Regulatory Guidance Letters Issued by the Corps of Engineers
Federal RegisterMar 14, 1995
Ask Donna
What actually matters in this document.
Text
DEPARTMENT OF DEFENSE
Corps of Engineers
Regulatory Guidance Letters Issued by the Corps of Engineers
agency: U.S. Army Corps of Engineers, DoD.
action: Notice.
-----------------------------------------------------------------------
summary: The purpose of this notice is to provide current Regulatory
Guidance Letters (RGL's) to all interested parties. RGL's are used by
the Corps Headquarters as a means to transmit guidance on the permit
program (33 CFR 320-330) to its division and district engineers (DE's).
Each future RGL will be published in the Notice Section of the Federal
Register as a means to insure the widest dissemination of this
information while reducing costs to the Federal Government. The Corps
no longer maintains a mailing list to furnish copies of the RGL's to
the public.
for further information contact: Mr. Ralph Eppard, Regulatory Branch,
Office of the Chief of Engineers at (202) 272-1783.
supplementary information: RGL's were developed by the Corps of
Engineers as a system to organize and track written guidance issued to
its field agencies. RGL's are normally issued as a result of evolving
policy; judicial decisions and changes to the Corps regulations or
another agency's regulations which affect the permit program. RGL's are
used only to interpret or clarify existing regulatory program policy,
but do provide mandatory guidance to Corps district offices. RGL's are
sequentially numbered and expire on a specified date. However, unless
superseded by specific provisions of subsequently issued regulations or
RGL's, the guidance provided in RGL's generally remains valid after the
expiration date. The Corps incorporates most of the guidance provided
by RGL's whenever it revises its permit regulations. There were two
RGL's issued by the Corps during 1994, and both were published in the
Notice Section of the Federal Register upon issuance. We are hereby
publishing all current RGL's, beginning with RGL 91-1 and ending with
RGL 94-2. We will continue to publish each RGL in the Notice Section of
the Federal Register upon issuance and in early 1996, we will again
publish the complete list of all current RGL's.
Dated: February 6, 1995.
James E. Crews,
Acting Chief, Operations, Construction and Readiness Division,
Directorate of Civil Works.
Regulatory Guidance Letter (RGL 91-1)
RGL 91-1 DATE: Dec 31, 1991 EXPIRES: Dec 31, 1996
SUBJECT: Extensions of Time For Individual Permit Authorizations
1. The purpose of this guidance is to provide clarification for
district and division offices relating to extensions of time for
Department of the Army permits (See 33 CFR 325.6).
2. General: A permittee is informed of the time limit for
completing an authorized activity by General Condition #1 of the
standard permit form (ENG Form 1721). This condition states that a
request for an extension of time should be submitted to the
authorizing official at least one month prior to the expiration
date. This request should be in writing and should explain the basis
of the request. The DE may consider an oral request from the
permittee provided it is followed up with a written request prior to
the expiration date. A request for an extension of time will usually
be granted unless the DE determines that the time extension would be
contrary to the public interest. The one month submittal requirement
is a workload management time limit designed to prevent permittees
from filing last minute time extension requests. Obviously, the one
month period is not sufficient to make a final decision on all time
extension requests that are processed in accordance with 33 CFR
325.2. It should be noted that a permittee may choose to request a
time extension sooner than this (e.g., six months prior to the
expiration date). While there is no formal time limit of this
nature, a request for an extension of time should generally not be
considered by the DE more than one year prior to the expiration
date. A permit will automatically expire if an extension is not
requested and granted prior to the applicable expiration date (See
33 CFR 325.6(d)).
3. Requests for Time Extensions Prior to Expiration: For
requests of time extensions received prior to the expiration date,
the DE should consider the following procedures if a decision on the
request cannot be completed prior to the permit expiration date:
(a) The DE may grant an interim time extension while a final
decision is being made; or
(b) The DE may, when appropriate, suspend the permit at the same
time that an interim time extension is granted, while a final
decision is being made.
4. Requests for Time Extensions After Expiration: A time
extension cannot be granted if a time extension request is received
after the applicable time limit. In such cases, a new permit
application must be processed, if the permittee wishes to pursue the
work. However, the DE may consider expedited processing procedures
when: (1) The request is received shortly (generally 30 days) after
the expiration date, (2) the DE determines that there have been no
substantial changes in the attendant circumstances since the
original authorization was issued, and (3) the DE believes that the
time extension would likely have been granted. Expedited processing
procedures may include, but are not limited to, not requiring that a
new application form be submitted or issuing a 15 day public notice.
5. This guidance expires 31 December 1996 unless sooner revised
or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 92-1)
RGL 92-1 Date: 13 May 1992, Expires: 31 December 1997
Subject: Federal Agencies Roles and Responsibilities.
1. Purpose: The purpose of this guidance is to clarify the Army
Corps of Engineers leadership and decision-making role as ``project
manager'' for the evaluation of permit applications pursuant to
Section 404 of the Clean Water Act (CWA) and Section 10 of the
Rivers and Harbors Act. This guidance is also intended to encourage
effective and efficient coordination among prospective permittees,
the Corps, and the Federal resource agencies (i.e., Environmental
Protection Agency (EPA), Fish and Wildlife Service (FWS), and
National Marine Fisheries Service (NMFS)). Implementation of this
guidance will help to streamline the permit process by minimizing
delays and ensuring more timely decisions, while providing a
meaningful opportunity for substantive input from all Federal
agencies.
2. Background: (a) The Department of the Army Regulatory Program
must operate in an [[Page 13704]] efficient manner in order to
protect the aquatic environment and provide fair, equitable, and
timely decisions to the regulated public. Clear leadership and a
predictable decision-making framework will enhance the public
acceptance of the program and allow the program to meet the
important objective of effectively protecting the Nation's valuable
aquatic resources.
(b) On August 9, 1991, the President announced a comprehensive
plan for improving the protection of the Nation's wetlands. The plan
seeks to balance two important objectives--the protection,
restoration, and creation of wetlands and the need for sustained
economic growth and development. The plan, which is designed to slow
and eventually stop the net loss of wetlands, includes measures that
will improve and streamline the current wetlands regulatory system.
This Regulatory Guidance Letter is issued in accordance with the
President's plan for protecting wetlands.
(c) The intent of this guidance is to express clearly that the
Corps is the decision-maker and project manager for the Department
of Army's Regulatory Program. The Corps will consider, to the
maximum extent possible, all timely, project-related comments from
other Federal agencies when making regulatory decisions.
Furthermore, the Corps and relevant Federal agencies will maintain
and improve as necessary their working relationships.
(d) The Federal resource agencies have reviewed and concurred
with this guidance and have agreed to act in accordance with these
provisions. While this guidance does not restrict or impair the
exercise of legal authorities vested in the Federal resource
agencies or States under the CWA or other statutes and regulations
(e.g., EPA's authority under section 404(c), section 404(f), and CWA
geographic jurisdiction and FWS/NMFS authorities under the Fish and
Wildlife Coordination Act and the Endangered Species Act (ESA)),
agency comments on Department of the Army permit applications must
be consistent with the provisions contained in this regulatory
guidance letter.
3. The Corps Project Management/Decision Making Role: (a) The
Corps is solely responsible for making final permit decisions
pursuant to section 10 and section 404(a), including final
determinations of compliance with the Corps permit regulations, the
Section 404(b)(1) Guidelines, and Section 7(a)(2) of the ESA. As
such, the Corps will act as the project manager for the evaluation
of all permit applications. The Corps will advise potential
applicants of its role as the project manager and decision-maker.
This guidance does not restrict EPA's authority to make
determinations of compliance with the Guidelines in carrying out its
responsibilities under Sections 309 and 404(c) of the Clean Water
Act.
(b) As the project manager, the Corps is responsible for
requesting and evaluating information concerning all permit
applications. The Corps will obtain and utilize this information in
a manner that moves, as rapidly as practical, the regulatory process
towards a final permit decision. The Corps will not evaluate
applications as a project opponent or advocate--but instead will
maintain an objective evaluation, fully considering all relevant
factors.
(c) The Corps will fully consider other Federal agencies'
project-related comments when determining compliance with the
National Environmental Policy Act (NEPA), the Section 404(b)(1)
Guidelines, the ESA, the National Historic Preservation Act, and
other relevant statutes, regulations, and policies. The Corps will
also fully consider the agencies' views when determining whether to
issue the permit, to issue the permit with conditions and/or
mitigation, or to deny the permit.
4. The Federal Resource Agencies' Role: (a) It is recognized
that the Federal resource agencies have an important role in the
Department of the Army Regulatory Program under the CWA, NEPA, ESA,
Magnuson Fisheries Conservation and Management Act, and other
relevant statutes.
(b) When providing comments, Federal resource agencies will
submit to the Corps only substantive, project-related information on
the impacts of activities being evaluated by the Corps and
appropriate and practicable measures to mitigate adverse impacts.
