Dredged material. ensure that the remains sink to the (v) Period of Use: Continuing use. bottom rapidly and permanently; and (vi) Restriction: Disposal shall be limited to (3) Cremated remains shall be buried dredged material in the Coos Bay area of in or on ocean waters without regard to type 2 and 3, as defined in the site designa- the depth limitations specified in para- tion final EIS. graph (a)(2) of this section provided that such burial shall take place no * * * * * closer than 3 nautical miles from land. (b) For purposes of this section and PART 229—GENERAL PERMITS §§ 229.2 and 229.3, land means that portion of the baseline from which the ter- Sec. ritorial sea is measured, as provided for 229.1 Burial at sea. in the Convention on the Territorial 229.2 Transport of target vessels. Sea and the Contiguous Zone, which is 229.3 Transportation and disposal of vessels. in closest proximity to the proposed AUTHORITY: 33 U.S.C. 1412 and 1418. disposal site. SOURCE: 42 FR 2489, Jan. 11, 1977, unless (c) Flowers and wreaths consisting of otherwise noted. materials which are readily decompos- able in the marine environment may be § 229.1 Burial at sea. disposed of under the general permit (a) All persons subject to title I of set forth in this section at the site at the Act are hereby granted a general which disposal of human remains is au- permit to transport human remains thorized. from the United States and all persons (d) All burials conducted under this owning or operating a vessel or aircraft general permit shall be reported within

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30 days to the Regional Administrator general permit to transport vessels of the Region from which the vessel from any location for the purpose of carrying the remains departed. disposal in the ocean subject to the following conditions: § 229.2 Transport of target vessels. (1) Except in emergency situations, (a) The U.S. Navy is hereby granted a as determined by the U.S. Army Corps general permit to transport vessels of Engineers and/or the U.S. Coast from the United States or from any Guard, the person desiring to dispose of other location for the purpose of sink- a vessel under this general permit ing such vessels in ocean waters in shall, no later than 1 month prior to testing ordnance and providing related the proposed disposal date, provide the data subject to the following condi- following information in writing to the tions: EPA Regional Administrator for the (1) Such vessels may be sunk at times Region in which the proposed disposal determined by the appropriate Navy will take place: official; (i) A statement detailing the need for (2) Necessary measures shall be taken the disposal of the vessel; to insure that the vessel sinks to the (ii) Type and description of vessel to bottom rapidly and permanently, and be disposed of and type of cargo nor- that marine navigation is not other- mally carried; wise impaired by the sunk vessel; (iii) Detailed description of the pro- (3) All such vessel sinkings shall be posed disposal procedures; conducted in water at least 1,000 fath- (iv) Information on the potential ef- oms (6,000 feet) deep and at least 50 fect of the vessel disposal on the ma- nautical miles from land, as defined in rine environment; and § 229.1(b); and (v) Documentation of an adequate (4) Before sinking, appropriate meas- evaluation of alternatives to ocean dis- ures shall be taken by qualified per- posal (i.e., scrap, salvage, and reclama- sonnel at a Navy or other certified fa- tion). cility to remove to the maximum ex- (2) Transportation for the purpose of tent practicable all materials which ocean disposal may be accomplished may degrade the marine environment, under the supervision of the District including without limitation (i) Commander of the U.S. Coast Guard or emptying of all fuel tanks and fuel his designee. lines to the lowest point practicable, (3) Except in emergency situations, flushing of such tanks and lines with as determined by the U.S. Army Corps water, and again emptying such tanks of Engineers and/or the District Com- and lines to the lowest point prac- mander of the U.S. Coast Guard, appro- ticable so that such tanks and lines are priate measures shall be taken, prior to essentially free of petroleum, and (ii) disposal, by qualified personnel to re- removing from the hulls other pollut- move to the maximum extent prac- ants and all readily detachable mate- ticable all materials which may de- rial capable of creating debris or con- grade the marine environment, includ- tributing to chemical pollution. ing without limitation (i) emptying of (b) An annual report will be made to all fuel lines and fuel tanks to the low- the Administrator of the Environ- est point practicable, flushing of such mental Protection Agency setting lines and tanks with water, and again forth the name of each vessel used as a emptying such lines and tanks to the target vessel, its approximate tonnage, lowest point practicable so that such and the location and date of sinking. lines and tanks are essentially free of petroleum, and (ii) removing from the § 229.3 Transportation and disposal of hulls other pollutants and all readily vessels. detachable material capable of cre- (a) All persons subject to title I of ating debris or contributing to chem- the Act are hereby granted a general ical pollution. permit to transport vessels from the (4) Except in emergency situations, United States, and all departments, as determined by the U.S. Army Corps agencies, or instrumentalities of the of Engineers and/or the U.S. Coast United States are hereby granted a Guard, the dumper shall, no later than

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10 days prior to the proposed disposal PART 230—SECTION 404(b)(1) date, notify the EPA Regional Admin- GUIDELINES FOR SPECIFICATION istrator and the District Commander of OF DISPOSAL SITES FOR the U.S. Coast Guard that the vessel has been cleaned and is available for DREDGED OR FILL MATERIAL inspection; the vessel may be trans- Subpart A—General ported for dumping only after EPA and the Coast Guard agree that the require- Sec. ments of paragraph (a)(3) of this sec- 230.1 Purpose and policy. tion have been met. 230.2 Applicability. (5) Disposal of these vessels shall 230.3 Definitions. take place in a site designated on cur- 230.4 Organization. 230.5 General procedures to be followed. rent nautical charts for the disposal of 230.6 Adaptability. wrecks or no closer than 22 kilometers 230.7 General permits. (12 miles) from the nearest land and in water no less than 50 fathoms (300 feet) Subpart B—Compliance With the deep, and all necessary measures shall Guidelines be taken to insure that the vessels sink to the bottom rapidly and that marine 230.10 Restrictions on discharge. navigation is not otherwise impaired. 230.11 Factual determinations. 230.12 Findings of compliance or non-com- (6) Disposal shall not take place in pliance with the restrictions on dis- established shipping lanes unless at a charge. designated wreck site, nor in a designated marine sanctuary, nor in a lo- Subpart C—Potential Impacts on Physical cation where the hulk may present a and Chemical Characteristics of the hazard to commercial trawling or na- Aquatic Ecosystem tional defense (see 33 CFR part 205). 230.20 Substrate. (7) Except in emergency situations, 230.21 Suspended particulates/turbidity. as determined by the U.S. Army Corps 230.22 Water. of Engineers and/or the U.S. Coast 230.23 Current patterns and water circula- Guard, disposal of these vessels shall be tion. performed during daylight hours only. 230.24 Normal water fluctuations. (8) Except in emergency situations, 230.25 Salinity gradients. as determined by the U.S. Army Corps Subpart D—Potential Impacts on Biological of Engineers and/or the District Com- Characteristics of the Aquatic Ecosystem mander of the U.S. Coast Guard, the Captain-of-the-Port (COTP), U.S. Coast 230.30 Threatened and endangered species. Guard, and the EPA Regional Adminis- 230.31 Fish, crustaceans, mollusks, and trator shall be notified forty-eight (48) other aquatic organisms in the food web. hours in advance of the proposed dis- 230.32 Other wildlife. posal. In addition, the COTP and the Subpart E—Potential Impacts on Special EPA Regional Administrator shall be Aquatic Sites notified by telephone at least twelve (12) hours in advance of the vessel’s de- 230.40 Sanctuaries and refuges. parture from port with such details as 230.41 Wetlands. the proposed departure time and place, 230.42 Mud flats. disposal site location, estimated time 230.43 Vegetated shallows. of arrival on site, and the name and 230.44 Coral reefs. 230.45 Riffle and pool complexes. communication capability of the towing vessel. Schedule changes are to be Subpart F—Potential Effects on Human Use reported to the COTP as rapidly as pos- Characteristics sible. (9) The National Ocean Survey, 230.50 Municipal and private water supplies. NOAA, 6010 Executive Blvd., Rockville, 230.51 Recreational and commercial fisheries. MD 20852, shall be notified in writing, 230.52 Water-related recreation. within 1 week, of the exact coordinates 230.53 Aesthetics. of the disposal site so that it may be 230.54 Parks, national and historical monu- marked on appropriate charts. ments, national seashores, wilderness

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areas, research sites, and similar consistent with and to implement preserves. those policies. (c) Fundamental to these Guidelines Subpart G—Evaluation and Testing is the precept that dredged or fill mate- 230.60 General evaluation of dredged or fill rial should not be discharged into the material. aquatic ecosystem, unless it can be 230.61 Chemical, biological, and physical demonstrated that such a discharge evaluation and testing. will not have an unacceptable adverse impact either individually or in com- Subpart H—Actions To Minimize Adverse bination with known and/or probable Effects impacts of other activities affecting 230.70 Actions concerning the location of the ecosystems of concern. the discharge. (d) From a national perspective, the 230.71 Actions concerning the material to be degradation or destruction of special discharged. aquatic sites, such as filling operations 230.72 Actions controlling the material in wetlands, is considered to be among after discharge. the most severe environmental impacts 230.73 Actions affecting the method of dispersion. covered by these Guidelines. The guid- 230.74 Actions related to technology. ing principle should be that degrada- 230.75 Actions affecting plant and animal tion or destruction of special sites may populations. represent an irreversible loss of valu- 230.76 Actions affecting human use. able aquatic resources. 230.77 Other actions. § 230.2 Applicability. Subpart I—Planning To Shorten Permit (a) These Guidelines have been devel- Processing Time oped by the Administrator of the Envi- 230.80 Advanced identification of disposal ronmental Protection Agency in con- areas. junction with the Secretary of the Army acting through the Chief of Engi- Subpart J—Compensatory Mitigation for neers under section 404(b)(1) of the Losses of Aquatic Resources Clean Water Act (33 U.S.C. 1344). The 230.91 Purpose and general considerations. Guidelines are applicable to the speci- 230.92 Definitions. fication of disposal sites for discharges 230.93 General compensatory mitigation re- of dredged or fill material into waters quirements. of the United States. Sites may be 230.94 Planning and documentation. specified through: 230.95 Ecological performance standards. (1) The regulatory program of the 230.96 Monitoring. U.S. Army Corps of Engineers under 230.97 Management. 230.98 Mitigation banks and in-lieu fee pro- sections 404(a) and (e) of the Act (see 33 grams. CFR Parts 320, 323 and 325); (2) The civil works program of the AUTHORITY: Secs. 404(b) and 501(a) of the U.S. Army Corps of Engineers (see 33 Clean Water Act of 1977 (33 U.S.C. 1344(b) and CFR 209.145 and section 150 of Pub. L. 1361(a)). 94–587, Water Resources Development SOURCE: 45 FR 85344, Dec. 24, 1980, unless Act of 1976); otherwise noted. (3) Permit programs of States approved by the Administrator of the En- Subpart A—General vironmental Protection Agency in accordance with section 404(g) and (h) § 230.1 Purpose and policy. of the Act (see 40 CFR parts 122, 123 and (a) The purpose of these Guidelines is 124); to restore and maintain the chemical, (4) Statewide dredged or fill material physical, and biological integrity of regulatory programs with best manage- waters of the United States through ment practices approved under section the control of discharges of dredged or 208(b)(4)(B) and (C) of the Act (see 40 fill material. CFR 35.1560); (b) Congress has expressed a number (5) Federal construction projects of policies in the Clean Water Act. which meet criteria specified in section These Guidelines are intended to be 404(r) of the Act.

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(b) These Guidelines will be applied is not limited to the substances on the in the review of proposed discharges of 307(a)(1) list of toxic pollutants dredged or fill material into navigable promulgated on January 31, 1978 (43 FR waters which lie inside the baseline 4109). from which the territorial sea is meas- (f)–(g) [Reserved] ured, and the discharge of fill material (h) The term discharge point means into the territorial sea, pursuant to the the point within the disposal site at procedures referred to in paragraphs which the dredged or fill material is re- (a)(1) and (2) of this section. The dis- leased. charge of dredged material into the (i) The term disposal site means that territorial sea is governed by the Ma- portion of the ‘‘waters of the United rine Protection, Research, and Sanc- States’’ where specific disposal activi- tuaries Act of 1972, Pub. L. 92–532, and ties are permitted and consist of a bot- regulations and criteria issued pursu- tom surface area and any overlying ant thereto (40 CFR parts 220 through volume of water. In the case of wet- 228). lands on which surface water is not (c) Guidance on interpreting and im- present, the disposal site consists of plementing these Guidelines may be the wetland surface area. prepared jointly by EPA and the Corps (j) [Reserved] at the national or regional level from (k) The term extraction site means the time to time. No modifications to the place from which the dredged or fill basic application, meaning, or intent of material proposed for discharge is to be these Guidelines will be made without removed. rulemaking by the Administrator (l) [Reserved] under the Administrative Procedure (m) The term mixing zone means a Act (5 U.S.C. 551 et seq.). limited volume of water serving as a zone of initial dilution in the imme- § 230.3 Definitions. diate vicinity of a discharge point For purposes of this part, the fol- where receiving water quality may not lowing terms shall have the meanings meet quality standards or other re- indicated: quirements otherwise applicable to the (a) The term Act means the Clean receiving water. The mixing zone Water Act (also known as the Federal should be considered as a place where Water Pollution Control Act or wastes and water mix and not as a FWPCA) Pub. L. 92–500, as amended by place where effluents are treated. Pub. L. 95–217, 33 U.S.C. 1251, et seq. (n) The term permitting authority (b) The term adjacent means bor- means the District Engineer of the U.S. dering, contiguous, or neighboring. Army Corps of Engineers or such other Wetlands separated from other waters individual as may be designated by the of the United States by man-made Secretary of the Army to issue or deny dikes or barriers, natural river berms, permits under section 404 of the Act; or beach dunes, and the like are ‘‘adjacent the State Director of a permit program wetlands.’’ approved by EPA under section 404(g) (c) The terms aquatic environment and and section 404(h) or his delegated rep- aquatic ecosystem mean waters of the resentative. United States, including wetlands, that (o) The term pollutant means dredged serve as habitat for interrelated and spoil, solid waste, incinerator residue, interacting communities and popu- sewage, garbage, sewage sludge, muni- lations of plants and animals. tions, chemical wastes, biological ma- (d) The term carrier of contaminant terials, radioactive materials not cov- means dredged or fill material that ered by the Atomic Energy Act, heat, contains contaminants. wrecked or discarded equipment, rock, (e) The term contaminant means a sand, cellar dirt, and industrial, munic- chemical or biological substance in a ipal, and agricultural waste discharged form that can be incorporated into, into water. The legislative history of onto or be ingested by and that harms the Act reflects that ‘‘radioactive ma- aquatic organisms, consumers of terials’’ as included within the defini- aquatic organisms, or users of the tion of ‘‘pollutant’’ in section 502 of the aquatic environment, and includes but Act means only radioactive materials

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which are not encompassed in the defi- state or foreign commerce including nition of source, byproduct, or special any such waters: nuclear materials as defined by the (i) Which are or could be used by Atomic Energy Act of 1954, as amend- interstate or foreign travelers for rec- ed, and regulated under the Atomic En- reational or other purposes; or ergy Act. Examples of radioactive ma- (ii) From which fish or shellfish are terials not covered by the Atomic En- or could be taken and sold in interstate ergy Act and, therefore, included with- or foreign commerce; or in the term ‘‘pollutant’’, are radium (iii) Which are used or could be used and accelerator produced isotopes. See for industrial purposes by industries in Train v. Colorado Public Interest Re- interstate commerce; search Group, Inc., 426 U.S. 1 (1976). (4) All impoundments of waters oth- (p) The term pollution means the erwise defined as waters of the United man-made or man-induced alteration States under this definition; of the chemical, physical, biological or (5) Tributaries of waters identified in paragraphs (s)(1) through (4) of this radiological integrity of an aquatic section; ecosystem. (6) The territorial sea; (q) The term practicable means avail- (7) Wetlands adjacent to waters able and capable of being done after (other than waters that are themselves taking into consideration cost, existing wetlands) identified in paragraphs technology, and logistics in light of (s)(1) through (6) of this section; waste overall project purposes. treatment systems, including treat- (q-1) Special aquatic sites means those ment ponds or lagoons designed to sites identified in subpart E. They are meet the requirements of CWA (other geographic areas, large or small, pos- than cooling ponds as defined in 40 CFR sessing special ecological characteris- 423.11(m) which also meet the criteria tics of productivity, habitat, wildlife of this definition) are not waters of the protection, or other important and eas- United States. ily disrupted ecological values. These Waters of the United States do not in- areas are generally recognized as sig- clude prior converted cropland. Not- nificantly influencing or positively withstanding the determination of an contributing to the general overall en- area’s status as prior converted crop- vironmental health or vitality of the land by any other federal agency, for entire ecosystem of a region. (See the purposes of the Clean Water Act, § 230.10(a)(3)) the final authority regarding Clean (r) The term territorial sea means the Water Act jurisdiction remains with belt of the sea measured from the base- EPA. line as determined in accordance with (t) The term wetlands means those the Convention on the Territorial Sea areas that are inundated or saturated and the Contiguous Zone and extending by surface or ground water at a fre- seaward a distance of three miles. quency and duration sufficient to sup- (s) The term waters of the United port, and that under normal cir- States means: cumstances do support, a prevalence of (1) All waters which are currently vegetation typically adapted for life in used, or were used in the past, or may saturated soil conditions. Wetlands be susceptible to use in interstate or generally include swamps, marshes, foreign commerce, including all waters bogs and similar areas. which are subject to the ebb and flow [45 FR 85344, Dec. 24, 1980, as amended at 58 of the tide; FR 45037, Aug. 25, 1993] (2) All interstate waters including interstate wetlands; § 230.4 Organization. (3) All other waters such as intra- The Guidelines are divided into eight state lakes, rivers, streams (including subparts. Subpart A presents those pro- intermittent streams), mudflats, visions of general applicability, such as sandflats, wetlands, sloughs, prairie purpose and definitions. Subpart B es- potholes, wet meadows, playa lakes, or tablishes the four conditions which natural ponds, the use, degradation or must be satisfied in order to make a destruction of which could affect inter- finding that a proposed discharge of

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dredged or fill material complies with terize the non-living environment of the Guidelines. Section 230.11 of sub- the candidate site, the substrate and part B, sets forth factual determina- the water including its dynamic char- tions which are to be considered in de- acteristics (subpart C). termining whether or not a proposed (f) Identify and evaluate any special discharge satisfies the subpart B condi- or critical characteristics of the can- tions of compliance. Subpart C de- didate disposal site, and surrounding scribes the physical and chemical com- areas which might be affected by use of ponents of a site and provides guidance such site, related to their living com- as to how proposed discharges of munities or human uses (subparts D, E, dredged or fill material may affect and F). these components. Subparts D through (g) Review Factual Determinations F detail the special characteristics of in § 230.11 to determine whether the in- particular aquatic ecosystems in terms formation in the project file is suffi- of their values, and the possible loss of cient to provide the documentation re- these values due to discharges of quired by § 230.11 or to perform the pre- dredged or fill material. Subpart G pre- testing evaluation described in § 230.60, scribes a number of physical, chemical, or other information is necessary. and biological evaluations and testing (h) Evaluate the material to be dis- procedures to be used in reaching the charged to determine the possibility of required factual determinations. Sub- chemical contamination or physical in- part H details the means to prevent or compatibility of the material to be dis- mimimize adverse effects. Subpart I charged (§ 230.60). concerns advanced identification of (i) If there is a reasonable probability disposal areas. of chemical contamination, conduct the appropriate tests according to the § 230.5 General procedures to be fol- section on Evaluation and Testing lowed. (§ 230.61). In evaluating whether a particular (j) Identify appropriate and prac- discharge site may be specified, the ticable changes to the project plan to permitting authority should use these minimize the environmental impact of Guidelines in the following sequence: the discharge, based upon the special- (a) In order to obtain an overview of ized methods of minimization of im- the principal regulatory provisions of pacts in subpart H. the Guidelines, review the restrictions (k) Make and document Factual De- on discharge in § 230.10(a) through (d), terminations in § 230.11. the measures to mimimize adverse im- (l) Make and document Findings of pact of subpart H, and the required fac- Compliance (§ 230.12) by comparing Fac- tual determinations of § 230.11. tual Determinations with the require- (b) Determine if a General permit ments for discharge of § 230.10. (§ 230.7) is applicable; if so, the appli- This outline of the steps to follow in cant needs merely to comply with its using the Guidelines is simplified for terms, and no further action by the purposes of illustration. The actual permitting authority is necessary. Spe- process followed may be iterative, with cial conditions for evaluation of pro- the results of one step leading to a re- posed General permits are contained in examination of previous steps. The per- § 230.7. If the discharge is not covered mitting authority must address all of by a General permit: the relevant provisions of the Guide- (c) Examine practicable alternatives lines in reaching a Finding of Compli- to the proposed discharge, that is, not ance in an individual case. discharging into the waters of the U.S. or discharging into an alternative § 230.6 Adaptability. aquatic site with potentially less dam- (a) The manner in which these Guide- aging consequences (§ 230.10(a)). lines are used depends on the physical, (d) Delineate the candidate disposal biological, and chemical nature of the site consistent with the criteria and proposed extraction site, the material evaluations of § 230.11(f). to be discharged, and the candidate dis- (e) Evaluate the various physical and posal site, including any other impor- chemical components which charac- tant components of the ecosystem

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being evaluated. Documentation to 208(b)(4)(B) and (C) Best Management demonstrate knowledge about the ex- Practices, the analysis and documenta- traction site, materials to be ex- tion required by the Guidelines will be tracted, and the candidate disposal site performed at the time of General per- is an essential component of guideline mit issuance or section 208(b)(4)(B) and application. These Guidelines allow (C) Best Management Practices pro- evaluation and documentation for a va- mulgation and will not be repeated riety of activities, ranging from those when activities are conducted under a with large, complex impacts on the General permit or section 208(b)(4)(B) aquatic environment to those for which and (C) Best Management Practices the impact is likely to be innocuous. It control. These Guidelines do not re- is unlikely that the Guidelines will quire reporting or formal written com- apply in their entirety to any one ac- munication at the time individual activity, no matter how complex. It is tivities are initiated under a General anticipated that substantial numbers permit or section 208(b)(4)(B) and (C) of permit applications will be for Best Management Practices. However, minor, routine activities that have lit- a particular General permit may re- tle, if any, potential for significant degradation of the aquatic environ- quire appropriate reporting. ment. It generally is not intended or § 230.7 General permits. expected that extensive testing, evaluation or analysis will be needed to (a) Conditions for the issuance of Gen- make findings of compliance in such eral permits. A General permit for a cat- routine cases. Where the conditions for egory of activities involving the dis- General permits are met, and where charge of dredged or fill material com- numerous applications for similar ac- plies with the Guidelines if it meets tivities are likely, the use of General the applicable restrictions on the dis- permits will eliminate repetitive eval- charge in § 230.10 and if the permitting uation and documentation for indi- authority determines that: vidual discharges. (1) The activities in such category (b) The Guidelines user, including the are similar in nature and similar in agency or agencies responsible for im- their impact upon water quality and plementing the Guidelines, must recog- the aquatic environment; nize the different levels of effort that (2) The activities in such category should be associated with varying de- will have only minimal adverse effects grees of impact and require or prepare when performed separately; and commensurate documentation. The (3) The activities in such category level of documentation should reflect will have only minimal cumulative ad- the significance and complexity of the verse effects on water quality and the discharge activity. aquatic environment. (c) An essential part of the evaluation process involves making deter- (b) Evaluation process. To reach the minations as to the relevance of any determinations required in paragraph portion(s) of the Guidelines and con- (a) of this section, the permitting au- ducting further evaluation only as thority shall set forth in writing an needed. However, where portions of the evaluation of the potential individual Guidelines review procedure are ‘‘short and cumulative impacts of the cat- form’’ evaluations, there still must be egory of activities to be regulated sufficient information (including con- under the General permit. While some sideration of both individual and cumu- of the information necessary for this lative impacts) to support the decision evaluation can be obtained from poten- of whether to specify the site for dis- tial permittees and others through the posal of dredged or fill material and to proposal of General permits for public support the decision to curtail or ab- review, the evaluation must be com- breviate the evaluation process. The pleted before any General permit is presumption against the discharge in issued, and the results must be pub- § 230.1 applies to this decision-making. lished with the final permit. (d) In the case of activities covered (1) This evaluation shall be based by General permits or section upon consideration of the prohibitions

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listed in § 230.10(b) and the factors list- additional procedural and substantive re- ed in § 230.10(c), and shall include docu- quirements, a discharge complying with the mented information supporting each requirement of these Guidelines will not factual determination in § 230.11 of the automatically receive a permit. Guidelines (consideration of alter- Although all requirements in § 230.10 natives in § 230.10(a) are not directly must be met, the compliance evalua- applicable to General permits); tion procedures will vary to reflect the (2) The evaluation shall include a seriousness of the potential for adverse precise description of the activities to impacts on the aquatic ecosystems be permitted under the General permit, posed by specific dredged or fill mate- explaining why they are sufficiently rial discharge activities. similar in nature and in environmental (a) Except as provided under section impact to warrant regulation under a 404(b)(2), no discharge of dredged or fill single General permit based on sub- material shall be permitted if there is parts C through F of the Guidelines. a practicable alternative to the pro- Allowable differences between activi- posed discharge which would have less ties which will be regulated under the adverse impact on the aquatic eco- same General permit shall be specified. system, so long as the alternative does Activities otherwise similar in nature not have other significant adverse en- may differ in environmental impact vironmental consequences. due to their location in or near eco- (1) For the purpose of this require- logically sensitive areas, areas with ment, practicable alternatives include, unique chemical or physical character- but are not limited to: istics, areas containing concentrations (i) Activities which do not involve a of toxic substances, or areas regulated discharge of dredged or fill material for specific human uses or by specific into the waters of the United States or land or water management plans (e.g., ocean waters; areas regulated under an approved (ii) Discharges of dredged or fill ma- Coastal Zone Management Plan). If terial at other locations in waters of there are specific geographic areas the United States or ocean waters; within the purview of a proposed Gen- (2) An alternative is practicable if it eral permit (called a draft General per- is available and capable of being done mit under a State 404 program), which after taking into consideration cost, are more appropriately regulated by in- existing technology, and logistics in dividual permit due to the consider- light of overall project purposes. If it is ations cited in this paragraph, they otherwise a practicable alternative, an shall be clearly delineated in the eval- area not presently owned by the appli- uation and excluded from the permit. cant which could reasonably be ob- In addition, the permitting authority tained, utilized, expanded or managed may require an individual permit for in order to fulfill the basic purpose of any proposed activity under a General the proposed activity may be con- permit where the nature or location of sidered. the activity makes an individual per- (3) Where the activity associated mit more appropriate. with a discharge which is proposed for (3) To predict cumulative effects, the a special aquatic site (as defined in evaluation shall include the number of subpart E) does not require access or individual discharge activities likely proximity to or siting within the spe- to be regulated under a General permit cial aquatic site in question to fulfill until its expiration, including repeti- its basic purpose (i.e., is not ‘‘water de- tions of individual discharge activities pendent’’), practicable alternatives at a single location. that do not involve special aquatic sites are presumed to be available, un- Subpart B—Compliance With the less clearly demonstrated otherwise. In Guidelines addition, where a discharge is proposed for a special aquatic site, all prac- § 230.10 Restrictions on discharge. ticable alternatives to the proposed NOTE: Because other laws may apply to discharge which do not involve a dis- particular discharges and because the Corps charge into a special aquatic site are of Engineers or State 404 agency may have presumed to have less adverse impact

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on the aquatic ecosystem, unless clear- under title III of the Marine Protec- ly demonstrated otherwise. tion, Research, and Sanctuaries Act of (4) For actions subject to NEPA, 1972. where the Corps of Engineers is the (c) Except as provided under section permitting agency, the analysis of al- 404(b)(2), no discharge of dredged or fill ternatives required for NEPA environ- material shall be permitted which will mental documents, including supple- cause or contribute to significant deg- mental Corps NEPA documents, will in radation of the waters of the United most cases provide the information for States. Findings of significant degrada- the evaluation of alternatives under tion related to the proposed discharge these Guidelines. On occasion, these shall be based upon appropriate factual NEPA documents may address a broad- determinations, evaluations, and tests er range of alternatives than required required by subparts B and G, after to be considered under this paragraph consideration of subparts C through F, or may not have considered the alter- with special emphasis on the persist- natives in sufficient detail to respond ence and permanence of the effects out- to the requirements of these Guide- lined in those subparts. Under these lines. In the latter case, it may be nec- Guidelines, effects contributing to sig- essary to supplement these NEPA doc- nificant degradation considered indi- uments with this additional informa- vidually or collectively, include: tion. (1) Significantly adverse effects of (5) To the extent that practicable al- the discharge of pollutants on human ternatives have been identified and health or welfare, including but not evaluated under a Coastal Zone Man- limited to effects on municipal water agement program, a section 208 pro- supplies, plankton, fish, shellfish, wild- gram, or other planning process, such life, and special aquatic sites. evaluation shall be considered by the (2) Significantly adverse effects of permitting authority as part of the the discharge of pollutants on life consideration of alternatives under the stages of aquatic life and other wildlife Guidelines. Where such evaluation is dependent on aquatic ecosystems, in- less complete than that contemplated cluding the transfer, concentration, under this subsection, it must be sup- and spread of pollutants or their by- plemented accordingly. products outside of the disposal site (b) No discharge of dredged or fill through biological, physical, and chem- material shall be permitted if it: ical processes; (1) Causes or contributes, after con- (3) Significantly adverse effects of sideration of disposal site dilution and the discharge of pollutants on aquatic dispersion, to violations of any applica- ecosystem diversity, productivity, and ble State water quality standard; stability. Such effects may include, but (2) Violates any applicable toxic ef- are not limited to, loss of fish and wild- fluent standard or prohibition under life habitat or loss of the capacity of a section 307 of the Act; wetland to assimilate nutrients, purify (3) Jeopardizes the continued exist- water, or reduce wave energy; or ence of species listed as endangered or (4) Significantly adverse effects of threatened under the Endangered Spe- discharge of pollutants on recreational, cies Act of 1973, as amended, or results aesthetic, and economic values. in likelihood of the destruction or ad- (d) Except as provided under section verse modification of a habitat which 404(b)(2), no discharge of dredged or fill is determined by the Secretary of Inte- material shall be permitted unless ap- rior or Commerce, as appropriate, to be propriate and practicable steps have a critical habitat under the Endan- been taken which will minimize poten- gered Species Act of 1973, as amended. tial adverse impacts of the discharge If an exemption has been granted by on the aquatic ecosystem. Subpart H the Endangered Species Committee, identifies such possible steps. the terms of such exemption shall apply in lieu of this subparagraph; § 230.11 Factual determinations. (4) Violates any requirement imposed The permitting authority shall deter- by the Secretary of Commerce to pro- mine in writing the potential short- tect any marine sanctuary designated term or long-term effects of a proposed

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discharge of dredged or fill material on trophication plus other appropriate the physical, chemical, and biological characteristics. Consideration shall components of the aquatic environ- also be given to the potential diversion ment in light of subparts C through F. or obstruction of flow, alterations of Such factual determinations shall be bottom contours, or other significant used in § 230.12 in making findings of changes in the hydrologic regime. Ad- compliance or non-compliance with the ditional consideration of the possible restrictions on discharge in § 230.10. loss of environmental values (§§ 230.23 The evaluation and testing procedures through 230.25) and actions to minimize described in § 230.60 and § 230.61 of sub- impacts (subpart H), shall be used in part G shall be used as necessary to making these determinations. Poten- make, and shall be described in, such tial significant effects on the current determination. The determinations of patterns, water circulation, normal effects of each proposed discharge shall water fluctuation and salinity shall be include the following: evaluated on the basis of the proposed (a) Physical substrate determinations. method, volume, location, and rate of Determine the nature and degree of ef- discharge. fect that the proposed discharge will (c) Suspended particulate/turbidity de- have, individually and cumulatively, terminations. Determine the nature and on the characteristics of the substrate degree of effect that the proposed dis- at the proposed disposal site. Consider- charge will have, individually and cu- ation shall be given to the similarity in mulatively, in terms of potential particle size, shape, and degree of com- changes in the kinds and concentra- paction of the material proposed for tions of suspended particulate/tur- discharge and the material consti- bidity in the vicinity of the disposal tuting the substrate at the disposal site. Consideration shall be given to site, and any potential changes in sub- the grain size of the material proposed strate elevation and bottom contours, for discharge, the shape and size of the including changes outside of the dis- plume of suspended particulates, the posal site which may occur as a result duration of the discharge and resulting of erosion, slumpage, or other move- plume and whether or not the potential ment of the discharged material. The changes will cause violations of appli- duration and physical extent of sub- cable water quality standards. Consid- strate changes shall also be considered. eration should also be given to the pos- The possible loss of environmental val- sible loss of environmental values ues (§ 230.20) and actions to minimize (§ 230.21) and to actions for minimizing impact (subpart H) shall also be consid- impacts (subpart H). Consideration ered in making these determinations. shall include the proposed method, vol- Potential changes in substrate ele- ume, location, and rate of discharge, as vation and bottom contours shall be well as the individual and combined ef- predicted on the basis of the proposed fects of current patterns, water cir- method, volume, location, and rate of culation and fluctuations, wind and discharge, as well as on the individual wave action, and other physical factors and combined effects of current pat- on the movement of suspended terns, water circulation, wind and wave particulates. action, and other physical factors that (d) Contaminant determinations. Deter- may affect the movement of the dis- mine the degree to which the material charged material. proposed for discharge will introduce, (b) Water circulation, fluctuation, and relocate, or increase contaminants. salinity determinations. Determine the This determination shall consider the nature and degree of effect that the material to be discharged, the aquatic proposed discharge will have individ- environment at the proposed disposal ually and cumulatively on water, cur- site, and the availability of contami- rent patterns, circulation including nants. downstream flows, and normal water (e) Aquatic ecosystem and organism de- fluctuation. Consideration shall be terminations. Determine the nature and given to water chemistry, salinity, degree of effect that the proposed dis- clarity, color, odor, taste, dissolved gas charge will have, both individually and levels, temperature, nutrients, and eu- cumulatively, on the structure and

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function of the aquatic ecosystem and of material (sand, silt, clay, etc.) and organisms. Consideration shall be settling velocities; given to the effect at the proposed dis- (ix) Number of discharge actions per posal site of potential changes in sub- unit of time; strate characteristics and elevation, (x) Other factors of the disposal site water or substrate chemistry, nutri- that affect the rates and patterns of ents, currents, circulation, fluctuation, mixing. and salinity, on the recolonization and (g) Determination of cumulative effects existence of indigenous aquatic orga- on the aquatic ecosystem. (1) Cumulative nisms or communities. Possible loss of impacts are the changes in an aquatic environmental values (§ 230.31), and ac- ecosystem that are attributable to the tions to minimize impacts (subpart H) collective effect of a number of indi- shall be examined. Tests as described vidual discharges of dredged or fill main § 230.61 (Evaluation and Testing), terial. Although the impact of a par- may be required to provide information ticular discharge may constitute a on the effect of the discharge material minor change in itself, the cumulative on communities or populations of orga- effect of numerous such piecemeal nisms expected to be exposed to it. changes can result in a major impair- (f) Proposed disposal site determina- ment of the water resources and inter- tions. (1) Each disposal site shall be fere with the productivity and water specified through the application of quality of existing aquatic ecosystems. these Guidelines. The mixing zone shall (2) Cumulative effects attributable to be confined to the smallest practicable the discharge of dredged or fill mate- zone within each specified disposal site rial in waters of the United States that is consistent with the type of dis- should be predicted to the extent rea- persion determined to be appropriate sonable and practical. The permitting by the application of these Guidelines. authority shall collect information and In a few special cases under unique en- solicit information from other sources vironmental conditions, where there is about the cumulative impacts on the adequate justification to show that aquatic ecosystem. This information widespread dispersion by natural shall be documented and considered means will result in no significantly during the decision-making process adverse environmental effects, the dis- concerning the evaluation of individual charged material may be intended to permit applications, the issuance of a be spread naturally in a very thin layer General permit, and monitoring and over a large area of the substrate rath- enforcement of existing permits. er than be contained within the dis- (h) Determination of secondary effects posal site. on the aquatic ecosystem. (1) Secondary (2) The permitting authority and the effects are effects on an aquatic eco- Regional Administrator shall consider system that are associated with a dis- the following factors in determining charge of dredged or fill materials, but the acceptability of a proposed mixing do not result from the actual place- zone: ment of the dredged or fill material. (i) Depth of water at the disposal Information about secondary effects on site; aquatic ecosystems shall be considered (ii) Current velocity, direction, and prior to the time final section 404 ac- variability at the disposal site; tion is taken by permitting authori- (iii) Degree of turbulence; ties. (iv) Stratification attributable to (2) Some examples of secondary ef- causes such as obstructions, salinity or fects on an aquatic ecosystem are fluc- density profiles at the disposal site; tuating water levels in an impound- (v) Discharge vessel speed and direc- ment and downstream associated with tion, if appropriate; the operation of a dam, septic tank (vi) Rate of discharge; leaching and surface runoff from resi- (vii) Ambient concentration of con- dential or commercial developments on stituents of interest; fill, and leachate and runoff from a (viii) Dredged material characteris- sanitary landfill located in waters of tics, particularly concentrations of the U.S. Activities to be conducted on constituents, amount of material, type fast land created by the discharge of

