Regulatory Guidance Letters Issued by the Corps of Engineers

DEPARTMENT OF DEFENSE

Department of the Army

Corps of Engineers

Regulatory Guidance Letters Issued by the Corps of Engineers

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

ACTION: Notice.

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SUMMARY: The purpose of this notice is to provide current Regulatory

Guidance Letters (RGL's) to all interested parties. RGL's are used by

the U.S. Army Corps of Engineers Headquarters as a means to transmit

guidance on the permit program (33 CFR 320-330) to its division and

district engineers (DE's). Each future RGL will be published in the

Notice Section of the Federal Register as a means to insure widest

dissemination of this information while reducing costs to the Federal

Government. The Corps no longer maintains a mailing list to furnish

copies of the RGL's to the public.

FOR FURTHER INFORMATION CONTACT:

Mr. Ralph Eppard, Regulatory Branch, Office of the Chief of Engineers

at (202) 761-1783.

SUPPLEMENTARY INFORMATION: RGL's were developed by the Corps as a

system to organize and track written guidance issued to its field

agencies. RGL's are normally issued as a result of evolving policy;

judicial decisions and changes to the Corps regulations or another

agency's regulations which affect the permit program. RGL's are used

only to interpret or clarify existing Regulatory Program policy, but do

provide mandatory guidance to the Corps district offices. RGL's are

sequentially numbered and expire on a specified date. However, unless

superseded by specific provisions of subsequently issued regulations or

RGL's, the guidance provided in RGL's generally remains valid after the

expiration date. The Corps incorporates most of the guidance provided

by RGL's whenever it revises its permit regulations.

We are hereby publishing all current RGL's beginning with RGL 92-1

and ending with RGL 96-2. RGL 91-1 expired on December 31, 1996, and

RGL 92-4 expired on January 21, 1997, and both have been removed from

this publication. We will continue to publish each RGL in the Notice

Section of the Federal Register upon issuance and in early 1998, we

will again publish the complete list of all current RGL's.

Dated: May 28, 1997.

For the Commander.

Robert W. Burkhardt,

Colonel, Corps of Engineers, Executive Director of Civil Works.

Regulatory Guidance Letter (RGL 92-1)

RGL 92-1 Date: 13 May 1992, Expires: 31 December 1997

Subject: Federal Agencies Roles and Responsibilities.

1. Purpose

The purpose of this guidance is to clarify the Army Corps of

Engineers leadership and decision-making role as ``project manager''

for the evaluation of permit applications pursuant to Section 404 of

the Clean Water Act (CWA) and Section 10 of the Rivers and Harbors Act.

This guidance is also intended to encourage effective and efficient

coordination among prospective permittees, the Corps, and the Federal

resource agencies (i.e., Environmental Protection Agency (EPA), Fish

and Wildlife Service (FWS), and National Marine Fisheries Service

(NMFS)). Implementation of this guidance will help to streamline the

permit process by minimizing delays and ensuring more timely decisions,

while providing a meaningful opportunity for substantive input from all

Federal agencies.

2. Background

(a) The Department of the Army Regulatory Program must operate in

an efficient manner in order to protect the aquatic environment and

provide fair, equitable, and timely decisions to the regulated public.

Clear leadership and a predictable decision-making framework will

enhance the public acceptance of the program and allow the program to

meet the important objective of effectively protecting the Nation's

valuable aquatic resources.

(b) On August 9, 1991, the President announced a comprehensive plan

for improving the protection of the Nation's wetlands. The plan seeks

to balance two important objectives--the protection, restoration, and

creation of wetlands and the need for sustained economic growth and

development. The plan, which is designed to slow and eventually stop

the net loss of wetlands, includes measures that will improve and

streamline the current wetlands regulatory system. This Regulatory

Guidance Letter is issued in accordance with the President's plan for

protecting wetlands.

(c) The intent of this guidance is to express clearly that the

Corps is the decision-maker and project manager for the Department of

Army's Regulatory Program. The Corps will consider, to the maximum

extent possible, all timely, project-related comments from other

Federal agencies when making regulatory decisions. Furthermore, the

Corps and relevant Federal agencies will maintain and improve as

necessary their working relationships.