The comments will be submitted within the time frames established in
interagency agreements and regulations. Federal resource agencies
will limit their comments to their respective areas of expertise and
authority to avoid duplication with the Corps and other agencies and
to provide the Corps with a sound basis for making permit decisions.
The Federal resource agencies should not submit comments that
attempt to interpret the Corps regulations or for the purposes of
section 404(a) make determinations concerning compliance with the
Section 404(b)(1) Guidelines. Pursuant to its authority under
Section 404(b)(1) of the CWA, the EPA may provide comments to the
Corps identifying its views regarding compliance with the
Guidelines. While the Corps will fully consider and utilize agency
comments, the final decision regarding the permit application,
including a determination of compliance with the Guidelines, rests
solely with the Corps.
5. Pre-Application Consultation: (a) To provide potential
applicants with the maximum degree of relevant information at an
early phase of project planning, the Corps will increase its efforts
to encourage pre-application consultations in accordance with
regulations at 33 CFR 325.1(b). Furthermore, while encouraging pre-
application consultation, the Corps will emphasize the need for
early consultation concerning mitigation requirements, if impacts to
aquatic resources may occur. The Corps is responsible for
initiating, coordinating, and conducting pre-application
consultations and other discussions and meetings with applicants
regarding Department of the Army permits. This may not apply in
instances where the consultation is associated with the review of a
separate permit or license required from another Federal agency
(e.g., the Federal Energy Regulatory Commission or the Nuclear
Regulatory Commission) or in situations where resource agencies
perform work for others outside the context of a specific Department
of the Army permit application (e.g., the Conservation Reserve
Program and technical assistance to applicants of Federal grants).
(b) For those pre-application consultations involving activities
that may result in impacts to aquatic resources, the Corps will
provide EPA, FWS, NMFS (as appropriate), and other appropriate
Federal and State agencies, a reasonable opportunity to participate
in the pre-application process. The invited agencies will
participate to the maximum extent possible in the pre-application
consultation, since this is generally the best time to consider
alternatives for avoiding or reducing adverse impacts. To the extent
practical, the Corps and the Federal resource agencies will develop
local procedures (e.g., teleconferencing) to promote reasonable and
effective pre-application consultations within the logistical
constraints of all affected parties.
6. Applications for Individual Permits: (a) The Corps is
responsible for determining the need for, and the coordination of,
interagency meetings, requests for information, and other
interactions between permit applicants and the Federal Government.
In this regard, Federal resource agencies will contact the Corps to
discuss and coordinate any additional need for information from the
applicant. The Corps will cooperate with the Federal resource
agencies to ensure, to the extent practical, that information
necessary for the agencies to carry out their responsibilities is
obtained. If it is determined by the Corps that an applicant meeting
is necessary for the exchange of information with a Federal resource
agency and the Corps chooses not to participate in such a meeting,
the Federal resource agency will apprise the Corps, generally in
writing, of that agency's discussions with the applicant.
Notwithstanding such meetings, the Corps is solely responsible for
permit requirements, including mitigation and other conditions--the
Federal resource agencies must not represent their views as
regulatory requirements. In circumstances where the Corps meets with
the applicant and develops information that will affect the permit
decision, the Corps will apprise the Federal resource agencies of
such information.
(b) Consistent with 33 CFR 325, the Corps will ensure that
public notices contain sufficient information to facilitate the
timely submittal of project-specific comments from the Federal
resource agencies. The resource agencies comments will provide
specific information and/or data related to the proposed project
site. The Corps will fully consider comments regarding the site from
a watershed or landscape scale, including an evaluation of potential
cumulative and secondary impacts.
(c) The Corps must consider cumulative impacts in reaching
permit decisions. In addition to the Corps own expertise and
experience, the Corps will fully consider comments from the Federal
resource agencies, which can provide valuable information on
cumulative impacts. Interested Federal agencies are encouraged to
provide periodically to the Corps generic comments and assessments
of impacts (outside the context of a specific permit
[[Page 13705]] application) on issues within the agencies' area of
expertise.
7. General Permits:
(a) The Corps is responsible for proposing potential general
permits, assessing impacts of and comments on proposed general
permits, and deciding whether to issue general permits. The Corps
will consider proposals for general permits from other sources,
including the Federal resource agencies, although the final decision
regarding the need to propose a general permit rests with the Corps.
Other interested Federal agencies should provide comments to the
Corps on proposed general permits. These Federal agency comments
will be submitted consistent with established agreements and
regulations and will focus on the Federal agencies' area(s) of
expertise. The Corps will fully consider such agencies' comments in
deciding whether to issue general permits, including programmatic
general permits.
(b) The Corps is responsible for initiating and conducting
meetings that may be necessary in developing and evaluating
potential general permits. Any discussions with a State or local
Government regarding proposed programmatic general permits will be
coordinated through and conducted by the Corps. Prior to issuing a
programmatic general permit, the Corps will ensure that the State or
local program, by itself or with appropriate conditions, will
protect the aquatic environment, including wetlands, to the level
required by the section 404 program.
8. This guidance expires 31 December 1997 unless sooner revised
or rescinded.
For the Commander:
Arthur E. Williams,
Major General, USA, Director of Civil Works.
Regulatory Guidance Letter (92-2)
RGL 92-2 Date: 26 June 92 Expires: 31 December 95 CECW-OR
Subject: Water Dependency and Cranberry Production
1. Enclosed for implementation is a joint Army Corps of
Engineers/Environmental Protection Agency Memorandum to the Field on
water dependency and cranberry production. This guidance was
developed jointly by the Army Corps of Engineers and the U.S.
Environmental Protection Agency.
2. This guidance will expire 31 December 1995 unless sooner
revised or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Memorandum to the Field
SUBJECT: Water Dependency and Cranberry Production
1. The purpose of this memorandum is to clarify the
applicability of the Section 404(b)(1) Guidelines water dependency
provisions (40 CFR 230.10(a)) to the cultivation of cranberries, in
light of Army Corps of Engineers (Corps) regulations at 33 CFR
323.4(a)(1)(iii)(C)(1) (ii) and (iii), and Environmental Protection
Agency (EPA) regulations at 40 CFR 232.3(d)(3)(i) (B) and (C). These
sections of the Corps and EPA regulations state, among other things,
that cranberries are a wetland crop, and that some discharges
associated with cranberry production are considered exempt from
regulation under the provisions of Section 404(f) of the Clean Water
Act. The characterization of cranberries as a wetland crop has led
to inconsistency in determining if cranberry production is a water
dependent activity as defined in the Section 404(b)(1) Guidelines
(Guidelines).
2. The intent of Corps regulations at 33 CFR 320.4(b) and of the
Guidelines is to avoid the unnecessary destruction or alteration of
waters of the U.S., including wetlands, and to compensate for the
unavoidable loss of such waters. The Guidelines specifically require
that ``no discharge of dredged or fill material shall be permitted
if there is a practicable alternative to the proposed discharge
which would have less adverse impact on the aquatic ecosystem, so
long as the alternative does not have other significant adverse
environmental consequences'' (see 40 CFR 230.10(a)). Based on this
provision, an evaluation is required in every case for use of non-
aquatic areas and other aquatic sites that would result in less
adverse impact to the aquatic ecosystem, irrespective of whether the
discharge site is a special aquatic site or whether the activity
associated with the discharge is water dependent. A permit cannot be
issued, therefore, in circumstances where an environmentally
preferable practicable alternative for the proposed discharge exists
(except as provided for under Section 404(b)(2)).
3. For proposed discharges into wetlands and other ``special
aquatic sites,'' the Guidelines alternatives analysis requirement
further considers whether the activity associated with the proposed
discharge is ``water dependent''. The Guidelines define water
dependency in terms of an activity requiring access or proximity to
or siting within a special aquatic site to fulfill its basic project
purpose. Special aquatic sites (as defined in 40 CFR 230.40-230.45)
are: (1) sanctuaries and refuges; (2) wetlands; (3) mud flats; (4)
vegetated shallows; (5) coral reefs; and (6) riffle and pool
complexes. If an activity is determined not to be water dependent,
the Guidelines establish the following two presumptions (40 CFR
230.10(a)(3)) that the applicant is required to rebut before
satisfying the alternatives analysis requirements:
a. that practicable alternatives that do not involve special
aquatic sites are presumed to be available; and,
b. that all practicable alternatives to the proposed discharge
which do not involve a discharge into a special aquatic site are
presumed to have less adverse impact on the aquatic ecosystem.
It is the responsibility of the applicant to clearly rebut these
presumptions in order to demonstrate compliance with the Guidelines
alternatives test.
4. If an activity is determined to be water dependent, the
rebuttable presumptions stated in paragraph 3 of this memorandum do
not apply. However, the proposed discharge, whether or not it is
associated with a water dependent activity, must represent the least
environmentally damaging practicable alternative in order to comply
with the alternatives analysis requirement of the Guidelines as
described in paragraph 2 of this memorandum.