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dredged or fill material in waters of the Subpart C—Potential Impacts on United States may have secondary im- Physical and Chemical Char- pacts within those waters which should acteristics of the Aquatic Eco- be considered in evaluating the impact of creating those fast lands. system NOTE: The effects described in this subpart § 230.12 Findings of compliance or should be considered in making the factual non-compliance with the restric- determinations and the findings of compli- tions on discharge. ance or non-compliance in subpart B. (a) On the basis of these Guidelines [45 FR 85344, Dec. 24, 1980, as amended at 73 (subparts C through G) the proposed FR 19687, Apr. 10, 2008] disposal sites for the discharge of dredged or fill material must be: § 230.20 Substrate. (1) Specified as complying with the (a) The substrate of the aquatic eco- requirements of these Guidelines; or system underlies open waters of the (2) Specified as complying with the United States and constitutes the sur- requirements of these Guidelines with face of wetlands. It consists of organic the inclusion of appropriate and prac- and inorganic solid materials and in- ticable discharge conditions (see sub- cludes water and other liquids or gases parts H and J) to minimize pollution or that fill the spaces between solid adverse effects to the affected aquatic particles. ecosystems; or (b) Possible loss of environmental (3) Specified as failing to comply characteristics and values: The dis- with the requirements of these Guide- charge of dredged or fill material can lines where: result in varying degrees of change in (i) There is a practicable alternative the complex physical, chemical, and bi- to the proposed discharge that would ological characteristics of the sub- have less adverse effect on the aquatic strate. Discharges which alter sub- ecosystem, so long as such alternative strate elevation or contours can result does not have other significant adverse in changes in water circulation, depth, environmental consequences; or current pattern, water fluctuation and (ii) The proposed discharge will re- water temperature. Discharges may ad- sult in significant degradation of the versely affect bottom-dwelling orga- aquatic ecosystem under § 230.10(b) or nisms at the site by smothering immo- (c); or bile forms or forcing mobile forms to (iii) The proposed discharge does not migrate. Benthic forms present prior to include all appropriate and practicable a discharge are unlikely to recolonize measures to minimize potential harm on the discharged material if it is very to the aquatic ecosystem; or dissimilar from that of the discharge (iv) There does not exist sufficient in- site. Erosion, slumping, or lateral dis- formation to make a reasonable judg- placement of surrounding bottom of ment as to whether the proposed dis- such deposits can adversely affect charge will comply with these Guide- areas of the substrate outside the pe- lines. rimeters of the disposal site by chang- (b) Findings under this section shall ing or destroying habitat. The bulk and be set forth in writing by the permit- composition of the discharged material ting authority for each proposed dis- and the location, method, and timing charge and made available to the per- of discharges may all influence the de- mit applicant. These findings shall in- gree of impact on the substrate. clude the factual determinations required by § 230.11, and a brief expla- § 230.21 Suspended particulates/tur- nation of any adaptation of these bidity. Guidelines to the activity under con- (a) Suspended particulates in the sideration. In the case of a General per- aquatic ecosystem consist of fine- mit, such findings shall be prepared at grained mineral particles, usually the time of issuance of that permit smaller than silt, and organic par- rather than for each subsequent dis- ticles. Suspended particulates may charge under the authority of that per- enter water bodies as a result of land mit. runoff, flooding, vegetative and

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planktonic breakdown, resuspension of content, physical and biological con- bottom sediments, and man’s activities tent, dissolved gas levels, pH, and tem- including dredging and filling. Particu- perature contribute to its life-sus- lates may remain suspended in the taining capabilities. water column for variable periods of (b) Possible loss of environmental time as a result of such factors as agi- characteristics and values: The dis- tation of the water mass, particulate charge of dredged or fill material can specific gravity, particle shape, and change the chemistry and the physical physical and chemical properties of characteristics of the receiving water particle surfaces. at a disposal site through the introduc- (b) Possible loss of environmental tion of chemical constituents in sus- characteristics and values: The dis- pended or dissolved form. Changes in charge of dredged or fill material can the clarity, color, odor, and taste of result in greatly elevated levels of sus- water and the addition of contami- pended particulates in the water col- nants can reduce or eliminate the suit- umn for varying lengths of time. These ability of water bodies for populations new levels may reduce light penetra- of aquatic organisms, and for human tion and lower the rate of photosyn- consumption, recreation, and aes- thesis and the primary productivity of thetics. The introduction of nutrients an aquatic area if they last long or organic material to the water col- enough. Sight-dependent species may umn as a result of the discharge can suffer reduced feeding ability leading lead to a high biochemical oxygen de- to limited growth and lowered resist- mand (BOD), which in turn can lead to ance to disease if high levels of sus- reduced dissolved oxygen, thereby po- pended particulates persist. The bio- tentially affecting the survival of logical and the chemical content of the many aquatic organisms. Increases in suspended material may react with the nutrients can favor one group of orga- dissolved oxygen in the water, which nisms such as algae to the detriment of can result in oxygen depletion. Toxic other more desirable types such as sub- metals and organics, pathogens, and vi- merged aquatic vegetation, potentially ruses absorbed or adsorbed to fine- causing adverse health effects, objec- grained particulates in the material tionable tastes and odors, and other may become biologically available to problems. organisms either in the water column or on the substrate. Significant in- § 230.23 Current patterns and water creases in suspended particulate levels circulation. create turbid plumes which are highly (a) Current patterns and water cir- visible and aesthetically displeasing. culation are the physical movements of The extent and persistence of these ad- water in the aquatic ecosystem. Cur- verse impacts caused by discharges de- rents and circulation respond to nat- pend upon the relative increase in sus- ural forces as modified by basin shape pended particulates above the amount and cover, physical and chemical char- occurring naturally, the duration of acteristics of water strata and masses, the higher levels, the current patterns, and energy dissipating factors. water level, and fluctuations present (b) Possible loss of environmental when such discharges occur, the vol- characteristics and values: The dis- ume, rate, and duration of the discharge of dredged or fill material can charge, particulate deposition, and the modify current patterns and water cir- seasonal timing of the discharge. culation by obstructing flow, changing the direction or velocity of water flow, § 230.22 Water. changing the direction or velocity of (a) Water is the part of the aquatic water flow and circulation, or other- ecosystem in which organic and inor- wise changing the dimensions of a ganic constituents are dissolved and water body. As a result, adverse suspended. It constitutes part of the changes can occur in: Location, struc- liquid phase and is contained by the ture, and dynamics of aquatic commu- substrate. Water forms part of a dy- nities; shoreline and substrate erosion namic aquatic life-supporting system. and depositIon rates; the deposition of Water clarity, nutrients and chemical suspended particulates; the rate and

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extent of mixing of dissolved and sus- discharge operations in the upstream pended components of the water body; regions can have equally adverse im- and water stratification. pacts. A significant reduction in the volume of fresh water moving into an § 230.24 Normal water fluctuations. estuary below that which is considered (a) Normal water fluctuations in a normal can affect the location and type natural aquatic system consist of of mixing thereby changing the char- daily, seasonal, and annual tidal and acteristic salinity patterns. The result- flood fluctuations in water level. Bio- ing changed circulation pattern can logical and physical components of cause the upstream migration of the such a system are either attuned to or salinity gradient displacing the characterized by these periodic water maximim sedimentation zone. This mi- fluctuations. gration may affect those organisms (b) Possible loss of environmental that are adapted to freshwater environ- characteristics and values: The dis- ments. It may also affect municipal charge of dredged or fill material can water supplies. alter the normal water-level fluctua- NOTE: Possible actions to minimize adverse tion pattern of an area, resulting in impacts regarding site characteristics can be prolonged periods of inundation, exag- found in subpart H. gerated extremes of high and low water, or a static, nonfluctuating Subpart D—Potential Impacts on water level. Such water level modifica- Biological Characteristics of tions may change salinity patterns, the Aquatic Ecosystem alter erosion or sedimentation rates, aggravate water temperature extremes, NOTE: The impacts described in this sub- and upset the nutrient and dissolved part should be considered in making the factual determinations and the findings of com- oxygen balance of the aquatic eco- pliance or non-compliance in subpart B. system. In addition, these modifications can alter or destroy communities § 230.30 Threatened and endangered and populations of aquatic animals and species. vegetation, induce populations of nui- (a) An endangered species is a plant sance organisms, modify habitat, re- or animal in danger of extinction duce food supplies, restrict movement throughout all or a significant portion of aquatic fauna, destroy spawning of its range. A threatened species is areas, and change adjacent, upstream, one in danger of becoming an endan- and downstream areas. gered species in the foreseeable future throughout all or a significant portion § 230.25 Salinity gradients. of its range. Listings of threatened and (a) Salinity gradients form where endangered species as well as critical salt water from the ocean meets and habitats are maintained by some indi- mixes with fresh water from land. vidual States and by the U.S. Fish and (b) Possible loss of environmental Wildlife Service of the Department of characteristics and values: Obstruc- the Interior (codified annually at 50 tions which divert or restrict flow of CFR 17.11). The Department of Com- either fresh or salt water may change merce has authority over some threat- existing salinity gradients. For exam- ened and endangered marine mammals, ple, partial blocking of the entrance to fish and reptiles. an estuary or river mouth that signifi- (b) Possible loss of values: The major cantly restricts the movement of the potential impacts on threatened or en- salt water into and out of that area can dangered species from the discharge of effectively lower the volume of salt dredged or fill material include: water available for mixing within that (1) Covering or otherwise directly estuary. The downstream migration of killing species; the salinity gradient can occur, dis- (2) The impairment or destruction of placing the maximum sedimentation habitat to which these species are lim- zone and requiring salinity-dependent ited. Elements of the aquatic habitat aquatic biota to adjust to the new con- which are particularly crucial to the ditions, move to new locations if pos- continued survival of some threatened sible, or perish. In the freshwater zone, or endangered species include adequate

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good quality water, spawning and mat- sensitive to the discharge of material uration areas, nesting areas, protective during periods of reproduction and cover, adequate and reliable food sup- growth and development due primarily ply, and resting areas for migratory to their limited mobility. They can be species. Each of these elements can be rendered unfit for human consumption adversely affected by changes in either by tainting, by production and accu- the normal water conditions for clar- mulation of toxins, or by ingestion and ity, chemical content, nutrient bal- retention of pathogenic organisms, vi- ance, dissolved oxygen, pH, tempera- ruses, heavy metals or persistent syn- ture, salinity, current patterns, cir- thetic organic chemicals. The dis- culation and fluctuation, or the phys- charge of dredged or fill material can ical removal of habitat; and redirect, delay, or stop the reproduc- (3) Facilitating incompatible activi- tive and feeding movements of some ties. species of fish and crustacea, thus pre- (c) Where consultation with the Sec- retary of the Interior occurs under sec- venting their aggregation in accus- tion 7 of the Endangered Species Act, tomed places such as spawning or nurs- the conclusions of the Secretary con- ery grounds and potentially leading to cerning the impact(s) of the discharge reduced populations. Reduction of de- on threatened and endangered species trital feeding species or other rep- and their habitat shall be considered resentatives of lower trophic levels can final. impair the flow of energy from primary consumers to higher trophic levels. The § 230.31 Fish, crustaceans, mollusks, reduction or potential elimination of and other aquatic organisms in the food chain organism populations de- food web. creases the overall productivity and (a) Aquatic organisms in the food nutrient export capability of the eco- web include, but are not limited to, system. finfish, crustaceans, mollusks, insects, annelids, planktonic organisms, and § 230.32 Other wildlife. the plants and animals on which they (a) Wildlife associated with aquatic feed and depend upon for their needs. ecosystems are resident and transient All forms and life stages of an orga- mammals, birds, reptiles, and amphib- nism, throughout its geographic range, are included in this category. ians. (b) Possible loss of values: The dis- (b) Possible loss of values: The discharge of dredged or fill material can charge of dredged or fill material can variously affect populations of fish, result in the loss or change of breeding crustaceans, mollusks and other food and nesting areas, escape cover, travel web organisms through the release of corridors, and preferred food sources contaminants which adversely affect for resident and transient wildlife spe- adults, juveniles, larvae, or eggs, or re- cies associated with the aquatic eco- sult in the establishment or prolifera- system. These adverse impacts upon tion of an undesirable competitive spe- wildlife habitat may result from cies of plant or animal at the expense changes in water levels, water flow and of the desired resident species. Sus- circulation, salinity, chemical content, pended particulates settling on at- and substrate characteristics and ele- tached or buried eggs can smother the vation. Increased water turbidity can eggs by limiting or sealing off their ex- adversely affect wildlife species which posure to oxygenated water. Discharge rely upon sight to feed, and disrupt the of dredged and fill material may result respiration and feeding of certain in the debilitation or death of sed- aquatic wildlife and food chain orga- entary organisms by smothering, expo- nisms. The availability of contami- sure to chemical contaminants in dis- nants from the discharge of dredged or solved or suspended form, exposure to fill material may lead to the bio- high levels of suspended particulates, accumulation of such contaminants in reduction in food supply, or alteration of the substrate upon which they are wildlife. Changes in such physical and dependent. Mollusks are particularly chemical factors of the environment

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may favor the introduction of undesir- § 230.41 Wetlands. able plant and animal species at the ex- (a)(1) Wetlands consist of areas that pense of resident species and commu- are inundated or saturated by surface nities. In some aquatic environments or ground water at a frequency and du- lowering plant and animal species di- ration sufficient to support, and that versity may disrupt the normal func- under normal circumstances do sup- tions of the ecosystem and lead to report, a prevalence of vegetation typi- ductions in overall biological produc- cally adapted for life in saturated soil tivity. conditions. NOTE: Possible actions to minimize adverse (2) Where wetlands are adjacent to impacts regarding characteristics of biologi- open water, they generally constitute cal components of the aquatic ecosystem can the transition to upland. The margin be found in subpart H. between wetland and open water can best be established by specialists famil- Subpart E—Potential Impacts on iar with the local environment, par- Special Aquatic Sites ticularly where emergent vegetation merges with submerged vegetation NOTE: The impacts described in this sub- over a broad area in such places as the part should be considered in making the fac- lateral margins of open water, head- tual determinations and the findings of com- waters, rainwater catch basins, and pliance or non-compliance in subpart B. The groundwater seeps. The landward mar- definition of special aquatic sites is found in gin of wetlands also can best be identi- § 230.3(q–1). fied by specialists familiar with the local environment when vegetation § 230.40 Sanctuaries and refuges. from the two regions merges over a (a) Sanctuaries and refuges consist of broad area. areas designated under State and Fed- (3) Wetland vegetation consists of eral laws or local ordinances to be plants that require saturated soils to managed principally for the preserva- survive (obligate wetland plants) as tion and use of fish and wildlife re- well as plants, including certain trees, sources. that gain a competitive advantage over (b) Possible loss of values: Sanc- others because they can tolerate pro- tuaries and refuges may be affected by longed wet soil conditions and their discharges of dredged or fill material competitors cannot. In addition to which will: plant populations and communities, (1) Disrupt the breeding, spawning, wetlands are delimited by hydrological migratory movements or other critical and physical characteristics of the en- life requirements of resident or tran- vironment. These characteristics sient fish and wildlife resources; should be considered when information (2) Create unplanned, easy and in- about them is needed to supplement information available about vegetation, compatible human access to remote or where wetland vegetation has been aquatic areas; removed or is dormant. (3) Create the need for frequent main- (b) Possible loss of values: The dis- tenance activity; charge of dredged or fill material in (4) Result in the establishment of un- wetlands is likely to damage or destroy desirable competitive species of plants habitat and adversely affect the bio- and animals; logical productivity of wetlands eco- (5) Change the balance of water and systems by smothering, by dewatering, land areas needed to provide cover, by permanently flooding, or by altering food, and other fish and wildlife habi- substrate elevation or periodicity of tat requirements in a way that modi- water movement. The addition of fies sanctuary or refuge management dredged or fill material may destroy practices; wetland vegetation or result in ad- (6) Result in any of the other adverse vancement of succession to dry land impacts discussed in subparts C and D species. It may reduce or eliminate nu- as they relate to a particular sanc- trient exchange by a reduction of the tuary or refuge. system’s productivity, or by altering

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current patterns and velocities. Disrup- § 230.43 Vegetated shallows. tion or elimination of the wetland sys- (a) Vegetated shallows are perma- tem can degrade water quality by ob- nently inundated areas that under nor- structing circulation patterns that mal circumstances support commu- flush large expanses of wetland systems, by interfering with the filtration nities of rooted aquatic vegetation, function of wetlands, or by changing such as turtle grass and eelgrass in es- the aquifer recharge capability of a tuarine or marine systems as well as a wetland. Discharges can also change number of freshwater species in rivers the wetland habitat value for fish and and lakes. wildlife as discussed in subpart D. (b) Possible loss of values: The dis- When disruptions in flow and circula- charge of dredged or fill material can tion patterns occur, apparently minor smother vegetation and benthic orga- loss of wetland acreage may result in nisms. It may also create unsuitable major losses through secondary im- conditions for their continued vigor by: pacts. Discharging fill material in wet- (1) Changing water circulation pat- lands as part of municipal, industrial terns; (2) releasing nutrients that in- or recreational development may mod- crease undesirable algal populations; ify the capacity of wetlands to retain (3) releasing chemicals that adversely and store floodwaters and to serve as a affect plants and animals; (4) increas- buffer zone shielding upland areas from ing turbidity levels, thereby reducing wave actions, storm damage and ero- light penetration and hence photosyn- sion. thesis; and (5) changing the capacity of a vegetated shallow to stabilize bottom § 230.42 Mud flats. materials and decrease channel (a) Mud flats are broad flat areas shoaling. The discharge of dredged or along the sea coast and in coastal riv- fill material may reduce the value of ers to the head of tidal influence and in vegetated shallows as nesting, spawn- inland lakes, ponds, and riverine sys- ing, nursery, cover, and forage areas, tems. When mud flats are inundated, as well as their value in protecting wind and wave action may resuspend shorelines from erosion and wave ac- bottom sediments. Coastal mud flats tions. It may also encourage the are exposed at extremely low tides and growth of nuisance vegetation. inundated at high tides with the water table at or near the surface of the sub- § 230.44 Coral reefs. strate. The substrate of mud flats con- (a) Coral reefs consist of the skeletal tains organic material and particles deposit, usually of calcareous or smaller in size than sand. They are either unvegetated or vegetated only by silicaceous materials, produced by the algal mats. vital activities of anthozoan polyps or (b) Possible loss of values: The dis- other invertebrate organisms present charge of dredged or fill material can in growing portions of the reef. cause changes in water circulation pat- (b) Possible loss of values: The dis- terns which may permanently flood or charge of dredged or fill material can dewater the mud flat or disrupt peri- adversely affect colonies of reef build- odic inundation, resulting in an in- ing organisms by burying them, by re- crease in the rate of erosion or accre- leasing contaminants such as hydro- tion. Such changes can deplete or carbons into the water column, by re- eliminate mud flat biota, foraging ducing light penetration through the areas, and nursery areas. Changes in water, and by increasing the level of inundation patterns can affect the suspended particulates. Coral orga- chemical and biological exchange and nisms are extremely sensitive to even decomposition process occurring on the slight reductions in light penetration mud flat and change the deposition of or increases in suspended particulates. suspended material affecting the pro- These adverse effects will cause a loss ductivity of the area. Changes may re- of productive colonies which in turn duce the mud flat’s capacity to dis- provide habitat for many species of sipate storm surge runoff. highly specialized aquatic organisms.

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§ 230.45 Riffle and pool complexes. determinations and the findings of compliance or non-compliance in subpart B. (a) Steep gradient sections of streams are sometimes characterized by riffle § 230.50 Municipal and private water and pool complexes. Such stream sec- supplies. tions are recognizable by their hydrau- (a) Municipal and private water sup- lic characteristics. The rapid move- plies consist of surface water or ground ment of water over a coarse substrate water which is directed to the intake of in riffles results in a rough flow, a tur- a municipal or private water supply bulent surface, and high dissolved oxy- system. gen levels in the water. Pools are deep- (b) Possible loss of values: Discharges er areas associated with riffles. Pools can affect the quality of water supplies are characterized by a slower stream with respect to color, taste, odor, velocity, a steaming flow, a smooth chemical content and suspended partic- surface, and a finer substrate. Riffle ulate concentration, in such a way as and pool complexes are particularly to reduce the fitness of the water for valuable habitat for fish and wildlife. consumption. Water can be rendered (b) Possible loss of values: Discharge unpalatable or unhealthy by the addi- of dredged or fill material can elimi- tion of suspended particulates, viruses nate riffle and pool areas by displace- and pathogenic organisms, and dis- ment, hydrologic modification, or sedi- solved materials. The expense of re- mentation. Activities which affect rif- moving such substances before the fle and pool areas and especially riffle/ water is delivered for consumption can pool ratios, may reduce the aeration be high. Discharges may also affect the and filtration capabilities at the dis- quantity of water available for munic- charge site and downstream, may re- ipal and private water supplies. In ad- duce stream habitat diversity, and may dition, certain commonly used water retard repopulation of the disposal site treatment chemicals have the poten- and downstream waters through sedi- tial for combining with some suspended mentation and the creation of unsuit- or dissolved substances from dredged or able habitat. The discharge of dredged fill material to form other products or fill material which alters stream hy- that can have a toxic effect on drology may cause scouring or sedi- consumers. mentation of riffles and pools. Sedi- mentation induced through § 230.51 Recreational and commercial hydrological modification or as a di- fisheries. rect result of the deposition of uncon- (a) Recreational and commercial solidated dredged or fill material may fisheries consist of harvestable fish, clog riffle and pool areas, destroy habi- crustaceans, shellfish, and other aquat- tats, and create anaerobic conditions. ic organisms used by man. Eliminating pools and meanders by the (b) Possible loss of values: The dis- discharge of dredged or fill material charge of dredged or fill materials can can reduce water holding capacity of affect the suitability of recreational streams and cause rapid runoff from a and commercial fishing grounds as watershed. Rapid runoff can deliver habitat for populations of consumable large quantities of flood water in a aquatic organisms. Discharges can re- short time to downstream areas result- sult in the chemical contamination of ing in the destruction of natural habi- recreational or commercial fisheries. tat, high property loss, and the need They may also interfere with the re- for further hydraulic modification. productive success of recreational and NOTE: Possible actions to minimize adverse commercially important aquatic spe- impacts on site or material characteristics cies through disruption of migration can be found in subpart H. and spawning areas. The introduction of pollutants at critical times in their Subpart F—Potential Effects on life cycle may directly reduce popu- Human Use Characteristics lations of commercially important aquatic organisms or indirectly reduce NOTE: The effects described in this subpart them by reducing organisms upon should be considered in making the factual which they depend for food. Any of

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these impacts can be of short duration levels may reduce the value of an or prolonged, depending upon the phys- aquatic area to private property own- ical and chemical impacts of the dis- ers. charge and the biological availability of contaminants to aquatic organisms. § 230.54 Parks, national and historical monuments, national seashores, § 230.52 Water-related recreation. wilderness areas, research sites, (a) Water-related recreation encom- and similar preserves. passes activities undertaken for amuse- (a) These preserves consist of areas ment and relaxation. Activities encom- designated under Federal and State pass two broad categories of use: con- laws or local ordinances to be managed sumptive, e.g., harvesting resources by for their aesthetic, educational, histor- hunting and fishing; and non- ical, recreational, or scientific value. comsumptive, e.g. canoeing and sight- (b) Possible loss of values: The dis- seeing. charge of dredged or fill material into (b) Possible loss of values: One of the such areas may modify the aesthetic, more important direct impacts of educational, historical, recreational dredged or fill disposal is to impair or and/or scientific qualities thereby re- destroy the resources which support ducing or eliminating the uses for recreation activities. The disposal of which such sites are set aside and dredged or fill material may adversely managed. modify or destroy water use for recreation by changing turbidity, suspended NOTE: Possible actions to minimize adverse particulates, temperature, dissolved impacts regarding site or material characteristics can be found in subpart H. oxygen, dissolved materials, toxic materials, pathogenic organisms, quality of habitat, and the aesthetic qualities Subpart G—Evaluation and Testing of sight, taste, odor, and color. § 230.60 General evaluation of dredged § 230.53 Aesthetics. or fill material. (a) Aesthetics associated with the The purpose of these evaluation pro- aquatic ecosystem consist of the per- cedures and the chemical and biologi- ception of beauty by one or a combina- cal testing sequence outlined in § 230.61 tion of the senses of sight, hearing, is to provide information to reach the touch, and smell. Aesthetics of aquatic determinations required by § 230.11. ecosystems apply to the quality of life Where the results of prior evaluations, enjoyed by the general public and prop- chemical and biological tests, sci- erty owners. entific research, and experience can (b) Possible loss of values: The dis- provide information helpful in making charge of dredged or fill material can a determination, these should be used. mar the beauty of natural aquatic eco- Such prior results may make new test- systems by degrading water quality, ing unnecessary. The information used creating distracting disposal sites, in- shall be documented. Where the same ducing inappropriate development, en- information applies to more than one couraging unplanned and incompatible determination, it may be documented human access, and by destroying vital once and referenced in later deter- elements that contribute to the minations. compositional harmony or unity, vis- (a) If the evaluation under paragraph ual distinctiveness, or diversity of an (b) indicates the dredged or fill mate- area. The discharge of dredged or fill rial is not a carrier of contaminants, material can adversely affect the par- then the required determinations per- ticular features, traits, or characteris- taining to the presence and effects of tics of an aquatic area which make it contaminants can be made without valuable to property owners. Activities testing. Dredged or fill material is which degrade water quality, disrupt most likely to be free from chemical, natural substrate and vegetational biological, or other pollutants where it characteristics, deny access to or visi- is composed primarily of sand, gravel, bility of the resource, or result in or other naturally occurring inert ma- changes in odor, air quality, or noise terial. Dredged material so composed is

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generally found in areas of high cur- (6) Any possibility of the presence of rent or wave energy such as streams substantial natural deposits of min- with large bed loads or coastal areas erals or other substances which could with shifting bars and channels. How- be released to the aquatic environment ever, when such material is discolored in harmful quantities by man-induced or contains other indications that con- discharge activities. taminants may be present, further in- (c) To reach the determinations in quiry should be made. § 230.11 involving potential effects of (b) The extraction site shall be exam- the discharge on the characteristics of ined in order to assess whether it is the disposal site, the narrative guid- sufficiently removed from sources of ance in subparts C through F shall be pollution to provide reasonable assur- used along with the general evaluation ance that the proposed discharge mate- procedure in § 230.60 and, if necessary, rial is not a carrier of contaminants. the chemical and biological testing se- Factors to be considered include but quence in § 230.61. Where the discharge are not limited to: site is adjacent to the extraction site (1) Potential routes of contaminants and subject to the same sources of con- or contaminated sediments to the ex- taminants, and materials at the two traction site, based on hydrographic or sites are substantially similar, the fact other maps, aerial photography, or that the material to be discharged may other materials that show water- be a carrier of contaminants is not courses, surface relief, proximity to likely to result in degradation of the tidal movement, private and public disposal site. In such circumstances, roads, location of buildings, municipal when dissolved material and suspended and industrial areas, and agricultural particulates can be controlled to pre- or forest lands. vent carrying pollutants to less contaminated areas, testing will not be re- (2) Pertinent results from tests pre- quired. viously carried out on the material at (d) Even if the § 230.60(b) evaluation the extraction site, or carried out on (previous tests, the presence of pol- similar material for other permitted luting industries and information projects in the vicinity. Materials shall about their discharge or runoff into be considered similar if the sources of waters of the U.S., bioinventories, etc.) contamination, the physical configura- leads to the conclusion that there is a tion of the sites and the sediment com- high probability that the material pro- position of the materials are composed for discharge is a carrier of con- parable, in light of water circulation taminants, testing may not be nec- and stratification, sediment accumula- essary if constraints are available to tion and general sediment characteris- reduce contamination to acceptable tics. Tests from other sites may be re- levels within the disposal site and to lied on only if no changes have oc- prevent contaminants from being curred at the extraction sites to render transported beyond the boundaries of the results irrelevant. the disposal site, if such constraints (3) Any potential for significant in- are acceptable to the permitting au- troduction of persistent pesticides from thority and the Regional Adminis- land runoff or percolation; trator, and if the potential discharger (4) Any records of spills or disposal of is willing and able to implement such petroleum products or substances des- constraints. However, even if tests are ignated as hazardous under section 311 not performed, the permitting author- of the Clean Water Act (See 40 CFR ity must still determine the probable part 116); impact of the operation on the receiv- (5) Information in Federal, State and ing aquatic ecosystem. Any decision local records indicating significant in- not to test must be explained in the de- troduction of pollutants from indus- terminations made under § 230.11. tries, municipalities, or other sources, including types and amounts of waste § 230.61 Chemical, biological, and materials discharged along the poten- physical evaluation and testing. tial routes of contaminants to the ex- NOTE: The Agency is today proposing re- traction site; and vised testing guidelines. The evaluation and

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testing procedures in this section are based may be a carrier of contaminants, a on the 1975 section 404(b)(1) interim final water leachate test is appropriate. Guidelines and shall remain in effect until (ii) Major constituents to be analyzed the revised testing guidelines are published as final regulations. in the elutriate are those deemed crit- (a) No single test or approach can be ical by the permitting authority, after applied in all cases to evaluate the ef- evaluating and considering any com- fects of proposed discharges of dredged ments received from the Regional Ad- or fill materials. This section provides ministrator, and considering results of some guidance in determining which the evaluation in § 230.60. Elutriate test and/or evaluation procedures are concentrations should be compared to appropriate in a given case. Interim concentrations of the same constitu- guidance to applicants concerning the ents in water from the disposal site. applicability of specific approaches or Results should be evaluated in light of procedures will be furnished by the per- the volume and rate of the intended mitting authority. discharge, the type of discharge, the (b) Chemical-biological interactive ef- hydrodynamic regime at the disposal fects. The principal concerns of dis- site, and other information relevant to charge of dredged or fill material that the impact on water quality. The per- contain contaminants are the potential mitting authority should consider the effects on the water column and on mixing zone in evaluating water col- communities of aquatic organisms. umn effects. The permitting authority (1) Evaluation of chemical-biological may specify bioassays when such pro- interactive effects. Dredged or fill mate- cedures will be of value. rial may be excluded from the evalua- (3) Effects on benthos. The permitting tion procedures specified in paragraphs authority may use an appropriate (b) (2) and (3) of this section if it is de- benthic bioassay (including bioaccumu- termined, on the basis of the evalua- lation tests) when such procedures will tion in § 230.60, that the likelihood of be of value in assessing ecological ef- contamination by contaminants is ac- fects and in establishing discharge con- ceptably low, unless the permitting au- ditions. thority, after evaluating and consid- (c) Procedure for comparison of sites. ering any comments received from the (1) When an inventory of the total Regional Administrator, determines concentration of contaminants would that these procedures are necessary. be of value in comparing sediment at The Regional Administrator may re- the dredging site with sediment at the quire, on a case-by-case basis, testing disposal site, the permitting authority approaches and procedures by stating may require a sediment chemical anal- what additional information is needed ysis. Markedly different concentra- through further analyses and how the tions of contaminants between the ex- results of the analyses will be of value cavation and disposal sites may aid in in evaluating potential environmental making an environmental assessment effects. of the proposed disposal operation. If the General Evaluation indicates the Such differences should be interpreted presence of a sufficiently large number in terms of the potential for harm as of chemicals to render impractical the supported by any pertinent scientific identification of all contaminants by literature. chemical testing, information may be (2) When an analysis of biological obtained from bioassays in lieu of community structure will be of value chemical tests. to assess the potential for adverse envi- (2) Water column effects. (i) Sediments ronmental impact at the proposed dis- normally contain constituents that posal site, a comparison of the biologi- exist in various chemical forms and in cal characteristics between the exca- various concentrations in several loca- vation and disposal sites may be re- tions within the sediment. An elutriate quired by the permitting authority. Bi- test may be used to predict the effect ological indicator species may be use- on water quality due to release of con- ful in evaluating the existing degree of taminants from the sediment to the stress at both sites. Sensitive species water column. However, in the case of representing community components fill material originating on land which colonizing various substrate types

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within the sites should be identified as (b) Designing the discharge to avoid a possible bioassay organisms if tests for disruption of periodic water inundation toxicity are required. Community patterns; structure studies should be performed (c) Selecting a disposal site that has only when they will be of value in de- been used previously for dredged ma- termining discharge conditions. This is terial discharge; particularly applicable to large quan- (d) Selecting a disposal site at which tities of dredged material known to the substrate is composed of material contain adverse quantities of toxic ma- similar to that being discharged, such terials. Community studies should in- as discharging sand on sand or mud on clude benthic organisms such as mud; microbiota and harvestable shellfish (e) Selecting the disposal site, the and finfish. Abundance, diversity, and discharge point, and the method of distribution should be documented and discharge to minimize the extent of correlated with substrate type and any plume; other appropriate physical and chem- (f) Designing the discharge of dredged ical environmental characteristics. or fill material to minimize or prevent (d) Physical tests and evaluation. the creation of standing bodies of The effect of a discharge of dredged or water in areas of normally fluctuating fill material on physical substrate water levels, and minimize or prevent characteristics at the disposal site, as the drainage of areas subject to such well as on the water circulation, fluc- fluctuations. tuation, salinity, and suspended particulates content there, is important in § 230.71 Actions concerning the material to be discharged. making factual determinations in § 230.11. Where information on such ef- The effects of a discharge can be fects is not otherwise available to minimized by treatment of, or limita- make these factual determinations, the tions on the material itself, such as: permitting authority shall require ap- (a) Disposal of dredged material in propriate physical tests and evalua- such a manner that physiochemical tions as are justified and deemed nec- conditions are maintained and the po- essary. Such tests may include sieve tency and availability of pollutants are tests, settleability tests, compaction reduced. tests, mixing zone and suspended par- (b) Limiting the solid, liquid, and ticulate plume determinations, and gaseous components of material to be site assessments of water flow, circula- discharged at a particular site; tion, and salinity characteristics. (c) Adding treatment substances to the discharge material; (d) Utilizing chemical flocculants to Subpart H—Actions To Minimize enhance the deposition of suspended Adverse Effects particulates in diked disposal areas.