(d) The Federal resource agencies have reviewed and concurred with

this guidance and have agreed to act in accordance with these

provisions. While this guidance does not restrict or impair the

exercise of legal authorities vested in the Federal resource agencies

or States under the CWA or other statutes and regulations (e.g., EPA's

authority under section 404(c), section 404(f), and CWA geographic

jurisdiction and FWS/NMFS authorities under the Fish and Wildlife

Coordination Act and the Endangered Species Act (ESA)), agency comments

on Department of the Army permit applications must be consistent with

the provisions contained in this regulatory letter.

3. The Corps Project Management/Decision Making Role

(a) The Corps is solely responsible for making final permit

decisions pursuant to section 10 and section 404(a), including final

determinations of compliance with the Corps permit regulations, the

Section 404(b)(1) Guidelines, and Section 7(a)(2) of the ESA. As such,

the Corps will act as the project manager for the evaluation of all

permit applications. The Corps will advise potential applicants of its

role as the project manager and decision-maker. This guidance does not

restrict EPA's authority to make determinations of compliance with the

Guidelines in carrying out its responsibilities under Sections 309 and

404(c) of the Clean Water Act.

(b) As the project manager, the Corps is responsible for requesting

and evaluating information concerning all permit applications. The

Corps will obtain and utilize this information in a manner that moves,

as rapidly as practical, the regulatory process towards a final permit

decision. The Corps will not evaluate applications as a project

opponent or advocate--but instead will maintain an objective

evaluation, fully considering all relevant factors.

(c) The Corps will fully consider other Federal agencies' project-

related comments when determining compliance with the National

Environmental Policy Act (NEPA), the Section 404(b)(1) Guidelines, the

ESA, the National Historic Preservation Act, and other relevant

statutes, regulations, and policies. The Corps will also fully consider

the agencies' views when determining whether to issue the permit, to

issue the permit with

[[Page 31493]]

conditions and/or mitigation, or to deny the permit.

4. The Federal Resource Agencies' Role

(a) It is recognized that the Federal resource agencies have an

important role in the Department of the Army Regulatory Program under

the CWA, NEPA, ESA, Magnuson Fisheries Conservation and Management Act,

and other relevant statutes.

(b) When providing comments, Federal resource agencies will submit

to the Corps only substantive, project-related information on the

impacts of activities being evaluated by the Corps and appropriate and

practicable measures to mitigate adverse impacts. The comments will be

submitted within the time frames established in interagency agreements

and regulations. Federal resource agencies will limit their comments to

their respective areas of expertise and authority to avoid duplication

with the Corps and other agencies and to provide the Corps with a sound

basis for making permit decisions. The Federal resource agencies should

not submit comments that attempt to interpret the Corps regulations or

for the purposes of section 404(a) make determinations concerning

compliance with the Section 404(b)(1) Guidelines. Pursuant to its

authority under Section 404(b)(1) of the CWA, the EPA may provide

comments to the Corps identifying its views regarding compliance with

the Guidelines. While the Corps will fully consider and utilize agency

comments, the final decision regarding the permit application,

including a determination of compliance with the Guidelines, rests

solely with the Corps.

5. Pre-Application Consultation

(a) To provide potential applicants with the maximum degree of

relevant information at an early phase of project planning, the Corps

will increase its efforts to encourage pre-application consultations in

accordance with regulations at 33 CFR 325.1(b). Furthermore, while

encouraging pre-application consultation, the Corps will emphasize the

need for early consultation concerning mitigation requirements, if

impacts to aquatic resources may occur. The Corps is responsible for

initiating, coordinating, and conducting pre-application consultations

and other discussions and meetings with applicants regarding Department

of the Army permits. This may not apply in instances where the

consultation is associated with the review of a separate permit or

license required from another Federal agency (e.g., the Federal Energy

Regulatory Commission or the Nuclear Regulatory Commission) or in

situations where resource agencies perform work for others outside the

context of a specific Department of the Army permit application (e.g.,

the Conservation Reserve Program and technical assistance to applicants

of Federal grants).