5. As previously indicated, Corps and EPA regulations consider
cranberries as a wetland crop species. This characterization of
cranberries as a wetland crop species is based primarily on the
listing of cranberries as an obligate hydrophyte in the National
List of Plant Species That Occur in Wetlands (U.S. Fish and Wildlife
Service Biological Report 88 (26.1-26.13)) and the fact that
cranberries must be grown in wetlands or areas altered to create a
wetland environment. Therefore, the Corps and EPA consider the
construction of cranberry beds, including associated dikes and water
control structures associated with dikes (i.e., headgates, weirs,
drop inlet structures), to be a water dependent activity.
Consequently, discharges directly associated with cranberry bed
construction are not subject to the presumptions applicable to non-
water dependent activities discussed in paragraph 3 of this
memorandum. However, consistent with the requirements of Section
230.10(a), the proposed discharge must represent the least
environmentally damaging practicable alternative, after considering
aquatic and non-aquatic alternatives as appropriate. To be
considered practicable, an alternative must be available and capable
of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes. For
commercial cranberry cultivation, practicable alternatives may
include upland sites with proper characteristics for creating the
necessary conditions to grow cranberries. Factors that must be
considered in making a determination of whether or not upland
alternatives are practicable include soil pH, topography, soil
permeability, depth to bedrock, depth to seasonal high water table,
adjacent land uses, water supply, and, for expansion of existing
cranberry operations, proximity to existing cranberry farms. EPA
Regions and Corps Districts are encouraged to work together with
local cranberry growers to refine these factors to reflect their
regional conditions.
6. In contrast, the following activities often associated with
the cultivation and harvesting of cranberries are not considered
water dependent: construction of roads, ditches, reservoirs, and
pump houses that are used during the cultivation of cranberries, and
construction of secondary support facilities for shipping, storage,
packaging, parking, etc. Therefore, the rebuttable practicable
alternatives presumptions discussed in paragraph 3 of this
memorandum apply to the discharges associated with these non-water
dependent activities. However, since determinations of
practicability under the Guidelines includes consideration of cost,
technical, and logistics factors, determining the availability of
practicable alternatives to discharges associated with these non-
water dependent activities must involve consideration of the need of
an alternative to be proximate to the cranberry bed in order to
achieve the basic project purpose of cranberry cultivation.
[[Page 13706]] Once it has been determined that the location of the
cranberry bed, including associated dikes, and water control
structures, represents the least environmentally damaging
practicable alternative, practicable alternatives for maintenance
roads, ditches, reservoirs and pump houses will generally be limited
to the bed itself and the area in the vicinity of the actual bed.
For example, the bed dikes may be the only practicable alternative
for location of maintenance roads. When practicable alternatives
cannot be identified within such geographic constraints, the
applicant must minimize the impacts of the roads, reservoirs, etc.,
to the maximum extent practicable.
7. During review of applications for discharges associated with
cranberry cultivation, it is important to reiterate that proposed
discharges must also comply with the other requirements of the
Guidelines (i.e., 40 CFR 230.10 (b), (c) and (d)). In addition,
evaluations of all discharges, whether or not the proposed discharge
is associated with a water dependent activity, must comply with the
provisions of the National Environmental Policy Act, including an
investigation of alternatives to the proposed discharge. Further,
applications for discharges associated with cranberry cultivation
will continue to be evaluated in accordance with current Corps and
EPA policy and practice concerning mitigation, cumulative impact
analysis, and public interest review factors.
8. This guidance expires 31 December 1995 unless sooner revised
or rescinded.
For the Director of Civil Works:
Robert H. Wayland III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S.
Environmental Protection Agency.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (92-3)
RGL 92-3 DATE: 19 Aug 92 EXPIRES: 31 Dec 97
SUBJECT: Extension of Regulatory Guidance Letter (RGL) 86-10
RGL 86-10, subject: ``Special Area Management Plans (SAMP's)''
is extended until 31 December 1997 unless sooner revised or
rescinded.
For the Director of Civil Works:
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
RGL 86-10
Special Area Management Plans (SAMP's)
Issued 10/2/86 Expired 12/31/88
1. The 1980 Amendments to the Coastal Zone Management Act define
the SAMP process as ``a comprehensive plan providing for natural
resource protection and reasonable coastal-dependent economic growth
containing a detailed and comprehensive statement of policies,
standards and criteria to guide public and private uses of lands and
waters; and mechanisms for timely implementation in specific
geographic areas within the coastal zone.'' This process of
collaborative interagency planning within a geographic area of
special sensitivity is just as applicable in non-coastal areas.
2. A good SAMP reduces the problems associated with the
traditional case-by-case review. Developmental interests can plan
with predictability and environmental interests are assured that
individual and cumulative impacts are analyzed in the context of
broad ecosystem needs.
3. Because SAMP's are very labor intensive, the following
ingredients should usually exist before a district engineer becomes
involved in a SAMP:
a. The area should be environmentally sensitive and under strong
developmental pressure.
b. There should be a sponsoring local agency to ensure that the
plan fully reflects local needs and interests.
c. Ideally there should be full public involvement in the
planning and development process.
d. All parties must express a willingness at the outset to
conclude the SAMP process with a definitive regulatory product (see
next paragraph).
4. An ideal SAMP would conclude with two products: 1)
appropriate local/State approvals and a Corps general permit (GP) or
abbreviated processing procedure (APP) for activities in
specifically defined situations; and 2) a local/State restriction
and/or an Environmental Protection Agency (EPA) 404(c) restriction
(preferably both) for undesirable activities. An individual permit
review may be conducted for activities that do not fall into either
category above. However, it should represent a small number of the
total cases addressed by the SAMP. We recognize that an ideal SAMP
is difficult to achieve, and, therefore, it is intended to represent
an upper limit rather than an absolute requirement.
5. Do not assume that an environmental impact statement is
automatically required to develop a SAMP.
6. EPA's program for advance identification of disposal areas
found at 40 CFR 230.80 can be integrated into a SAMP process.
7. In accordance with this guidance, district engineers are
encouraged to participate in development of SAMP's. However, since
development of a SAMP can require a considerable investment of time,
resources, and money, the SAMP process should be entered only if it
is likely to result in a definitive regulatory product as defined in
paragraph 4. above.
8. This guidance expires 31 December 1988 unless sooner revised
or rescinded.
For the Chief of Engineers:
Peter J. Offringa,
Brigadier General, USA, Deputy Director of Civil Works.
Regulatory Guidance Letter (RGL-92-4)
RGL 92-4 DATE: 14 Sep 1992 EXPIRES: 21 Jan 1997
SUBJECT: Section 401 Water Quality Certification and Coastal Zone
Management Act Conditions for Nationwide Permits
1. The purpose of this Regulatory Guidance Letter (RGL) is to
provide additional guidance and clarification for divisions and
districts involved in developing acceptable conditions under the
Section 401 Water Quality Certifications and Coastal Zone Management
Act (CZM) concurrences for the Nationwide Permit (NWP) Program. This
RGL represents a clarification of 330.4(c) (2) and (3) and 330.4(d)
(2) and (3), concerning when NWP Section 401 and CZM conditions
should not be accepted and thus treated as a denial without
prejudice. The principles contained in this RGL also apply to 401
certification and CZM concurrence conditions associated with
individual permits and regional general permits.
2. Corps divisions and districts should work closely and
cooperatively with the States to develop reasonable 401 and CZM
conditions. All involved parties should participate in achieving the
purpose of the NWP program, which is to provide the public with an
expeditious permitting process while, at the same time, safeguarding
the environment by only authorizing activities which result in no
more than minimal individual and cumulative adverse effects. When a
State certifying agency or CZM agency proposes conditions, the
division engineer is responsible for determining whether 401 Water
Quality Certification or CZM concurrence conditions are acceptable
and comply with the provisions of 33 CFR 325.4. In most cases it is
expected that the conditions will be acceptable and the division
engineer shall recognize these conditions as regional conditions of
the NWP's.
3. Unacceptable Conditions: There will be cases when certain
conditions will clearly be unacceptable and those conditioned 401
certifications or CZM concurrences shall be considered
administratively denied. Consequently, authorization for an activity
which meets the terms and conditions of such NWP(s) is denied
without prejudice.
a. Illegal conditions are clearly unacceptable. Illegal
conditions would result in violation of a law or regulation, or
would require an illegal action. For example, a condition which
would require an applicant to obtain a 401 certification or CZM
concurrence, where the State has previously denied certification or
concurrence, prior to submitting a predischarge notification (PDN)
to the Corps in accordance with PDN procedures, would violate the
Corps regulation at 33 CFR 330.4(c)(6). Another example would be a
case where an applicant would be required, through a condition, to
apply for an individual Department of the Army permit. Another
example is a requirement by the State agency to utilize the 1989
Federal Wetland Delineation Manual to establish jurisdiction.
b. As a general rule, a condition that would require the Corps
or another Federal agency to take an action which we would not
otherwise take and do not choose to take, would be clearly
unacceptable. For example, where the certification or concurrence is
conditioned to require a PDN, where the proposed activity did not
previously require a PDN, the Corps should not accept that
condition, since implicitly the Corps would [[Page 13707]] have to
accept and utilize the PDN. Another example would be a situation
where the U.S. Fish and Wildlife Service is required, through a
condition, to provide any type of formal review or approval.
c. Section 401 or CZM conditions which provide for limits
(quantities, dimensions, etc.) different from those imposed by the
NWP do not change the NWP limits.