NOTE: There are many actions which can § 230.72 Actions controlling the mate- be undertaken in response to § 203.10(d) to rial after discharge. minimize the adverse effects of discharges of dredged or fill material. Some of these, The effects of the dredged or fill ma- grouped by type of activity, are listed in this terial after discharge may be con- subpart. Additional criteria for compensa- trolled by: tion measures are provided in subpart J of (a) Selecting discharge methods and this part. disposal sites where the potential for erosion, slumping or leaching of mate- § 230.70 Actions concerning the loca- rials into the surrounding aquatic eco- tion of the discharge. system will be reduced. These sites or The effects of the discharge can be methods include, but are not limited minimized by the choice of the disposal to: site. Some of the ways to accomplish (1) Using containment levees, sedi- this are by: ment basins, and cover crops to reduce (a) Locating and confining the dis- erosion; charge to minimize smothering of (2) Using lined containment areas to organisms; reduce leaching where leaching of

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chemical constituents from the dis- § 230.74 Actions related to technology. charged material is expected to be a Discharge technology should be problem; adapted to the needs of each site. In de- (b) Capping in-place contaminated termining whether the discharge oper- material with clean material or selec- ation sufficiently minimizes adverse tively discharging the most contami- environmental impacts, the applicant nated material first to be capped with should consider: the remaining material; (a) Using appropriate equipment or (c) Maintaining and containing dis- machinery, including protective de- charged material properly to prevent vices, and the use of such equipment or point and nonpoint sources of pollu- machinery in activities related to the tion; discharge of dredged or fill material; (d) Timing the discharge to minimize (b) Employing appropriate mainte- impact, for instance during periods of nance and operation on equipment or unusual high water flows, wind, wave, machinery, including adequate train- and tidal actions. ing, staffing, and working procedures; (c) Using machinery and techniques § 230.73 Actions affecting the method that are especially designed to reduce of dispersion. damage to wetlands. This may include The effects of a discharge can be machines equipped with devices that minimized by the manner in which it is scatter rather than mound excavated dispersed, such as: materials, machines with specially de- (a) Where environmentally desirable, signed wheels or tracks, and the use of distributing the dredged material wide- mats under heavy machines to reduce ly in a thin layer at the disposal site to wetland surface compaction and maintain natural substrate contours rutting; and elevation; (d) Designing access roads and chan- (b) Orienting a dredged or fill mate- nel spanning structures using culverts, rial mound to minimize undesirable ob- open channels, and diversions that will struction to the water current or cir- pass both low and high water flows, ac- culation pattern, and utilizing natural commodate fluctuating water levels, bottom contours to minimize the size and maintain circulation and faunal of the mound; movement; (c) Using silt screens or other appro- (e) Employing appropriate machinery and methods of transport of the mate- priate methods to confine suspended rial for discharge. particulate/turbidity to a small area where settling or removal can occur; § 230.75 Actions affecting plant and (d) Making use of currents and cir- animal populations. culation patterns to mix, disperse and Minimization of adverse effects on dilute the discharge; populations of plants and animals can (e) Minimizing water column tur- be achieved by: bidity by using a submerged diffuser (a) Avoiding changes in water cur- system. A similar effect can be accom- rent and circulation patterns which plished by submerging pipeline dis- would interfere with the movement of charges or otherwise releasing mate- animals; rials near the bottom; (b) Selecting sites or managing dis- (f) Selecting sites or managing discharges to prevent or avoid creating charges to confine and minimize the habitat conducive to the development release of suspended particulates to of undesirable predators or species give decreased turbidity levels and to which have a competitive edge eco- maintain light penetration for orga- logically over indigenous plants or nisms; animals; (g) Setting limitations on the (c) Avoiding sites having unique amount of material to be discharged habitat or other value, including habi- per unit of time or volume of receiving tat of threatened or endangered water. species;

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(d) Using planning and construction § 230.77 Other actions. practices to institute habitat develop- (a) In the case of fills, controlling ment and restoration to produce a new or modified environmental state of runoff and other discharges from ac- higher ecological value by displace- tivities to be conducted on the fill; ment of some or all of the existing en- (b) In the case of dams, designing vironmental characteristics. Habitat water releases to accommodate the development and restoration tech- needs of fish and wildlife; niques can be used to minimize adverse (c) In dredging projects funded by impacts and to compensate for de- Federal agencies other than the Corps stroyed habitat. Additional criteria for of Engineers, maintain desired water compensation measures are provided in quality of the return discharge through subpart J of this part. Use techniques agreement with the Federal funding that have been demonstrated to be ef- authority on scientifically defensible fective in circumstances similar to pollutant concentration levels in addi- those under consideration wherever tion to any applicable water quality possible. Where proposed development standards; and restoration techniques have not (d) When a significant ecological yet advanced to the pilot demonstra- change in the aquatic environment is tion stage, initiate their use on a small proposed by the discharge of dredged or scale to allow corrective action if un- fill material, the permitting authority anticipated adverse impacts occur; should consider the ecosystem that (e) Timing discharge to avoid spawning or migration seasons and other bio- will be lost as well as the environ- logically critical time periods; mental benefits of the new system. (f) Avoiding the destruction of rem- nant natural sites within areas already Subpart I—Planning To Shorten affected by development. Permit Processing Time [45 FR 85344, Dec. 24, 1980, as amended at 73 FR 19687, Apr. 10, 2008] § 230.80 Advanced identification of disposal areas. § 230.76 Actions affecting human use. (a) Consistent with these Guidelines, Minimization of adverse effects on EPA and the permitting authority, on human use potential may be achieved their own initiative or at the request of by: any other party and after consultation (a) Selecting discharge sites and fol- with any affected State that is not the lowing discharge procedures to prevent permitting authority, may identify or minimize any potential damage to sites which will be considered as: the aesthetically pleasing features of (1) Possible future disposal sites, in- the aquatic site (e.g. viewscapes), par- cluding existing disposal sites and non- ticularly with respect to water quality; sensitive areas; or (b) Selecting disposal sites which are (2) Areas generally unsuitable for dis- not valuable as natural aquatic areas; posal site specification; (c) Timing the discharge to avoid the seasons or periods when human rec- (b) The identification of any area as reational activity associated with the a possible future disposal site should aquatic site is most important; not be deemed to constitute a permit (d) Following discharge procedures for the discharge of dredged or fill ma- which avoid or minimize the disturb- terial within such area or a specifica- ance of aesthetic features of an aquatic tion of a disposal site. The identifica- site or ecosystem; tion of areas that generally will not be (e) Selecting sites that will not be available for disposal site specification detrimental or increase incompatible should not be deemed as prohibiting human activity, or require the need for applications for permits to discharge frequent dredge or fill maintenance ac- dredged or fill material in such areas. tivity in remote fish and wildlife areas; Either type of identification con- (f) Locating the disposal site outside stitutes information to facilitate indi- of the vicinity of a public water supply vidual or General permit application intake. and processing.

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(c) An appropriate public notice of tions at 33 CFR part 320 and this part, the proposed identification of such respectively. areas shall be issued; (2) This subpart has been jointly de- (d) To provide the basis for advanced veloped by the Secretary of the Army, identification of disposal areas, and acting through the Chief of Engineers, areas unsuitable for disposal, EPA and and the Administrator of the Environ- the permitting authority shall consider mental Protection Agency. From time the likelihood that use of the area in to time guidance on interpreting and question for dredged or fill material implementing this subpart may be pre- disposal will comply with these Guide- pared jointly by EPA and the Corps at lines. To facilitate this analysis, EPA the national or regional level. No and the permitting authority should modifications to the basic application, review available water resources man- meaning, or intent of this subpart will agement data including data available be made without further joint rule- from the public, other Federal and making by the Secretary of the Army, State agencies, and information from acting through the Chief of Engineers approved Coastal Zone Management and the Administrator of the Environ- programs and River Basin Plans; mental Protection Agency, pursuant to (e) The permitting authority should the Administrative Procedure Act (5 maintain a public record of the identi- U.S.C. 551 et seq.). fied areas and a written statement of the basis for identification. (b) Applicability. This subpart does not alter the circumstances under which compensatory mitigation is re- Subpart J—Compensatory Mitiga- quired or the definition of ‘‘waters of tion for Losses of Aquatic Re- the United States,’’ which is provided sources at § 230.3(s). Use of resources as compensatory mitigation that are not oth- SOURCE: 73 FR 19687, Apr. 10, 2008, unless erwise subject to regulation under sec- otherwise noted. tion 404 of the Clean Water Act does not in and of itself make them subject § 230.91 Purpose and general consider- to such regulation. ations. (c) Sequencing. (1) Nothing in this sec- (a) Purpose. (1) The purpose of this tion affects the requirement that all subpart is to establish standards and DA permits subject to section 404 of criteria for the use of all types of com- the Clean Water Act comply with ap- pensatory mitigation, including on-site plicable provisions of this part. and off-site permittee-responsible miti- (2) Pursuant to these requirements, gation, mitigation banks, and in-lieu the district engineer will issue an indi- fee mitigation to offset unavoidable vidual section 404 permit only upon a impacts to waters of the United States determination that the proposed dis- authorized through the issuance of permits by the U.S. Army Corps of Engi- charge complies with applicable provi- neers (Corps) pursuant to section 404 of sions of 40 CFR part 230, including the Clean Water Act (33 U.S.C. 1344). those which require the permit appli- This subpart implements section 314(b) cant to take all appropriate and prac- of the 2004 National Defense Authoriza- ticable steps to avoid and minimize ad- tion Act (Pub. L. 108–136), which directs verse impacts to waters of the United that the standards and criteria shall, States. Practicable means available to the maximum extent practicable, and capable of being done after taking maximize available credits and oppor- into consideration cost, existing tech- tunities for mitigation, provide for re- nology, and logistics in light of overall gional variations in wetland condi- project purposes. Compensatory miti- tions, functions, and values, and apply gation for unavoidable impacts may be equivalent standards and criteria to required to ensure that an activity re- each type of compensatory mitigation. quiring a section 404 permit complies This subpart is intended to further with the Section 404(b)(1) Guidelines. clarify mitigation requirements estab- (3) Compensatory mitigation for un- lished under the Corps and EPA regula- avoidable impacts may be required to

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ensure that an activity requiring a sec- that anticipates likely challenges asso- tion 404 permit complies with the Sec- ciated with compensatory mitigation tion 404(b)(1) Guidelines. During the projects and provides for the imple- 404(b)(1) Guidelines compliance anal- mentation of actions to address those ysis, the district engineer may deter- challenges, as well as unforeseen mine that a DA permit for the proposed changes to those projects. It requires activity cannot be issued because of consideration of the risk, uncertainty, the lack of appropriate and practicable and dynamic nature of compensatory compensatory mitigation options. mitigation projects and guides modi- (d) Accounting for regional variations. fication of those projects to optimize Where appropriate, district engineers performance. It includes the selection shall account for regional characteris- of appropriate measures that will en- tics of aquatic resource types, func- sure that the aquatic resource functions and services when determining tions are provided and involves anal- performance standards and monitoring ysis of monitoring results to identify requirements for compensatory mitiga- potential problems of a compensatory tion projects. (e) Relationship to other guidance docu- mitigation project and the identifica- ments. (1) This subpart applies instead tion and implementation of measures of the ‘‘Federal Guidance for the Estab- to rectify those problems. lishment, Use, and Operation of Mitiga- Advance credits means any credits of tion Banks,’’ which was issued on No- an approved in-lieu fee program that vember 28, 1995, the ‘‘Federal Guidance are available for sale prior to being ful- on the Use of In-Lieu Fee Arrange- filled in accordance with an approved ments for Compensatory Mitigation mitigation project plan. Advance cred- Under Section 404 of the Clean Water it sales require an approved in-lieu fee Act and Section 10 of the Rivers and program instrument that meets all ap- Harbors Act,’’ which was issued on No- plicable requirements including a spe- vember 7, 2000, and Regulatory Guid- cific allocation of advance credits, by ance Letter 02–02, ‘‘Guidance on Com- service area where applicable. The in- pensatory Mitigation Projects for strument must also contain a schedule Aquatic Resource Impacts Under the for fulfillment of advance credit sales. Corps Regulatory Program Pursuant to Buffer means an upland, wetland, Section 404 of the Clean Water Act and and/or riparian area that protects and/ Section 10 of the Rivers and Harbors or enhances aquatic resource functions Act of 1899’’ which was issued on De- associated with wetlands, rivers, cember 24, 2002. These guidance docu- streams, lakes, marine, and estuarine ments are no longer to be used as com- systems from disturbances associated pensatory mitigation policy in the with adjacent land uses. Corps Regulatory Program. Compensatory mitigation means the (2) In addition, this subpart also ap- restoration (re-establishment or reha- plies instead of the provisions relating to the amount, type, and location of bilitation), establishment (creation), compensatory mitigation projects, in- enhancement, and/or in certain cir- cluding the use of preservation, in the cumstances preservation of aquatic re- February 6, 1990, Memorandum of sources for the purposes of offsetting Agreement (MOA) between the Depart- unavoidable adverse impacts which re- ment of the Army and the Environ- main after all appropriate and prac- mental Protection Agency on the De- ticable avoidance and minimization termination of Mitigation Under the has been achieved. Clean Water Act Section 404(b)(1) Compensatory mitigation project means Guidelines. All other provisions of this compensatory mitigation implemented MOA remain in effect. by the permittee as a requirement of a DA permit (i.e., permittee-responsible § 230.92 Definitions. mitigation), or by a mitigation bank or For the purposes of this subpart, the an in-lieu fee program. following terms are defined: Condition means the relative ability Adaptive management means the de- of an aquatic resource to support and velopment of a management strategy maintain a community of organisms

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having a species composition, diver- sor for sale or transfer to permit appli- sity, and functional organization com- cants. parable to reference aquatic resources Functional capacity means the degree in the region. to which an area of aquatic resource Credit means a unit of measure (e.g., performs a specific function. a functional or areal measure or other Functions means the physical, chem- suitable metric) representing the ac- ical, and biological processes that crual or attainment of aquatic func- occur in ecosystems. tions at a compensatory mitigation Impact means adverse effect. site. The measure of aquatic functions In-kind means a resource of a similar is based on the resources restored, es- structural and functional type to the tablished, enhanced, or preserved. impacted resource. DA means Department of the Army. In-lieu fee program means a program Days means calendar days. involving the restoration, establishment, enhancement, and/or preserva- Debit means a unit of measure (e.g., a tion of aquatic resources through funds functional or areal measure or other paid to a governmental or non-profit suitable metric) representing the loss natural resources management entity of aquatic functions at an impact or to satisfy compensatory mitigation re- project site. The measure of aquatic quirements for DA permits. Similar to functions is based on the resources im- a mitigation bank, an in-lieu fee pro- pacted by the authorized activity. gram sells compensatory mitigation Enhancement means the manipulation credits to permittees whose obligation of the physical, chemical, or biological to provide compensatory mitigation is characteristics of an aquatic resource then transferred to the in-lieu program to heighten, intensify, or improve a sponsor. However, the rules governing specific aquatic resource function(s). the operation and use of in-lieu fee pro- Enhancement results in the gain of se- grams are somewhat different from the lected aquatic resource function(s), but rules governing operation and use of may also lead to a decline in other mitigation banks. The operation and aquatic resource function(s). Enhance- use of an in-lieu fee program are gov- ment does not result in a gain in erned by an in-lieu fee program instru- aquatic resource area. ment. Establishment (creation) means the In-lieu fee program instrument means manipulation of the physical, chem- the legal document for the establish- ical, or biological characteristics ment, operation, and use of an in-lieu present to develop an aquatic resource fee program. that did not previously exist at an up- Instrument means mitigation banking land site. Establishment results in a instrument or in-lieu fee program in- gain in aquatic resource area and func- strument. tions. Interagency Review Team (IRT) means Fulfillment of advance credit sales of an an interagency group of federal, tribal, in-lieu fee program means application of state, and/or local regulatory and re- credits released in accordance with a source agency representatives that re- credit release schedule in an approved views documentation for, and advises mitigation project plan to satisfy the the district engineer on, the establish- mitigation requirements represented ment and management of a mitigation by the advance credits. Only after any bank or an in-lieu fee program. advance credit sales within a service Mitigation bank means a site, or suite area have been fulfilled through the ap- of sites, where resources (e.g., wet- plication of released credits from an in- lands, streams, riparian areas) are re- lieu fee project (in accordance with the stored, established, enhanced, and/or credit release schedule for an approved preserved for the purpose of providing mitigation project plan), may addi- compensatory mitigation for impacts tional released credits from that authorized by DA permits. In general, a project be sold or transferred to per- mitigation bank sells compensatory mittees. When advance credits are ful- mitigation credits to permittees whose filled, an equal number of new advance obligation to provide compensatory credits is restored to the program spon- mitigation is then transferred to the

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mitigation bank sponsor. The oper- result of natural processes and anthro- ation and use of a mitigation bank are pogenic disturbances. governed by a mitigation banking in- Rehabilitation means the manipula- strument. tion of the physical, chemical, or bio- Mitigation banking instrument means logical characteristics of a site with the legal document for the establish- the goal of repairing natural/historic ment, operation, and use of a mitiga- functions to a degraded aquatic re- tion bank. source. Rehabilitation results in a gain Off-site means an area that is neither in aquatic resource function, but does located on the same parcel of land as not result in a gain in aquatic resource the impact site, nor on a parcel of land area. contiguous to the parcel containing the Release of credits means a determina- impact site. tion by the district engineer, in con- On-site means an area located on the sultation with the IRT, that credits as- same parcel of land as the impact site, sociated with an approved mitigation or on a parcel of land contiguous to the plan are available for sale or transfer, impact site. or in the case of an in-lieu fee program, for fulfillment of advance credit sales. Out-of-kind means a resource of a dif- A proportion of projected credits for a ferent structural and functional type specific mitigation bank or in-lieu fee from the impacted resource. project may be released upon approval Performance standards are observable of the mitigation plan, with additional or measurable physical (including credits released as milestones specified hydrological), chemical and/or biologi- in the credit release schedule are cal attributes that are used to deter- achieved. mine if a compensatory mitigation Restoration means the manipulation project meets its objectives. of the physical, chemical, or biological Permittee-responsible mitigation means characteristics of a site with the goal an aquatic resource restoration, estab- of returning natural/historic functions lishment, enhancement, and/or preser- to a former or degraded aquatic re- vation activity undertaken by the per- source. For the purpose of tracking net mittee (or an authorized agent or con- gains in aquatic resource area, restora- tractor) to provide compensatory miti- tion is divided into two categories: re- gation for which the permittee retains establishment and rehabilitation. full responsibility. Riparian areas are lands adjacent to Preservation means the removal of a streams, rivers, lakes, and estuarine- threat to, or preventing the decline of, marine shorelines. Riparian areas pro- aquatic resources by an action in or vide a variety of ecological functions near those aquatic resources. This and services and help improve or main- term includes activities commonly as- tain local water quality. sociated with the protection and main- Service area means the geographic tenance of aquatic resources through area within which impacts can be miti- the implementation of appropriate gated at a specific mitigation bank or legal and physical mechanisms. Preser- an in-lieu fee program, as designated in vation does not result in a gain of its instrument. aquatic resource area or functions. Services mean the benefits that Re-establishment means the manipula- human populations receive from function of the physical, chemical, or bio- tions that occur in ecosystems. logical characteristics of a site with Sponsor means any public or private the goal of returning natural/historic entity responsible for establishing, and functions to a former aquatic resource. in most circumstances, operating a Re-establishment results in rebuilding mitigation bank or in-lieu fee program. a former aquatic resource and results Standard permit means a standard, in- in a gain in aquatic resource area and dividual permit issued under the au- functions. thority of section 404 of the Clean Reference aquatic resources are a set of Water Act. aquatic resources that represent the Temporal loss is the time lag between full range of variability exhibited by a the loss of aquatic resource functions regional class of aquatic resources as a caused by the permitted impacts and

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the replacement of aquatic resource § 230.93 General compensatory mitiga- functions at the compensatory mitigation requirements. tion site. Higher compensation ratios (a) General considerations. (1) The fun- may be required to compensate for damental objective of compensatory temporal loss. When the compensatory mitigation is to offset environmental mitigation project is initiated prior to, losses resulting from unavoidable im- or concurrent with, the permitted impacts to waters of the United States pacts, the district engineer may deter- authorized by DA permits. The district mine that compensation for temporal engineer must determine the compen- loss is not necessary, unless the re- satory mitigation to be required in a source has a long development time. DA permit, based on what is prac- Watershed means a land area that ticable and capable of compensating drains to a common waterway, such as for the aquatic resource functions that a stream, lake, estuary, wetland, or ul- will be lost as a result of the permitted timately the ocean. activity. When evaluating compen- Watershed approach means an analyt- satory mitigation options, the district ical process for making compensatory engineer will consider what would be mitigation decisions that support the environmentally preferable. In making sustainability or improvement of this determination, the district engi- aquatic resources in a watershed. It in- neer must assess the likelihood for eco- volves consideration of watershed logical success and sustainability, the needs, and how locations and types of location of the compensation site rel- compensatory mitigation projects ad- ative to the impact site and their significance within the watershed, and the dress those needs. A landscape perspec- costs of the compensatory mitigation tive is used to identify the types and project. In many cases, the environ- locations of compensatory mitigation mentally preferable compensatory projects that will benefit the watershed mitigation may be provided through and offset losses of aquatic resource mitigation banks or in-lieu fee pro- functions and services caused by activi- grams because they usually involve ties authorized by DA permits. The wa- consolidating compensatory mitigation tershed approach may involve consider- projects where ecologically appro- ation of landscape scale, historic and priate, consolidating resources, pro- potential aquatic resource conditions, viding financial planning and scientific past and projected aquatic resource im- expertise (which often is not practical pacts in the watershed, and terrestrial for permittee-responsible compen- connections between aquatic resources satory mitigation projects), reducing when determining compensatory miti- temporal losses of functions, and re- gation requirements for DA permits. ducing uncertainty over project suc- Watershed plan means a plan devel- cess. Compensatory mitigation require- oped by federal, tribal, state, and/or ments must be commensurate with the local government agencies or appro- amount and type of impact that is as- priate non-governmental organiza- sociated with a particular DA permit. tions, in consultation with relevant Permit applicants are responsible for stakeholders, for the specific goal of proposing an appropriate compensatory aquatic resource restoration, establish- mitigation option to offset unavoidable ment, enhancement, and preservation. impacts. A watershed plan addresses aquatic re- (2) Compensatory mitigation may be source conditions in the watershed, performed using the methods of res- multiple stakeholder interests, and toration, enhancement, establishment, land uses. Watershed plans may also and in certain circumstances preserva- identify priority sites for aquatic re- tion. Restoration should generally be source restoration and protection. Ex- the first option considered because the amples of watershed plans include spe- likelihood of success is greater and the impacts to potentially ecologically im- cial area management plans, advance portant uplands are reduced compared identification programs, and wetland to establishment, and the potential management plans. gains in terms of aquatic resource

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functions are greater, compared to en- number and resource type of credits hancement and preservation. available, the permittee’s compen- (3) Compensatory mitigation projects satory mitigation requirements may be may be sited on public or private lands. met by securing those credits from the Credits for compensatory mitigation sponsor. Since an approved instrument projects on public land must be based (including an approved mitigation plan solely on aquatic resource functions and appropriate real estate and finan- provided by the compensatory mitiga- cial assurances) for a mitigation bank tion project, over and above those pro- is required to be in place before its vided by public programs already credits can begin to be used to com- planned or in place. All compensatory pensate for authorized impacts, use of mitigation projects must comply with a mitigation bank can help reduce risk the standards in this part, if they are and uncertainty, as well as temporal to be used to provide compensatory loss of resource functions and services. mitigation for activities authorized by Mitigation bank credits are not re- DA permits, regardless of whether they leased for debiting until specific mile- are sited on public or private lands and stones associated with the mitigation whether the sponsor is a governmental bank site’s protection and development or private entity. are achieved, thus use of mitigation (b) Type and location of compensatory bank credits can also help reduce risk mitigation. (1) When considering options that mitigation will not be fully suc- for successfully providing the required cessful. Mitigation banks typically in- compensatory mitigation, the district volve larger, more ecologically valu- engineer shall consider the type and lo- able parcels, and more rigorous sci- cation options in the order presented in entific and technical analysis, planning paragraphs (b)(2) through (b)(6) of this and implementation than permittee-re- section. In general, the required com- sponsible mitigation. Also, develop- pensatory mitigation should be located ment of a mitigation bank requires site within the same watershed as the im- identification in advance, project-spe- pact site, and should be located where cific planning, and significant invest- it is most likely to successfully replace ment of financial resources that is lost functions and services, taking into often not practicable for many in-lieu account such watershed scale features fee programs. For these reasons, the as aquatic habitat diversity, habitat district engineer should give preference connectivity, relationships to hydro- to the use of mitigation bank credits logic sources (including the avail- when these considerations are applica- ability of water rights), trends in land ble. However, these same consider- use, ecological benefits, and compat- ations may also be used to override ibility with adjacent land uses. When this preference, where appropriate, as, compensating for impacts to marine for example, where an in-lieu fee pro- resources, the location of the compen- gram has released credits available satory mitigation site should be chosen from a specific approved in-lieu fee to replace lost functions and services project, or a permittee-responsible within the same marine ecological sys- project will restore an outstanding re- tem (e.g., reef complex, littoral drift source based on rigorous scientific and cell). Compensation for impacts to technical analysis. aquatic resources in coastal watersheds (3) In-lieu fee program credits. Where (watersheds that include a tidal water permitted impacts are located within body) should also be located in a coast- the service area of an approved in-lieu al watershed where practicable. Com- fee program, and the sponsor has the pensatory mitigation projects should appropriate number and resource type not be located where they will increase of credits available, the permittee’s risks to aviation by attracting wildlife compensatory mitigation requirements to areas where aircraft-wildlife strikes may be met by securing those credits may occur (e.g., near airports). from the sponsor. Where permitted im- (2) Mitigation bank credits. When per- pacts are not located in the service mitted impacts are located within the area of an approved mitigation bank, service area of an approved mitigation or the approved mitigation bank does bank, and the bank has the appropriate not have the appropriate number and

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resource type of credits available to (6) Permittee-responsible mitigation offset those impacts, in-lieu fee mitiga- through off-site and/or out-of-kind mitigation, if available, is generally pref- tion. If, after considering opportunities erable to permittee-responsible mitiga- for on-site, in-kind compensatory miti- tion. In-lieu fee projects typically in- gation as provided in paragraph (b)(5) volve larger, more ecologically valu- of this section, the district engineer de- able parcels, and more rigorous sci- termines that these compensatory entific and technical analysis, planning mitigation opportunities are not prac- and implementation than permittee-re- ticable, are unlikely to compensate for sponsible mitigation. They also devote the permitted impacts, or will be in- significant resources to identifying and compatible with the proposed project, addressing high-priority resource needs and an alternative, practicable off-site on a watershed scale, as reflected in and/or out-of-kind mitigation oppor- their compensation planning frame- tunity is identified that has a greater work. For these reasons, the district likelihood of offsetting the permitted engineer should give preference to in- impacts or is environmentally pref- lieu fee program credits over per- erable to on-site or in-kind mitigation, mittee-responsible mitigation, where the district engineer should require these considerations are applicable. that this alternative compensatory However, as with the preference for mitigation be provided. mitigation bank credits, these same (c) Watershed approach to compen- considerations may be used to override satory mitigation. (1) The district engi- this preference where appropriate. Ad- neer must use a watershed approach to ditionally, in cases where permittee-re- establish compensatory mitigation responsible mitigation is likely to suc- quirements in DA permits to the ex- cessfully meet performance standards tent appropriate and practicable. before advance credits secured from an Where a watershed plan is available, in-lieu fee program are fulfilled, the the district engineer will determine district engineer should also give con- whether the plan is appropriate for use sideration to this factor in deciding be- in the watershed approach for compen- tween in-lieu fee mitigation and per- satory mitigation. In cases where the mittee-responsible mitigation. district engineer determines that an (4) Permittee-responsible mitigation appropriate watershed plan is avail- under a watershed approach. Where per- able, the watershed approach should be mitted impacts are not in the service based on that plan. Where no such plan area of an approved mitigation bank or is available, the watershed approach in-lieu fee program that has the appro- should be based on information propriate number and resource type of vided by the project sponsor or avail- credits available, permittee-responsible able from other sources. The ultimate mitigation is the only option. Where goal of a watershed approach is to practicable and likely to be successful maintain and improve the quality and and sustainable, the resource type and quantity of aquatic resources within location for the required permittee-re- watersheds through strategic selection sponsible compensatory mitigation of compensatory mitigation sites. should be determined using the prin- (2) Considerations. (i) A watershed ap- ciples of a watershed approach as out- proach to compensatory mitigation lined in paragraph (c) of this section. considers the importance of landscape (5) Permittee-responsible mitigation position and resource type of compen- through on-site and in-kind mitigation. In satory mitigation projects for the sus- cases where a watershed approach is tainability of aquatic resource func- not practicable, the district engineer tions within the watershed. Such an should consider opportunities to offset approach considers how the types and anticipated aquatic resource impacts locations of compensatory mitigation by requiring on-site and in-kind com- projects will provide the desired aquat- pensatory mitigation. The district en- ic resource functions, and will continue gineer must also consider the practica- to function over time in a changing bility of on-site compensatory mitiga- landscape. It also considers the habitat tion and its compatibility with the pro- requirements of important species, posed project. habitat loss or conversion trends,

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sources of watershed impairment, and possible, to enhance the usefulness of current development trends, as well as the approach in determining compen- the requirements of other regulatory satory mitigation requirements. and non-regulatory programs that af- (v) A watershed approach is not ap- fect the watershed, such as storm propriate in areas where watershed water management or habitat con- boundaries do not exist, such as marine servation programs. It includes the areas. In such cases, an appropriate protection and maintenance of terres- spatial scale should be used to replace trial resources, such as non-wetland ri- lost functions and services within the parian areas and uplands, when those same ecological system (e.g., reef com- resources contribute to or improve the plex, littoral drift cell). overall ecological functioning of aquat- (3) Information Needs. (i) In the ab- ic resources in the watershed. Compen- sence of a watershed plan determined satory mitigation requirements deter- by the district engineer under para- mined through the watershed approach graph (c)(1) of this section to be appro- should not focus exclusively on specific priate for use in the watershed ap- functions (e.g., water quality or habi- proach, the district engineer will use a tat for certain species), but should pro- watershed approach based on analysis vide, where practicable, the suite of of information regarding watershed functions typically provided by the af- conditions and needs, including poten- fected aquatic resource. tial sites for aquatic resource restora- (ii) Locational factors (e.g., hydrol- tion activities and priorities for aquat- ogy, surrounding land use) are impor- ic resource restoration and preserva- tant to the success of compensatory tion. Such information includes: Cur- mitigation for impacted habitat func- rent trends in habitat loss or conver- tions and may lead to siting of such sion; cumulative impacts of past devel- mitigation away from the project area. opment activities, current develop- However, consideration should also be ment trends, the presence and needs of given to functions and services (e.g., sensitive species; site conditions that water quality, flood control, shoreline favor or hinder the success of compen- protection) that will likely need to be satory mitigation projects; and chronic addressed at or near the areas im- environmental problems such as flood- pacted by the permitted impacts. ing or poor water quality. (iii) A watershed approach may include on-site compensatory mitigation, (ii) This information may be avail- off-site compensatory mitigation (in- able from sources such as wetland cluding mitigation banks or in-lieu fee maps; soil surveys; U.S. Geological programs), or a combination of on-site Survey topographic and hydrologic and off-site compensatory mitigation. maps; aerial photographs; information (iv) A watershed approach to compen- on rare, endangered and threatened satory mitigation should include, to species and critical habitat; local eco- the extent practicable, inventories of logical reports or studies; and other in- historic and existing aquatic resources, formation sources that could be used to including identification of degraded identify locations for suitable compen- aquatic resources, and identification of satory mitigation projects in the wa- immediate and long-term aquatic re- tershed. source needs within watersheds that (iii) The level of information and can be met through permittee-respon- analysis needed to support a watershed sible mitigation projects, mitigation approach must be commensurate with banks, or in-lieu fee programs. Plan- the scope and scale of the proposed im- ning efforts should identify and pacts requiring a DA permit, as well as prioritize aquatic resource restoration, the functions lost as a result of those establishment, and enhancement ac- impacts. tivities, and preservation of existing (4) Watershed Scale. The size of water- aquatic resources that are important shed addressed using a watershed ap- for maintaining or improving ecologi- proach should not be larger than is ap- cal functions of the watershed. The propriate to ensure that the aquatic re- identification and prioritization of resources provided through compensation source needs should be as specific as activities will effectively compensate

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for adverse environmental impacts re- aquatic resource functions and serv- sulting from activities authorized by ices. DA permits. The district engineer (3) Applicants should propose com- should consider relevant environ- pensation sites adjacent to existing mental factors and appropriate locally- aquatic resources or where aquatic re- developed standards and criteria when sources previously existed. determining the appropriate watershed (e) Mitigation type. (1) In general, in- scale in guiding compensation activi- kind mitigation is preferable to out-of- ties. kind mitigation because it is most (d) Site selection. (1) The compen- likely to compensate for the functions satory mitigation project site must be and services lost at the impact site. ecologically suitable for providing the For example, tidal wetland compen- desired aquatic resource functions. In satory mitigation projects are most determining the ecological suitability likely to compensate for unavoidable of the compensatory mitigation project impacts to tidal wetlands, while peren- site, the district engineer must con- nial stream compensatory mitigation sider, to the extent practicable, the fol- projects are most likely to compensate lowing factors: for unavoidable impacts to perennial (i) Hydrological conditions, soil char- streams. Thus, except as provided in acteristics, and other physical and paragraph (e)(2) of this section, the re- chemical characteristics; quired compensatory mitigation shall be of a similar type to the affected (ii) Watershed-scale features, such as aquatic resource. aquatic habitat diversity, habitat (2) If the district engineer deter- connectivity, and other landscape scale mines, using the watershed approach in functions; accordance with paragraph (c) of this (iii) The size and location of the com- section that out-of-kind compensatory pensatory mitigation site relative to mitigation will serve the aquatic re- hydrologic sources (including the source needs of the watershed, the dis- availability of water rights) and other trict engineer may authorize the use of ecological features; such out-of-kind compensatory mitiga- (iv) Compatibility with adjacent land tion. The basis for authorization of uses and watershed management plans; out-of-kind compensatory mitigation (v) Reasonably foreseeable effects the must be documented in the administra- compensatory mitigation project will tive record for the permit action. have on ecologically important aquatic (3) For difficult-to-replace resources or terrestrial resources (e.g., shallow (e.g., bogs, fens, springs, streams, At- sub-tidal habitat, mature forests), cul- lantic white cedar swamps) if further tural sites, or habitat for federally- or avoidance and minimization is not state-listed threatened and endangered practicable, the required compensation species; and should be provided, if practicable, (vi) Other relevant factors including, through in-kind rehabilitation, en- but not limited to, development trends, hancement, or preservation since there anticipated land use changes, habitat is greater certainty that these methods status and trends, the relative loca- of compensation will successfully off- tions of the impact and mitigation set permitted impacts. sites in the stream network, local or (f) Amount of compensatory mitigation. regional goals for the restoration or (1) If the district engineer determines protection of particular habitat types that compensatory mitigation is nec- or functions (e.g., re-establishment of essary to offset unavoidable impacts to habitat corridors or habitat for species aquatic resources, the amount of re- of concern), water quality goals, flood- quired compensatory mitigation must plain management goals, and the rel- be, to the extent practicable, sufficient ative potential for chemical contami- to replace lost aquatic resource func- nation of the aquatic resources. tions. In cases where appropriate func- (2) District engineers may require on- tional or condition assessment meth- site, off-site, or a combination of on- ods or other suitable metrics are avail- site and off-site compensatory mitiga- able, these methods should be used tion to replace permitted losses of where practicable to determine how