1. Higher limits are clearly not acceptable. For example,
increasing NWP 18 for minor discharges from 10 to 50 cubic yards
would not be acceptable. Such conditions would confuse the regulated
public and could contribute to violations.
2. Lower limits are acceptable but have the effect of denial
without prejudice of those activities that are higher than the
Section 401 or CZM condition limit but within the NWP limit. Thus,
if an applicant obtains an individual 401 water quality
certification and/or CZM concurrence for work within the limits of
an NWP where the State had denied certification and/or CZM
concurrence, then the activity could be authorized by the NWP.
d. A condition which would delete, modify, or reduce NWP
conditions would be clearly unacceptable.
4. Discretionary Enforcement: The initiation of enforcement
actions by the Corps, whether directed at unauthorized activities or
to ensure compliance with permit conditions, is discretionary. The
district engineer will consider the following situations when
determining whether to enforce 401 and/or CZM conditions.
a. Unenforceable Conditions--Some conditions that a State may
propose will not be reasonably enforceable by the Corps (e.g., a
condition requiring compliance with the specific terms of another
State permit). Provided such conditions do not violate paragraph 3
above, the conditions will be accepted by the Corps as regionally
conditions. However, limited Corps resources should not be utilized
in an attempt to enforce compliance with 401 or CZM conditions which
the district engineer believes to be essentially unenforceable, or
of low enforcement priority for limited Corps resources.
b. Enforceable Conditions--Some other conditions proposed by a
State may be considered enforceable, (e.g., a condition requiring
the applicant to obtain another State permit), but of law priority
for Federal enforcement, since the Federal Government would not have
required those conditions but for the State's requirement.
Furthermore, the Corps will generally not enforce such State-imposed
conditions except in very unusual cases, due to our limited
personnel and financial resources.
5. NWP Verification and PDN Responses: In response to NWP
verification requests and PDN's, district engineers should utilize
the same paragraphs presented below. This language should be used
where conditional 401 certification or CZM concurrence has been
issued. This specifically addresses situations when the conditions
included with the certification or concurrence are such that the
district engineer determines they are unenforceable or the district
engineer cannot clearly determine compliance with the 401/CZM
conditions (see 4.a.).
``Based on our review of your proposal to [describe proposal],
we have determined that the activity qualifies for the nationwide
permit authorization [insert NWP No(s.)], subject to the terms and
conditions of the permit.
[Insert paragraph on any Corps required activity-specific
conditions].
Enclosed you will find a copy of the Section 401 Water Quality
Certification and/or Coastal Zone Management special conditions,
which are conditions of your authorization under Nationwide Permit
[insert NWP No(s.)]. If you have questions concerning compliance
with the conditions of the 401 certification or Coastal Zone
Management concurrence, you should contact the [insert appropriate
State agency].
If you do not or cannot comply with these State Section 401
certification conditions and/or CZM conditions, then in order to be
authorized by this Nationwide Permit, you must furnish this office
with an individual 401 certification or Coastal Zone Management
concurrence from [insert appropriate State agency], or a copy of the
application to the State for such certification or concurrence,
[insert ``60 days'' for Section 401 water quality certification,
unless another reasonable period of time has been determined
pursuant to 33 CFR 330.4(c)(6), or insert ``six months'' for CZM
concurrence] after you submit it to the State agency.''
6. This guidance expires 21 January 1997 unless sooner revised
or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 92-5)
RGL 92-5 Date: 29 October 1992, Expires: 31 December 1997
Subject: Alternatives Analysis Under the Section 404(b)(1)
Guidelines for Projects Subject to Modification Under the Clean Air
Act.
1. Enclosed for implementation is a joint Army Corps of
Engineers/Environmental Protection Agency Memorandum to the Field on
alternatives analysis for existing power plants that must be
modified to meet requirements of the 1990 Clean Air Act. This
guidance was developed jointly by the Corps and EPA.
2. This guidance expires 31 December 1997 unless sooner revised
or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Encl
EPA/Corps Joint Memorandum for the Field
Subject: Alternatives Analysis under the Section 404(b)(1)
Guidelines for Projects Subject to Modification Under the Clean Air
Act.
1. The 1990 Clean Air Act (CAA) amendments require most electric
generating plants to reduce emissions of sulfur dioxide in phases
beginning in 1995 and requiring full compliance by 2010. The
congressional endorsement of the industry's ability to select the
most effective compliance method (e.g., sulfur dioxide scrubbers,
low sulfur coal, or other methods) recognizes the expertise of the
industry in these cases and is a fundamental element in the CAA
market-based pollution control program. Given the need for cooling
water, a substantial number of electric power generating plants are
located adjacent, or in close proximity, to waters of the United
States, including wetlands. Depending on the method chosen by the
plants to reduce emissions, we expect that these facilities will be
applying for Clean Water Act Section 404 permits for certain
proposed activities.
2. The analysis and regulation under Section 404 of the Clean
Water Act of activities in waters of the United States conducted by
specific power plants to comply with the 1990 Clean Air Act
amendments must ensure protection of the aquatic environment
consistent with the requirements of the Clean Water Act. The review
of applications for such projects will fully consider, consistent
with requirements under the Section 404(b)(1) Guidelines, all
practicable alternatives including non-aquatic alternatives, for
proposed discharges associated with the method selected by the
utility to comply with the 1990 Clean Air Act amendments. For the
purposes of the Section 404(b)(1) Guidelines analysis, the project
purpose will be that pollutant reduction method selected by the
permit applicant.
3. For example, a utility may have decided to install sulfur
dioxide scrubbers on an existing power plant in order to meet the
new 1990 Clean Air Act standards. The proposed construction of the
scrubbers, treatment ponds and a barge unloading facility could
impact wetlands. In this case, the Section 404 review would evaluate
practicable alternative locations and configurations for the
scrubbers, ponds and of the docking facilities. The analysis will
also consider practicable alternatives which satisfy the project
purpose (i.e., installing scrubbers) but which have a less adverse
impact on the aquatic environment or do not involve discharges into
waters of the United States. However, in order to best effectuate
Congressional intent reflected in the CAA that electric utilities
retain flexibility to reduce sulfur dioxide emissions in the most
cost effective manner, the Section 404 review should not evaluate
alternative methods of complying with the Clean Air Act standards
not selected by the applicant (e.g., in this example use of low
sulfur coal).
4. In evaluating the scope of practicable alternatives which
satisfy the project purpose (e.g., constructing additional scrubber
capacity), the alternatives analysis should not be influenced by the
possibility that, based on a conclusion that practicable upland
alternatives are available to the applicant, the project proponent
may decide to pursue other options for meeting Clean Air Act
requirements. Continuing the above example, a Corps determination
that practicable upland alternatives are available for scrubber
waste disposal should not be affected by the possibility that an
applicant may subsequently decide to select a different method for
meeting the Clean Air Act [[Page 13708]] standards (e.g., use of low
sulfur coal that reduces waste generated by scrubbers).
5. The Corps and EPA will also recognize the tight time-frames
under which the industry must meet these new air quality standards.
Robert H. Wayland,
Director, Office of Wetlands, Oceans and Watersheds.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 93-1)
RGL 93-1 Issued: April 20, 1993, Expires: December 31, 1998
CECW-OR
Subject: Provisional Permits
1. Purpose: The purpose of this guidance is to establish a
process that clarifies for applicants when the U.S. Army Corps of
Engineers has completed its evaluation and at what point the
applicant should contact the State concerning the status of the
Section 401 Water Quality Certification and/or Coastal Zone
Management (CZM) consistency concurrence. This process also allows
for more accurate measurement of the total length of time spent by
the Corps in evaluating permit applications (i.e., from receipt of a
complete application until the Corps reaches a permit decision). For
verification of authorization of activities under regional general
permits, the Corps will use the appropriate nationwide permit
procedures at 33 CFR 330.6.
2. Background: a. A Department of the Army permit involving a
discharge of dredged or fill material cannot be issued until a State
Section 401 Water Quality Certification has been issued or waived.
Also, a Department of the Army permit cannot be issued for an
activity within a State with a federally-approved Coastal Management
Program when that activity that would occur within, or outside, a
State's coastal zone will affect land or water uses or natural
resources of the State's coastal zone, until the State concurs with
the applicant's consistency determination, or concurrence is
presumed. In many cases, the Corps completes its review before the
State Section 401 Water Quality Certification or CZM concurrence
requirements have been satisfied. In such cases, applicants and the
public are often confused regarding who to deal with regarding
resolution of any State issues.
b. The ``provisional permit'' procedures described below will
facilitate a formal communication between the Corps and the
applicant to clearly indicate that the applicant should be in
contact with the appropriate State agencies to satisfy the State 401
Water Quality Certification or CZM concurrence requirements. In
addition, the procedures will allow for a more accurate measurement
of the Corps permit evaluation time.
3. Provisional Permit Procedures: The provisional permit
procedures are optional and may only be used in those cases where:
(i) The District Engineer (DE) has made a provisional individual
permit decision that an individual permit should be issued, and,
(ii) the only action(s) preventing the issuance of that permit is
that the State has not issued a required Section 401 Water Quality
Certification (or waiver has not occurred) or the State has not
concurred in the applicant's CZM consistency determination (or there
is not a presumed concurrence). In such cases, the DE may, using
these optional procedures, send a provisional permit to the
applicant.
a. First, the DE will prepare and sign the provisional permit
decision document. Then the provisional permit will be sent to the
applicant by transmittal letter. (The sample transmittal letter at
enclosure 1 contains the minimum information that must be provided.)
b. Next, the applicant would obtain the Section 401 Water
Quality Certification (or waiver) and/or CZM consistency concurrence
(or presumed concurrence). Then the applicant would sign the
provisional permit and return it to the DE along with the
appropriate fee and the Section 401 Water Quality Certification (or
proof of waiver) and/or the CZM consistency concurrence (or proof of
presumed concurrence).
c. Finally, the Corps would attach any Section 401 Water Quality
Certification and/or CZM consistency concurrence to the provisional
permit, then sign the provisional permit (which then becomes the
issued final permit), and forward the permit to the applicant.
d. This is the same basic process as the normal standard permit
transmittal process except that the applicant is sent an unsigned
permit (i.e., a provisional permit) prior to obtaining the Section
401 Water Quality Certification (or waiver) and/or CZM consistency
concurrence (or presumed concurrence). (See enclosure 2.) A permit
can not be issued (i.e., signed by the Corps) until the Section 401
and CZM requirements are satisfied.
4. Provisional Permit: A provisional permit is a standard permit
document with a cover sheet. The cover sheet must clearly indicate
the following: that a provisional permit is enclosed, that the
applicant must obtain the Section 401 Water Quality Certification or
CZM concurrence from the State, that these documents must be sent to
the Corps along with the provisional permit signed by the applicant,
and that the Corps will issue the permit upon receipt of these
materials. The issued permit is the provisional permit signed by the
applicant and the Corps. The provisional permit must contain a
statement indicating that the applicant is required to comply with
the Section 401 Water Quality Certification, including any
conditions, and/or the CZM consistency concurrence, including any
conditions. At enclosure 3 is a sample cover sheet for the
provisional permit.
5. Provisional Permit Decision: The DE may reach a final
decision that a permit should be issued provided that the State
issues a Section 401 Water Quality Certification and/or a CZM
concurrence. In order to reach such a decision the DE must complete
the normal standard permit evaluation process, prepare and sign a
decision document, and prepare a standard permit, including any
conditions or mitigation (i.e., a provisional permit). The decision
document must include a statement that the DE has determined that
the permit will be issued if the State issues a Section 401 Water
Quality Certification or waiver and/or a CZM concurrence, or
presumed concurrence. The standard permit will not contain a
condition that requires or provides for the applicant to obtain a
Section 401 Water Quality Certification and/or CZM concurrence. Once
the decision document is signed, the applicant has the right to a DA
permit if the State issues a Section 401 Water Quality Certification
or waiver and/or a CZM concurrence, or if concurrence is presumed.
Once the decision document is signed, the permittee's right to
proceed can only be changed by using the modification, suspension
and revocation procedures of 33 CFR 325.7, unless the State denies
the Section 401 Water Quality Certification or nonconcurs with the
applicant's CZM consistency determination.
6. Enforcement: In some cases, applicants might proceed with the
project upon receipt of the provisional permit. The provisional
permit is not a valid permit. In such cases, the Corps has a
discretionary enforcement action to consider and should proceed as
the DE determines to be appropriate. This occurs on occasion during
the standard permit transmittal process. Since the Corps is not
changing the normal process of sending unsigned permits to the
applicant for signature, there should not be an increase in the
occurrence of such unauthorized activities.
7. Modification: a. In most cases the Section 401 Water Quality
Certification, including conditions, and/or CZM consistency
concurrence, including conditions, will be consistent with the
provisional permit. In such cases, the DE will simply sign the final
permit and enclose the 401 water quality certification and/or CZM
consistency concurrence with the final permit (i.e., the signed
provisional permit).
b. In a few cases such State approval may necessitate
modifications to the Corps preliminary permit decision. Such
modifications will be processed in accordance with 33 CFR 325.7.
(1) When the modifications are minor and the DE agrees to such
modifications, then a supplement to the provisional decision
document may be prepared, as appropriate, and the permit issued with
such modifications. (This should usually be done by enclosing the
State 401 Water Quality Certification and/or CZM consistency
concurrence to the permit, but in a few cases may require a revision
to the permit document itself.)
(2) When the modification results in substantial change or
measurable increase in adverse impacts or the Corps does not
initially agree with the change, then the modification will be
processed and counted as a separate permit action for reporting
purposes. This may require a new public notice or additional
coordination with appropriate Federal and/or state agencies. The
provisional decision document will be supplemented or may be
completely rewritten, as necessary.
8. Denial: If the State denies the Section 401 Water Quality
Certification and/or the State nonconcurs with the applicant's CZM
[[Page 13709]] consistency determination, then the Corps permit is
denied without prejudice.
9. This guidance expires 31 December 1998 unless sooner revised
or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
3 Encls
Sample Provisional Permit Transmittal Letter
Dear ____________________: We have completed our review of your
permit application identified as [File No., appl. name, etc.] for
the following proposed work:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
near/in/at ____________________.---------------------------------------
Enclosed is a ``PROVISIONAL PERMIT.'' The provisional permit is
NOT VALID and does not authorize you to do your work. The
provisional permit describes the work that will be authorized, and
the General and Special Conditions [if any] which will be placed on
your final Department of the Army (DA) permit, if the State of
____________________ Water Quality Certification and/or Coastal Zone
Management (CZM) consistency requirements are satisfied as described
below. No work is to be performed in the waterway or adjacent
wetlands until you have received a validated copy of the DA permit.
By Federal law no DA permit can be issued until a State Section
401 Water Quality Certification has been issued or has been waived
and/or the State has concurred with a permit applicant's CZM
consistency determination or concurrence has been presumed. As of
this date the [State 401 certification agency] has not issued a
Section 401 Water Quality Certification for your proposed work. If
the [State 401 certification agency] fails or refuses to act by
[date 401 certification must be issued] the Section 401 Water
Quality Certification requirement will be automatically waived.
Also, as of this date the [State CZM agency] has not concurred with
your CZM consistency determination. If the State does not act by
[six months from receipt by the State of the applicant's CZM
consistency determination] then concurrence with your CZM
consistency determination will automatically be presumed.
Conditions of the State Section 401 Water Quality Certification
and/or the State CZM concurrence will become conditions to the final
DA permit. Should the State's action on the required certification
or concurrence preclude validation of the provisional permit in its
current form, a modification to the provisional permit will be
evaluated and you will be notified as appropriate. Substantial
changes may require a new permit evaluation process, including
issuing a new public notice.
Enclosure 1
Final Permit Actions
Normal Permit Process
1. Corps completes permit decision, and state 401/CZM issued/waived
2. Corps sends unsigned permit to applicant
3. Applicant signs permit and returns with fee
4. Corps signs permit
Draft Permit Process
1. Corps completes permit decision, but state 401/CZM not complete
2. Corps sends draft permit to applicant
3. State 401/CZM issued waived
4. Applicant signs permit and returns with fee and 401/CZM action
5. Corps reviews 401/CZM action and signs permit
1. The signed draft permit with the attached 401/CZM action is
to be treated as the applicant's request for a permit subject to any
401/CZM certification/concurrence including any conditions.
2. If the 401/CZM action results in a modification to the draft
permit, then step 4. would be treated as a request for such
modification and if we agree with the modification, then the permit
would be issued with the modification and the decision document
supplemented, as appropriate. If the Corps does not initially agree
with the modification, or it involves a substantial change or
measurable increase in adverse impacts, then the modification would
be processed as a separate permit action for reporting purposes.
Enclosure 2
Once the State has issued the required Section 401 Water Quality
Certification and/or concurred with your CZM consistency
determination or the dates above have passed without the State
acting, and you agree to the terms and conditions of the provisional
permit, you should sign and date both copies and return them to us
[along with your $100.00/$10.00 permit fee]. Your DA permit will not
be valid until we have returned a copy to you bearing both your
signature and the signature of the appropriate Corps official.
If the State denies the required Section 401 Water Quality
Certification and/or nonconcurs with your CZM consistency
determination, then the DA permit is denied without prejudice. If
you should subsequently obtain a Section 401 Water Quality
Certification and/or a CZM consistency determination concurrence,
you should contact this office to determine how to proceed with your
permit application.