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much compensatory mitigation is re- cal sustainability of the watershed. In quired. If a functional or condition as- determining the contribution of those sessment or other suitable metric is resources to the ecological sustain- not used, a minimum one-to-one acre- ability of the watershed, the district age or linear foot compensation ratio engineer must use appropriate quan- must be used. titative assessment tools, where avail- (2) The district engineer must require able; a mitigation ratio greater than one-to- (iii) Preservation is determined by one where necessary to account for the the district engineer to be appropriate method of compensatory mitigation and practicable; (e.g., preservation), the likelihood of (iv) The resources are under threat of success, differences between the func- destruction or adverse modifications; tions lost at the impact site and the and functions expected to be produced by (v) The preserved site will be perma- the compensatory mitigation project, nently protected through an appro- temporal losses of aquatic resource priate real estate or other legal instru- functions, the difficulty of restoring or ment (e.g., easement, title transfer to establishing the desired aquatic re- state resource agency or land trust). source type and functions, and/or the (2) Where preservation is used to pro- distance between the affected aquatic vide compensatory mitigation, to the resource and the compensation site. extent appropriate and practicable the The rationale for the required replace- preservation shall be done in conjunc- ment ratio must be documented in the administrative record for the permit tion with aquatic resource restoration, action. establishment, and/or enhancement ac- (3) If an in-lieu fee program will be tivities. This requirement may be used to provide the required compen- waived by the district engineer where satory mitigation, and the appropriate preservation has been identified as a number and resource type of released high priority using a watershed ap- credits are not available, the district proach described in paragraph (c) of engineer must require sufficient com- this section, but compensation ratios pensation to account for the risk and shall be higher. uncertainty associated with in-lieu fee (i) Buffers. District engineers may re- projects that have not been imple- quire the restoration, establishment, mented before the permitted impacts enhancement, and preservation, as well have occurred. as the maintenance, of riparian areas (g) Use of mitigation banks and in-lieu and/or buffers around aquatic resources fee programs. Mitigation banks and in- where necessary to ensure the long- lieu fee programs may be used to com- term viability of those resources. Buff- pensate for impacts to aquatic re- ers may also provide habitat or cor- sources authorized by general permits ridors necessary for the ecological and individual permits, including after- functioning of aquatic resources. If the-fact permits, in accordance with buffers are required by the district en- the preference hierarchy in paragraph gineer as part of the compensatory (b) of this section. Mitigation banks mitigation project, compensatory miti- and in-lieu fee programs may also be gation credit will be provided for those used to satisfy requirements arising buffers. out of an enforcement action, such as (j) Relationship to other federal, tribal, supplemental environmental projects. state, and local programs. (1) Compen- (h) Preservation. (1) Preservation may satory mitigation projects for DA per- be used to provide compensatory miti- mits may also be used to satisfy the gation for activities authorized by DA environmental requirements of other permits when all the following criteria programs, such as tribal, state, or local are met: wetlands regulatory programs, other (i) The resources to be preserved pro- federal programs such as the Surface vide important physical, chemical, or Mining Control and Reclamation Act, biological functions for the watershed; Corps civil works projects, and Depart- (ii) The resources to be preserved ment of Defense military construction contribute significantly to the ecologi- projects, consistent with the terms and

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requirements of these programs and (ii) Incorporate, by reference, the subject to the following considerations: final mitigation plan approved by the (i) The compensatory mitigation district engineer; project must include appropriate com- (iii) State the objectives, perform- pensation required by the DA permit ance standards, and monitoring re- for unavoidable impacts to aquatic required for the compensatory mitiga- sources authorized by that permit. tion project, unless they are provided (ii) Under no circumstances may the in the approved final mitigation plan; same credits be used to provide mitiga- and tion for more than one permitted activ- (iv) Describe any required financial ity. However, where appropriate, com- assurances or long-term management pensatory mitigation projects, includ- provisions for the compensatory miti- ing mitigation banks and in-lieu fee gation project, unless they are speci- projects, may be designed to holis- fied in the approved final mitigation tically address requirements under multiple programs and authorities for plan. the same activity. (3) For a general permit activity that (2) Except for projects undertaken by requires permittee-responsible compen- federal agencies, or where federal fund- satory mitigation, the special condi- ing is specifically authorized to provide tions must describe the compensatory compensatory mitigation, federally- mitigation proposal, which may be ei- funded aquatic resource restoration or ther conceptual or detailed. The gen- conservation projects undertaken for eral permit verification must also in- purposes other than compensatory clude a special condition that states mitigation, such as the Wetlands Re- that the permittee cannot commence serve Program, Conservation Reserve work in waters of the United States Program, and Partners for Wildlife until the district engineer approves the Program activities, cannot be used for final mitigation plan, unless the dis- the purpose of generating compen- trict engineer determines that such a satory mitigation credits for activities special condition is not practicable and authorized by DA permits. However, not necessary to ensure timely comple- compensatory mitigation credits may tion of the required compensatory be generated by activities undertaken mitigation. To the extent appropriate in conjunction with, but supplemental and practicable, special conditions of to, such programs in order to maximize the general permit verification should the overall ecological benefits of the also address the requirements of para- restoration or conservation project. graph (k)(2) of this section. (3) Compensatory mitigation projects (4) If a mitigation bank or in-lieu fee may also be used to provide compen- program is used to provide the required satory mitigation under the Endan- compensatory mitigation, the special gered Species Act or for Habitat Con- conditions must indicate whether a servation Plans, as long as they comply with the requirements of paragraph mitigation bank or in-lieu fee program (j)(1) of this section. will be used, and specify the number (k) Permit conditions. (1) The compen- and resource type of credits the per- satory mitigation requirements for a mittee is required to secure. In the DA permit, including the amount and case of an individual permit, the spe- type of compensatory mitigation, must cial condition must also identify the be clearly stated in the special condi- specific mitigation bank or in-lieu fee tions of the individual permit or gen- program that will be used. For general eral permit verification (see 33 CFR permit verifications, the special condi- 325.4 and 330.6(a)). The special conditions may either identify the specific tions must be enforceable. mitigation bank or in-lieu fee program, (2) For an individual permit that re- or state that the specific mitigation quires permittee-responsible mitiga- bank or in-lieu fee program used to tion, the special conditions must: provide the required compensatory (i) Identify the party responsible for mitigation must be approved by the providing the compensatory mitiga- district engineer before the credits are tion; secured.

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(l) Party responsible for compensatory and practicable, additional compen- mitigation. (1) For permittee-respon- satory mitigation to offset temporal sible mitigation, the special conditions losses of aquatic functions that will re- of the DA permit must clearly indicate sult from the permitted activity. the party or parties responsible for the (n) Financial assurances. (1) The dis- implementation, performance, and trict engineer shall require sufficient long-term management of the compen- financial assurances to ensure a high satory mitigation project. level of confidence that the compen- (2) For mitigation banks and in-lieu satory mitigation project will be suc- fee programs, the instrument must cessfully completed, in accordance clearly indicate the party or parties re- with applicable performance standards. sponsible for the implementation, per- In cases where an alternate mechanism formance, and long-term management is available to ensure a high level of of the compensatory mitigation confidence that the compensatory project(s). The instrument must also mitigation will be provided and main- contain a provision expressing the tained (e.g., a formal, documented sponsor’s agreement to assume respon- commitment from a government agen- sibility for a permittee’s compensatory cy or public authority) the district en- mitigation requirements, once that gineer may determine that financial permittee has secured the appropriate assurances are not necessary for that number and resource type of credits compensatory mitigation project. from the sponsor and the district engi- (2) The amount of the required finan- neer has received the documentation cial assurances must be determined by described in paragraph (l)(3) of this sec- the district engineer, in consultation tion. with the project sponsor, and must be (3) If use of a mitigation bank or in- based on the size and complexity of the lieu fee program is approved by the dis- compensatory mitigation project, the trict engineer to provide part or all of degree of completion of the project at the required compensatory mitigation the time of project approval, the likeli- for a DA permit, the permittee retains hood of success, the past performance responsibility for providing the com- of the project sponsor, and any other pensatory mitigation until the appro- factors the district engineer deems ap- priate number and resource type of propriate. Financial assurances may be credits have been secured from a spon- in the form of performance bonds, es- sor and the district engineer has re- crow accounts, casualty insurance, let- ceived documentation that confirms ters of credit, legislative appropria- that the sponsor has accepted the re- tions for government sponsored sponsibility for providing the required projects, or other appropriate instru- compensatory mitigation. This documents, subject to the approval of the mentation may consist of a letter or district engineer. The rationale for de- form signed by the sponsor, with the termining the amount of the required permit number and a statement indi- financial assurances must be docu- cating the number and resource type of mented in the administrative record credits that have been secured from the for either the DA permit or the instru- sponsor. Copies of this documentation ment. In determining the assurance will be retained in the administrative amount, the district engineer shall records for both the permit and the in- consider the cost of providing replace- strument. If the sponsor fails to pro- ment mitigation, including costs for vide the required compensatory miti- land acquisition, planning and engi- gation, the district engineer may pur- neering, legal fees, mobilization, con- sue measures against the sponsor to struction, and monitoring. ensure compliance. (3) If financial assurances are re- (m) Timing. Implementation of the quired, the DA permit must include a compensatory mitigation project shall special condition requiring the finan- be, to the maximum extent prac- cial assurances to be in place prior to ticable, in advance of or concurrent commencing the permitted activity. with the activity causing the author- (4) Financial assurances shall be ized impacts. The district engineer phased out once the compensatory shall require, to the extent appropriate mitigation project has been determined

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by the district engineer to be success- (b) Public review and comment. (1) For ful in accordance with its performance an activity that requires a standard DA standards. The DA permit or instru- permit pursuant to section 404 of the ment must clearly specify the condi- Clean Water Act, the public notice for tions under which the financial assur- the proposed activity must contain a ances are to be released to the per- statement explaining how impacts as- mittee, sponsor, and/or other financial sociated with the proposed activity are assurance provider, including, as ap- to be avoided, minimized, and com- propriate, linkage to achievement of pensated for. This explanation shall ad- performance standards, adaptive man- dress, to the extent that such informa- agement, or compliance with special tion is provided in the mitigation conditions. statement required by 33 CFR (5) A financial assurance must be in a 325.1(d)(7), the proposed avoidance and form that ensures that the district en- minimization and the amount, type, gineer will receive notification at least and location of any proposed compen- 120 days in advance of any termination satory mitigation, including any out- or revocation. For third-party assur- of-kind compensation, or indicate an ance providers, this may take the form intention to use an approved mitiga- of a contractual requirement for the tion bank or in-lieu fee program. The assurance provider to notify the dis- level of detail provided in the public trict engineer at least 120 days before notice must be commensurate with the the assurance is revoked or termi- scope and scale of the impacts. The no- nated. tice shall not include information that (6) Financial assurances shall be pay- the district engineer and the permittee able at the direction of the district en- believe should be kept confidential for gineer to his designee or to a standby business purposes, such as the exact lo- trust agreement. When a standby trust cation of a proposed mitigation site is used (e.g., with performance bonds or that has not yet been secured. The per- letters of credit) all amounts paid by mittee must clearly identify any infor- the financial assurance provider shall mation being claimed as confidential be deposited directly into the standby in the mitigation statement when sub- trust fund for distribution by the trust- mitted. In such cases, the notice must ee in accordance with the district engi- still provide enough information to en- neer’s instructions. able the public to provide meaningful (o) Compliance with applicable law. comment on the proposed mitigation. The compensatory mitigation project must comply with all applicable fed- (2) For individual permits, district eral, state, and local laws. The DA per- engineers must consider any timely mit, mitigation banking instrument, or comments and recommendations from in-lieu fee program instrument must other federal agencies; tribal, state, or not require participation by the Corps local governments; and the public. or any other federal agency in project (3) For activities authorized by let- management, including receipt or man- ters of permission or general permits, agement of financial assurances or the review and approval process for long-term financing mechanisms, ex- compensatory mitigation proposals and cept as determined by the Corps or plans must be conducted in accordance other agency to be consistent with its with the terms and conditions of those statutory authority, mission, and pri- permits and applicable regulations in- orities. cluding the applicable provisions of this part. § 230.94 Planning and documentation. (c) Mitigation plan. (1) Preparation and (a) Pre-application consultations. Po- Approval. (i) For individual permits, tential applicants for standard permits the permittee must prepare a draft are encouraged to participate in pre- mitigation plan and submit it to the application meetings with the Corps district engineer for review. After ad- and appropriate agencies to discuss po- dressing any comments provided by the tential mitigation requirements and district engineer, the permittee must information needs. prepare a final mitigation plan, which

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must be approved by the district engi- gent upon approval by the district en- neer prior to issuing the individual per- gineer). mit. The approved final mitigation (iii) Mitigation banks and in-lieu fee plan must be incorporated into the in- programs must prepare a mitigation dividual permit by reference. The final plan including the items in paragraphs mitigation plan must include the items (c)(2) through (c)(14) of this section for described in paragraphs (c)(2) through each separate compensatory mitiga- (c)(14) of this section, but the level of tion project site. For mitigation banks detail of the mitigation plan should be and in-lieu fee programs, the prepara- commensurate with the scale and scope tion and approval process for mitiga- of the impacts. As an alternative, the tion plans is described in § 230.98. district engineer may determine that it (2) Objectives. A description of the re- would be more appropriate to address source type(s) and amount(s) that will any of the items described in para- be provided, the method of compensa- graphs (c)(2) through (c)(14) of this section (i.e., restoration, establishment, tion as permit conditions, instead of enhancement, and/or preservation), and components of a compensatory mitiga- the manner in which the resource function plan. For permittees who intend tions of the compensatory mitigation to fulfill their compensatory mitiga- project will address the needs of the tion obligations by securing credits watershed, ecoregion, physiographic from approved mitigation banks or in- province, or other geographic area of lieu fee programs, their mitigation interest. plans need include only the items de- (3) Site selection. A description of the scribed in paragraphs (c)(5) and (c)(6) of factors considered during the site se- this section, and the name of the spe- lection process. This should include cific mitigation bank or in-lieu fee pro- consideration of watershed needs, on- gram to be used. site alternatives where applicable, and (ii) For general permits, if compen- the practicability of accomplishing satory mitigation is required, the dis- ecologically self-sustaining aquatic re- trict engineer may approve a concep- source restoration, establishment, en- tual or detailed compensatory mitiga- hancement, and/or preservation at the tion plan to meet required time frames compensatory mitigation project site. for general permit verifications, but a (See § 230.93(d).) final mitigation plan incorporating the (4) Site protection instrument. A de- elements in paragraphs (c)(2) through scription of the legal arrangements and (c)(14) of this section, at a level of de- instrument, including site ownership, tail commensurate with the scale and that will be used to ensure the long- scope of the impacts, must be approved term protection of the compensatory by the district engineer before the per- mitigation project site (see § 230.97(a)). mittee commences work in waters of (5) Baseline information. A description the United States. As an alternative, of the ecological characteristics of the the district engineer may determine proposed compensatory mitigation that it would be more appropriate to project site and, in the case of an appli- address any of the items described in cation for a DA permit, the impact paragraphs (c)(2) through (c)(14) of this site. This may include descriptions of section as permit conditions, instead of historic and existing plant commu- components of a compensatory mitiga- nities, historic and existing hydrology, tion plan. For permittees who intend soil conditions, a map showing the lo- to fulfill their compensatory mitiga- cations of the impact and mitigation tion obligations by securing credits site(s) or the geographic coordinates from approved mitigation banks or infor those site(s), and other site charac- lieu fee programs, their mitigation teristics appropriate to the type of re- plans need include only the items de- source proposed as compensation. The scribed in paragraphs (c)(5) and (c)(6) of baseline information should also in- this section, and either the name of the clude a delineation of waters of the specific mitigation bank or in-lieu fee United States on the proposed compen- program to be used or a statement in- satory mitigation project site. A pro- dicating that a mitigation bank or in- spective permittee planning to secure lieu fee program will be used (contin- credits from an approved mitigation

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bank or in-lieu fee program only needs and if adaptive management is needed. to provide baseline information about A schedule for monitoring and report- the impact site, not the mitigation ing on monitoring results to the dis- bank or in-lieu fee project site. trict engineer must be included. (See (6) Determination of credits. A descrip- § 230.96.) tion of the number of credits to be pro- (11) Long-term management plan. A de- vided, including a brief explanation of scription of how the compensatory the rationale for this determination. mitigation project will be managed (See § 230.93(f).) after performance standards have been (i) For permittee-responsible mitiga- achieved to ensure the long-term sus- tion, this should include an expla- tainability of the resource, including nation of how the compensatory miti- long-term financing mechanisms and gation project will provide the required the party responsible for long-term compensation for unavoidable impacts management. (See § 230.97(d).) to aquatic resources resulting from the (12) Adaptive management plan. A permitted activity. management strategy to address un- (ii) For permittees intending to se- foreseen changes in site conditions or cure credits from an approved mitiga- other components of the compensatory tion bank or in-lieu fee program, it mitigation project, including the party should include the number and re- or parties responsible for implementing source type of credits to be secured and adaptive management measures. The how these were determined. adaptive management plan will guide (7) Mitigation work plan. Detailed decisions for revising compensatory written specifications and work de- mitigation plans and implementing scriptions for the compensatory miti- measures to address both foreseeable gation project, including, but not lim- and unforeseen circumstances that ad- ited to, the geographic boundaries of versely affect compensatory mitigation the project; construction methods, tim- success. (See § 230.97(c).) ing, and sequence; source(s) of water, (13) Financial assurances. A descrip- including connections to existing wa- tion of financial assurances that will ters and uplands; methods for estab- be provided and how they are sufficient lishing the desired plant community; to ensure a high level of confidence plans to control invasive plant species; that the compensatory mitigation the proposed grading plan, including project will be successfully completed, elevations and slopes of the substrate; in accordance with its performance soil management; and erosion control standards (see § 230.93(n)). measures. For stream compensatory (14) Other information. The district mitigation projects, the mitigation engineer may require additional infor- work plan may also include other rel- mation as necessary to determine the evant information, such as planform appropriateness, feasibility, and prac- geometry, channel form (e.g., typical ticability of the compensatory mitiga- channel cross-sections), watershed size, tion project. design discharge, and riparian area plantings. § 230.95 Ecological performance stand- (8) Maintenance plan. A description ards. and schedule of maintenance require- (a) The approved mitigation plan ments to ensure the continued viabil- must contain performance standards ity of the resource once initial con- that will be used to assess whether the struction is completed. project is achieving its objectives. Per- (9) Performance standards. Eco- formance standards should relate to logically-based standards that will be the objectives of the compensatory used to determine whether the compen- mitigation project, so that the project satory mitigation project is achieving can be objectively evaluated to deter- its objectives. (See § 230.95.) mine if it is developing into the desired (10) Monitoring requirements. A de- resource type, providing the expected scription of parameters to be mon- functions, and attaining any other ap- itored in order to determine if the com- plicable metrics (e.g., acres). pensatory mitigation project is on (b) Performance standards must be track to meet performance standards based on attributes that are objective

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and verifiable. Ecological performance sponsible for submitting those moni- standards must be based on the best toring reports to the district engineer. available science that can be measured (2) The district engineer may conduct or assessed in a practicable manner. site inspections on a regular basis (e.g., Performance standards may be based annually) during the monitoring period on variables or measures of functional to evaluate mitigation site perform- capacity described in functional assess- ance. ment methodologies, measurements of (b) Monitoring period. The mitigation hydrology or other aquatic resource plan must provide for a monitoring pe- characteristics, and/or comparisons to riod that is sufficient to demonstrate reference aquatic resources of similar that the compensatory mitigation type and landscape position. The use of project has met performance standards, reference aquatic resources to estab- but not less than five years. A longer lish performance standards will help monitoring period must be required for ensure that those performance stand- aquatic resources with slow develop- ards are reasonably achievable, by re- ment rates (e.g., forested wetlands, flecting the range of variability exhib- bogs). Following project implementa- ited by the regional class of aquatic re- tion, the district engineer may reduce sources as a result of natural processes or waive the remaining monitoring re- and anthropogenic disturbances. Per- quirements upon a determination that formance standards based on measure- the compensatory mitigation project ments of hydrology should take into has achieved its performance stand- consideration the hydrologic varia- ards. Conversely the district engineer bility exhibited by reference aquatic may extend the original monitoring pe- resources, especially wetlands. Where riod upon a determination that per- practicable, performance standards formance standards have not been met should take into account the expected stages of the aquatic resource develop- or the compensatory mitigation ment process, in order to allow early project is not on track to meet them. identification of potential problems The district engineer may also revise and appropriate adaptive management. monitoring requirements when remediation and/or adaptive management is § 230.96 Monitoring. required. (c) Monitoring reports. (1) The district (a) General. (1) Monitoring the com- engineer must determine the informa- pensatory mitigation project site is tion to be included in monitoring re- necessary to determine if the project is meeting its performance standards, and ports. This information must be suffi- to determine if measures are necessary cient for the district engineer to deter- to ensure that the compensatory miti- mine how the compensatory mitigation gation project is accomplishing its ob- project is progressing towards meeting jectives. The submission of monitoring its performance standards, and may in- reports to assess the development and clude plans (such as as-built plans), condition of the compensatory mitiga- maps, and photographs to illustrate tion project is required, but the con- site conditions. Monitoring reports tent and level of detail for those moni- may also include the results of func- toring reports must be commensurate tional, condition, or other assessments with the scale and scope of the compen- used to provide quantitative or quali- satory mitigation project, as well as tative measures of the functions pro- the compensatory mitigation project vided by the compensatory mitigation type. The mitigation plan must address project site. the monitoring requirements for the (2) The permittee or sponsor is re- compensatory mitigation project, in- sponsible for submitting monitoring re- cluding the parameters to be mon- ports in accordance with the special itored, the length of the monitoring pe- conditions of the DA permit or the riod, the party responsible for con- terms of the instrument. Failure to ducting the monitoring, the frequency submit monitoring reports in a timely for submitting monitoring reports to manner may result in compliance ac- the district engineer, and the party re- tion by the district engineer.

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(3) Monitoring reports must be pro- (3) The real estate instrument, man- vided by the district engineer to inter- agement plan, or other long-term pro- ested federal, tribal, state, and local tection mechanism must contain a pro- resource agencies, and the public, upon vision requiring 60-day advance notifi- request. cation to the district engineer before any action is taken to void or modify § 230.97 Management. the instrument, management plan, or (a) Site protection. (1) The aquatic long-term protection mechanism, in- habitats, riparian areas, buffers, and cluding transfer of title to, or estab- uplands that comprise the overall com- lishment of any other legal claims pensatory mitigation project must be over, the compensatory mitigation provided long-term protection through site. real estate instruments or other avail- (4) For compensatory mitigation able mechanisms, as appropriate. Long- projects on public lands, where Federal term protection may be provided facility management plans or inte- through real estate instruments such grated natural resources management as conservation easements held by en- plans are used to provide long-term tities such as federal, tribal, state, or protection, and changes in statute, reg- local resource agencies, non-profit con- ulation, or agency needs or mission reservation organizations, or private sults in an incompatible use on public land managers; the transfer of title to lands originally set aside for compen- such entities; or by restrictive cov- satory mitigation, the public agency enants. For government property, long- authorizing the incompatible use is re- term protection may be provided sponsible for providing alternative through federal facility management compensatory mitigation that is ac- plans or integrated natural resources ceptable to the district engineer for management plans. When approving a any loss in functions resulting from method for long-term protection of the incompatible use. non-government property other than (5) A real estate instrument, manage- transfer of title, the district engineer ment plan, or other long-term protec- shall consider relevant legal con- tion mechanism used for site protec- straints on the use of conservation tion of permittee-responsible mitiga- easements and/or restrictive covenants tion must be approved by the district in determining whether such mecha- engineer in advance of, or concurrent nisms provide sufficient site protec- with, the activity causing the author- tion. To provide sufficient site protec- ized impacts. tion, a conservation easement or re- (b) Sustainability. Compensatory miti- strictive covenant should, where prac- gation projects shall be designed, to ticable, establish in an appropriate the maximum extent practicable, to be third party (e.g., governmental or non- self-sustaining once performance profit resource management agency) standards have been achieved. This in- the right to enforce site protections cludes minimization of active engineer- and provide the third party the re- ing features (e.g., pumps) and appro- sources necessary to monitor and en- priate siting to ensure that natural hy- force these site protections. drology and landscape context will sup- (2) The real estate instrument, man- port long-term sustainability. Where agement plan, or other mechanism pro- active long-term management and viding long-term protection of the maintenance are necessary to ensure compensatory mitigation site must, to long-term sustainability (e.g., pre- the extent appropriate and practicable, scribed burning, invasive species con- prohibit incompatible uses (e.g., clear trol, maintenance of water control cutting or mineral extraction) that structures, easement enforcement), the might otherwise jeopardize the objec- responsible party must provide for such tives of the compensatory mitigation management and maintenance. This in- project. Where appropriate, multiple cludes the provision of long-term fi- instruments recognizing compatible nancing mechanisms where necessary. uses (e.g., fishing or grazing rights) Where needed, the acquisition and pro- may be used. tection of water rights must be secured

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and documented in the permit condi- project. The permit conditions or in- tions or instrument. strument may contain provisions al- (c) Adaptive management. (1) If the lowing the permittee or sponsor to compensatory mitigation project can- transfer the long-term management re- not be constructed in accordance with sponsibilities of the compensatory the approved mitigation plans, the per- mitigation project site to a land stew- mittee or sponsor must notify the dis- ardship entity, such as a public agency, trict engineer. A significant modifica- non-governmental organization, or pri- tion of the compensatory mitigation vate land manager, after review and project requires approval from the disapproval by the district engineer. The trict engineer. land stewardship entity need not be (2) If monitoring or other informa- identified in the original permit or in- tion indicates that the compensatory strument, as long as the future trans- mitigation project is not progressing fer of long-term management responsi- towards meeting its performance bility is approved by the district engi- standards as anticipated, the respon- neer. sible party must notify the district en- (2) A long-term management plan gineer as soon as possible. The district should include a description of long- engineer will evaluate and pursue term management needs, annual cost measures to address deficiencies in the estimates for these needs, and identify compensatory mitigation project. The the funding mechanism that will be district engineer will consider whether used to meet those needs. the compensatory mitigation project is (3) Any provisions necessary for long- providing ecological benefits com- term financing must be addressed in parable to the original objectives of the original permit or instrument. The the compensatory mitigation project. district engineer may require provi- (3) The district engineer, in consulta- sions to address inflationary adjust- tion with the responsible party (and ments and other contingencies, as ap- other federal, tribal, state, and local propriate. Appropriate long-term fi- agencies, as appropriate), will deter- nancing mechanisms include non-wast- mine the appropriate measures. The ing endowments, trusts, contractual measures may include site modifica- arrangements with future responsible tions, design changes, revisions to parties, and other appropriate financial maintenance requirements, and revised instruments. In cases where the long- monitoring requirements. The meas- term management entity is a public ures must be designed to ensure that authority or government agency, that the modified compensatory mitigation entity must provide a plan for the project provides aquatic resource func- long-term financing of the site. tions comparable to those described in (4) For permittee-responsible mitiga- the mitigation plan objectives. tion, any long-term financing mecha- (4) Performance standards may be re- nisms must be approved in advance of vised in accordance with adaptive man- the activity causing the authorized im- agement to account for measures taken pacts. to address deficiencies in the compensatory mitigation project. Performance § 230.98 Mitigation banks and in-lieu standards may also be revised to re- fee programs. flect changes in management strate- (a) General considerations. (1) All miti- gies and objectives if the new standards gation banks and in-lieu fee programs provide for ecological benefits that are must have an approved instrument comparable or superior to the approved signed by the sponsor and the district compensatory mitigation project. No engineer prior to being used to provide other revisions to performance stand- compensatory mitigation for DA per- ards will be allowed except in the case mits. of natural disasters. (2) To the maximum extent prac- (d) Long-term management. (1) The ticable, mitigation banks and in-lieu permit conditions or instrument must fee project sites must be planned and identify the party responsible for own- designed to be self-sustaining over ership and all long-term management time, but some active management and of the compensatory mitigation maintenance may be required to ensure

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their long-term viability and sustain- priate documents and provide com- ability. Examples of acceptable man- ments to the district engineer. The dis- agement activities include maintaining trict engineer and the IRT should use a fire dependent habitat communities in watershed approach to the extent prac- the absence of natural fire and control- ticable in reviewing proposed mitiga- ling invasive exotic plant species. tion banks and in-lieu fee programs. (3) All mitigation banks and in-lieu Members of the IRT may also sign the fee programs must comply with the instrument, if they so choose. By sign- standards in this part, if they are to be ing the instrument, the IRT members used to provide compensatory mitiga- indicate their agreement with the tion for activities authorized by DA terms of the instrument. As an alter- permits, regardless of whether they are native, a member of the IRT may sub- sited on public or private lands and mit a letter expressing concurrence whether the sponsor is a governmental with the instrument. The IRT will also or private entity. advise the district engineer in assess- (b) Interagency Review Team. (1) The ing monitoring reports, recommending district engineer will establish an remedial or adaptive management Interagency Review Team (IRT) to review documentation for the establish- measures, approving credit releases, ment and management of mitigation and approving modifications to an in- banks and in-lieu fee programs. The strument. In order to ensure timely district engineer or his designated rep- processing of instruments and other resentative serves as Chair of the IRT. documentation, comments from IRT In cases where a mitigation bank or in- members must be received by the dis- lieu fee program is proposed to satisfy trict engineer within the time limits the requirements of another federal, specified in this section. Comments re- tribal, state, or local program, in addi- ceived after these deadlines will only tion to compensatory mitigation re- be considered at the discretion of the quirements of DA permits, it may be district engineer to the extent that appropriate for the administering doing so does not jeopardize the dead- agency to serve as co-Chair of the IRT. lines for district engineer action. (2) In addition to the Corps, rep- (4) The district engineer will give full resentatives from the U.S. Environ- consideration to any timely comments mental Protection Agency, U.S. Fish and advice of the IRT. The district en- and Wildlife Service, NOAA Fisheries, gineer alone retains final authority for the Natural Resources Conservation approval of the instrument in cases Service, and other federal agencies, as where the mitigation bank or in-lieu appropriate, may participate in the fee program is used to satisfy compen- IRT. The IRT may also include rep- satory mitigation requirements of DA resentatives from tribal, state, and permits. local regulatory and resource agencies, (5) MOAs with other agencies. The dis- where such agencies have authorities trict engineer and members of the IRT and/or mandates directly affecting, or may enter into a memorandum of affected by, the establishment, oper- agreement (MOA) with any other fed- ation, or use of the mitigation bank or eral, state or local government agency in-lieu fee program. The district engineer will seek to include all public to perform all or some of the IRT re- agencies with a substantive interest in view functions described in this sec- the establishment of the mitigation tion. Such MOAs must include provi- bank or in-lieu fee program on the IRT, sions for appropriate federal oversight but retains final authority over its of the review process. The district engi- composition. neer retains sole authority for final ap- (3) The primary role of the IRT is to proval of instruments and other docu- facilitate the establishment of mitiga- mentation required under this section. tion banks or in-lieu fee programs (c) Compensation planning framework through the development of mitigation for in-lieu fee programs. (1) The approved banking or in-lieu fee program instru- instrument for an in-lieu fee program ments. The IRT will review the pro- must include a compensation planning spectus, instrument, and other appro- framework that will be used to select,

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secure, and implement aquatic re- (x) A strategy for periodic evaluation source restoration, establishment, en- and reporting on the progress of the hancement, and/or preservation activi- program in achieving the goals and ob- ties. The compensation planning jectives in paragraph (c)(2)(v) of this framework must support a watershed section, including a process for revising approach to compensatory mitigation. the planning framework as necessary; All specific projects used to provide and compensation for DA permits must be (xi) Any other information deemed consistent with the approved com- necessary for effective compensation pensation planning framework. Modi- planning by the district engineer. fications to the framework must be ap- (3) The level of detail necessary for proved as a significant modification to the compensation planning framework the instrument by the district engi- is at the discretion of the district engineer, after consultation with the IRT. neer, and will take into account the (2) The compensation planning characteristics of the service area(s) framework must contain the following and the scope of the program. As part elements: of the in-lieu fee program instrument, (i) The geographic service area(s), in- the compensation planning framework cluding a watershed-based rationale for will be reviewed by the IRT, and will be the delineation of each service area; a major factor in the district engi- (ii) A description of the threats to neer’s decision on whether to approve aquatic resources in the service area(s), the instrument. including how the in-lieu fee program (d) Review process. (1) The sponsor is will help offset impacts resulting from responsible for preparing all docu- those threats; mentation associated with establish- (iii) An analysis of historic aquatic ment of the mitigation bank or in-lieu resource loss in the service area(s); fee program, including the prospectus, (iv) An analysis of current aquatic instrument, and other appropriate doc- resource conditions in the service uments, such as mitigation plans for a area(s), supported by an appropriate mitigation bank. The prospectus pro- level of field documentation; vides an overview of the proposed miti- (v) A statement of aquatic resource gation bank or in-lieu fee program and goals and objectives for each service serves as the basis for public and ini- area, including a description of the tial IRT comment. For a mitigation general amounts, types and locations bank, the mitigation plan, as described of aquatic resources the program will in § 230.94(c), provides detailed plans seek to provide; and specifications for the mitigation (vi) A prioritization strategy for se- bank site. For in-lieu fee programs, lecting and implementing compen- mitigation plans will be prepared as in- satory mitigation activities; lieu fee project sites are identified (vii) An explanation of how any pres- after the instrument has been approved ervation objectives identified in para- and the in-lieu fee program becomes graph (c)(2)(v) of this section and ad- operational. The instrument provides dressed in the prioritization strategy the authorization for the mitigation in paragraph (c)(2)(vi) satisfy the cri- bank or in-lieu fee program to provide teria for use of preservation in credits to be used as compensatory § 230.93(h); mitigation for DA permits. (viii) A description of any public and (2) Prospectus. The prospectus must private stakeholder involvement in provide a summary of the information plan development and implementation, regarding the proposed mitigation including, where appropriate, coordina- bank or in-lieu fee program, at a suffi- tion with federal, state, tribal and cient level of detail to support in- local aquatic resource management formed public and IRT comment. The and regulatory authorities; review process begins when the sponsor (ix) A description of the long-term submits a complete prospectus to the protection and management strategies district engineer. For modifications of for activities conducted by the in-lieu approved instruments, submittal of a fee program sponsor; new prospectus is not required; instead,

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the sponsor must submit a written re- optional but is strongly recommended. quest for an instrument modification It is intended to identify potential accompanied by appropriate docu- issues early so that the sponsor may mentation. The district engineer must attempt to address those issues prior notify the sponsor within 30 days to the start of the formal review proc- whether or not a submitted prospectus ess. is complete. A complete prospectus in- (4) Public review and comment. Within cludes the following information: 30 days of receipt of a complete pro- (i) The objectives of the proposed spectus or an instrument modification mitigation bank or in-lieu fee program. request that will be processed in ac- (ii) How the mitigation bank or in- cordance with paragraph (g)(1) of this lieu fee program will be established section, the district engineer will pro- and operated. vide public notice of the proposed miti- (iii) The proposed service area. gation bank or in-lieu fee program, in (iv) The general need for and tech- accordance with the public notice pro- nical feasibility of the proposed miti- cedures at 33 CFR 325.3. The public no- gation bank or in-lieu fee program. tice must, at a minimum, include a (v) The proposed ownership arrange- summary of the prospectus and indi- ments and long-term management cate that the full prospectus is avail- strategy for the mitigation bank or in- able to the public for review upon re- lieu fee project sites. quest. For modifications of approved (vi) The qualifications of the sponsor instruments, the public notice must in- to successfully complete the type(s) of stead summarize, and make available mitigation project(s) proposed, includ- to the public upon request, whatever ing information describing any past documentation is appropriate for the such activities by the sponsor. modification (e.g., a new or revised (vii) For a proposed mitigation bank, mitigation plan). The comment period the prospectus must also address: for public notice will be 30 days, unless (A) The ecological suitability of the the district engineer determines that a site to achieve the objectives of the longer comment period is appropriate. proposed mitigation bank, including The district engineer will notify the the physical, chemical, and biological sponsor if the comment period is ex- characteristics of the bank site and tended beyond 30 days, including an ex- how that site will support the planned planation of why the longer comment types of aquatic resources and func- period is necessary. Copies of all com- tions; and ments received in response to the pub- (B) Assurance of sufficient water lic notice must be distributed to the rights to support the long-term sus- other IRT members and to the sponsor tainability of the mitigation bank. within 15 days of the close of the public (viii) For a proposed in-lieu fee pro- comment period. The district engineer gram, the prospectus must also in- and IRT members may also provide clude: comments to the sponsor at this time, (A) The compensation planning and copies of any such comments will framework (see paragraph (c) of this also be distributed to all IRT members. section); and If the construction of a mitigation (B) A description of the in-lieu fee bank or an in-lieu fee program project program account required by para- requires a DA permit, the public notice graph (i) of this section. requirement may be satisfied through (3) Preliminary review of prospectus. the public notice provisions of the per- Prior to submitting a prospectus, the mit processing procedures, provided all sponsor may elect to submit a draft of the relevant information is provided. prospectus to the district engineer for (5) Initial evaluation. (i) After the end comment and consultation. The dis- of the comment period, the district en- trict engineer will provide copies of the gineer will review the comments re- draft prospectus to the IRT and will ceived in response to the public notice, provide comments back to the sponsor and make a written initial evaluation within 30 days. Any comments from as to the potential of the proposed IRT members will also be forwarded to mitigation bank or in-lieu fee program the sponsor. This preliminary review is to provide compensatory mitigation

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for activities authorized by DA per- instrument must be based on the pro- mits. This initial evaluation letter spectus and must describe in detail the must be provided to the sponsor within physical and legal characteristics of 30 days of the end of the public notice the mitigation bank or in-lieu fee pro- comment period. gram and how it will be established and (ii) If the district engineer deter- operated. mines that the proposed mitigation (ii) For mitigation banks and in-lieu bank or in-lieu fee program has poten- fee programs, the draft instrument tial for providing appropriate compen- must include the following informa- satory mitigation for activities author- tion: ized by DA permits, the initial evalua- (A) A description of the proposed geo- tion letter will inform the sponsor that graphic service area of the mitigation he/she may proceed with preparation of bank or in-lieu fee program. The serv- the draft instrument (see paragraph ice area is the watershed, ecoregion, (d)(6) of this section). physiographic province, and/or other (iii) If the district engineer deter- geographic area within which the miti- mines that the proposed mitigation gation bank or in-lieu fee program is bank or in-lieu fee program does not authorized to provide compensatory have potential for providing appro- mitigation required by DA permits. priate compensatory mitigation for DA The service area must be appropriately permits, the initial evaluation letter sized to ensure that the aquatic re- must discuss the reasons for that de- sources provided will effectively com- termination. The sponsor may revise pensate for adverse environmental im- the prospectus to address the district pacts across the entire service area. engineer’s concerns, and submit the re- For example, in urban areas, a U.S. Ge- vised prospectus to the district engi- ological Survey 8-digit hydrologic unit neer. If the sponsor submits a revised code (HUC) watershed or a smaller wa- prospectus, a revised public notice will tershed may be an appropriate service be issued in accordance with paragraph area. In rural areas, several contiguous (d)(4) of this section. 8-digit HUCs or a 6-digit HUC water- (iv) This initial evaluation procedure shed may be an appropriate service does not apply to proposed modifica- area. Delineation of the service area tions of approved instruments. must also consider any locally-devel- (6) Draft instrument. (i) After consid- oped standards and criteria that may ering comments from the district engi- be applicable. The economic viability neer, the IRT, and the public, if the of the mitigation bank or in-lieu fee sponsor chooses to proceed with estab- program may also be considered in de- lishment of the mitigation bank or in- termining the size of the service area. lieu fee program, he must prepare a The basis for the proposed service area draft instrument and submit it to the must be documented in the instrument. district engineer. In the case of an in- An in-lieu fee program or umbrella strument modification, the sponsor mitigation banking instrument may must prepare a draft amendment (e.g., have multiple service areas governed a specific instrument provision, a new by its instrument (e.g., each watershed or modified mitigation plan), and sub- within a State or Corps district may be mit it to the district engineer. The dis- a separate service area under the in- trict engineer must notify the sponsor strument); however, all impacts and within 30 days of receipt, whether the compensatory mitigation must be ac- draft instrument or amendment is counted for by service area; complete. If the draft instrument or (B) Accounting procedures; amendment is incomplete, the district (C) A provision stating that legal re- engineer will request from the sponsor sponsibility for providing the compen- the information necessary to make the satory mitigation lies with the sponsor draft instrument or amendment com- once a permittee secures credits from plete. Once any additional information the sponsor; is submitted, the district engineer (D) Default and closure provisions; must notify the sponsor as soon as he (E) Reporting protocols; and determines that the draft instrument (F) Any other information deemed or amendment is complete. The draft necessary by the district engineer.

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(iii) For a mitigation bank, a com- neer will discuss any comments with plete draft instrument must include the appropriate agencies and with the the following additional information: sponsor. The district engineer will seek (A) Mitigation plans that include all to resolve issues using a consensus applicable items listed in § 230.94(c)(2) based approach, to the extent prac- through (14); and ticable, while still meeting the deci- (B) A credit release schedule, which sion-making time frames specified in is tied to achievement of specific mile- this section. Within 90 days of receipt stones. All credit releases must be ap- of the complete draft instrument or proved by the district engineer, in con- amendment by the IRT members, the sultation with the IRT, based on a de- district engineer must notify the spon- termination that required milestones sor of the status of the IRT review. have been achieved. The district engi- Specifically, the district engineer must neer, in consultation with the IRT, indicate to the sponsor if the draft in- may modify the credit release sched- strument or amendment is generally ule, including reducing the number of acceptable and what changes, if any, available credits or suspending credit are needed. If there are significant un- sales or transfers altogether, where resolved concerns that may lead to a necessary to ensure that all credits formal objection from one or more IRT sales or transfers remain tied to com- members to the final instrument or pensatory mitigation projects with a amendment, the district engineer will high likelihood of meeting performance indicate the nature of those concerns. standards; (8) . The sponsor must (iv) For an in-lieu fee program, a Final instrument complete draft instrument must in- submit a final instrument to the dis- clude the following additional informa- trict engineer for approval, with sup- tion: porting documentation that explains (A) The compensation planning how the final instrument addresses the framework (see paragraph (c) of this comments provided by the IRT. For section); modifications of approved instruments, (B) Specification of the initial alloca- the sponsor must submit a final tion of advance credits (see paragraph amendment to the district engineer for (n) of this section) and a draft fee approval, with supporting documenta- schedule for these credits, by service tion that explains how the final amend- area, including an explanation of the ment addresses the comments provided basis for the allocation and draft fee by the IRT. The final instrument or schedule; amendment must be provided directly (C) A methodology for determining by the sponsor to all members of the future project-specific credits and fees; IRT. Within 30 days of receipt of the and final instrument or amendment, the (D) A description of the in-lieu fee district engineer will notify the IRT program account required by para- members whether or not he intends to graph (i) of this section. approve the instrument or amendment. (7) IRT review. Upon receipt of notifi- If no IRT member objects, by initiating cation by the district engineer that the the dispute resolution process in para- draft instrument or amendment is graph (e) of this section within 45 days complete, the sponsor must provide the of receipt of the final instrument or district engineer with a sufficient num- amendment, the district engineer will ber of copies of the draft instrument or notify the sponsor of his final decision amendment to distribute to the IRT and, if the instrument or amendment is members. The district engineer will approved, arrange for it to be signed by promptly distribute copies of the draft the appropriate parties. If any IRT instrument or amendment to the IRT member initiates the dispute resolu- members for a 30 day comment period. tion process, the district engineer will The 30-day comment period begins 5 notify the sponsor. Following conclu- days after the district engineer distrib- sion of the dispute resolution process, utes the copies of the draft instrument the district engineer will notify the or amendment to the IRT. Following sponsor of his final decision, and if the the comment period, the district engi- instrument or amendment is approved,

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arrange for it to be signed by the ap- Oceans and Atmosphere of NOAA, as propriate parties. For mitigation appropriate, for review and must notify banks, the final instrument must con- the district engineer by letter via elec- tain the information items listed in tronic mail or facsimile machine (with paragraphs (d)(6)(ii), and (iii) of this copies to all IRT members) that the section. For in-lieu fee programs, the issue has been forwarded for Head- final instrument must contain the in- quarters review. This step is available formation items listed in paragraphs only to the IRT members representing (d)(6)(ii) and (iv) of this section. For these three federal agencies, however, the modification of an approved instru- other IRT members who do not agree ment, the amendment must contain ap- with the district engineer’s final deci- propriate information, as determined sion do not have to sign the instrument by the district engineer. The final in- or amendment or recognize the mitiga- strument or amendment must be made tion bank or in-lieu fee program for available to the public upon request. purposes of their own programs and au- (e) Dispute resolution process. (1) With- thorities. If an IRT member other than in 15 days of receipt of the district en- the one filing the original objection gineer’s notification of intent to ap- has a new objection based on the dis- prove an instrument or amendment, trict engineer’s response, he may use the Regional Administrator of the U.S. the first step in this procedure (para- EPA, the Regional Director of the U.S. graph (e)(1) of this section) to provide Fish and Wildlife Service, the Regional that objection to the district engineer. Director of the National Marine Fish- (4) If the issue has not been for- eries Service, and/or other senior offi- warded to the objecting agency’s Head- cials of agencies represented on the quarters, then the district engineer IRT may notify the district engineer may proceed with final action on the and other IRT members by letter if instrument or amendment. If the issue they object to the approval of the pro- has been forwarded to the objecting posed final instrument or amendment. agency’s Headquarters, the district en- This letter must include an expla- gineer must hold in abeyance the final nation of the basis for the objection action on the instrument or amend- and, where feasible, offer recommendations for resolving the objections. If ment, pending Headquarters level re- the district engineer does not receive view described below. any objections within this time period, (5) Within 20 days from the date of he may proceed to final action on the the letter requesting Headquarters instrument or amendment. level review, the Assistant Adminis- (2) The district engineer must re- trator for Water, the Assistant Sec- spond to the objection within 30 days of retary for Fish and Wildlife and Parks, receipt of the letter. The district engi- or the Undersecretary for Oceans and neer’s response may indicate an intent Atmosphere must either notify the As- to disapprove the instrument or sistant Secretary of the Army (Civil amendment as a result of the objec- Works) (ASA(CW)) that further review tion, an intent to approve the instru- will not be requested, or request that ment or amendment despite the objec- the ASA(CW) review the final instru- tion, or may provide a modified instrument or amendment. ment or amendment that attempts to (6) Within 30 days of receipt of the address the objection. The district en- letter from the objecting agency’s gineer’s response must be provided to Headquarters request for ASA(CW)’s all IRT members. review of the final instrument, the (3) Within 15 days of receipt of the ASA(CW), through the Director of Civil district engineer’s response, if the Re- Works, must review the draft instru- gional Administrator or Regional Di- ment or amendment and advise the dis- rector is not satisfied with the re- trict engineer on how to proceed with sponse he may forward the issue to the final action on that instrument or Assistant Administrator for Water of amendment. The ASA(CW) must imme- the U.S. EPA, the Assistant Secretary diately notify the Assistant Adminis- for Fish and Wildlife and Parks of the trator for Water, the Assistant Sec- U.S. FWS, or the Undersecretary for retary for Fish and Wildlife and Parks,

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and/or the Undersecretary for Oceans changes that the district engineer de- and Atmosphere of the final decision. termines are not significant. If the dis- (7) In cases where the dispute resolu- trict engineer determines that the tion procedure is used, the district en- streamlined review process is war- gineer must notify the sponsor of his ranted, he must notify the IRT mem- final decision within 150 days of receipt bers and the sponsor of this determina- of the final instrument or amendment. tion and provide them with copies of (f) Extension of deadlines. (1) The the proposed modification. IRT mem- deadlines in paragraphs (d) and (e) of bers and the sponsor have 30 days to this section may be extended by the notify the district engineer if they district engineer at his sole discretion have concerns with the proposed modi- in cases where: fication. If IRT members or the sponsor (i) Compliance with other applicable notify the district engineer of such laws, such as consultation under sec- concerns, the district engineer shall at- tion 7 of the Endangered Species Act or tempt to resolve those concerns. With- section 106 of the National Historic in 60 days of providing the proposed Preservation Act, is required; modification to the IRT, the district (ii) It is necessary to conduct govern- engineer must notify the IRT members ment-to-government consultation with of his intent to approve or disapprove Indian tribes; the proposed modification. If no IRT (iii) Timely submittal of information member objects, by initiating the dis- necessary for the review of the pro- pute resolution process in paragraph posed mitigation bank or in-lieu fee (e) of this section, within 15 days of re- program or the proposed modification ceipt of this notification, the district of an approved instrument is not ac- engineer will notify the sponsor of his complished by the sponsor; or final decision and, if the modification (iv) Information that is essential to is approved, arrange for it to be signed the district engineer’s decision cannot by the appropriate parties. If any IRT be reasonably obtained within the spec- member initiates the dispute resolu- ified time frame. tion process, the district engineer will (2) In such cases, the district engi- so notify the sponsor. Following con- neer must promptly notify the sponsor in writing of the extension and the rea- clusion of the dispute resolution proc- son for it. Such extensions shall be for ess, the district engineer will notify the minimum time necessary to re- the sponsor of his final decision, and if solve the issue necessitating the exten- the modification is approved, arrange sion. for it to be signed by the appropriate (g) Modification of instruments. (1) Ap- parties. proval of an amendment to an approved (h) Umbrella mitigation banking instru- instrument. Modification of an approved ments. A single mitigation banking in- instrument, including the addition and strument may provide for future au- approval of umbrella mitigation bank thorization of additional mitigation sites or in-lieu fee project sites or ex- bank sites. As additional sites are se- pansions of previously approved miti- lected, they must be included in the gation bank or in-lieu fee project sites, mitigation banking instrument as must follow the appropriate procedures modifications, using the procedures in in paragraph (d) of this section, unless paragraph (g)(1) of this section. Credit the district engineer determines that withdrawal from the additional bank the streamlined review process de- sites shall be consistent with para- scribed in paragraph (g)(2) of this sec- graph (m) of this section. tion is warranted. (i) In-lieu fee program account. (1) The (2) Streamlined review process. The in-lieu fee program sponsor must estab- streamlined modification review proc- lish a program account after the in- ess may be used for the following modi- strument is approved by the district fications of instruments: changes re- engineer, prior to accepting any fees flecting adaptive management of the from permittees. If the sponsor accepts mitigation bank or in-lieu fee program, funds from entities other than permit- credit releases, changes in credit re- tees, those funds must be kept in sepa- leases and credit release schedules, and rate accounts. The program account

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must be established at a financial in- maintenance, contingencies, adaptive stitution that is a member of the Fed- management, and administration; eral Deposit Insurance Corporation. All (iv) The balance of advance credits interests and earnings accruing to the and released credits at the end of the program account must remain in that report period for each service area; and account for use by the in-lieu fee pro- (v) Any other information required gram for the purposes of providing by the district engineer. compensatory mitigation for DA per- (4) The district engineer may audit mits. The program account may only the records pertaining to the program be used for the selection, design, acqui- account. All books, accounts, reports, sition, implementation, and manage- files, and other records relating to the ment of in-lieu fee compensatory miti- in-lieu fee program account shall be gation projects, except for a small per- available at reasonable times for in- centage (as determined by the district spection and audit by the district engi- engineer in consultation with the IRT neer. and specified in the instrument) that (j) In-lieu fee project approval. (1) As can be used for administrative costs. in-lieu fee project sites are identified (2) The sponsor must submit proposed and secured, the sponsor must submit in-lieu fee projects to the district engi- mitigation plans to the district engineer for funding approval. Disburse- neer that include all applicable items ments from the program account may listed in § 230.94(c)(2) through (14). The only be made upon receipt of written mitigation plan must also include a authorization from the district engineer, after the district engineer has credit release schedule consistent with consulted with the IRT. The terms of paragraph (o)(8) of this section that is the program account must specify that tied to achievement of specific per- the district engineer has the authority formance standards. The review and to direct those funds to alternative approval of in-lieu fee projects will be compensatory mitigation projects in conducted in accordance with the pro- cases where the sponsor does not procedures in paragraph (g)(1) of this sec- vide compensatory mitigation in action, as modifications of the in-lieu fee cordance with the time frame specified program instrument. This includes in paragraph (n)(4) of this section. compensatory mitigation projects con- (3) The sponsor must provide annual ducted by another party on behalf of reports to the district engineer and the the sponsor through requests for pro- IRT. The annual reports must include posals and awarding of contracts. the following information: (2) If a DA permit is required for an (i) All income received, disburse- in-lieu fee project, the permit should ments, and interest earned by the pro- not be issued until all relevant provi- gram account; sions of the mitigation plan have been (ii) A list of all permits for which in- substantively determined, to ensure lieu fee program funds were accepted. that the DA permit accurately reflects This list shall include: the Corps per- all relevant provisions of the approved mit number (or the state permit num- mitigation plan, such as performance ber if there is no corresponding Corps standards. permit number, in cases of state pro- (k) Coordination of mitigation banking grammatic general permits or other re- instruments and DA permit issuance. In gional general permits), the service cases where initial establishment of area in which the authorized impacts the mitigation bank, or the develop- are located, the amount of authorized ment of a new project site under an impacts, the amount of required com- umbrella banking instrument, involves pensatory mitigation, the amount paid activities requiring DA authorization, to the in-lieu fee program, and the date the permit should not be issued until the funds were received from the per- all relevant provisions of the mitiga- mittee; tion plan have been substantively de- (iii) A description of in-lieu fee pro- termined. This is to ensure that the DA gram expenditures from the account, permit accurately reflects all relevant such as the costs of land acquisition, provisions of the final instrument, such planning, construction, monitoring, as performance standards.

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(l) Project implementation. (1) The ing season after the date of the first sponsor must have an approved instru- credit transaction. ment prior to collecting funds from (n) Advance credits for in-lieu fee pro- permittees to satisfy compensatory grams. (1) The in-lieu fee program in- mitigation requirements for DA per- strument may make a limited number mits. of advance credits available to permit- (2) Authorization to sell credits to tees when the instrument is approved. satisfy compensatory mitigation re- The number of advance credits will be quirements in DA permits is contin- determined by the district engineer, in gent on compliance with all of the consultation with the IRT, and will be terms of the instrument. This includes specified for each service area in the constructing a mitigation bank or in- instrument. The number of advance lieu fee project in accordance with the credits will be based on the following mitigation plan approved by the dis- considerations: trict engineer and incorporated by ref- (i) The compensation planning frame- erence in the instrument. If the aquat- work; ic resource restoration, establishment, (ii) The sponsor’s past performance enhancement, and/or preservation ac- for implementing aquatic resource res- tivities cannot be implemented in ac- toration, establishment, enhancement, cordance with the approved mitigation and/or preservation activities in the plan, the district engineer must con- proposed service area or other areas; sult with the sponsor and the IRT to and consider modifications to the instru- (iii) The projected financing nec- ment, including adaptive management, essary to begin planning and imple- revisions to the credit release schedule, mentation of in-lieu fee projects. and alternatives for providing compen- (2) To determine the appropriate satory mitigation to satisfy any cred- number of advance credits for a par- its that have already been sold. ticular service area, the district engi- (3) An in-lieu fee program sponsor is neer may require the sponsor to pro- responsible for the implementation, vide confidential supporting informa- long-term management, and any re- tion that will not be made available to quired remediation of the restoration, the general public. Examples of con- establishment, enhancement, and/or fidential supporting information may preservation activities, even though include prospective in-lieu fee project those activities may be conducted by sites. other parties through requests for pro- (3) As released credits are produced posals or other contracting mecha- by in-lieu fee projects, they must be nisms. used to fulfill any advance credits that (m) Credit withdrawal from mitigation have already been provided within the banks. The mitigation banking instru- project service area before any remain- ment may allow for an initial debiting ing released credits can be sold or of a percentage of the total credits pro- transferred to permittees. Once pre- jected at mitigation bank maturity, viously provided advance credits have provided the following conditions are been fulfilled, an equal number of ad- satisfied: the mitigation banking in- vance credits is re-allocated to the strument and mitigation plan have sponsor for sale or transfer to fulfill been approved, the mitigation bank new mitigation requirements, con- site has been secured, appropriate fi- sistent with the terms of the instru- nancial assurances have been estab- ment. The number of advance credits lished, and any other requirements de- available to the sponsor at any given termined to be necessary by the dis- time to sell or transfer to permittees in trict engineer have been fulfilled. The a given service area is equal to the mitigation banking instrument must number of advance credits specified in provide a schedule for additional credit the instrument, minus any that have releases as appropriate milestones are already been provided but not yet ful- achieved (see paragraph (o)(8) of this filled. section). Implementation of the ap- (4) Land acquisition and initial phys- proved mitigation plan shall be initi- ical and biological improvements must ated no later than the first full grow- be completed by the third full growing

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season after the first advance credit in determined by a functional or condi- that service area is secured by a per- tion assessment or other suitable met- mittee, unless the district engineer de- ric. termines that more or less time is (4) Credit value. Once a credit is deb- needed to plan and implement an in- ited (sold or transferred to a per- lieu fee project. If the district engineer mittee), its value cannot change. determines that there is a compen- (5) Credit costs. (i) The cost of com- satory mitigation deficit in a specific pensatory mitigation credits provided service area by the third growing sea- by a mitigation bank or in-lieu fee pro- son after the first advance credit in gram is determined by the sponsor. that service area is sold, and deter- (ii) For in-lieu fee programs, the cost mines that it would not be in the pub- per unit of credit must include the ex- lic interest to allow the sponsor addi- pected costs associated with the res- tional time to plan and implement an toration, establishment, enhancement, in-lieu fee project, the district engineer and/or preservation of aquatic re- must direct the sponsor to disburse sources in that service area. These funds from the in-lieu fee program ac- costs must be based on full cost account to provide alternative compen- counting, and include, as appropriate, satory mitigation to fulfill those com- expenses such as land acquisition, pensation obligations. project planning and design, construc- (5) The sponsor is responsible for tion, plant materials, labor, legal fees, complying with the terms of the in-lieu monitoring, and remediation or adapt- fee program instrument. If the district ive management activities, as well as engineer determines, as a result of re- administration of the in-lieu fee pro- view of annual reports on the operation gram. The cost per unit credit must of the in-lieu fee program (see para- also take into account contingency graphs (p)(2) and (q)(1) of this section), costs appropriate to the stage of that it is not performing in compliance project planning, including uncertain- with its instrument, the district engi- ties in construction and real estate ex- neer will take appropriate action, penses. The cost per unit of credit must which may include suspension of credit also take into account the resources sales, to ensure compliance with the necessary for the long-term manage- in-lieu fee program instrument (see ment and protection of the in-lieu fee paragraph (o)(10) of this section). Per- project. In addition, the cost per unit mittees that secured credits from the credit must include financial assur- in-lieu fee program are not responsible ances that are necessary to ensure suc- for in-lieu fee program compliance. cessful completion of in-lieu fee (o) Determining credits. (1) Units of projects. measure. The principal units for credits (6) Credits provided by preservation. and debits are acres, linear feet, func- These credits should be specified as tional assessment units, or other suit- acres, linear feet, or other suitable able metrics of particular resource metrics of preservation of a particular types. Functional assessment units or resource type. In determining the com- other suitable metrics may be linked pensatory mitigation requirements for to acres or linear feet. DA permits using mitigation banks or (2) Assessment. Where practicable, an in-lieu fee programs, the district engi- appropriate assessment method (e.g., neer should apply a higher mitigation hydrogeomorphic approach to wetlands ratio if the requirements are to be met functional assessment, index of biologi- through the use of preservation credits. cal integrity) or other suitable metric In determining this higher ratio, the must be used to assess and describe the district engineer must consider the rel- aquatic resource types that will be re- ative importance of both the impacted stored, established, enhanced and/or and the preserved aquatic resources in preserved by the mitigation bank or in- sustaining watershed functions. lieu fee project. (7) Credits provided by riparian areas, (3) Credit production. The number of buffers, and uplands. These credits credits must reflect the difference be- should be specified as acres, linear feet, tween pre- and post-compensatory or other suitable metrics of riparian mitigation project site conditions, as area, buffer, and uplands respectively.

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Non-aquatic resources can only be used of the credit release schedule must be as compensatory mitigation for im- specified in the approved mitigation pacts to aquatic resources authorized plan. When an in-lieu fee project or by DA permits when those resources umbrella mitigation bank site is imple- are essential to maintaining the eco- mented and is achieving the perform- logical viability of adjoining aquatic ance-based milestones specified in the resources. In determining the compen- credit release schedule, credits are gen- satory mitigation requirements for DA erated in accordance with the credit re- permits using mitigation banks and in- lease schedule for the approved mitiga- lieu fee programs, the district engineer tion plan. If the in-lieu fee project or may authorize the use of riparian area, umbrella mitigation bank site does not buffer, and/or upland credits if he de- achieve those performance-based mile- termines that these areas are essential stones, the district engineer may mod- to sustaining aquatic resource func- ify the credit release schedule, includ- tions in the watershed and are the ing reducing the number of credits. most appropriate compensation for the (9) Credit release approval. Credit re- authorized impacts. leases for mitigation banks and in-lieu (8) Credit release schedule. (i) General fee projects must be approved by the considerations. Release of credits must district engineer. In order for credits to be tied to performance based mile- be released, the sponsor must submit stones (e.g., construction, planting, es- documentation to the district engineer tablishment of specified plant and ani- demonstrating that the appropriate mal communities). The credit release milestones for credit release have been schedule should reserve a significant achieved and requesting the release. share of the total credits for release The district engineer will provide cop- only after full achievement of ecological performance standards. When deter- ies of this documentation to the IRT mining the credit release schedule, fac- members for review. IRT members tors to be considered may include, but must provide any comments to the dis- are not limited to: The method of pro- trict engineer within 15 days of receiv- viding compensatory mitigation cred- ing this documentation. However, if its (e.g., restoration), the likelihood of the district engineer determines that a success, the nature and amount of site visit is necessary, IRT members work needed to generate the credits, must provide any comments to the dis- and the aquatic resource type(s) and trict engineer within 15 days of the site function(s) to be provided by the miti- visit. The district engineer must sched- gation bank or in-lieu fee project. The ule the site visit so that it occurs as district engineer will determine the soon as it is practicable, but the site credit release schedule, including the visit may be delayed by seasonal con- share to be released only after full siderations that affect the ability of achievement of performance standards, the district engineer and the IRT to as- after consulting with the IRT. Once re- sess whether the applicable credit released, credits may only be used to sat- lease milestones have been achieved. isfy compensatory mitigation require- After full consideration of any comments of a DA permit if the use of cred- ments received, the district engineer its for a specific permit has been ap- will determine whether the milestones proved by the district engineer. have been achieved and the credits can (ii) For single-site mitigation banks, be released. The district engineer shall the terms of the credit release schedule make a decision within 30 days of the must be specified in the mitigation end of that comment period, and notify banking instrument. The credit release the sponsor and the IRT. schedule may provide for an initial (10) Suspension and termination. If the debiting of a limited number of credits district engineer determines that the once the instrument is approved and mitigation bank or in-lieu fee program other appropriate milestones are is not meeting performance standards achieved (see paragraph (m) of this sec- or complying with the terms of the in- tion). strument, appropriate action will be (iii) For in-lieu fee projects and um- taken. Such actions may include, but brella mitigation bank sites, the terms are not limited to, suspending credit

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sales, adaptive management, decreas- engineer may require the sponsor to ing available credits, utilizing finan- provide an annual report showing be- cial assurances, and terminating the ginning and ending balances, including instrument. deposits into and any withdrawals (p) Accounting procedures. (1) For from, the accounts providing funds for mitigation banks, the instrument must financial assurances and long-term contain a provision requiring the spon- management activities. The report sor to establish and maintain a ledger should also include information on the to account for all credit transactions. amount of required financial assur- Each time an approved credit trans- ances and the status of those assur- action occurs, the sponsor must notify ances, including their potential expira- the district engineer. tion. (2) For in-lieu fee programs, the in- (r) Use of credits. Except as provided strument must contain a provision re- below, all activities authorized by DA quiring the sponsor to establish and permits are eligible, at the discretion maintain an annual report ledger in ac- of the district engineer, to use mitiga- cordance with paragraph (i)(3) of this tion banks or in-lieu fee programs to section, as well as individual ledgers fulfill compensatory mitigation re- that track the production of released quirements for DA permits. The dis- credits for each in-lieu fee project. trict engineer will determine the num- (q) Reporting. (1) Ledger account. The ber and type(s) of credits required to sponsor must compile an annual ledger compensate for the authorized impacts. report showing the beginning and end- Permit applicants may propose to use a ing balance of available credits and particular mitigation bank or in-lieu permitted impacts for each resource fee program to provide the required type, all additions and subtractions of credits, and any other changes in cred- compensatory mitigation. In such it availability (e.g., additional credits cases, the sponsor must provide the released, credit sales suspended). The permit applicant with a statement of ledger report must be submitted to the credit availability. The district engi- district engineer, who will distribute neer must review the permit appli- copies to the IRT members. The ledger cant’s compensatory mitigation pro- report is part of the administrative posal, and notify the applicant of his record for the mitigation bank or in- determination regarding the accept- lieu fee program. The district engineer ability of using that mitigation bank will make the ledger report available or in-lieu fee program. to the public upon request. (s) IRT concerns with use of credits. If, (2) Monitoring reports. The sponsor is in the view of a member of the IRT, an responsible for monitoring the mitiga- issued permit or series of issued per- tion bank site or the in-lieu fee project mits raises concerns about how credits site in accordance with the approved from a particular mitigation bank or monitoring requirements to determine in-lieu fee program are being used to the level of success and identify prob- satisfy compensatory mitigation re- lems requiring remedial action or quirements (including concerns about adaptive management measures. Moni- whether credit use is consistent with toring must be conducted in accord- the terms of the instrument), the IRT ance with the requirements in § 230.96, member may notify the district engi- and at time intervals appropriate for neer in writing of the concern. The dis- the particular project type and until trict engineer shall promptly consult such time that the district engineer, in with the IRT to address the concern. consultation with the IRT, has deter- Resolution of the concern is at the dis- mined that the performance standards cretion of the district engineer, con- have been attained. The instrument sistent with applicable statutes, regu- must include requirements for periodic lations, and policies regarding compen- monitoring reports to be submitted to satory mitigation requirements for DA the district engineer, who will provide permits. Nothing in this section limits copies to other IRT members. the authorities designated to IRT agen- (3) Financial assurance and long-term cies under existing statutes or regula- management funding report. The district tions.

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(t) Site protection. (1) For mitigation authorization of additional sites under bank sites, real estate instruments, an umbrella mitigation banking instru- management plans, or other long-term ment, expansion of an existing site, or mechanisms used for site protection addition of a different type of resource must be finalized before any credits credits (e.g., stream credits to a wet- can be released. land bank) must be consistent with the (2) For in-lieu fee project sites, real terms of this part. estate instruments, management plans, (2) In-lieu fee program instruments. All or other long-term protection mecha- in-lieu fee program instruments ap- nisms used for site protection must be proved on or after July 9, 2008 must finalized before advance credits can be- meet the requirements of this part. In- come released credits. lieu fee programs operating under in- (u) Long-term management. (1) The struments approved prior to July 9, legal mechanisms and the party re- 2008 may continue to operate under sponsible for the long-term manage- those instruments for two years after ment and the protection of the mitiga- the effective date of this rule, after tion bank site must be documented in which time they must meet the re- the instrument or, in the case of um- quirements of this part, unless the dis- brella mitigation banking instruments trict engineer determines that cir- and in-lieu fee programs, the approved cumstances warrant an extension of up mitigation plans. The responsible party to three additional years. The district should make adequate provisions for engineer must consult with the IRT be- the operation, maintenance, and long- fore approving such extensions. Any re- term management of the compensatory visions made to the in-lieu-fee program mitigation project site. The long-term instrument on or after July 9, 2008 management plan should include a de- must be consistent with the terms of scription of long-term management this part. Any approved project for needs and identify the funding mecha- which construction was completed nism that will be used to meet those under the terms of a previously ap- needs. proved instrument may continue to op- (2) The instrument may contain pro- erate indefinitely under those terms if visions for the sponsor to transfer long- the district engineer determines that term management responsibilities to a the project is providing appropriate land stewardship entity, such as a pub- mitigation substantially consistent lic agency, non-governmental organiza- with the terms of this part. tion, or private land manager. (3) The instrument or approved miti- PART 231—SECTION 404(c) gation plan must address the financial PROCEDURES arrangements and timing of any necessary transfer of long-term manage- Sec. ment funds to the steward. 231.1 Purpose and scope. (4) Where needed, the acquisition and 231.2 Definitions. protection of water rights should be se- 231.3 Procedures for proposed determina- cured and documented in the instru- tions. ment or, in the case of umbrella miti- 231.4 Public comments and hearings. gation banking instruments and in-lieu 231.5 Recommended determination. fee programs, the approved mitigation 231.6 Administrator’s final determinations. 231.7 Emergency procedure. site plan. 231.8 Extension of time. (v) Grandfathering of existing instruments. (1) Mitigation banking instru- AUTHORITY: 33 U.S.C. 1344(c). ments. All mitigation banking instru- SOURCE: 44 FR 58082, Oct. 9, 1979, unless ments approved on or after July 9, 2008 otherwise noted. must meet the requirements of this part. Mitigation banks approved prior § 231.1 Purpose and scope. to July 9, 2008 may continue to operate (a) The Regulations of this part in- under the terms of their existing include the procedures to be followed by struments. However, any modification the Environmental Protection agency to such a mitigation banking instru- in prohibiting or withdrawing the spec- ment on or after July 9, 2008, including ification, or denying, restricting, or

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withdrawing the use for specification, (3) The Administrator’s final deter- of any defined area as a disposal site mination to affirm, modify or rescind for dredged or fill material pursuant to the recommended determination after section 404(c) of the Clean Water Act consultation with the Chief of Engi- (‘‘CWA’’), 33 U.S.C. 1344(c). The U.S. neers or with the state. Army Corps of Engineers or a state (c) Applicability: The regulations set with a 404 program which has been ap- forth in this part are applicable when- proved under section 404(h) may grant ever the Administrator is considering permits specifying disposal sites for whether the specification of any de- dredged or fill material by determining fined area as a disposal site should be that the section 404(b)(1) Guidelines (40 prohibited, denied, restricted, or with- CFR Part 230) allow specification of a drawn. These regulations apply to all particular site to receive dredged or fill existing, proposed or potential disposal material. The Corps may also grant sites for discharges of dredged or fill permits by determining that the dis- material into waters of the United charge of dredged or fill material is States, as defined in 40 CFR 230.2. necessary under the economic impact provision of section 404(b)(2). Under § 231.2 Definitions. section 404(c), the Administrator may exercise a veto over the specification For the purposes of this part, the by the U.S. Army Corps of Engineers or definitions of terms in 40 CFR 230.2 by a state of a site for the discharge of shall apply. In addition, the term: dredged or fill material. The Adminis- (a) Withdraw specification means to trator may also prohibit the specifica- remove from designation any area al- tion of a site under section 404(c) with ready specified as a disposal site by the regard to any existing or potential dis- U.S. Army Corps of Engineers or by a posal site before a permit application state which has assumed the section has been submitted to or approved by 404 program, or any portion of such the Corps or a state. The Adminis- area. trator is authorized to prohibit or oth- (b) Prohibit specification means to pre- erwise restrict a site whenever he de- vent the designation of an area as a termines that the discharge of dredged present or future disposal site. or fill material is having or will have (c) Deny or restrict the use of any de- an ‘‘unacceptable adverse effect’’ on fined area for specification is to deny or municipal water supplies, shellfish restrict the use of any area for the beds and fishery areas (including present or future discharge of any spawning and breeding areas), wildlife, dredged or fill material. or recreational areas. In making this (d) Person means an individual, cor- determination, the Administrator will poration, partnership, association, Fed- take into account all information eral agency, state, municipality, or available to him, including any written commission, or political subdivision of determination of compliance with the a state, or any interstate body. section 404(b)(1) Guidelines made in 40 CFR part 230, and will consult with the (e) Unacceptable adverse effect means Chief of Engineers or with the state. impact on an aquatic or wetland eco- (b) These regulations establish proce- system which is likely to result in sig- dures for the following steps: nificant degradation of municipal (1) The Regional Administrator’s pro- water supplies (including surface or posed determinations to prohibit or ground water) or significant loss of or withdraw the specification of a defined damage to fisheries, shellfishing, or area as a disposal site, or to deny, re- wildlife habitat or recreation areas. In strict or withdraw the use of any de- evaluating the unacceptability of such fined area for the discharge of any par- impacts, consideration should be given ticular dredged or fill material; to the relevant portions of the section (2) The Regional Administrator’s rec- 404(b)(1) guidelines (40 CFR part 230). ommendation to the Administrator for (f) State means any state agency ad- determination as to the specification ministering a 404 program which has of a defined area as a disposal site. been approved under section 404(h).