If you have any questions concerning your State Section 401
Water Quality Certification, please contact (State 401 certification
contact)
If you have any questions concerning the CZM consistency
determination, please contact (State CZM contact)
If you have any other questions concerning your application for
a DA permit, please contact [Corps contact] at [Corps contact
telephone number].
Provisional Permit--Not Valid--Do Not Begin Work
This PROVISIONAL PERMIT is NOT VALID until:
(1) You obtain: ______ a Section 401 Water Quality Certification
from State Agency).
______ a Coastal Zone Consistency determination concurrence from
(State Agency).
(2) You sign and return the enclosed provisional permit with the
State Section 401 Water Quality Certification and/or CZM concurrence
and the appropriate permit fee as indicated below:
______ $10.00 ______ $100.00 ______ No fee required.
(3) The Corps signs the permit and returns it to you. Your
permit is denied without prejudice, if the State denies your Section
401 Water Quality Certification and/or nonconcurs with your Coastal
Zone Management consistency determination.
Do Not Begin Work
Regulatory Guidance Letter, (RGL 93-2)
RGL 93-2 Date: 23 August 1993, Expires: 31 December 1998
Subject: Guidance on Flexibility of the 404(b)(1) Guidelines and
Mitigation Banking.
1. Enclosed are two guidance documents signed by the Office of
the Assistant Secretary of the Army (Civil Works) and the
Environmental Protection Agency. The first document provides
guidance on the flexibility that the U.S. Army Corps of Engineers
should be utilizing when making determinations of compliance with
the Section 404(b)(1) Guidelines, particularly with regard to the
alternatives analysis. The second document provides guidance on the
use of mitigation banks as a means of providing compensatory
mitigation for Corps regulatory decisions.
2. Both enclosed guidance documents should be implemented
immediately. These guidance documents constitute an important aspect
of the President's plan for protecting the Nation's wetlands,
``Protecting America's Wetlands: A Fair, Flexible and Effective
Approach'' (published on 24 August 1993).
3. This guidance expires 31 December 1998 unless sooner revised
or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
2 Encls
Memorandum to the Field
Subject: Appropriate Level of Analysis Required for Evaluating
Compliance With the Section 404(b)(1) Guidelines Alternatives
Requirements
1. Purpose: The purpose of this memorandum is to clarify the
appropriate level of analysis required for evaluating compliance
with the Clean Water Act Section 404(b)(1) Guidelines' (Guidelines)
requirements for consideration of alternatives. 40 CFR 230.10(a).
Specifically, this memorandum describes the flexibility afforded by
the Guidelines to make [[Page 13710]] regulatory decisions based on
the relative severity of the environmental impact of proposed
discharges of dredged or fill material into waters of the United
States.
2. Background: The Guidelines are the substantive environmental
standards by which all Section 404 permit applications are
evaluated. The Guidelines, which are binding regulations, were
published by the Environmental Protection Agency at 40 CFR Part 230
on December 24, 1980. The fundamental precept of the Guidelines is
that discharges of dredged or fill material into waters of the
United States, including wetlands, should not occur unless it can be
demonstrated that such discharges, either individually of
cumulatively, will not result in unacceptable adverse effects on the
aquatic ecosystem. The Guidelines specifically require that ``no
discharge of dredged or fill material shall be permitted if there is
a practicable alternative to the proposed discharge which would have
less adverse impact on the aquatic ecosystem, so long as the
alternative does not have other significant adverse environmental
consequences.'' 40 CFR 230.10(a). Based on this provision, the
applicant is required in every case (irrespective of whether the
discharge site is a special aquatic site or whether the activity
associated with the discharge is water dependent) to evaluate
opportunities for use of non-aquatic areas and other aquatic sites
that would result in less adverse impact on the aquatic ecosystem. A
permit cannot be issued, therefore, in circumstances where a less
environmentally damaging practicable alternative for the proposed
discharge exists (except as provided for under Section 404(b)(2)).
3. Discussion: The Guidelines are, as noted above, binding
regulations. It is important to recognize, however, that this
regulatory status does not limit the inherent flexibility provided
in the Guidelines for implementing these provisions. The preamble to
the Guidelines is very clear in this regard:
Of course, as the regulation itself makes clear, a certain
amount of flexibility is still intended. For example, while the
ultimate conditions of compliance are ``regulatory'', the Guidelines
allow some room for judgment in determining what must be done to
arrive at a conclusion that those conditions have or have not been
met.
Guidelines Preamble, ``Regulation versus Guidelines'', 45
Federal Register 85336 (December 24, 1980).
Notwithstanding this flexibility, the record must contain
sufficient information to demonstrate that the proposed discharge
complies with the requirements of Section 230.10(a) of the
Guidelines. The amount of information needed to make such a
determination and the level of scrutiny required by the Guidelines
is commensurate with the severity of the environmental impact (as
determined by the functions of the aquatic resource and the nature
of the proposed activity) and the scope/cost of the project.
a. Analysis Associated With Minor Impacts
The Guidelines do not contemplate that the same intensity of
analysis will be required for all types of projects but instead
envision a correlation between the scope of the evaluation and the
potential extent of adverse impacts on the aquatic environment. The
introduction to Section 230.10(a) recognizes that the level of
analysis required may vary with the nature and complexity of each
individual case:
Although all requirements in Sec. 230.10 must be met, the
compliance evaluation procedures will vary to reflect the
seriousness of the potential for adverse impacts on the aquatic
ecosystems posed by specific dredged or fill material discharge
activities.
40 CFR 230.10
Similarly, Section 230.6 (``Adaptability'') makes clear that the
Guidelines: allow evaluation and documentation for a variety of
activities, ranging from those with large, complex impacts on the
aquatic environment to those for which the impact is likely to be
innocuous. It is unlikely that the Guidelines will apply in their
entirety to any one activity, no matter how complex. It is
anticipated that substantial numbers of permit applications will be
for minor, routine activities that have little, if any, potential
for significant degradation of the aquatic environment. It generally
is not intended or expected that extensive testing, evaluation or
analysis will be needed to make findings of compliance in such
routine cases.
40 CFR 230.6(9) (emphasis added)
Section 230.6 also emphasizes that when making determinations of
compliance with the Guidelines, users: must recognize the different
levels of effort that should be associated with varying degrees of
impact and require or prepare commensurate documentation. The level
of documentation should reflect the significance and complexity of
the discharge activity.
40 CFR 230.6(b) (emphasis added)
Consequently, the Guidelines clearly afford flexibility to
adjust the stringency of the alternatives review for projects that
would have only minor impacts. Minor impacts are associated with
activities that generally would have little potential to degrade the
aquatic environment and include one, and frequently more, of the
following characteristics: Are located in aquatic resources of
limited natural function; are small in size and cause little direct
impact; have little potential for secondary or cumulative impacts;
or cause only temporary impacts. It is important to recognize,
however, that in some circumstances even small or temporary fills
result in substantial impacts, and that in such cases a more
detailed evaluation is necessary. The Corps Districts and EPA
Regions will, through the standard permit evaluation process,
coordinate with the U.S. Fish and Wildlife Service, National Marine
Fisheries Service and other appropriate state and Federal agencies
in evaluating the likelihood that adverse impacts would result from
a particular proposal. It is not appropriate to consider
compensatory mitigation in determining whether a proposed discharge
will cause only minor impacts for purposes of the alternatives
analysis required by Section 230.10(a).
In reviewing projects that have the potential for only minor
impacts on the aquatic environment, Corps and EPA field offices are
directed to consider, in coordination with state and Federal
resource agencies, the following factors:
(i) Such projects by their nature should not cause or contribute
to significant degradation individually or cumulatively. Therefore,
it generally should not be necessary to conduct or require detailed
analyses to determine compliance with Section 230.10(c).
(ii) Although sufficient information must be developed to
determine whether the proposed activity is in fact the least
damaging practicable alternative, the Guidelines do not require an
elaborate search for practicable alternatives if it is reasonably
anticipated that there are only minor differences between the
environmental impacts of the proposed activity and potentially
practicable alternatives. This decision will be made after
consideration of resource agency comments on the proposed project.
It often makes sense to examine first whether potential alternatives
would result in no identifiable or discernible difference in impact
on the aquatic ecosystem. Those alternatives that do not may be
eliminated from the analysis since Section 230.10(a) of the
Guidelines only prohibits discharges when a practicable alternative
exists which would have less adverse impact on the aquatic
ecosystem. Because evaluating practicability is generally the more
difficult aspect of the alternatives analysis, this approach should
save time and effort for both the applicant and the regulatory
agencies.\1\ By initially focusing the alternatives analysis on the
question of impacts on the aquatic ecosystem, it may be possible to
limit (or in some instances eliminate altogether) the number of
alternatives that have to be evaluated for practicability.
\1\In certain instances, however, it may be easier to examine
practicability first. Some projects may be so site-specific (e.g.,
erosion control, bridge replacement) that no off site alternative
could be practicable. In such cases the alternatives analysis may
appropriately be limited to onsite options only.
---------------------------------------------------------------------------
(iii) When it is determined that there is no identifiable or
discernible difference in adverse impact on the environment between
the applicant's proposed alternative and all other practicable
alternatives, then the applicant's alternative is considered as
satisfying the requirements of
40 CFR 230.(a).
(iv) Even where a practicable alternative exists that would have
less adverse impact on the aquatic ecosystem, the Guidelines allow
it to be rejected if it would have ``other significant adverse
environmental consequences.'' 40 CFR 230.10(a). As explained in the
preamble, this allows for consideration of ``evidence of damages to
other ecosystems in deciding whether there is a `better'
alternative.'' Hence, in applying the alternatives analysis required
by the Guidelines, it is not appropriate to select an alternative
where minor impacts on the aquatic environment are avoided at the
cost of substantial impacts to other natural environmental values.
(v) In cases of negligible or trivial impacts (e.g., small
discharges to construct individual driveways), it may be possible to
conclude that no alternative location could result in
[[Page 13711]] less adverse impact on the aquatic environment within
the meaning of the Guidelines. In such cases, it may not be
necessary to conduct an offsite alternatives analysis but instead
require only any practicable onsite minimization.
This guidance concerns application of the Section 404(b)(1)
Guidelines to projects with minor impacts. Projects which may cause
more than minor impacts on the aquatic environment, either
individually or cumulatively, should be subjected to a
proportionately more detailed level of analysis to determine
compliance or noncompliance with the Guidelines. Projects which
cause substantial impacts, in particular, must be thoroughly
evaluated through the standard permit evaluation process to
determine compliance with all provisions of the Guidelines.
b. Relationship Between the Scope of Analysis and the Scope/Cost of
the Proposed Project
The Guidelines provide the Corps and EPA with discretion for
determining the necessary level of analysis to support a conclusion
as to whether or not an alternative is practicable. Practicable
alternatives are those alternatives that are ``available and capable
of being done after taking into consideration cost, existing
technology, and logistics in light of overall project purposes.'' 40
CFR 230.10(a)(2). The preamble to the Guidelines provides
clarification on how cost is to be considered in the determination
of practicability:
Our intent is to consider those alternatives which are
reasonable in terms of the overall scope/cost of the proposed
project. The term economic [for which the term ``cost'' was
substituted in the final rule] might be construed to include
consideration of the applicant's financial standing, or investment,
or market share, a cumbersome inquiry which is not necessarily
material to the objectives of the Guidelines.
Guidelines Preamble, ``Alternatives'', 45 FR 85339 (December 24,
1980) (emphasis added).
Therefore, the level of analysis required for determining which
alternatives are practicable will vary depending on the type of
project proposed. The determination of what constitutes an
unreasonable expense should generally consider whether the project
cost is substantially greater than the costs normally associated
with the particular type of project. Generally, as the scope/cost of
the project increases, the level of analysis should also increase.
To the extent the Corps obtains information on the costs associated
with the project, such information may be considered when making a
determination of what constitutes an unreasonable expense.
The preamble to the Guidelines also states that ``[i]f an
alleged alternative is unreasonably expensive to the applicant, the
alternative is not `practicable.''' Guidelines Preamble, ``Economic
Factors'', 45 FR 85343 (December 24, 1980). Therefore, to the extent
that individual homeowners and small businesses may typically be
associated with small projects with minor impacts, the nature of the
applicant may also be a relevant consideration in determining what
constitutes a practicable alternative. It is important to emphasize,
however, that it is not a particular applicant's financial standing
that is the primary consideration for determining practicability,
but rather characteristics of the project and what constitutes a
reasonable expense for these projects that are most relevant to
practicability determinations.
4. The burden of proof to demonstrate compliance with the
Guidelines rests with the applicant; where insufficient information
is provided to determine compliance, the Guidelines require that no
permit be issued. 40 CFR 230.12(a)(3)(iv).
5. A reasonable, common sense approach in applying the
requirements of the Guidelines' alternatives analysis is fully
consistent with sound environmental protection. The Guidelines
clearly contemplate that reasonable discretion should be applied
based on the nature of the aquatic resources and potential impacts
of a proposed activity in determining compliance with the
alternatives test. Such an approach encourages effective
decisionmaking and fosters a better understanding and enhanced
confidence in the Section 404 program.
6. This guidance is consistent with the February 6, 1990
``Memorandum of Agreement Between the Environmental Protection
Agency and the Department of the Army Concerning the Determination
of Mitigation under the Clean Water Act Section 404(b)(1)
Guidelines.''
Signed 8-23-93
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S.
Environmental Protection Agency.
Signed 8-23-93
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department
of the Army.
Memorandum to the Field
Subject: Establishment and Use of Wetland Mitigation Banks in the Clean
Water Act Section 404 Regulatory Program
1. This memorandum provides general guidelines for the
establishment and use of wetland mitigation banks in the Clean Water
Act Section 404 regulatory program. This memorandum serves as
interim guidance pending completion of Phase I by the Corps of
Engineers' Institute for Water Resources study on wetland mitigation
banking,\2\ at which time this guidance will be reviewed and any
appropriate revisions will be incorporated into final guidelines.
\2\The Corps of Engineers Institute for Water Resources, under
the authority of Section 307(d) of the Water Resources Development
Act of 1990, is undertaking a comprehensive two-year review and
evaluation of wetland mitigation banking to assist in the
development of a national policy on this issue. The interim summary
report documenting the results of the first phase of the study is
scheduled for completion in the fall of 1993.
---------------------------------------------------------------------------
2. For purposes of this guidance, wetland mitigation banking
refers to the restoration, creation, enhancement, and, in
exceptional circumstances, preservation of wetlands or other aquatic
habitats expressly for the purpose of providing compensatory
mitigation in advance of discharges into wetlands permitted under
the Section 404 regulatory program. Wetland mitigation banks can
have several advantages over individual mitigation projects, some of
which are listed below:
(a) Compensatory mitigation can be implemented and functioning
in advance of project impacts, thereby reducing temporal losses of
wetland functions and uncertainty over whether the mitigation will
be successful in offsetting wetland losses.
(b) It may be more ecologically advantageous for maintaining the
integrity of the aquatic ecosystem to consolidate compensatory
mitigation for impacts to many smaller, isolated or fragmented
habitats into a single large parcel or contiguous parcels.
(c) Development of a wetland mitigation bank can bring together
financial resources and planning and scientific expertise not
practicable to many individual mitigation proposals. This
consolidation of resources can increase the potential for the
establishment and long-term management of successful mitigation.
(d) Wetland mitigation banking proposals may reduce regulatory
uncertainty and provide more cost-effective compensatory mitigation
opportunities.
3. The Section 404(b)(1) Guidelines (Guidelines), as clarified
by the ``Memorandum of Agreement Concerning the Determination of
Mitigation under the Section 404(b)(1) Guidelines'' (Mitigation MOA)
signed February 6, 1990, by the Environmental Protection Agency and
the Department of the Army, establish a mitigation sequence that is
used in the evaluation of individual permit applications. Under this
sequence, all appropriate and practicable steps must be undertaken
by the applicant to first avoid and then minimize adverse impacts to
the aquatic ecosystem. Remaining unavoidable impacts must then be
offset through compensatory mitigation to the extent appropriate and
practicable. Requirements for compensatory mitigation may be
satisfied through the use of wetland mitigation banks, so long as
their use is consistent with standard practices for evaluating
compensatory mitigation proposals outlined in the Mitigation MOA. It
is important to emphasize that, given the mitigation sequence
requirements described above, permit applicants should not
anticipate that the establishment of, or participation in, a wetland
mitigation bank will ultimately lead to a determination of
compliance with the Section 404(b)(1) Guidelines without adequate
demonstration that impacts associated with the proposed discharge
have been avoided and minimized to the extent practicable.
4. The agencies' preference for on-site, in-kind compensatory
mitigation does not preclude the use of wetland mitigation banks
where it has been determined by the Corps, or other appropriate
permitting agency, in coordination with the Federal resource
agencies through the standard permit evaluation process, that the
use of a particular mitigation bank as compensation for proposed
wetland impacts would be appropriate for offsetting impacts to the
[[Page 13712]] aquatic ecosystem. In making such a determination,
careful consideration must be given to wetland functions, landscape
position, and affected species populations at both the impact and
mitigation bank sites. In addition, compensation for wetland impacts
should occur, where appropriate and practicable, within the same
watershed as the impact site. Where a mitigation bank is being
developed in conjunction with a wetland resource planning initiative
(e.g., Special Area Management Plan, State Wetland Conservation
Plan) to satisfy particular wetland restoration objectives, the
permitting agency will determine, in coordination with the Federal
resource agencies, whether use of the bank should be considered an
appropriate form of compensatory mitigation for impacts occurring
within the same watershed.