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§ 231.3 Procedures for proposed deter- (b) Public notice of every proposed minations. determination and notice of all public (a) If the Regional Administrator has hearings shall be given by the Regional reason to believe after evaluating the Administrator. Every public notice information available to him, includ- shall contain, at a minimum: ing any record developed under the sec- (1) An announcement that the Re- tion 404 referral process specified in 33 gional Administrator has proposed a CFR 323.5(b), that an ‘‘unacceptable ad- determination to prohibit or withdraw verse effect’’ could result from the specification, or to deny, restrict, or specification or use for specification of withdraw the use for specification, of a defined area for the disposal of an area as a disposal site, including a dredged or fill material, he may ini- summary of the facts on which the pro- tiate the following actions: posed determination is based; (1) The Regional Administrator will (2) The location of the existing, pro- notify the District Engineer or the posed or potential disposal site, and a state, if the site is covered by an ap- summary of its characteristics; proved state program, the owner of (3) A summary of information con- record of the site, and the applicant, if cerning the nature of the proposed dis- any, in writing that the Regional Ad- charge, where applicable; ministrator intends to issue a public (4) The identity of the permit appli- notice of a proposed determination to cant, if any; prohibit or withdraw the specification, (5) A brief description of the right to, or to deny, restrict or withdraw the use and procedures for requesting, a public for specification, whichever the case hearing; and may be, of any defined area as a (6) The address and telephone number disposal site. of the office where interested persons (2) If within 15 days of receipt of the may obtain additional information, in- Regional Administrator’s notice under cluding copies of the proposed deter- paragraph (a)(1) of this section, it has mination; and not been demonstrated to the satisfac- (7) Such additional statements, rep- tion of the Regional Administrator resentations, or information as the that no unacceptable adverse effect(s) Regional Administrator considers will occur or the District Engineer or necessary or proper. state does not notify the Regional Ad- (c) In addition to the information re- ministrator of his intent to take cor- quired under paragraph (b) of this sec- rective action to prevent an unaccept- tion, public notice of a public hearing able adverse effect satisfactory to the held under § 231.4 shall contain the Regional Administrator, the Regional following information: Administrator shall publish notice of a (1) Reference to the date of public no- proposed determination in accordance tice of the proposed determination; with the procedures of this section. (2) Date, time and place of the hear- Where the Regional Administrator has ing; and notified the District Engineer under (3) A brief description of the nature paragraph (a)(1) of this section that he and purpose of the hearing including is considering exercising section 404(c) the applicable rules and procedures. authority with respect to a particular (d) The following procedures for giv- disposal site for which a permit appli- ing public notice of the proposed deter- cation is pending but for which no per- mination or of a public hearing shall be mit has been issued, the District Engi- followed: neer, in accordance with 33 CFR 325.8, (1) Publication at least once in a shall not issue the permit until final daily or weekly newspaper of general action is taken under this part. circulation in the area in which the defined area is located. In addition the COMMENT: In cases involving a proposed Regional Administrator may (i) post a disposal site for which a permit application copy of the notice at the principal of- is pending, it is anticipated that the procedures of the section 404 referral process will fice of the municipality in which the normally be exhausted prior to any final defined area is located, or if the defined decision of whether to initiate a 404(c) area is not located near a sizeable com- proceeding. munity, at the principal office of the

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political subdivision (State, county or vided for in paragraph (a) of this sec- local, whichever is appropriate) with tion. If no public hearing is held the general jurisdiction over the area in Regional Administrator shall notify which the disposal site is located, and any persons who requested a hearing of (ii) post a copy of the notice at the the reasons for that decision. Where United States Post Office serving that practicable, hearings shall be con- area. ducted in the vicinity of the affected (2) A copy of the notice shall be site. mailed to the owner of record of the (c) Hearings held under this section site, to the permit applicant or permit shall be conducted by the Regional Ad- holder, if any, to the U.S. Fish and ministrator, or his designee, in an or- Wildlife Service, National Marine Fish- derly and expeditious manner. A record eries Service and any other interested of the proceeding shall be made by Federal and State water pollution con- either tape recording or verbatim trol and resource agencies, and to any transcript. person who has filed a written request (d) Any person may appear at the with the Regional Administrator to re- hearing and submit oral or written ceive copies of notices relating to sec- statements and data and may be rep- tion 404(c) determinations; resented by counsel or other authorized (3) A copy of the notice shall be representative. Any person may mailed to the appropriate District and present written statements for the Division Engineer(s) and state; hearing file prior to the time the hear- (4) The notice will also be published ing file is closed to public submissions, in the FEDERAL REGISTER. and may present proposed findings and § 231.4 Public comments and hearings. recommendations. The Regional Ad- ministrator or his designee shall afford (a) The Regional Administrator shall the participants an opportunity for provide a comment period of not less rebuttal. than 30 or more than 60 days following (e) The Regional Administrator, or the date of public notice of the pro- his designee, shall have discretion to posed determination. During this period any interested persons may sub- establish reasonable limits on the na- mit written comments on the proposed ture, amount or form of presentation of determination. Comments should be di- documentary material and oral presen- rected to whether the proposed deter- tations. No cross examination of any mination should become the final de- hearing participant shall be permitted, termination and corrective action that although the Regional Administrator, could be taken to reduce the adverse or his designee, may make appropriate impact of the discharge. All such com- inquiries of any such participant. ments shall be considered by the Re- (f) The Regional Administrator or his gional Administrator or his designee in designee shall allow a reasonable time preparing his recommended determina- not to exceed 15 days after the close of tion in § 231.5. the public hearing for submission of (b) Where the Regional Adminis- written comments. After such time has trator finds a significant degree of pub- expired, unless such period is extended lic interest in a proposed determina- by the Regional Administrator or his tion or that it would be otherwise in designee for good cause, the hearing the public interest to hold a hearing, or file shall be closed to additional public if an affected landowner or permit ap- written comments. plicant or holder requests a hearing, he (g) No later than the time a public or his designee shall hold a public hear- notice of proposed determination is ing. Public notice of that hearing shall issued, a Record Clerk shall be des- be given as specified in § 231.3(c). No ignated with responsibility for main- hearing may be held prior to 21 days taining the administrative record iden- after the date of the public notice. The tified in § 231.5(e). Copying of any docu- hearing may be scheduled either by the ments in the record shall be permitted Regional Administrator at his own ini- under appropriate arrangements to pre- tiative, or in response to a request re- vent their loss. The charge for such ceived during the comment period pro- copies shall be in accordance with the

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written schedule contained in part 2 of review of a recommended determina- this chapter. tion under § 231.6, final agency action does not occur until the Administrator § 231.5 Recommended determination. makes a final determination. (a) The Regional Administrator or (d) Any recommended determination his designee shall, within 30 days after under paragraph (b) of this section the conclusion of the public hearing shall include the following: (but not before the end of the comment (1) A summary of the unacceptable period), or, if no hearing is held, within adverse effects that could occur from 15 days after the expiration of the com- use of the disposal site for the proposed ment period on the public notice of the discharge; proposed determination, either with- (2) Recommendations regarding a draw the proposed determination or final determination to prohibit, deny, prepare a recommended determination restrict, or withdraw, which shall con- to prohibit or withdraw specification, firm or modify the proposed determina- or to deny, restrict, or withdraw the tion, with a statement of reasons. use for specification, of the disposal (e) The administrative record shall site because the discharge of dredged or consist of the following: fill material at such site would be (1) A copy of the proposed deter- likely to have an unacceptable adverse mination, public notice, written com- effect. ments on the public notice and written (b) Where a recommended determina- submissions in the hearing file; tion is prepared, the Regional Adminis- (2) A transcript or recording of the trator or his designee shall promptly public hearing, where a hearing was forward the recommended determina- held; tion and administrative record to the (3) The recommended determination; Administrator for review, with a copy (4) Where possible a copy of the of the recommended determination to record of the Corps or the state the Assistant Administrator for Water pertaining to the site in question; and Waste Management. (5) Any other information considered (c) Where the Regional Adminis- by the Regional Administrator or his trator, or his designee, decides to with- designee. draw the proposed determination, he shall promptly notify the Adminis- § 231.6 Administrator’s final deter- trator by mail, with a copy to the As- minations. sistant Administrator for Water and After reviewing the recommenda- Waste Management, who shall have 10 tions of the Regional Administrator or days from receipt of such notice to no- his designee, the Administrator shall tify the Regional Administrator of his within 30 days of receipt of the intent to review such withdrawal. Cop- recommendations and administrative ies of the notification shall be sent to record initiate consultation with the all persons who commented on the pro- Chief of Engineers, the owner of record, posed determination or participated at and, where applicable, the State and the hearing. Such persons may submit the applicant, if any. They shall have timely written recommendations con- 15 days to notify the Administrator of cerning review. their intent to take corrective action (1) If the Administrator does not no- to prevent an unacceptable adverse ef- tify him, the Regional Administrator fect(s), satisfactory to the Adminis- shall give notice at the withdrawal of trator. Within 60 days of receipt of the the proposed determination as provided recommendations and record, the Ad- in § 231.3(d). Such notice shall con- ministrator shall make a final deter- stitute final agency action. mination affirming, modifying, or re- (2) If the Administrator does decide scinding the recommended determina- to review, the Regional Administrator tion. The final determination shall de- or his designee shall forward the ad- scribe the satisfactory corrective ac- ministrative record to the Adminis- tion, if any, make findings, and state trator for a final determination under the reasons for the final determination. § 231.6. Where there is review of a with- Notice of such final determination drawal of proposed determination or shall be published as provided in § 231.3,

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and shall be given to all persons who charges of dredged or fill material. participated in the public hearing. No- These definitions apply to both the fed- tice of the Administrator’s final deter- erally operated program and State ad- mination shall also be published in the ministered programs after program ap- FEDERAL REGISTER. For purposes of ju- proval. This part also describes those dicial review, a final determination activities which are exempted from constitutes final agency action under regulation. Regulations prescribing the section 404(c) of the Act. substantive environmental criteria for issuance of section 404 permits appear § 231.7 Emergency procedure. at 40 CFR part 230. Regulations estab- Where a permit has already been lishing procedures to be followed by issued, and the Administrator has rea- the EPA in denying or restricting a son to believe that a discharge under disposal site appear at 40 CFR part 231. the permit presents an imminent dan- Regulations containing the procedures ger of irreparable harm to municipal and policies used by the Corps in ad- water supplies, shellfish beds and fish- ministering the 404 program appear at ery areas (including spawning and 33 CFR parts 320–330. Regulations speci- breeding areas) wildlife, or recreational fying the procedures EPA will follow, areas, and that the public health, in- and the criteria EPA will apply in ap- terest, or safety requires, the Adminis- proving, monitoring, and withdrawing trator may ask the Chief of Engineers approval of section 404 State programs to suspend the permit under 33 CFR appear at 40 CFR part 233. 325.7, or the state, pending completion of proceedings under Part 231. The Ad- § 232.2 Definitions. ministrator may also take appropriate Administrator means the Adminis- action as authorized under section 504 trator of the Environmental Protection of the Clean Water Act. If a permit is Agency or an authorized representa- suspended, the Administrator and Re- tive. gional Administrator (or his designee) Application means a form for applying may, where appropriate, shorten the for a permit to discharge dredged or fill times allowed by these regulations to material into waters of the United take particular actions. States. Approved program means a State pro- § 231.8 Extension of time. gram which has been approved by the The Administrator or the Regional Regional Administrator under part 233 Administrator may, upon a showing of of this chapter or which is deemed ap- good cause, extend the time require- proved under section 404(h)(3), 33 U.S.C. ments in these regulations. Notice of 1344(h)(3). any such extension shall be published Best management practices (BMPs) in the FEDERAL REGISTER and, as ap- means schedules of activities, prohibi- propriate, through other forms of tions of practices, maintenance proce- notice. dures, and other management practices to prevent or reduce the pollution of PART 232—404 PROGRAM DEFINI- waters of the United States from discharges of dredged or fill material. TIONS; EXEMPT ACTIVITIES NOT BMPs include methods, measures, prac- REQUIRING 404 PERMITS tices, or design and performance standards which facilitate compliance with Sec. the section 404(b)(1) Guidelines (40 CFR 232.1 Purpose and scope of this part. part 230), effluent limitations or prohi- 232.2 Definitions. 232.3 Activities not requiring permits. bitions under section 307(a), and applicable water quality standards. AUTHORITY: 33 U.S.C. 1344. Discharge of dredged material. (1) Ex- SOURCE: 53 FR 20773, June 6, 1988, unless cept as provided below in paragraph (2), otherwise noted. the term discharge of dredged material means any addition of dredged mate- § 232.1 Purpose and scope of this part. rial into, including redeposit of Part 232 contains definitions applica- dredged material other than incidental ble to the section 404 program for dis- fallback within, the waters of the

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United States. The term includes, but ing any area of waters of the United is not limited to, the following: States, as defined in paragraphs (4) and (i) The addition of dredged material (5) of this definition. The person pro- to a specified discharge site located in posing to undertake mechanized waters of the United States; landclearing, ditching, channelization (ii) The runoff or overflow, associated or other excavation activity bears the with a dredging operation, from a con- burden of demonstrating that such ac- tained land or water disposal area; and tivity would not destroy or degrade (iii) Any addition, including rede- any area of waters of the United posit other than incidental fallback, of States. dredged material, including excavated (ii) Incidental movement of dredged material, into waters of the United material occurring during normal States which is incidental to any activ- dredging operations, defined as dredg- ity, including mechanized landclearing, ing for navigation in navigable waters of ditching, channelization, or other exca- the United States, as that term is de- vation. fined in 33 CFR part 329, with proper (2) The term discharge of dredged ma- authorization from the Congress or the terial does not include the following: Corps pursuant to 33 CFR part 322; (i) Discharges of pollutants into wa- however, this exception is not applica- ters of the United States resulting ble to dredging activities in wetlands, from the onshore subsequent proc- as that term is defined at § 232.2(r) of essing of dredged material that is ex- this chapter. tracted for any commercial use (other (iii) Certain discharges, such as those than fill). These discharges are subject associated with normal farming, to section 402 of the Clean Water Act silviculture, and ranching activities, even though the extraction and deposit are not prohibited by or otherwise sub- of such material may require a permit ject to regulation under Section 404. from the Corps or applicable state. See 40 CFR 232.3 for discharges that do (ii) Activities that involve only the not require permits. cutting or removing of vegetation (4) For purposes of this section, an above the ground (e.g., mowing, rotary activity associated with a discharge of cutting, and chainsawing) where the dredged material destroys an area of activity neither substantially disturbs waters of the United States if it alters the root system nor involves mecha- the area in such a way that it would no nized pushing, dragging, or other simi- longer be a water of the United States. lar activities that redeposit excavated NOTE: Unauthorized discharges into waters soil material. of the United States do not eliminate Clean (iii) Incidental fallback. Water Act jurisdiction, even where such un- (3) Section 404 authorization is not authorized discharges have the effect of de- required for the following: stroying waters of the United States. (i) Any incidental addition, including (5) For purposes of this section, an redeposit, of dredged material associ- activity associated with a discharge of ated with any activity that does not dredged material degrades an area of have or would not have the effect of de- waters of the United States if it has stroying or degrading an area of waters more than a de minimis (i.e., incon- of the U.S. as defined in paragraphs (4) sequential) effect on the area by caus- and (5) of this definition; however, this ing an identifiable individual or cumu- exception does not apply to any person lative adverse effect on any aquatic preparing to undertake mechanized function. landclearing, ditching, channelization Discharge of fill material. (1) The term and other excavation activity in a discharge of fill material means the addi- water of the United States, which tion of fill material into waters of the would result in a redeposit of dredged United States. The term generally in- material, unless the person dem- cludes, without limitation, the fol- onstrates to the satisfaction of the lowing activities: Placement of fill Corps, or EPA as appropriate, prior to that is necessary for the construction commencing the activity involving the of any structure or infrastructure in a discharge, that the activity would not water of the United States; the build- have the effect of destroying or degrading of any structure, infrastructure, or

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impoundment requiring rock, sand, that term is defined in 33 CFR part 329, dirt, or other material for its construc- require authorization under section 10 tion; site-development fills for rec- of the Rivers and Harbors Act of 1899 reational, industrial, commercial, resi- (see 33 CFR part 322). dential, or other uses; causeways or (ii) [Reserved] road fills; dams and dikes; artificial is- Dredged material means material that lands; property protection and/or rec- is excavated or dredged from waters of lamation devices such as riprap, groins, the United States. seawalls, breakwaters, and revetments; Effluent means dredged material or beach nourishment; levees; fill for fill material, including return flow structures such as sewage treatment from confined sites. facilities, intake and outfall pipes asso- Federal Indian reservation means all ciated with power plants and sub- land within the limits of any Indian aqueous utility lines; placement of fill reservation under the jurisdiction of material for construction or mainte- the United States Government, not- nance of any liner, berm, or other in- withstanding the issuance of any pat- frastructure associated with solid ent, and including rights-of-way run- waste landfills; placement of overbur- ning through the reservation. den, slurry, or tailings or similar min- Fill material. (1) Except as specified in ing-related materials;’’ after the words paragraph (3) of this definition, the ‘‘utility lines; and artificial reefs. term fill material means material (2) In addition, placement of pilings placed in waters of the United States in waters of the United States con- where the material has the effect of: stitutes a discharge of fill material and (i) Replacing any portion of a water requires a Section 404 permit when of the United States with dry land; or such placement has or would have the (ii) Changing the bottom elevation of effect of a discharge of fill material. any portion of a water of the United Examples of such activities that have States. the effect of a discharge of fill material (2) Examples of such fill material in- include, but are not limited to, the fol- clude, but are not limited to: rock, lowing: Projects where the pilings are sand, soil, clay, plastics, construction so closely spaced that sedimentation debris, wood chips, overburden from rates would be increased; projects in mining or other excavation activities, which the pilings themselves effec- and materials used to create any struc- tively would replace the bottom of a ture or infrastructure in the waters of waterbody; projects involving the the United States. placement of pilings that would reduce (3) The term fill material does not in- the reach or impair the flow or circula- clude trash or garbage. tion of waters of the United States; and General permit means a permit au- projects involving the placement of pil- thorizing a category of discharges of ings which would result in the adverse dredged or fill material under the Act. alteration or elimination of aquatic General permits are permits for cat- functions. egories of discharge which are similar (i) Placement of pilings in waters of in nature, will cause only minimal ad- the United States that does not have or verse environmental effects when per- would not have the effect of a dis- formed separately, and will have only charge of fill material shall not require minimal cumulative adverse effect on a Section 404 permit. Placement of pil- the environment. ings for linear projects, such as Indian Tribe means any Indian Tribe, bridges, elevated walkways, and band, group, or community recognized powerline structures, generally does by the Secretary of the Interior and ex- not have the effect of a discharge of fill ercising governmental authority over a material. Furthermore, placement of Federal Indian reservation. pilings in waters of the United States Owner or operator means the owner or for piers, wharves, and an individual operator of any activity subject to reg- house on stilts generally does not have ulation under the 404 program. the effect of a discharge of fill mate- Permit means a written authorization rial. All pilings, however, placed in the issued by an approved State to imple- navigable waters of the United States, as ment the requirements of part 233, or

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by the Corps under 33 CFR parts 320– All other waters, such as intrastate 330. When used in these regulations, lakes, rivers, streams (including inter- ‘‘permit’’ includes ‘‘general permit’’ as mittent streams), mudflats, sandflats, well as individual permit. wetlands, sloughs, prairie potholes, wet Person means an individual, associa- meadows, playa lakes, or natural tion, partnership, corporation, munici- ponds, the use, degradation, or destruc- pality, State or Federal agency, or an tion of which would or could affect agent or employee thereof. interstate or foreign commerce includ- Regional Administrator means the Re- ing any such waters: gional Administrator of the appro- Which are or could be used by inter- priate Regional Office of the Environ- state or foreign travelers for rec- mental Protection Agency or the au- reational or other purposes; or thorized representative of the Regional From which fish or shellfish are or Administrator. could be taken and sold in interstate or Secretary means the Secretary of the foreign commerce; or Army acting through the Chief of Which are used or could be used for Engineers. industrial purposes by industries in interstate commerce. State means any of the 50 States, the All impoundments of waters other- District of Columbia, Guam, the Com- wise defined as waters of the United monwealth of Puerto Rico, the Virgin States under this definition; Islands, American Samoa, the Com- Tributaries of waters identified in monwealth of the Northern Mariana Is- paragraphs (g)(1)–(4) of this section; lands, the Trust Territory of the Pa- The territorial sea; and cific Islands, or an Indian Tribe as de- Wetlands adjacent to waters (other fined in this part, which meet the re- than waters that are themselves wet- quirements of § 233.60. lands) identified in paragraphs (q)(1)– State regulated waters means those (6) of this section. waters of the United States in which Waste treatment systems, including the Corps suspends the issuance of sec- treatment ponds or lagoons designed to tion 404 permits upon approval of a meet the requirements of the Act State’s section 404 permit program by (other than cooling ponds as defined in the Administrator under section 404(h). 40 CFR 123.11(m) which also meet the The program cannot be transferred for criteria of this definition) are not wa- those waters which are presently used, ters of the United States. or are susceptible to use in their nat- Waters of the United States do not ural condition or by reasonable im- include prior converted cropland. Not- provement as a means to transport withstanding the determination of an interstate or foreign commerce shore- area’s status as prior converted crop- ward to their ordinary high water land by any other federal agency, for mark, including all waters which are the purposes of the Clean Water Act, subject to the ebb and flow of the tide the final authority regarding Clean shoreward to the high tide line, includ- Water Act jurisdiction remains with ing wetlands adjacent thereto. All EPA. other waters of the United States in a Wetlands means those areas that are State with an approved program shall inundated or saturated by surface or be under jurisdiction of the State pro- ground water at a frequency and dura- gram, and shall be identified in the tion sufficient to support, and that program description as required by under normal circumstances do sup- part 233. port, a prevalence of vegetation typi- Waters of the United States means: cally adapted for life in saturated soil All waters which are currently used, conditions. Wetlands generally include were used in the past, or may be sus- swamps, marshes, bogs, and similar ceptible to us in interstate or foreign areas. commerce, including all waters which are subject to the ebb and flow of the [53 FR 20773, June 6, 1988, as amended at 58 FR 8182, Feb. 11, 1993; 58 FR 45037, Aug. 25, tide. 1993; 64 FR 25123, May 10, 1999; 66 FR 4575, All interstate waters including inter- Jan. 17, 2001; 67 FR 31142, May 9, 2002; 73 FR state wetlands. 79645, Dec. 30, 2008]

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§ 232.3 Activities not requiring per- upland soil and water conservation mits. practices, as defined in paragraph (d) of Except as specified in paragraphs (a) this section. and (b) of this section, any discharge of (ii)(A) To fall under this exemption, dredged or fill material that may re- the activities specified in paragraph sult from any of the activities de- (c)(1) of this section must be part of an scribed in paragraph (c) of this section established (i.e., ongong) farming, is not prohibited by or otherwise sub- silviculture, or ranching operation, and ject to regulation under this part. must be in accordance with definitions (a) If any discharge of dredged or fill in paragraph (d) of this section. Activi- material resulting from the activities ties on areas lying fallow as part of a listed in paragraph (c) of this section conventional rotational cycle are part contains any toxic pollutant listed of an established operation. under section 307 of the Act, such dis- (B) Activities which bring an area charge shall be subject to any applica- into farming, silviculture or ranching ble toxic effluent standard or prohibi- use are not part of an established oper- tion, and shall require a section 404 ation. An operation ceases to be estab- permit. lished when the area in which it was (b) Any discharge of dredged or fill conducted has been converted to an- material into waters of the United other use or has lain idle so long that States incidental to any of the activi- modifications to the hydrological re- ties identified in paragraph (c) of this gime are necessary to resume oper- section must have a permit if it is part ation. If an activity takes place outside of an activity whose purpose is to con- the waters of the United States, or if it vert an area of the waters of the United does not involve a discharge, it does States into a use to which it was not not need a section 404 permit whether previously subject, where the flow or or not it was part of an established circulation of waters of the United farming, silviculture or ranching States may be impaired or the reach of operation. such waters reduced. Where the pro- (2) Maintenance, including emer- posed discharge will result in signifi- gency reconstruction of recently dam- cant discernable alterations to flow or aged parts, of currently serviceable circulation, the presumption is that structures such as dikes, dams, levees, flow or circulation may be impaired by groins, riprap, breakwaters, causeways, such alteration. bridge abutments or approaches, and

NOTE: For example, a permit will be re- transportation structures. Mainte- quired for the conversion of a cypress swamp nance does not include any modifica- to some other use or the conversion of a wet- tion that changes the character, scope, land from silvicultural to agricultural use or size of the original fill design. Emer- when there is a discharge of dredged or fill gency reconstruction must occur with- material into waters of the United States in in a reasonable period of time after conjunction with constuction of dikes, drain- damage occurs in order to qualify for age ditches or other works or structures used to effect such conversion. A conversion of this exemption. section 404 wetland to a non-wetland is a (3) Construction or maintenance of change in use of an area of waters of the U.S. farm or stock ponds or irrigation A discharge which elevates the bottom of ditches or the maintenance (but not waters of the United States without con- construction) of drainage ditches. Dis- verting it to dry land does not thereby recharge associated with siphons, pumps, duce the reach of, but may alter the flow or headgates, wingwalls, wiers, diversion circulation of, waters of the United States. structures, and such other facilities as (c) The following activities are ex- are appurtenant and functionally re- empt from section 404 permit require- lated to irrigation ditches are included ments, except as specified in para- in this exemption. graphs (a) and (b) of this section: (4) Construction of temporary sedi- (1)(i) Normal farming, silviculture mentation basins on a construction and ranching activities such as plow- site which does not include placement ing, seeding, cultivating, minor drain- of fill material into waters of the age, and harvesting for the production United States. The term ‘‘construction of food, fiber, and forest products, or site’’ refers to any site involving the

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erection of buildings, roads, and other to construct a road fill shall be made in discrete structures and the installation a manner that minimizes the encroach- of support facilities necessary for con- ment of trucks, tractors, bulldozers, or struction and utilization of such struc- other heavy equipment within the wa- tures. The term also includes any other ters of the United States (including ad- land areas which involve land-dis- jacent wetlands) that lie outside the turbing excavation activities, includ- lateral boundaries of the fill itself; ing quarrying or other mining activi- (vi) In designing, constructing, and ties, where an increase in the runoff of maintaining roads, vegetative disturb- sediment is controlled through the use ance in the waters of the United States of temporary sedimentation basins. shall be kept to a minimum; (5) Any activity with respect to (vii) The design, construction and which a State has an approved program maintenance of the road crossing shall under section 208(b)(4) of the Act which not disrupt the migration or other meets the requirements of section movement of those species of aquatic 208(b)(4)(B) and (C). life inhabiting the water body; (6) Construction or maintenance of (viii) Borrow material shall be taken farm roads, forest roads, or temporary from upland sources whenever feasible; roads for moving mining equipment, (ix) The discharge shall not take, or where such roads are constructed and jeopardize the continued existence of, a maintained in accordance with best threatened or endangered species as de- management practices (BMPs) to as- fined under the Endangered Species sure that flow and circulation patterns Act, or adversely modify or destroy the and chemical and biological character- critical habitat of such species; istics of waters of the United States (x) Discharges into breeding and are not impaired, that the reach of the nesting areas for migratory waterfowl, waters of the United States is not re- spawning areas, and wetlands shall be duced, and that any adverse effect on avoided if practical alternatives exist; the aquatic environment will be other- (xi) The discharge shall not be lo- wise minimized. The BMPs which must cated in the proximity of a public be applied to satisfy this provision in- water supply intake; clude the following baseline provisions: (xii) The discharge shall not occur in (i) Permanent roads (for farming or areas of concentrated shellfish forestry activities), temporary access production; roads (for mining, forestry, or farm purposes) and skid trails (for logging) (xiii) The discharge shall not occur in in waters of the United States shall be a component of the National Wild and held to the minimum feasible number, Scenic River System; width, and total length consistent with (xiv) The discharge of material shall the purpose of specific farming, consist of suitable material free from silvicultural or mining operations, and toxic pollutants in toxic amounts; and local topographic and climatic (xv) All temporary fills shall be re- conditions; moved in their entirety and the area (ii) All roads, temporary or perma- restored to its original elevation. nent, shall be located sufficiently far (d) For purpose of paragraph (c)(1) of from streams or other water bodies (ex- this section, cultivating, harvesting, cept for portions of such roads which minor drainage, plowing, and seeding must cross water bodies) to minimize are defined as follows: discharges of dredged or fill material (1) Cultivating means physical meth- into waters of the United States; ods of soil treatment employed within (iii) The road fill shall be bridged, established farming, ranching and culverted, or otherwise designed to pre- silviculture lands on farm, ranch, or vent the restriction of expected flood forest crops to aid and improve their flows; growth, quality, or yield. (iv) The fill shall be properly sta- (2) Harvesting means physical meas- bilized and maintained to prevent ero- ures employed directly upon farm, for- sion during and following construction; est, or ranch crops within established (v) Discharges of dredged or fill ma- agricultural and silvicultural lands to terial into waters of the United States bring about their removal from farm,

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forest, or ranch land, but does not in- tivating of crops on land in established clude the construction of farm, forest, use for crop production. Such removal or ranch roads. does not include enlarging or extending (3)(i) Minor drainage means: the dimensions of, or changing the bot- (A) The discharge of dredged or fill tom elevations of, the affected material incidental to connecting up- drainageway as it existed prior to the land drainage facilities to waters of the formation of the blockage. Removal United States, adequate to effect the must be accomplished within one year removal of excess soil moisture from after such blockages are discovered in upland croplands. Construction and order to be eligible for exemption. maintenance of upland (dryland) facili- (ii) Minor drainage in waters of the ties, such as ditching and tiling, inci- United States is limited to drainage dental to the planting, cultivating, within areas that are part of an estab- protecting, or harvesting of crops, in- lished farming or silviculture oper- volve no discharge of dredged or fill ation. It does not include drainage as- material into waters of the United sociated with the immediate or gradual States, and as such never require a sec- conversion of a wetland to a non-wet- tion 404 permit; land (e.g., wetland species to upland (B) The discharge of dredged or fill species not typically adequate to life in material for the purpose of installing saturated soil conditions), or conver- ditching or other water control facili- sion from one wetland use to another ties incidental to planting, cultivating, (for example, silviculture to farming). protecting, or harvesting of rice, cranberries or other wetland crop species, In addition, minor drainage does not where these activities and the dis- include the construction of any canal, charge occur in waters of the United ditch, dike or other waterway or struc- States which are in established use for ture which drains or otherwise signifi- such agricultural and silvicultural wet- cantly modifies a stream, lake, swamp, land crop production; bog or any other wetland or aquatic (C) The discharge of dredged or fill area constituting waters of the United material for the purpose of manipu- States. Any discharge of dredged or fill lating the water levels of, or regulating material into the waters of the United the flow or distribution of water with- States incidental to the construction in, existing impoundments which have of any such structure or waterway been constructed in accordance with requires a permit. applicable requirements of the Act, and (4) Plowing means all forms of pri- which are in established use for the mary tillage, including moldboard, production or rice, cranberries, or chisel, or wide-blade plowing, discing, other wetland crop species. harrowing, and similar physical means used on farm, forest or ranch land for NOTE: The provisions of paragraphs (d)(3)(i) the breaking up, cutting, turning over, (B) and (C) of this section apply to areas that are in established use exclusively for wet- or stirring of soil to prepare it for the land crop production as well as areas in es- planting of crops. Plowing does not in- tablished use for conventional wetland/non- clude the redistribution of soil, rock, wetland crop rotation (e.g., the rotations of sand, or other surficial materials in a rice and soybeans) where such rotation re- manner which changes any area of the sults in the cyclical or intermittent tem- waters of the United States to dryland. porary dewatering of such areas. For example, the redistribution of sur- (D) The discharge of dredged or fill face materials by blading, grading, or material incidental to the emergency other means to fill in wetland areas is removal of sandbars, gravel bars, or not plowing. Rock crushing activities other similar blockages which are which result in the loss of natural formed during flood flows or other drainage characteristics, the reduction events, where such blockages close or of water storage and recharge capabili- constrict previously existing drainage- ties, or the overburden of natural ways and, if not promptly removed, water filtration capacities do not con- would result in damage to or loss of ex- stitute plowing. Plowing, as described isting crops or would impair or prevent above, will never involve a discharge of the plowing, seeding, harvesting or cul- dredged or fill material.

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(5) Seeding means the sowing of seed 233.41 Requirements for enforcement au- and placement of seedlings to produce thority. farm, ranch, or forest crops and includes the placement of soil beds for Subpart F—Federal Oversight seeds or seedlings on established farm 233.50 Review of and objection to State per- and forest lands. mits. (e) Federal projects which qualify 233.51 Waiver of review. under the criteria contained in section 233.52 Program reporting. 404(r) of the Act are exempt from sec- 233.53 Withdrawal of program approval. tion 404 permit requirements, but may Subpart G—Eligible Indian Tribes be subject to other State or Federal requirements. 233.60 Requirements for eligibility. 233.61 Determination of Tribal eligibility. 233.62 Procedures for processing an Indian PART 233—404 STATE PROGRAM Tribe’s application. REGULATIONS Subpart H—Approved State Programs Subpart A—General 233.70 Michigan. Sec. 233.71 New Jersey. 233.1 Purpose and scope. AUTHORITY: 33 U.S.C. 1251 et seq. 233.2 Definitions. 233.3 Confidentiality of information. SOURCE: 53 FR 20776, June 1, 1988, unless 233.4 Conflict of interest. otherwise noted.