5. Wetland mitigation banks should generally be in place and
functional before credits may be used to offset permitted wetland
losses. However, it may be appropriate to allow incremental
distribution of credits corresponding to the appropriate stage of
successful establishment of wetland functions. Moreover, variable
mitigation ratios (credit acreage to impacted wetland acreage) may
be used in such circumstances to reflect the wetland functions
attained at a bank site at a particular point in time. For example,
higher ratios would be required when a bank is not yet fully
functional at the time credits are to be withdrawn.
6. Establishment of each mitigation bank should be accompanied
by the development of a formal written agreement (e.g., memorandum
of agreement) among the Corps, EPA, other relevant resource
agencies, and those parties who will own, develop, operate or
otherwise participate in the bank. The purpose of the agreement is
to establish clear guidelines for establishment and use of the
mitigation bank. A wetlands mitigation bank may also be established
through issuance of a Section 404 permit where establishing the
proposed bank involves a discharge of dredged or fill material into
waters of the United States. The banking agreement or, where
applicable, special conditions of the permit establishing the bank
should address the following considerations, where appropriate:
(a) location of the mitigation bank;
(b) goals and objectives for the mitigation bank project;
(c) identification of bank sponsors and participants;
(d) development and maintenance plan;
(e) evaluation methodology acceptable to all signatories to
establish bank credits and assess bank success in meeting the
project goals and objectives;
(f) specific accounting procedures for tracking crediting and
debiting;
(g) geographic area of applicability;
(h) monitoring requirements and responsibilities;
(i) remedial action responsibilities including funding; and
(j) provisions for protecting the mitigation bank in perpetuity.
Agency participation in a wetlands mitigation banking agreement may
not, in any way, restrict or limit the authorities and
responsibilities of the agencies.
7. An appropriate methodology, acceptable to all signatories,
should be identified and used to evaluate the success of wetland
restoration and creation efforts within the mitigation bank and to
identify the appropriate stage of development for issuing mitigation
credits. A full range of wetland functions should be assessed.
Functional evaluations of the mitigation bank should generally be
conducted by a multi-disciplinary team representing involved
resource and regulatory agencies and other appropriate parties. The
same methodology should be used to determine the functions and
values of both credits and debits. As an alternative, credits and
debits can be based on acres of various types of wetlands (e.g.,
National Wetland Inventory classes). Final determinations regarding
debits and credits will be made by the Corps, or other appropriate
permitting agency, in consultation with Federal resource agencies.
8. Permit applicants may draw upon the available credits of a
third party mitigation bank (i.e., a bank developed and operated by
an entity other than the permit applicant). The Section 404 permit,
however, must state explicitly that the permittee remains
responsible for ensuring that the mitigation requirements are
satisfied.
9. To ensure legal enforceability of the mitigation conditions,
use of mitigation conditions, use of mitigation bank credits must be
conditioned in the Section 404 permit by referencing the banking
agreement or Section 404 permit establishing the bank; however, such
a provision should not limit the responsibility of the Section 404
permittee for satisfying all legal requirements of the permit.
signed 8-23-93
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S.
Environmental Protection Agency.
signed 8-23-93
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department
of the Army.
Regulatory Guidance Letter (RGL 93-3)
RGL 93-3 Issued: September 13, 1993 Expires: not applicable.
Subject: Rescission of Regulatory Guidance Letters (RGL) 90-5, 90-7,
and 90-8
1. On 25 August 1993 the final ``Excavation Rule'' was published
in the Federal Register (58 FR 45008) and becomes effective on 24
September 1993. This regulation modifies the definition of
``Discharge of Dredged Material'' to address landclearing activities
(see 33 CFR 232.2(d)); modifies the definitions of ``Fill Material''
and ``Discharge of Fill Material'' to address the placement of
pilings (see 33 CFR 323.2 (e) and (f) and 323.3(c)); and modifies
the definition of ``waters of the United States'' to address prior
converted cropland (see 33 CFR 328.(a)(8)).
2. Therefore, RGL 90-5, Subject: ``Landclearing Activities
Subject to Section 404 Jurisdiction''; RGL 90-7, Subject:
``Clarification of the Phrase `Normal Circumstances' as it pertains
to Cropped Wetlands''; and RGL 90-8, Subject: ``Applicability of
Section 404 to Pilings''; are hereby rescinded effective 24
September 1993. Furthermore, although RGL 90-5, Subject:
``Landclearing Activities Subject to Section 404 Jurisdiction''
expired on 31 December 1992 it should continue to be applied until
24 September 1993.
3. In addition, RGL's 90-5, 90-7, and 90-8 as of 24 September
1993 will no longer be used for guidance since the guidance
contained in those RGL's has been superseded by the regulation.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter, RGL 94-1
Date: 23 May 1994, Expires: 31 December 1999
Subject: Expiration of Geographic Jurisdictional Determinations.
1. Regulatory Guidance Letter (RGL) 90-6, Subject: ``Expiration
Dates for Wetlands Jurisdictional Delineations'' is extended until
31 December 1999, subject to the following revisions.
2. This guidance should be applied to all jurisdictional
determinations for all waters of the United States made pursuant to
Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the
Clean Water Act, and Section 103 of the Marine Protection Research
and Sanctuaries Act of 1972.
3. To be consistent with paragraph IV.A. of the 6 January 1994,
interagency Memorandum of Agreement Concerning the Delineation of
Wetlands for Purposes of Section 404 of the Clean Water Act and
Subtitle B of the Food Security Act, all U.S. Army Corps of
Engineers geographic jurisdictional determinations shall be in
writing and normally remain valid for a period of five years. The
Corps letter (see paragraph 4.(d) of RGL 90-6) should include a
statement that the jurisdictional determination is valid for a
period of five years from the date of the letter unless new
information warrants revision of the determination before the
expiration date.
4. For wetland jurisdictional delineations the ``effective date
of this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 was and
remains 14 August 1990. For jurisdictional determinations, other
than wetlands jurisdictional delineations, the ``effective date of
this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 will be the
date of this RGL.
5. Previous Corps written jurisdictional determinations,
including wetland jurisdictional delineations, with a validity
period of three years remain valid for the stated period of three
years. The district engineer is not required to issue new letters to
extend such period from three years to a total of five years.
However, if requested to do so, the district engineer will normally
extend the three year period to a total of five years unless new
information warrants a new jurisdictional determination.
6. Districts are not required to issue a public notice on this
guidance but may do so at their discretion.
7. This guidance expires on 31 December 1999 unless sooner
revised or rescinded.
[[Page 13713]] For the Director of Civil Works:
John P. Elmore, P.E.
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter, RGL 94-2
Date: 17 August 1994, Expires: 31 Dec 1999
CECW-OR
Subject: Superfund Projects
1. Regulatory Guidance Letter (RGL) 85-07, subject: ``Superfund
Projects'' is hereby reissued (copy enclosed).
2. This RGL was previously extended by RGL 89-2. Although the
extension expired, RGL 85-07 has continued to be U.S. Army Corps of
Engineers policy.
3. This guidance expires 31 December 1999 unless sooner revised
or rescinded.
For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Encl
RGL 85-7, Dated 5 July 1985, Expires 31 Dec 1987
Subject: Superfund Projects
1. Recently, the Chief Counsel, Mr. Lester Edelman, responded to
a letter from Mr. William N. Hedeman, Jr., Director, Office of
Emergency and Remedial Response, Environmental Protection Agency
(EPA) which dealt with the need for Department of Army
authorizations for the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) actions. This letter
summarizes Mr. Edelman's opinion and provides operating guidance for
field interaction with the EPA.
2. EPA's basic position is that Congress did not intend for
CERCLA response actions to be subject to other environmental laws.
Rather, as a matter of sound practice, CERCLA response actions
generally should meet the standards established by those laws.
Consequently, it is the EPA's position that neither it nor the
states, in pursuing response actions at the location of the release
or threatened release under the authority of CERCLA, are required to
obtain permits under Section 404 of the Clean Water Act or Section
10 of the Rivers and Harbors Act for those actions.
3. Mr. Edelman stated in part that he has some reservations
about the position that the EPA has taken. Nevertheless, he
recognizes that the EPA has the primary authority for the
interpretation and application of CERCLA, and therefore would defer
to the EPA's reading of its own statutory authorities, at least for
the time being.
4. In light of this legal opinion, FOAs should not require
applications for the EPA or state response actions at the location
of the release or threatened release pursued under the authority of
CERCLA. Any permit applications in process should be terminated.
5. Both the EPA and OCE believe that the FOAs' expertise in
assessing the public interest factors for dredging and filling
operations can contribute to the overall quality of the CEROLA
response action. The Director of Civil Works will be establishing a
group from his staff to work with the EPA staff to develop a
framework for integrating the Corps Sections 10, Section 404 and, if
appropriate, Section 103 concerns into the EPA's substantive
Superfund reviews.
6. Until specific guidance is provided from OCE, FOAs should
provide technical support to the EPA regions and/or the states on
matters within their field of expertise.
For the Chief of Engineers:
C.E. Edgar III
[FR Doc. 95-6253 Filed 3-13-95; 8:45 am]
BILLING CODE 3710-92-M
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.