Subpart B—Program Approval Subpart A—General 233.10 Elements of a program submission. 233.11 Program description. § 233.1 Purpose and scope. 233.12 Attorney General’s statement. (a) This part specifies the procedures 233.13 Memorandum of Agreement with Re- EPA will follow, and the criteria EPA gional Administrator. will apply, in approving, reviewing, and 233.14 Memorandum of Agreement with the Secretary. withdrawing approval of State pro- 233.15 Procedures for approving State programs under section 404 of the Act. grams. (b) Except as provided in § 232.3, a 233.16 Procedures for revision of State pro- State program must regulate all dis- grams. charges of dredged or fill material into waters regulated by the State under Subpart C—Permit Requirements section 404(g)–(1). Partial State pro- 233.20 Prohibitions. grams are not approvable under section 233.21 General permits. 404. A State’s decision not to assume 233.22 Emergency permits. existing Corps’ general permits does 233.23 Permit conditions. not constitute a partial program. The discharges previously authorized by Subpart D—Program Operation general permit will be regulated by 233.30 Application for a permit. State individual permits. However, in 233.31 Coordination requirements. many cases, States other than Indian 233.32 Public notice. Tribes will lack authority to regulate 233.33 Public hearing. activities on Indian lands. This lack of 233.34 Making a decision on the permit ap- authority does not impair that State’s plication. ability to obtain full program approval 233.35 Issuance and effective date of permit. 233.36 Modification, suspension or revoca- in accordance with this part, i.e., in- tion of permits. ability of a State which is not an In- 233.37 Signatures on permit applications dian Tribe to regulate activities on In- and reports. dian lands does not constitute a partial 233.38 Continuation of expiring permits. program. The Secretary of the Army 233.39 Electronic reporting. acting through the Corps of Engineers will continue to administer the pro- Subpart E—Compliance Evaluation and gram on Indian lands if a State which Enforcement is not an Indian Tribe does not seek 233.40 Requirements for compliance evalua- and have authority to regulate activi- tion programs. ties on Indian lands.

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(c) Nothing in this part precludes a substantial powers or duties pertaining State from adopting or enforcing re- to the control of pollution. quirements which are more stringent NMFS means the National Marine or from operating a program with Fisheries Service. greater scope, than required under this State means any of the 50 States, the part. Where an approved State program District of Columbia, Guam, the Com- has a greater scope than required by monwealth of Puerto Rico, the Virgin Federal law, the additional coverage is Islands, American Samoa, the Com- not part of the Federally approved pro- monwealth of the Northern Mariana Is- gram and is not subject to Federal lands, the Trust Territory of the Pa- oversight or enforcement. cific Islands, or an Indian Tribe, as defined in this part, which meet the re- NOTE: State assumption of the section 404 quirements of § 233.60. For purposes of program is limited to certain waters, as pro- this part, the word State also includes vided in section 404(g)(1). The Federal program operated by the Corps of Engineers any interstate agency requesting pro- continues to apply to the remaining waters gram approval or administering an ap- in the State even after program approval. proved program. However, this does not restrict States from State Director (Director) means the regulating discharges of dredged or fill mate- chief administrative officer of any rial into those waters over which the Sec- State or interstate agency operating retary retains section 404 jurisdiction. an approved program, or the delegated (d) Any approved State Program representative of the Director. If re- shall, at all times, be conducted in ac- sponsibility is divided among two or cordance with the requirements of the more State or interstate agencies, Di- Act and of this part. While States may rector means the chief administrative impose more stringent requirements, officer of the State or interstate agen- they may not impose any less stringent cy authorized to perform the particular requirements for any purpose. procedure or function to which reference is made. [53 FR 20776, June 1, 1988, as amended at 58 State 404 program or State program FR 8183, Feb. 11, 1993] means a State program which has been approved by EPA under section 404 of § 233.2 Definitions. the Act to regulate the discharge of The definitions in parts 230 and 232 as dredged or fill material into certain well as the following definitions apply waters as defined in § 232.2(p). to this part. [53 FR 20776, June 1, 1988, as amended at 58 Act means the Clean Water Act (33 FR 8183, Feb. 11, 1993] U.S.C. 1251 et seq.). Corps means the U.S. Army Corps of § 233.3 Confidentiality of information. Engineers. (a) Any information submitted to Federal Indian reservation means all EPA pursuant to these regulations land within the limits of any Indian may be claimed as confidential by the reservation under the jurisdiction of submitter at the time of submittal and the United States Government, not- a final determination as to that claim withstanding the issuance of any pat- will be made in accordance with the ent, and including rights-of-way run- procedures of 40 CFR part 2 and para- ning through the reservation. graph (c) of this section. FWS means the U.S. Fish and Wild- (b) Any information submitted to the life Service. Director may be claimed as confiden- Indian Tribe means any Indian Tribe, tial in accordance with State law, sub- band, group, or community recognized ject to paragraphs (a) and (c) of this by the Secretary of the Interior and ex- section. ercising governmental authority over a (c) Claims of confidentiality for the Federal Indian reservation. following information will be denied: Interstate agency means an agency of (1) The name and address of any per- two or more States established by or mit applicant or permittee, under an agreement or compact ap- (2) Effluent data, proved by the Congress, or any other (3) Permit application, and agency of two or more States having (4) Issued permit.

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§ 233.4 Conflict of interest. (d) A description of the funding and Any public officer or employee who manpower which will be available for has a direct personal or pecuniary in- program administration; (e) An estimate of the anticipated terest in any matter that is subject to workload, e.g., number of discharges. decision by the agency shall make (f) Copies of permit application known such interest in the official forms, permit forms, and reporting records of the agency and shall refrain forms; from participating in any manner in (g) A description of the State’s com- such decision. pliance evaluation and enforcement programs, including a description of Subpart B—Program Approval how the State will coordinate its enforcement strategy with that of the § 233.10 Elements of a program submission. Corps and EPA; (h) A description of the waters of the Any State that seeks to administer a United States within a State over 404 program under this part shall sub- which the State assumes jurisdiction mit to the Regional Administrator at under the approved program; a descrip- least three copies of the following: tion of the waters of the United States (a) A letter from the Governor of the within a State over which the Sec- State requesting program approval. retary retains jurisdiction subsequent (b) A complete program description, to program approval; and a comparison as set forth in § 233.11. of the State and Federal definitions of (c) An Attorney General’s statement, wetlands. as set forth in § 233.12. (d) A Memorandum of Agreement NOTE: States should obtain from the Sec- with the Regional Administrator, as retary an identification of those waters of set forth in § 233.13. the U.S. within the State over which the Corps retains authority under section 404(g) (e) A Memorandum of Agreement of the Act. with the Secretary, as set forth in § 233.14. (i) A description of the specific best (f) Copies of all applicable State stat- management practices proposed to be utes and regulations, including those used to satisfy the exemption provi- governing applicable State administra- sions of section 404(f)(1)(E) of the Act tive procedures. for construction or maintenance of farm roads, forest roads, or temporary § 233.11 Program description. roads for moving mining equipment. The program description as required § 233.12 Attorney General’s statement. under § 233.10 shall include: (a) A description of the scope and (a) Any State that seeks to admin- structure of the State’s program. The ister a program under this part shall description should include extent of submit a statement from the State At- State’s jurisdiction, scope of activities torney General (or the attorney for regulated, anticipated coordination, those State or interstate agencies scope of permit exemptions if any, and which have independence legal coun- permit review criteria; sel), that the laws and regulations of (b) A description of the State’s per- the State, or an interstate compact, mitting, administrative, judicial re- provide adequate authority to carry view, and other applicable procedures; out the program and meet the applica- (c) A description of the basic organi- ble requirements of this part. This zation and structure of the State agen- statement shall cite specific statutes cy (agencies) which will have responsi- and administrative regulations which bility for administering the program. If are lawfully adopted at the time the more than one State agency is respon- statement is signed and which shall be sible for the administration of the pro- fully effective by the time the program gram, the description shall address the is approved, and, where appropriate, ju- responsibilities of each agency and how dicial decisions which demonstrate the agencies intend to coordinate ad- adequate authority. The attorney sign- ministration and evaluation of the pro- ing the statement required by this sec- gram; tion must have authority to represent

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the State agency in court on all mat- tion and enforcement of the approved ters pertaining to the State program. program. (b) If a State seeks approval of a pro- (3) Provisions addressing EPA and gram covering activities on Indian State roles and coordination with re- lands, the statement shall contain an spect to compliance monitoring and analysis of the State’s authority over enforcement activities. such activities. (4) Provisions addressing modifica- (c) The State Attorney General’s tion of the Memorandum of Agreement. statement shall contain a legal analysis of the effect of State law regarding § 233.14 Memorandum of Agreement the prohibition on taking private prop- with the Secretary. erty without just compensation on the successful implementation of the (a) Before a State program is ap- State’s program. proved under this part, the Director (d) In those States where more than shall enter into a Memorandum of one agency has responsibility for ad- Agreement with the Secretary. When ministering the State program, the more than one agency within a State statement must include certification has responsibility for administering that each agency has full authority to the State program, Directors of each of administer the program within its cat- the responsible agencies shall be par- egory of jurisdiction and that the ties of the Memorandum of Agreement. State, as a whole, has full authority to (b) The Memorandum of Agreement administer a complete State section shall include: 404 program. (1) A description of waters of the United States within the State over § 233.13 Memorandum of Agreement with Regional Administrator. which the Secretary retains jurisdiction, as identified by the Secretary. (a) Any State that seeks to admin- (2) Procedures whereby the Secretary ister a program under this part shall will, upon program approval, transfer submit a Memorandum of Agreement to the State pending 404 permit appli- executed by the Director and the Re- cations for discharges in State regu- gional Administrator. The Memo- randum of Agreement shall become ef- lated waters and other relevant infor- fective upon approval of the State pro- mation not already in the possession of gram. When more than one agency the Director. within a State has responsibility for NOTE: Where a State permit program in- administering the State program, Di- cludes coverage of those traditionally navi- rectors of each of the responsible State gable waters in which only the Secretary agencies shall be parties to the Memo- may issue section 404 permits, the State is randum of Agreement. encouraged to establish in this MOA proce- (b) The Memorandum of Agreement dures for joint processing of Federal and shall set out the State and Federal re- State permits, including joint public notices sponsibilities for program administra- and public hearings. tion and enforcement. These shall in- (3) An identification of all general clude, but not be limited to: permits issued by the Secretary the (1) Provisions specifying classes and terms and conditions of which the categories of permit applications for State intends to administer and en- which EPA will waive Federal review force upon receiving approval of its (as specified in § 233.51). program, and a plan for transferring re- (2) Provisions specifying the fre- sponsibility for these general permits quency and content of reports, documents and other information which the to the State, including procedures for State may be required to submit to the prompt transmission from the Sec- EPA in addition to the annual report, retary to the Director of relevant in- as well as a provision establishing the formation not already in the possession submission date for the annual report. of the Director, including support files The State shall also allow EPA rou- for permit issuance, compliance re- tinely to review State records, reports ports and records of enforcement ac- and files relevant to the administra- tions.

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§ 233.15 Procedures for approving (4) Indicate whom an interested State programs. member of the public with questions should contact; and (a) The 120 day statutory review pe- (5) Briefly outline the fundamental riod shall commence on the date of re- aspects of the State’s proposed pro- ceipt of a complete State program sub- gram and the process for EPA review mission as set out in § 233.10 of this and decision. part. EPA shall determine whether the (f) Within 90 days of EPA’s receipt of submission is complete within 30 days a complete program submission, the of receipt of the submission and shall Corps, FWS, and NMFS shall submit to notify the State of its determination. EPA any comments on the State’s pro- If EPA finds that a State’s submission gram. is incomplete, the statutory review pe- (g) Within 120 days of receipt of a riod shall not begin until all the nec- complete program submission (unless essary information is received by EPA. an extension is agreed to by the State), (b) If EPA determines the State sig- the Regional Administrator shall ap- nificantly changes its submission dur- prove or disapprove the program based ing the review period, the statutory re- on whether the State’s program fulfills view period shall begin again upon the the requirements of this part and the receipt of a revised submission. Act, taking into consideration all com- (c) The State and EPA may extend ments received. The Regional Adminis- the statutory review period by agree- trator shall prepare a responsiveness ment. summary of significant comments re- (d) Within 10 days of receipt of a com- ceived and his response to these complete State section 404 program sub- ments. The Regional Administrator mission, the Regional Administrator shall respond individually to comments shall provide copies of the State’s sub- received from the Corps, FWS, and mission to the Corps, FWS, and NMFS NMFS. (both Headquarters and appropriate (h) If the Regional Administrator ap- Regional organizations.) proves the State’s section 404 program, (e) After determining that a State he shall notify the State and the Sec- program submission is complete, the retary of the decision and publish no- Regional Administrator shall publish tice in the FEDERAL REGISTER. Transfer notice of the State’s application in the of the program to the State shall not be considered effective until such no- FEDERAL REGISTER and in enough of the largest newspapers in the State to tice appears in the FEDERAL REGISTER. attract statewide attention. The Re- The Secretary shall suspend the issuance by the Corps of section 404 gional Administrator shall also mail permits in State regulated waters on notice to persons known to be inter- such effective date. ested in such matters. Existing State, (i) If the Regional Administrator dis- EPA, Corps, FWS, and NMFS mailing approves the State’s program based on lists shall be used as a basis for this the State not meeting the require- mailing. However, failure to mail all ments of the Act and this part, the Re- such notices shall not be grounds for gional Administrator shall notify the invalidating approval (or disapproval) State of the reasons for the disapproval of an otherwise acceptable (or unac- and of any revisions or modifications ceptable) program. This notice shall: to the State’s program which are nec- (1) Provide for a comment period of essary to obtain approval. If the State not less than 45 days during which in- resubmits a program submission rem- terested members of the public may ex- edying the identified problem areas, press their views on the State program. the approval procedure and statutory (2) Provide for a public hearing with- review period shall begin upon receipt in the State to be held not less than 30 of the revised submission. days after notice of hearing is published in the FEDERAL REGISTER; § 233.16 Procedures for revision of (3) Indicate where and when the State programs. State’s submission may be reviewed by (a) The State shall keep the Regional the public; Administrator fully informed of any

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proposed or actual changes to the for review of permits, public participa- State’s statutory or regulatory author- tion, or enforcement capability. ity or any other modifications which (4) Substantial program changes are significant to administration of the shall become effective upon approval program. by the Regional Administrator and (b) Any approved program which re- publication of notice in the FEDERAL quires revision because of a modifica- REGISTER. tion to this part or to any other appli- (e) Whenever the Regional Adminis- cable Federal statute or regulation trator has reason to believe that cir- shall be revised within one year of the cumstances have changed with respect date of promulgation of such regula- to a State’s program, he may request tion, except that if a State must amend and the State shall provide a supple- or enact a statute in order to make the mental Attorney General’s statement, required revision, the revision shall program description, or such other doc- take place within two years. uments or information as are necessary (c) States with approved programs to evaluate the program’s compliance shall notify the Regional Adminis- with the requirements of the Act and trator whenever they propose to trans- this part. fer all or part of any program from the approved State agency to any other Subpart C—Permit Requirements State agency. The new agency is not authorized to administer the program § 233.20 Prohibitions. until approved by the Regional Admin- No permit shall be issued by the Di- istrator under paragraph (d) of this sec- rector in the following circumstances: tion. (a) When permit does not comply (d) Approval of revision of a State with the requirements of the Act or program shall be accomplished as fol- regulations thereunder, including the lows: section 404(b)(1) Guidelines (part 230 of (1) The Director shall submit a modi- this chapter). fied program description or other docu- (b) When the Regional Administrator ments which the Regional Adminis- has objected to issuance of the permit trator determines to be necessary to under § 233.50 and the objection has not evaluate whether the program com- been resolved. plies with the requirements of the Act (c) When the proposed discharges and this part. would be in an area which has been (2) Notice of approval of program prohibited, withdrawn, or denied as a changes which are not substantial revi- disposal site by the Administrator sions may be given by letter from the under section 404(c) of the Act, or when Regional Administrator to the Gov- the discharge would fail to comply ernor or his designee. with a restriction imposed thereunder. (3) Whenever the Regional Adminis- (d) If the Secretary determines, after trator determines that the proposed re- consultation with the Secretary of the vision is substantial, he shall publish Department in which the Coast Guard and circulate notice to those persons is operating, that anchorage and navi- known to be interested in such mat- gation of any of the navigable waters ters, provide opportunity for a public would be substantially impaired. hearing, and consult with the Corps, FWS, and NMFS. The Regional Admin- § 233.21 General permits. istrator shall approve or disapprove (a) Under section 404(h)(5) of the Act, program revisions based on whether States may, after program approval, the program fulfills the requirements administer and enforce general permits of the Act and this part, and shall pub- previously issued by the Secretary in lish notice of his decision in the FED- State regulated waters. ERAL REGISTER. For purposes of this NOTE: If States intend to assume existing paragraph, substantial revisions in- general permits, they must be able to ensure clude, but are not limited to, revisions compliance with existing permit conditions that affect the area of jurisdiction, an any reporting monitoring, or scope of activities regulated, criteria prenotification requirements.

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(b) The Director may issue a general ity is no longer authorized by the gen- permit for categories of similar activi- eral permit. ties if he determines that the regulated activities will cause only minimal ad- § 233.22 Emergency permits. verse environmental effects when per- (a) Notwithstanding any other provi- formed separately and will have only sion of this part, the Director may minimal cumulative adverse effects on issue a temporary emergency permit the environment. Any general permit for a discharge of dredged or fill mate- issued shall be in compliance with the rial if unacceptable harm to life or se- section 404(b)(1) Guidelines. vere loss of physical property is likely (c) In addition to the conditions spec- to occur before a permit could be ified in § 233.23, each general permit issued or modified under procedures shall contain: normally required. (1) A specific description of the (b) Emergency permits shall incor- type(s) of activities which are author- porate, to the extent possible and not ized, including limitations for any sin- inconsistent with the emergency situa- gle operation. The description shall be tion, all applicable requirements of detailed enough to ensure that the re- § 233.23. quirements of paragraph (b) of this (1) Any emergency permit shall be section are met. (This paragraph super- limited to the duration of time (typi- cedes § 233.23(c)(1) for general permits.) cally no more than 90 days) required to (2) A precise description of the geo- complete the authorized emergency ac- graphic area to which the general per- tion. mit applies, including limitations on (2) The emergency permit shall have the type(s) of water where operations a condition requiring appropriate res- may be conducted sufficient to ensure toration of the site. that the requirements of paragraph (b) (c) The emergency permit may be of this section are met. terminated at any time without proc- (d) Predischarge notification or other ess (§ 233.36) if the Director determines reporting requirements may be re- that termination is necessary to pro- quired by the Director on a permit-by- tect human health or the environment. permit basis as appropriate to ensure (d) The Director shall consult in an that the general permit will comply expeditious manner, such as by tele- with the requirement (section 404(e) of phone, with the Regional Adminis- the Act) that the regulated activities trator, the Corps, FWS, and NMFS will cause only minimal adverse envi- about issuance of an emergency per- ronmental effects when performed sep- mit. arately and will have only minimal cu- (e) The emergency permit may be mulative adverse effects on the envi- oral or written. If oral, it must be fol- ronment. lowed within 5 days by a written emer- (e) The Director may, without revok- gency permit. A copy of the written ing the general permit, require any permit shall be sent to the Regional person authorized under a general per- Administrator. mit to apply for an individual permit. (f) Notice of the emergency permit This discretionary authority will be shall be published and public com- based on concerns for the aquatic envi- ments solicited in accordance with ronment including compliance with § 233.32 as soon as possible but no later paragraph (b) of this section and the than 10 days after the issuance date. 404(b)(1) Guidelines (40 CFR part 230.) (1) This provision in no way affects § 233.23 Permit conditions. the legality of activities undertaken (a) For each permit the Director pursuant to the general permit prior to shall establish conditions which assure notification by the Director of such re- compliance with all applicable statu- quirement. tory and regulatory requirements, in- (2) Once the Director notifies the dis- cluding the 404(b)(1) Guidelines, appli- charger of his decision to exercise dis- cable section 303 water quality stand- cretionary authority to require an in- ards, and applicable section 307 effluent dividual permit, the discharger’s activ- standards and prohibitions.

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(b) Section 404 permits shall be effec- (iv) Sample or monitor, for the pur- tive for a fixed term not to exceed 5 poses of assuring permit compliance or years. as otherwise authorized by the Act, (c) Each 404 permit shall include con- any substances or parameters at any ditions meeting or implementing the location. following requirements: (9) Conditions assuring that the dis- (1) A specific identification and com- charge will be conducted in a manner plete description of the authorized ac- which minimizes adverse impacts upon tivity including name and address of the physical, chemical and biological permittee, location and purpose of dis- integrity of the waters of the United charge, type and quantity of material States, such as requirements for res- to be discharged. (This subsection is toration or mitigation. not applicable to general permits). (2) Only the activities specifically de- Subpart D—Program Operation scribed in the permit are authorized. § 233.30 Application for a permit. (3) The permittee shall comply with all conditions of the permit even if (a) Except when an activity is au- that requires halting or reducing the thorized by a general permit issued permitted activity to maintain compli- pursuant to § 233.21 or is exempt from ance. Any permit violation constitutes the requirements to obtain a permit a violation of the Act as well as of under § 232.3, any person who proposes State statute and/or regulation. to discharge dredged or fill material (4) The permittee shall take all rea- into State regulated waters shall com- sonable steps to minimize or prevent plete, sign and submit a permit appli- any discharge in violation of this per- cation to the Director. Persons pro- mit. posing to discharge dredged or fill ma- (5) The permittee shall inform the Di- terial under the authorization of a gen- rector of any expected or known actual eral permit must comply with any re- noncompliance. porting requirements of the general permit. (6) The permittee shall provide such (b) A complete application shall in- information to the Director, as the Di- clude: rector requests, to determine compli- (1) Name, address, telephone number ance status, or whether cause exists for of the applicant and name(s) and ad- permit modification, revocation or dress(es) of adjoining property owners. termination. (2) A complete description of the pro- (7) Monitoring, reporting and record- posed activity including necessary keeping requirements as needed to drawings, sketches or plans sufficient safeguard the aquatic environment. for public notice (the applicant is not (Such requirements will be determined generally expected to submit detailed on a case-by-case basis, but at a min- engineering plans and specifications); imum shall include monitoring and re- the location, purpose and intended use porting of any expected leachates, re- of the proposed activity; scheduling of porting of noncompliance, planned the activity; the location and dimen- changes or transfer of the permit.) sions of adjacent structures; and a list (8) Inspection and entry. The per- of authorizations required by other mittee shall allow the Director, or his Federal, interstate, State or local authorized representative, upon presen- agencies for the work, including all ap- tation of proper identification, at rea- provals received or denials already sonable times to: made. (i) Enter upon the permittee’s prem- (3) The application must include a ises where a regulated activity is lo- description of the type, composition, cated or where records must be kept source and quantity of the material to under the conditions of the permit, be discharged, the method of discharge, (ii) Have access to and copy any and the site and plans for disposal of records that must be kept under the the dredged or fill material. conditions of the permit, (4) A certification that all informa- (iii) Inspect operations regulated or tion contained in the application is required under the permit, and true and accurate and acknowledging

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awareness of penalties for submitting State water related planning and re- false information. view processes. (5) All activities which the applicant plans to undertake which are reason- § 233.32 Public notice. ably related to the same project should (a) Applicability. be included in the same permit applica- (1) The Director shall give public no- tion. tice of the following actions: (c) In addition to the information in- (i) Receipt of a permit application. dicated in § 233.30(b), the applicant will (ii) Preparation of a draft general be required to furnish such additional permit. information as the Director deems ap- (iii) Consideration of a major modi- propriate to assist in the evaluation of fication to an issued permit. the application. Such additional infor- (iv) Scheduling of a public hearing. mation may include environmental (v) Issuance of an emergency permit. data and information on alternate (2) Public notices may describe more methods and sites as may be necessary than one permit or action. for the preparation of the required en- (b) Timing. vironmental documentation. (1) The public notice shall provide a (d) The level of detail shall be reason- reasonable period of time, normally at ably commensurate with the type and least 30 days, within which interested size of discharge, proximity to critical parties may express their views con- areas, likelihood of long-lived toxic cerning the permit application. chemical substances, and potential (2) Public notice of a public hearing level of environmental degradation. shall be given at least 30 days before NOTE: EPA encourages States to provide the hearing. permit applicants guidance regarding the (3) The Regional Administrator may level of detail of information and docu- approve a program with shorter public mentation required under this subsection. notice timing if the Regional Adminis- This guidance can be provided either through trator determines that sufficient public the application form or on an individual notice is provided for. basis. EPA also encourages the State to maintain a program to inform potential ap- (c) The Director shall give public no- plicants for permits of the requirements of tice by each of the following methods: the State program and of the steps required (1) By mailing a copy of the notice to to obtain permits for activities in State reg- the following persons (any person oth- ulated waters. erwise entitled to receive notice under this paragraph may waive his rights to § 233.31 Coordination requirements. receive notice for any classes or cat- (a) If a proposed discharge may affect egories of permits): the biological, chemical, or physical (i) The applicant. integrity of the waters of any State(s) (ii) Any agency with jurisdiction over other than the State in which the dis- the activity or the disposal site, wheth- charge occurs, the Director shall pro- er or not the agency issues a permit. vide an opportunity for such State(s) (iii) Owners of property adjoining the to submit written comments within property where the regulated activity the public comment period and to sug- will occur. gest permit conditions. If these rec- (iv) All persons who have specifically ommendations are not accepted by the requested copies of public notices. (The Director, he shall notify the affected Director may update the mailing list State and the Regional Administrator from time to time by requesting writ- prior to permit issuance in writing of ten indication of continued interest his failure to accept these rec- from those listed. The Director may de- ommendations, together with his rea- lete from the list the name of any persons for so doing. The Regional Admin- son who fails to respond to such a re- istrator shall then have the time pro- quest.) vided for in § 233.50(d) to comment (v) Any State whose waters may be upon, object to, or make recommenda- affected by the proposed discharge. tions. (2) In addition, by providing notice in (b) State section 404 permits shall be at least one other way (such as adver- coordinated with Federal and Federal- tisement in a newspaper of sufficient

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circulation) reasonably calculated to est in a permit application or a draft cover the area affected by the activity. general permit. He may also hold a (d) All public notices shall contain at hearing, at his discretion, whenever he least the following information: determines a hearing may be useful to (1) The name and address of the ap- a decision on the permit application. plicant and, if different, the address or (c) At a hearing, any person may sub- location of the activity(ies) regulated mit oral or written statements or data by the permit. concerning the permit application or (2) The name, address, and telephone draft general permit. The public com- number of a person to contact for fur- ment period shall automatically be ex- ther information. tended to the close of any public hear- (3) A brief description of the comment procedures and procedures to re- ing under this section. The presiding quest a public hearing, including dead- officer may also extend the comment lines. period at the hearing. (4) A brief description of the proposed (d) All public hearings shall be re- activity, its purpose and intended use, ported verbatim. Copies of the record so as to provide sufficient information of proceedings may be purchased by concerning the nature of the activity any person from the Director or the re- to generate meaningful comments, in- porter of such hearing. A copy of the cluding a description of the type of transcript (or if none is prepared, a structures, if any, to be erected on tape of the proceedings) shall be made fills, and a description of the type, available for public inspection at an composition and quantity of materials appropriate State office. to be discharged. (5) A plan and elevation drawing § 233.34 Making a decision on the per- showing the general and specific site mit application. location and character of all proposed (a) The Director will review all ap- activities, including the size relation- plications for compliance with the ship of the proposed structures to the 404(b)(1) Guidelines and/or equivalent size of the impacted waterway and State environmental criteria as well as depth of water in the area. any other applicable State laws or reg- (6) A paragraph describing the various evaluation factors, including the ulations. 404(b)(1) Guidelines or State-equivalent (b) The Director shall consider all criteria, on which decisions are based. comments received in response to the (7) Any other information which public notice, and public hearing if a would significantly assist interested hearing is held. All comments, as well parties in evaluating the likely impact as the record of any public hearing, of the proposed activity. shall be made part of the official record (e) Notice of public hearing shall also on the application. contain the following information: (c) After the Director has completed (1) Time, date, and place of hearing. his review of the application and con- (2) Reference to the date of any pre- sideration of comments, the Director vious public notices relating to the per- will determine, in accordance with the mit. record and all applicable regulations, (3) Brief description of the nature and whether or not the permit should be purpose of the hearing. issued. No permit shall be issued by the Director under the circumstances de- § 233.33 Public hearing. scribed in § 233.20. The Director shall (a) Any interested person may re- prepare a written determination on quest a public hearing during the pub- each application outlining his decision lic comment period as specified in and rationale for his decision. The de- § 233.32. Requests shall be in writing termination shall be dated, signed and and shall state the nature of the issues included in the official record prior to proposed to be raised at the hearing. (b) The Director shall hold a public final action on the application. The of- hearing whenever he determines there ficial record shall be open to the is a significant degree of public inter- public.

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§ 233.35 Issuance and effective date of issued and would have justified the im- permit. position of different permit conditions (a) If the Regional Administrator or denial at the time of issuance; comments on a permit application or (6) Revisions to applicable statutory draft general permit under § 233.50, the or regulatory authority, including Director shall follow the procedures toxic effluent standards or prohibitions specified in that section in issuing the or water quality standards. permit. (b) Limitations. Permit modifications (b) If the Regional Administrator shall be in compliance with § 233.20. does not comment on a permit applica- (c) Procedures. (1) The Director shall tion or draft general permit, the Direc- develop procedures to modify, suspend tor shall make a final permit decision or revoke permits if he determines after the close of the public comment cause exists for such action (§ 233.36(a)). period and shall notify the applicant. Such procedures shall provide oppor- (1) If the decision is to issue a permit, tunity for public comment (§ 233.32), co- the permit becomes effective when it is ordination with the Federal review signed by the Director and the appli- agencies (§ 233.50), and opportunity for cant. public hearing (§ 233.33) following noti- (2) If the decision is to deny the fication of the permittee. When permit permit, the Director will notify the modification is proposed, only the con- applicant in writing of the reason(s) for ditions subject to modification need be denial. reopened. (2) Minor modification of permits. § 233.36 Modification, suspension or The Director may, upon the consent of revocation of permits. the permittee, use abbreviated proce- (a) General. The Director may re- dures to modify a permit to make the evaluate the circumstances and condi- following corrections or allowance for tions of a permit either on his own mo- changes in the permitted activity: tion or at the request of the permittee (i) Correct typographical errors; or of a third party and initiate action (ii) Require more frequent moni- to modify, suspend, or revoke a permit toring or reporting by permittee; if he determines that sufficient cause (iii) Allow for a change in ownership exists. Among the factors to be consid- or operational control of a project or ered are: activity where the Director determines (1) Permittee’s noncompliance with that no other change in the permit is any of the terms or conditions of the necessary, provided that a written permit; agreement containing a specific date (2) Permittee’s failure in the applica- for transfer of permit responsibility, tion or during the permit issuance coverage, and liability between the process to disclose fully all relevant current and new permittees has been facts or the permittee’s misrepresenta- submitted to the Director; tion of any relevant facts at the time; (iv) Provide for minor modification (3) Information that activities au- of project plans that do not signifi- thorized by a general permit are having cantly change the character, scope, more than minimal individual or cu- and/or purpose of the project or result mulative adverse effect on the environ- in significant change in environmental ment, or that the permitted activities impact; are more appropriately regulated by in- (v) Extend the term of a permit, so dividual permits; long as the modification does not ex- (4) Circumstances relating to the au- tend the term of the permit beyond 5 thorized activity have changed since years from its original effective date the permit was issued and justify and does not result in any increase in changed permit conditions or tem- the amount of dredged or fill material porary or permanent cessation of any allowed to be discharged. discharge controlled by the permit; (5) Any significant information relat- § 233.37 Signatures on permit applica- ing to the activity authorized by the tions and reports. permit if such information was not The application and any required re- available at the time the permit was ports must be signed by the person who

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desires to undertake the proposed ac- (c) The State program shall provide tivity or by that person’s duly author- for inspections to be conducted, sam- ized agent if accompanied by a state- ples to be taken and other information ment by that person designating the to be gathered in a manner that will agent. In either case, the signature of produce evidence admissible in an en- the applicant or the agent will be un- forcement proceeding. derstood to be an affirmation that he (d) The State shall maintain a pro- possesses or represents the person who gram for receiving and ensuring proper possesses the requisite property inter- consideration of information submitted est to undertake the activity proposed by the public about violations. in the application. § 233.41 Requirements for enforcement § 233.38 Continuation of expiring per- authority. mits. (a) Any State agency administering a A Corps 404 permit does not continue program shall have authority: in force beyond its expiration date (1) To restrain immediately and ef- under Federal law if, at that time, a fectively any person from engaging in State is the permitting authority. any unauthorized activity; States authorized to administer the 404 (2) To sue to enjoin any threatened or Program may continue Corps or State- continuing violation of any program issued permits until the effective date requirement; of the new permits, if State law allows. Otherwise, the discharge is being con- (3) To assess or sue to recover civil ducted without a permit from the time penalties and to seek criminal rem- of expiration of the old permit to the edies, as follows: effective date of a new State-issued (i) The agency shall have the author- permit, if any. ity to assess or recover civil penalties for discharges of dredged or fill mate- § 233.39 Electronic reporting. rial without a required permit or in violation of any section 404 permit con- States that choose to receive elec- dition in an amount of at least $5,000 tronic documents must satisfy the re- per day of such violation. quirements of 40 CFR Part 3—(Elec- (ii) The agency shall have the author- tronic reporting) in their state program. ity to seek criminal fines against any person who willfully or with criminal [70 FR 59888, Oct. 13, 2005] negligence discharges dredged or fill material without a required permit or Subpart E—Compliance violates any permit condition issued Evaluation and Enforcement under section 404 in the amount of at least $10,000 per day of such violation. § 233.40 Requirements for compliance (iii) The agency shall have the au- evaluation programs. thority to seek criminal fines against (a) In order to abate violations of the any person who knowingly makes false permit program, the State shall main- statements, representation, or certifi- tain a program designed to identify cation in any application, record, re- persons subject to regulation who have port, plan, or other document filed or failed to obtain a permit or to comply required to be maintained under the with permit conditions. Act, these regulations or the approved (b) The Director and State officers State program, or who falsifies, engaged in compliance evaluation, tampers with, or knowingly renders in- upon presentation of proper identifica- accurate any monitoring device or tion, shall have authority to enter any method required to be maintained site or premises subject to regulation under the permit, in an amount of at or in which records relevant to pro- least $5,000 for each instance of viola- gram operation are kept in order to tion. copy any records, inspect, monitor or (b)(1) The approved maximum civil otherwise investigate compliance with penalty or criminal fine shall be as- the State program. sessable for each violation and, if the

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violation is continuous, shall be assess- (i) Investigate and provide written able in that maximum amount for each responses to all citizen complaints sub- day of violation. mitted pursuant to State procedures; (2) The burden of proof and degree of (ii) Not oppose intervention by any knowledge or intent required under citizen when permissive intervention State law for establishing violations may be authorized by statute, rule, or under paragraph (a)(3) of this section, regulation; and shall be no greater than the burden of (iii) Publish notice of and provide at proof or degree of knowledge or intent least 30 days for public comment on EPA must bear when it brings an ac- any proposed settlement of a State en- tion under the Act. forcement action. (f) Provision for Tribal criminal enforce- (c) The civil penalty assessed, sought, ment authority. To the extent that an or agreed upon by the Director under Indian Tribe does not assert or is pre- paragraph (a)(3) of this section shall be cluded from asserting criminal enforce- appropriate to the violation. ment authority (§ 233.41(a)(3) (ii) and NOTE: To the extent that State judgments (iii)), the Federal government will con- or settlements provide penalties in amounts tinue to exercise primary criminal en- which EPA believes to be substantially inad- forcement responsibility. The Tribe, equate in comparison to the amounts which with the EPA Region and Corps Dis- EPA would require under similar facts, EPA trict(s) with jurisdiction, shall develop may, when authorized by section 309 of the a system where the Tribal agency will Act, commence separate action for penalties. refer such a violation to the Regional (d)(1) The Regional Administrator Administrator or the District Engi- may approve a State program where neer(s), as agreed to by the parties, in the State lacks authority to recover an appropriate and timely manner. penalties of the levels required under This agreement shall be incorporated paragraphs (a)(3)(i)–(iii) of this section into joint or separate Memorandum of only if the Regional Administrator de- Agreement with the EPA Region and the Corps District(s), as appropriate. termines, after evaluating a record of at least one year for an alternative en- [53 FR 20776, June 1, 1988, as amended at 58 forcement program, that the State has FR 8183, Feb. 11, 1993] an alternate, demonstrably effective method of ensuring compliance which Subpart F—Federal Oversight has both punitive and deterrence effects. § 233.50 Review of and objection to State permits. (2) States whose programs were approved via waiver of monetary pen- (a) The Director shall promptly alties shall keep the Regional Adminis- transmit to the Regional Adminis- trator informed of all enforcement ac- trator: tions taken under any alternative (1) A copy of the public notice for any method approved pursuant to para- complete permit applications received graph (d)(1) of this section. The manner by the Director, except those for which of reporting will be established in the permit review has been waived under § 233.51. The State shall supply the Re- Memorandum of Agreement with the gional Administrator with copies of Regional Administrator (§ 233.13). public notices for permit applications (e) Any State administering a pro- for which permit review has been gram shall provide for public participa- waived whenever requested by EPA. tion in the State enforcement process (2) A copy of a draft general permit by providing either: whenever the State intends to issue a (1) Authority which allows interven- general permit. tion of right in any civil or administra- (3) Notice of every significant action tive action to obtain remedies specified taken by the State agency related to in paragraph (a)(3) of this section by the consideration of any permit appli- any citizen having an interest which is cation except those for which Federal or may be adversely affected, or review has been waived or draft general (2) Assurance that the State agency permit. or enforcement authority will: (4) A copy of every issued permit.

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(5) A copy of the Director’s response no comment but that he reserves the to another State’s comments/ right to object within 90 days of re- recommendations, if the Director does ceipt, based on any new information not accept these recommendations brought out by the public during the (§ 233.32(a)). comment period or at a hearing. (b) Unless review has been waived (e) If the Regional Administrator has under § 233.51, the Regional Adminis- given notice to the Director under trator shall provide a copy of each pub- paragraph (d) of this section, he shall lic notice, each draft general permit, submit to the Director, within 90 days and other information needed for re- of receipt of the public notice, draft view of the application to the Corps, general permit, or Director’s response FWS, and NMFS, within 10 days of re- (§ 233.31(a)), a written statement of his ceipt. These agencies shall notify the comments, objections, or recommenda- Regional Administrator within 15 days tions; the reasons for the comments, of their receipt if they wish to com- objections, or recommendations; and ment on the public notice or draft gen- the actions that must be taken by the eral permit. Such agencies should sub- Director in order to eliminate any ob- mit their evaluation and comments to jections. Any such objection shall be the Regional Administrator within 50 based on the Regional Administrator’s days of such receipt. The final decision determination that the proposed per- to comment, object or to require permit is (1) the subject of an interstate mit conditions shall be made by the dispute under § 233.31(a) and/or (2) out- Regional Administrator. (These times side requirements of the Act, these reg- may be shortened by mutual agree- ulations, or the 404(b)(1) Guidelines. ment of the affected Federal agencies The Regional Administrator shall and the State.) make available upon request a copy of (c) If the information provided is in- any comment, objection, or recom- adequate to determine whether the per- mendation on a permit application or mit application or draft general permit draft general permit to the permit ap- meets the requirements of the Act, plicant or to the public. these regulations, and the 404(b)(1) (f) When the Director has received an Guidelines, the Regional Administrator may, within 30 days of receipt, request EPA objection or requirement for a the Director to transmit to the Re- permit condition to a permit applica- gional Administrator the complete tion or draft general permit under this record of the permit proceedings before section, he shall not issue the permit the State, or any portions of the unless he has taken the steps required record, or other information, including by the Regional Administrator to a supplemental application, that the eliminate the objection. Regional Administrator determines (g) Within 90 days of receipt by the necessary for review. Director of an objection or requirement (d) If the Regional Administrator infor a permit condition by the Regional tends to comment upon, object to, or Administrator, the State or any inter- make recommendations with respect to ested person may request that the Re- a permit application, draft general per- gional Administrator hold a public mit, or the Director’s failure to accept hearing on the objection or require- the recommendations of an affected ment. The Regional Administrator State submitted pursuant to § 233.31(a), shall conduct a public hearing when- he shall notify the Director of his in- ever requested by the State proposing tent within 30 days of receipt. If the Di- to issue the permit, or if warranted by rector has been so notified, the permit significant public interest based on re- shall not be issued until after the requests received. ceipt of such comments or 90 days of (h) If a public hearing is held under the Regional Administrator’s receipt of paragraph (g) of this section, the Re- the public notice, draft general permit gional Administrator shall, following or Director’s response (§ 233.31(a)), that hearing, reaffirm, modify or with- whichever comes first. The Regional draw the objection or requirement for a Administrator may notify the Director permit condition, and notify the Direc- within 30 days of receipt that there is tor of this decision.

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(1) If the Regional Administrator (5) Discharges located in proximity of withdraws his objection or requirement a public water supply intake; for a permit condition, the Director (6) Discharges within critical areas may issue the permit. established under State or Federal law, (2) If the Regional Administrator including but not limited to National does not withdraw the objection or re- and State parks, fish and wildlife sanc- quirement for a permit condition, the tuaries and refuges, National and his- Director must issue a permit revised to torical monuments, wilderness areas satisfy the Regional Administrator’s and preserves, sites identified or pro- objection or requirement for a permit posed under the National Historic Pres- condition or notify EPA of its intent to ervation Act, and components of the deny the permit within 30 days of re- National Wild and Scenic Rivers Sys- ceipt of the Regional Administrator’s tem. notification. (c) The Regional Administrator re- (i) If no public hearing is held under tains the right to terminate a waiver paragraph (g) of this section, the Direc- as to future permit actions at any time tor within 90 days of receipt of the ob- by sending the Director written notice jection or requirement for a permit of termination. condition shall either issue the permit revised to satisfy EPA’s objections or § 233.52 Program reporting. notify EPA of its intent to deny the (a) The starting date for the annual permit. period to be covered by reports shall be (j) In the event that the Director nei- established in the Memorandum of ther satisfies EPA’s objections or re- Agreement with the Regional Adminis- quirement for a permit condition nor trator (§ 233.13.) denies the permit, the Secretary shall process the permit application. (b) The Director shall submit to the Regional Administrator within 90 days [53 FR 20776, June 1, 1988; 53 FR 41649, Oct. 24, after completion of the annual period, 1988] a draft annual report evaluating the State’s administration of its program § 233.51 Waiver of review. identifying problems the State has en- (a) The MOA with the Regional Ad- countered in the administration of its ministrator shall specify the categories program and recommendations for re- of discharge for which EPA will waive solving these problems. Items that Federal review of State permit applica- shall be addressed in the annual report tions. After program approval, the include an assessment of the cumu- MOA may be modified to reflect any lative impacts of the State’s permit additions or deletions of categories of program on the integrity of the State discharge for which EPA will waive re- regulated waters; identification of view. The Regional Administrator shall areas of particular concern and/or in- consult with the Corps, FWS, and terest within the State; the number NMFS prior to specifying or modifying and nature of individual and general such categories. permits issued, modified, and denied; (b) With the following exceptions, number of violations identified and any category of discharge is eligible for number and nature of enforcement ac- consideration for waiver: tions taken; number of suspected unau- (1) Draft general permits; thorized activities reported and nature (2) Discharges with reasonable poten- of action taken; an estimate of extent tial for affecting endangered or threat- of activities regulated by general per- ened species as determined by FWS; mits; and the number of permit appli- (3) Discharges with reasonable poten- cations received but not yet processed. tial for adverse impacts on waters of (c) The State shall make the draft another State; annual report available for public in- (4) Discharges known or suspected to spection. contain toxic pollutants in toxic (d) Within 60 days of receipt of the amounts (section 101(a)(3) of the Act) draft annual report, the Regional Ad- or hazardous substances in reportable ministrator will complete review of the quantities (section 311 of the Act); draft report and transmit comments,

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questions, and/or requests for addi- (1) When the State’s legal authority tional evaluation and/or information to no longer meets the requirements of the Director. this part, including: (e) Within 30 days of receipt of the (i) Failure of the State to promulgate Regional Administrator’s comments, or enact new authorities when nec- the Director will finalize the annual re- essary; or port, incorporating and/or responding (ii) Action by a State legislature or to the Regional Administrator’s com- court striking down or limiting State ments, and transmit the final report to authorities. the Regional Administrator. (2) When the operation of the State (f) Upon acceptance of the annual re- program fails to comply with the report, the Regional Administrator shall quirements of this part, including: publish notice of availability of the (i) Failure to exercise control over final annual report. activities required to be regulated under this part, including failure to § 233.53 Withdrawal of program ap- issue permits; proval. (ii) Issuance of permits which do not conform to the requirements of this (a) A State with a program approved part; or under this part may voluntarily trans- (iii) Failure to comply with the pub- fer program responsibilities required lic participation requirements of this by Federal law to the Secretary by part. taking the following actions, or in such (3) When the State’s enforcement other manner as may be agreed upon program fails to comply with the re- with the Administrator. quirements of this part, including: (1) The State shall give the Adminis- (i) Failure to act on violations of per- trator and the Secretary 180 days no- mits or other program requirements; tice of the proposed transfer. The State (ii) Failure to seek adequate enforce- shall also submit a plan for the orderly ment penalties or to collect adminis- transfer of all relevant program infor- trative fines when imposed, or to im- mation not in the possession of the plement alternative enforcement meth- Secretary (such as permits, permit ods approved by the Administrator; or files, reports, permit applications) (iii) Failure to inspect and monitor which are necessary for the Secretary activities subject to regulation. to administer the program. (4) When the State program fails to (2) Within 60 days of receiving the no- comply with the terms of the Memo- tice and transfer plan, the Adminis- randum of Agreement required under trator and the Secretary shall evaluate § 233.13. the State’s transfer plan and shall (c) The following procedures apply identify for the State any additional when the Administrator orders the information needed by the Federal gov- commencement of proceedings to de- ernment for program administration. termine whether to withdraw approval (3) At least 30 days before the trans- of a State program: fer is to occur the Administrator shall (1) Order. The Administrator may publish notice of transfer in the FED- order the commencement of with- ERAL REGISTER and in a sufficient num- drawal proceedings on the Administra- ber of the largest newspapers in the tor’s initiative or in response to a peti- State to provide statewide coverage, tion from an interested person alleging and shall mail notice to all permit failure of the State to comply with the holders, permit applicants, other regu- requirements of this part as set forth lated persons and other interested per- in subsection (b) of this section. The sons on appropriate EPA, Corps and Administrator shall respond in writing State mailing lists. to any petition to commence with- (b) The Administrator may withdraw drawal proceedings. He may conduct an program approval when a State pro- informal review of the allegations in gram no longer complies with the re- the petition to determine whether quirements of this part, and the State cause exists to commence proceedings fails to take corrective action. Such under this paragraph. The Administra- circumstances include the following: tor’s order commencing proceedings

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under this paragraph shall fix a time these rules of practice, except as other- and place for the commencement of the wise provided, the day of the event hearing, shall specify the allegations from which the designated period be- against the State which are to be con- gins to run shall not be included. Sat- sidered at the hearing, and shall be urdays, Sundays, and Federal legal published in the FEDERAL REGISTER. holidays shall be included. When a Within 30 days after publication of the stated time expires on a Saturday, Administrator’s order in the FEDERAL Sunday or Federal legal holiday, the REGISTER, the State shall admit or stated time period shall be extended to deny these allegations in a written an- include the next business day. swer. The party seeking withdrawal of (2) Extensions of time. The Adminis- the State’s program shall have the bur- trator, Regional Administrator, or Pre- den of coming forward with the siding Officer, as appropriate, may evidence in a hearing under this grant an extension of time for the fil- paragraph. ing of any pleading, document, or mo- (2) Definitions. For purposes of this tion ( ) upon timely motion of a party paragraph the definition of Administra- i tive Law Judge, Hearing Clerk, and Pre- to the proceeding, for good cause siding Officer in 40 CFR 22.03 apply in shown and after consideration of preju- addition to the following: dice to other parties, or (ii) upon his (i) Party means the petitioner, the own motion. Such a motion by a party State, the Agency, and any other per- may only be made after notice to all son whose request to participate as a other parties, unless the movant can party is granted. show good cause why serving notice is (ii) Person means the Agency, the impracticable. The motion shall be State and any individual or organiza- filed in advance of the date on which tion having an interest in the subject the pleading, document or motion is matter of the proceedings. due to be filed, unless the failure of a (iii) Petitioner means any person party to make timely motion for ex- whose petition for commencement of tension of time was the result of excus- withdrawal proceedings has been grant- able neglect. ed by the Administrator. (3) The time for commencement of (3) Procedures. (i) The following provi- the hearing shall not be extended be- sions of 40 CFR Part 22 [Consolidated yond the date set in the Administra- Rules of Practice] are applicable to tor’s order without approval of the Ad- proceedings under this paragraph: ministrator. (A) Section 22.02—(use of number/gen- (B) Ex parte discussion of proceeding. der); At no time after the issuance of the (B) Section 22.04—(authorities of Pre- order commencing proceedings shall siding Officer); the Administrator, the Regional Ad- (C) Section 22.06—(filing/service of ministrator, the Regional Judicial Offi- rulings and orders); cer, the Presiding Officer, or any other (D) Section 22.09—(examination of person who is likely to advise these of- filed documents); (E) Section 22.19 (a), (b) and (c)—(pre- ficials in the decisions on the case, dis- hearing conference); cuss ex parte the merits of the pro- (F) Section 22.22—(evidence); ceeding with any interested person out- (G) Section 22.23—(objections/offers side the Agency, with any Agency staff of proof); member who performs a prosecutorial (H) Section 22.25—(filing the tran- or investigative function in such pro- script; and ceeding or a factually related pro- (I) Section 22.26—(findings/conclu- ceeding, or with any representative of sions). such person. Any ex parte memo- (ii) The following provisions are also randum or other communication ad- applicable: dressed to the Administrator, the Re- (A) Computation and extension of gional Administrator, the Regional Ju- time. dicial Officer, or the Presiding Officer (1) Computation. In computing any pe- during the pendency of the proceeding riod of time prescribed or allowed in and relating to the merits thereof, by

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or on behalf of any party shall be re- (ii) state the grounds therefore with garded as argument made in the pro- particularity; (iii) set forth the relief or ceeding and shall be served upon all order sought; and (iv) be accompanied other parties. The other parties shall by any affidavit, certificate, other evi- be given an opportunity to reply to dence, or legal memorandum relied such memorandum or communication. upon. Such motions shall be served as (C) Intervention—(1) Motion. A mo- provided by paragraph (b)(4) of this section for leave to intervene in any pro- tion. ceeding conducted under these rules of (2) Response to motions. A party’s re- practice must set forth the grounds for sponse to any written motion must be the proposed intervention, the position filed within ten (10) days after service and interest of the movant and the of such motion, unless additional time likely impact that intervention will is allowed for such response. The re- have on the expeditious progress of the sponse shall be accompanied by any af- proceeding. Any person already a party fidavit, certificate, other evidence, or to the proceeding may file an answer to legal memorandum relied upon. If no a motion to intervene, making specific response is filed within the designated reference to the factors set forth in the period, the parties may be deemed to foregoing sentence and paragraph have waived any objection to the (b)(3)(ii)(C)(3) of this section, within granting of the motion. The Presiding ten (10) days after service of the mo- Officer, Regional Administrator, or Ad- tion for leave to intervene. ministrator, as appropriate, may set a (2) However, motions to intervene shorter time for response, or make must be filed within 15 days from the such other orders concerning the dis- date the notice of the Administrator’s position of motions as they deem ap- order is published in the FEDERAL REG- propriate. ISTER. (3) Decision. The Administrator shall (3) Disposition. Leave to intervene rule on all motions filed or made after may be granted only if the movant service of the recommended decision demonstrates that (i) his presence in upon the parties. The Presiding Officer the proceeding would not unduly pro- shall rule on all other motions. Oral ar- long or otherwise prejudice the adju- gument on motions will be permitted dication of the rights of the original where the Presiding Officer, Regional parties; (ii) the movant will be ad- Administrator, or the Administrator versely affected by a final order; and considers it necessary or desirable. (iii) the interests of the movant are not being adequately represented by the (4) Record of proceedings. (i) The hear- original parties. The intervenor shall ing shall be either stenographically re- become a full party to the proceeding ported verbatim or tape recorded, and upon the granting of leave to inter- thereupon transcribed by an official re- vene. porter designated by the Presiding Offi- (4) Amicus curiae. Persons not parties cer; to the proceeding who wish to file (ii) All orders issued by the Presiding briefs may so move. The motion shall Officer, transcripts of testimony, writ- identify the interest of the applicant ten statements of position, stipula- and shall state the reasons why the tions, exhibits, motions, briefs, and proposed amicus brief is desirable. If other written material of any kind sub- the motion is granted, the Presiding mitted in the hearing shall be a part of Officer or Administrator shall issue an the record and shall be available for in- order setting the time for filing such spection or copying in the Office of the brief. An amicus curiae is eligible to Hearing Clerk, upon payment of costs. participate in any briefing after his Inquiries may be made at the Office of motion is granted, and shall be served the Administrative Law Judges, Hear- with all briefs, reply briefs, motions, ing Clerk, 1200 Pennsylvania Ave., NW., and orders relating to issues to be Washington, DC 20460; briefed. (iii) Upon notice to all parties the (D) Motions—(1) General. All motions, Presiding Officer may authorize correc- except those made orally on the record tions to the transcript which involve during a hearing, shall (i) be in writing; matters of substance;

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(iv) An original and two (2) copies of (8) Decision by Administrator. (i) With- all written submissions to the hearing in 60 days after certification of the shall be filed with the Hearing Clerk; record and filing of the Presiding Offi- (v) A copy of each such submission cer’s recommended decision, the Ad- shall be served by the person making ministrator shall review the record be- the submission upon the Presiding Offi- fore him and issue his own decision. cer and each party of record. Service (ii) If the Administrator concludes under this paragraph shall take place that the State has administered the by mail or personal delivery; program in conformity with the Act (vi) Every submission shall be accom- and this part, his decision shall con- panied by acknowledgement of service stitute ‘‘final agency action’’ within by the person served or proof of service the meaning of 5 U.S.C. 704. in the form of a statement of the date, (iii) If the Administrator concludes time, and manner of service and the that the State has not administered names of the persons served, certified the program in conformity with the by the person who made service; and Act and regulations, he shall list the (vii) The Hearing Clerk shall main- deficiencies in the program and provide tain and furnish to any person upon re- the State a reasonable time, not to ex- quest, a list containing the name, serv- ceed 90 days, to take such appropriate ice address, and telephone number of corrective action as the Administrator all parties and their attorneys or duly authorized representatives. determines necessary. (5) Participation by a person not a (iv) Within the time prescribed by party. A person who is not a party may, the Administrator the State shall take in the discretion of the Presiding Offi- such appropriate corrective action as cer, be permitted to make a limited ap- required by the Administrator and pearance by making an oral or written shall file with the Administrator and statement of his/her position on the all parties a statement certified by the issues within such limits and on such State Director that appropriate correc- conditions as may be fixed by the Pre- tive action has been taken. siding Officer, but he/she may not oth- (v) The Administrator may require a erwise participate in the proceeding. further showing in addition to the cer- (6) Rights of parties. (i) All parties to tified statement that corrective action the proceeding may: has been taken. (A) Appear by counsel or other rep- (vi) If the state fails to take appro- resentative in all hearing and pre- priate corrective action and file a cer- hearing proceedings; tified statement thereof within the (B) Agree to stipulations of facts time prescribed by the Administrator, which shall be made a part of the the Administrator shall issue a supple- record. mentary order withdrawing approval of (7) Recommended decision. (i) Within 30 the State program. If the State takes days after the filing of proposed find- appropriate corrective action, the ings and conclusions and reply briefs, Administrator shall issue a supple- the Presiding Officer shall evaluate the mentary order stating that approval of record before him/her, the proposed authority is not withdrawn. findings and conclusions and any briefs (vii) The Administrator’s supple- filed by the parties, and shall prepare a mentary order shall constitute final recommended decision, and shall cer- Agency action within the meaning of 5 tify the entire record, including the U.S. 704. recommended decision, to the Adminis- (d) Withdrawal of authorization trator. under this section and the Act does not (ii) Copies of the recommended deci- relieve any person from complying sion shall be served upon all parties. with the requirements of State law, (iii) Within 20 days after the certifi- nor does it affect the validity of ac- cation and filing of the record and rec- tions taken by the State prior to with- ommended decision, all parties may file with the Administrator exceptions drawal. to the recommended decision and a [53 FR 20776, June 1, 1988, as amended at 57 supporting brief. FR 5346, Feb. 13, 1992]

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Subpart G—Eligible Indian Tribes tial governmental duties and powers over a defined area. This Statement should: SOURCE: 58 FR 8183, Feb. 11, 1993, unless otherwise noted. (1) Describe the form of the Tribal government. § 233.60 Requirements for eligibility. (2) Describe the types of govern- Section 518(e) of the CWA, 33 U.S.C. mental functions currently performed 1378(e), authorizes the Administrator by the Tribal governing body, such as, to treat an Indian Tribe as eligible to but not limited to, the exercise of po- apply for the 404 permit program under lice powers affecting (or relating to) section 404(g)(1) if it meets the fol- the health, safety, and welfare of the lowing criteria: affected population; taxation; and the (a) The Indian Tribe is recognized by exercise of the power of eminent do- the Secretary of the Interior. main; and (b) The Indian Tribe has a governing (3) Identify the source of the Tribal body carrying out substantial govern- government’s authority to carry out mental duties and powers. the governmental functions currently (c) The functions to be exercised by being performed. the Indian Tribe pertain to the man- (c)(1) A map or legal description of agement and protection of water re- the area over which the Indian Tribe sources which are held by an Indian asserts regulatory authority pursuant Tribe, held by the Untied States in to section 518(e)(2) of the CWA and trust for the Indians, held by a member § 233.60(c); of an Indian Tribe if such property in- (2) A statement by the Tribal Attor- terest is subject to a trust restriction ney General (or equivalent official) an alienation, or otherwise within the which describes the basis for the borders of the Indian reservation. Tribe’s assertion under section 518(e)(2) (d) The Indian Tribe is reasonably ex- (including the nature or subject matter pected to be capable, in the Adminis- of the asserted regulatory authority) trator’s judgment, of carrying out the which may include a copy of docu- functions to be exercised, in a manner ments such as Tribal constitutions, by- consistent with the terms and purposes laws, charters, executive orders, codes, of the Act and applicable regulations, ordinances, and/or resolutions which of an effective section 404 dredge and support the Tribe’s assertion of author- fill permit program. ity; [58 FR 8183, Feb. 11, 1993, as amended at 59 (d) A narrative statement describing FR 64345, Dec. 14, 1994] the capability of the Indian Tribe to administer an effective 404 permit pro- § 233.61 Determination of Tribal eligi- gram. The Statement may include: bility. (1) A description of the Indian Tribe’s An Indian Tribe may apply to the Re- previous management experience gional Administrator for a determina- which may include the administration tion that it meets the statutory cri- of programs and services authorized by teria which authorize EPA to treat the the Indian Self Determination & Edu- Tribe in a manner similar to that in cation Act (25 U.S.C. 450 et seq.), The which it treats a State, for purposes of Indian Mineral Development Act (25 the section 404 program. The applica- U.S.C. 2101 et seq.), or the Indian Sani- tion shall be concise and describe how tation Facility Construction Activity the Indian Tribe will meet each of the Act (42 U.S.C. 2004a). requirements of § 233.60. The applica- (2) A list of existing environmental tion should include the following infor- or public health programs adminis- mation: tered by the Tribal governing body, (a) A statement that the Tribe is rec- and a copy of related Tribal laws, regu- ognized by the Secretary of the Inte- lations, and policies; rior. (3) A description of the entity (or en- (b) A descriptive statement dem- tities) which exercise the executive, onstrating that the Tribal governing legislative, and judicial functions of body is currently carrying out substan- the Tribal government.

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(4) A description of the existing, or rial into waters of the United States in proposed, agency of the Indian Tribe Michigan that are not presently used, which will assume primary responsi- or susceptible for use in their natural bility for establishing and admin- condition or by reasonable improve- istering a section 404 dredge and fill ment as a means to transport inter- permit program or plan which proposes state or foreign commerce shoreward how the Tribe will acquire additional to the ordinary high water mark, in- administrative and technical expertise. cluding wetlands adjacent thereto, ex- The plan must address how the Tribe cept those on Indian lands, is the pro- will obtain the funds to acquire the ad- gram administered by the Michigan ministrative and technical expertise. Department of Natural Resources, ap- (5) A description of the technical and proved by EPA, pursuant to section 404 administrative abilities of the staff to of the CWA. Notice of this approval administer and manage an effective, was published in the FEDERAL REG- environmentally sound 404 dredge and ISTER on October 2, 1984; the effective fill permit program. date of this program is October 16, 1984. (e) The Administrator may, at his This program consists of the following discretion, request further documenta- elements, as submitted to EPA in the tion necessary to support a Tribal ap- State’s program application. plication. (a) Incorporation by reference. The re- (f) If the Administrator has pre- quirements set forth in the State stat- viously determined that a Tribe has utes and regulations cited in this para- met the requirements for eligibility or graph are hereby incorporated by ref- for ‘‘treatment as a State’’ for pro- erence and made a part of the applica- grams authorized under the Safe ble 404 Program under the CWA for the Drinking Water Act or the Clean Water State of Michigan. This incorporation Act, then that Tribe need only provide by reference was approved by the Di- additional information unique to the rector of the Federal Register on Octo- particular statute or program for ber 16, 1984. which the Tribe is seeking additional (1) The Great Lakes Submerged authorization. Lands Act, MCL 322.701 et seq., re- (Approved by the Office of Management and printed in Michigan 1983 Natural Re- Budget under control number 2040–0140) sources Law. (2) The Water Resources Commission [58 FR 8183, Feb. 11, 1993, as amended at 59 FR 64345, Dec. 14, 1994] Act, MCL 323.1 et seq., reprinted in Michigan 1983 Natural Resources Law. § 233.62 Procedures for processing an (3) The Goemaere-Anderson Wetland Indian Tribe’s application. Protection Act, MCL 281.701 et seq., re- (a) The Regional Administrator shall printed in Michigan 1983 Natural Re- process an application of an Indian sources Law. Tribe submitted pursuant to § 233.61 in (4) The Inland Lakes and Stream Act, a timely manner. He shall promptly MCL 281.951 et seq., reprinted in Michi- notify the Indian Tribe of receipt of the gan 1983 Natural Resources Law. application. (5) The Michigan Administrative Pro- (b) The Regional Administrator shall cedures Act of 1969, MCL 24–201 et seq. follow the procedures described in (6) An act concerning the Erection of § 233.15 in processing a Tribe’s request Dams, MCL 281.131 et seq., reprinted in to assume the 404 dredge and fill per- Michigan 1983 Natural Resources Law. mit program. (7) R 281.811 through R 281.819 inclusive, R 281.821, R 281.823, R 281.824, R [58 FR 8183, Feb. 11, 1993, as amended at 59 281.832 through R 281.839 inclusive, and FR 64346, Dec. 14, 1994] R 281.841 through R 281.845 inclusive of the Michigan Administrative Code (1979 Subpart H—Approved State ed., 1982 supp.). Programs (b) Other Laws. The following statutes and regulations, although not in- § 233.70 Michigan. corporated by reference, also are part The applicable regulatory program of the approved State-administered for discharges of dredged or fill mate- program:

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(1) Administrative Procedures Act, utes and regulations cited in paragraph MCLA 24.201 et seq. (b) of this section are hereby incor- (2) Freedom of Information Act, porated by reference and made a part MCLA 15.231 et seq. of the applicable 404 Program under the (3) Open Meetings Act, MCLA 15.261 CWA for the State of New Jersey, for et seq. incorporation by reference by the Di- (4) Michigan Environmental Protec- rector of the Federal Register in action Act, MCLA 691.1201 et seq. cordance with 552(a) and 1 CFR part 51. (c) Memoranda of Agreement. (1) The Material is incorporated as it exists at Memorandum of Agreement between 1 p.m. on March 2, 1994 and notice of EPA Region V and the Michigan De- any change in the material will be pub- partment of Natural resources, signed lished in the FEDERAL REGISTER. by the EPA Region V Administrator on (b) Copies of materials incorporated December 9, 1983. by reference may be inspected at the (2) The Memorandum of Agreement National Archives and Records Admin- between the U.S. Army Corps of Engi- istration (NARA). For information on neers and the Michigan Department of the availability of this material at Natural Resources, signed by the Com- NARA, call 202–741–6030, or go to: http:// mander, North Central Division, on www.archives.gov/federallregister/ March 27, 1984. codeloflfederallregulations/ (d) Statement of Legal Authority. (1) ibrllocations.html. Copies of materials ‘‘Attorney General Certification sec- incorporated by reference may be ob- tion 404/State of Michigan’’, signed by tained or inspected at the EPA UST Attorney General of Michigan, as sub- Docket, located at 1235 Jefferson Davis mitted with the request for approval of Highway, First Floor , Arlington, VA ‘‘The State of Michigan 404 Program’’, 22202 (telephone number: 703–603–9231), October 26, 1983. or send mail to Mail Code 5305G, 1200 (e) The Program description and any Pennsylvania Ave., NW., Washington, other materials submitted as part of DC 20460, and at the Library of the Re- the original application or supplements gion 2 Regional Office, Federal Office thereto. Building, 26 Federal Plaza, New York, (33 U.S.C. 13344, CWA 404) NY 10278. [49 FR 38948, Oct. 2, 1984. Redesignated at 53 (1) New Jersey Statutory Require- FR 20776, June 6, 1988. Redesignated at 58 FR ments Applicable to the Freshwater 8183, Feb. 11, 1993] Wetlands Program, 1994. (2) New Jersey Regulatory Require- § 233.71 New Jersey. ments Applicable to the Freshwater The applicable regulatory program Wetlands Program, 1994. for discharges of dredged or fill mate- (c) Other laws. The following statutes rial into waters of the United States in and regulations, although not incor- New Jersey that are not presently porated by reference, also are part of used, or susceptible for use in their the approved State-administered pro- natural condition or by reasonable im- gram: provement as a means to transport (1) Administrative Procedure Act, interstate or foreign commerce shore- N.J.S.A. 52:14B–1 et seq. ward to the ordinary high water mark, (2) New Jersey Uniform Administra- including wetlands adjacent thereto, tive Procedure Rules, N.J.A.C. 1:1–1.1 et except those on Indian lands, is the seq. program administered by the New Jer- (3) Open Public Meetings Act, sey Department of Environmental Pro- N.J.S.A. 10:4–6 et seq. tection and Energy, approved by EPA, (4) Examination and Copies of Public pursuant to section 404 of the CWA. Records, N.J.S.A. 47:1A–1 et seq. The program becomes effective March (5) Environmental Rights Act, 2, 1994. This program consists of the N.J.S.A. 2A:35A–1 et seq. following elements, as submitted to (6) Department of Environmental EPA in the State’s program applica- Protection (and Energy), N.J.S.A. tion: 13:1D–1 et seq. (a) Incorporation by reference. The re- (7) Water Pollution Control Act, quirements set forth in the State stat- N.J.S.A. 58:10A–1 et seq.

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(d) Memoranda of agreement. The fol- Subpart A—General Provisions lowing memoranda of agreement, although not incorporated by reference § 238.10 Purpose and applicability. also are part of the approved State ad- The purpose of this part is to require ministered program: that plastic ring carriers be made of (1) The Memorandum of Agreement degradable materials as described in between EPA Region II and the New §§ 238.20 and 238.30. The requirements of Jersey Department of Environmental this part apply to all processors and Protection and Energy, signed by the importers of plastic ring carriers in the EPA Region II Acting Regional Admin- United States as defined in § 238.20. istrator on June 15, 1993. (2) The Memorandum of Agreement § 238.20 Definitions. between the U.S. Army Corps of Engi- For the purpose of this part: neers and the New Jersey Department Percent elongation at break means the of Environmental Protection and En- percent increase in length of the plas- ergy, signed by the Division Engineer tic material caused by a tensile load. on March 4, 1993. Percent elongation at break shall be (3) The Memorandum of Agreement calculated by dividing the extension at between EPA Region II, the New Jer- the moment of rupture of the specimen sey Department of Environmental Pro- by the initial gage length of the speci- tection and Energy, and the U.S. Fish men and multiplying by 100. and Wildlife Service, signed by all par- Processor means the persons or entities on December 22, 1993. ties that produce ring carriers ready (e) Statement of legal authority. The for use as beverage carriers. following documents, although not in- Ring carrier means any plastic ring corporated by reference, also are part carrier device that contains at least of the approved State administered one hole greater than 13⁄4 inches in di- program: ameter which is made, used, or de- (1) Attorney General’s Statement, signed for the purpose of packaging, signed by the Attorney General of New transporting, or carrying multipack- Jersey, as submitted with the request aged cans or bottles. for approval of The State of New Jer- sey’s 404 Program. Subpart B—Requirement (2) The program description and any other materials submitted as part of § 238.30 Requirement. the original application or supplements (a) No processor or person shall man- thereto. ufacture or import, in bulk, ring carriers intended for use in the United [59 FR 9933, Mar. 2, 1994, as amended at 65 FR States unless they are designed and 47325, Aug. 2, 2000; 69 FR 18801, Apr. 9, 2004] manufactured so that the ring carriers degrade to the point of 5 percent elon- PART 238—DEGRADABLE PLASTIC gation at break, when tested in accord- RING CARRIERS ance with ASTM D–3826–91, ‘‘Standard Practice for Determining Degradation Subpart A—General Provisions End Point in Degradable Polyolefins Using a Tensile Test’’, after the ring Sec. carrier is exposed to, either: 238.10 Purpose and applicability. (1) 250 light-hours of UV in accord- 238.20 Definitions. ance with ASTM D–5208–91,’’ Standard Practice for Operating Fluorescent Ul- Subpart B—Requirement traviolet (UV) and Condensation Appa- 238.30 Requirement. ratus for Exposure of Photodegradable Plastics’’, using cycle A; or AUTHORITY: 42 U.S.C. 6914b–1. (2) 35 days, during June and July, to SOURCE: 59 FR 9870, Mar. 1, 1994, unless oth- marine conditions in a location below erwise noted. the latitude 26 degrees North, in continental United States waters.

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(b) The incorporation by reference of Docket Information Center, (5305), U.S. ASTM D–3826–91, ‘‘Standard Practice Environmental Protection Agency for Determining Degradation End Headquarters, 1200 Pennsylvania Ave., Point in Degradable Polyolefins Using NW., Washington, DC 20460 or at the a Tensile Test’’, and ASTM D–5208–91, National Archives and Records Admin- ‘‘Standard Practice for Operating Fluo- istration (NARA). For information on rescent Ultraviolet (UV) and Condensa- the availability of this material at tion Apparatus for Exposure of NARA, call 202–741–6030, or go to: http:// Photodegradable Plastics,’’ was ap- www.archives.gov/federallregister/ proved by the director of the Federal codeloflfederallregulations/ Register in accordance with 5 U.S.C. ibrllocations.html. These materials are 552(a) and 1 CFR part 51. Copies are incorporated as they exist on the date available from the American Society of of the approval and notice of any Testing and Materials, 1916 Race change in these materials will be pub- Street, Philadelphia, PA 19103. Copies lished in the FEDERAL REGISTER. may be inspected at the Resource Con- [59 FR 9870, Mar. 1, 1994, as amended at 65 FR servation and Recovery Act (RCRA) 47325, Aug. 2, 2000; 69 FR 18803, Apr. 9, 2004]

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