(b) For those pre-application consultations involving activities

that may result in impacts to aquatic resources, the Corps will provide

EPA, FWS, NMFS (as appropriate), and other appropriate Federal and

State agencies, a reasonable opportunity to participate in the pre-

application process. The invited agencies will participate to the

maximum extent possible in the pre-application consultation, since this

is generally the best time to consider alternatives for avoiding or

reducing adverse impacts. To the extent practical, the Corps and the

Federal resource agencies will develop local procedures (e.g.,

teleconferencing) to promote reasonable and effective pre-application

consultations within the logistical constraints of all affected

parties.

6. Applications for Individual Permits

(a) The Corps is responsible for determining the need for, and the

coordination of, interagency meetings, requests for information, and

other interactions between permit applicants and the Federal

Government. In this regard, Federal resource agencies will contact the

Corps to discuss and coordinate any additional need for information

from the applicant. The Corps will cooperate with the Federal resource

agencies to ensure, to the extent practical, that information necessary

for the agencies to carry out their responsibilities is obtained. If it

is determined by the Corps that an applicant meeting is necessary for

the exchange of information with a Federal resource agency and the

Corps chooses not to participate in such a meeting, the Federal

resource agency will apprise the Corps, generally in writing, of that

agency's discussions with the applicant. Notwithstanding such meetings,

the Corps is solely responsible for permit requirements, including

mitigation and other conditions--the Federal resource agencies must not

represent their views as regulatory requirements. In circumstances

where the Corps meets with the applicant and develops information that

will affect the permit decision, the Corps will apprise the Federal

resource agencies of such information.

(b) Consistent with 33 CFR part 325, the Corps will ensure that

public notices contain sufficient information to facilitate the timely

submittal of project-specific comments from the Federal resource

agencies. The resource agencies comments will provide specific

information and/or data related to the proposed project site. The Corps

will fully consider comments regarding the site from a watershed or

landscape scale, including an evaluation of potential cumulative and

secondary impacts.

(c) The Corps must consider cumulative impacts in reaching permit

decisions. In addition to the Corps own expertise and experience, the

Corps will fully consider comments from the Federal resource agencies,

which can provide valuable information on cumulative impacts.

Interested Federal agencies are encouraged to provide periodically to

the Corps generic comments and assessments of impacts (outside the

context of a specific permit application) on issues within the

agencies' area of expertise.

7. General Permits

(a) The Corps is responsible for proposing potential general

permits, assessing impacts of and comments on proposed general permits,

and deciding whether to issue general permits. The Corps will consider

proposals for general permits from other sources, including the Federal

resource agencies, although the final decision regarding the need to

propose a general permit rests with the Corps. Other interested Federal

agencies should provide comments to the Corps on proposed general

permits. These Federal agency comments will be submitted consistent

with established agreements and regulations and will focus on the

Federal agencies' area(s) of expertise. The Corps will fully consider

such agencies' comments in deciding whether to issue general permits,

including programmatic general permits.

(b) The Corps is responsible for initiating and conducting meetings

that may be necessary in developing and evaluating potential general

permits. Any discussions with a State or local Government regarding

proposed programmatic general permits will be coordinated through and

conducted by the Corps. Prior to issuing a programmatic general permit,

the Corps will ensure that the State or local program, by itself or

with appropriate conditions, will protect the aquatic environment,

including wetlands, to the level required by the section 404 program.

8. This guidance expires 31 December 1997 unless sooner revised or

rescinded.

[[Page 31494]]

For the Commander.

Arthur E. Williams,

Major General, USA, Director of Civil Works.

Regulatory Guidance Letter (92-3)

RGL 92-3, Date: 19 Aug 92, Expires: 31 Dec 97

Subject: Extension of Regulatory Guidance Letter (RGL) 86-10 RGL 86-10,

subject: ``Special Area Management Plans (SAMP's)'' is extended until

31 December 1997 unless sooner revised or rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

RGL 96-10

Special Area Management Plans (SAMP's)

Issued 10/2/86, Expired 12/31/88

1. The 1980 Amendments to the Coastal Zone Management Act define

the SAMP process as ``a comprehensive plan providing for natural

resource protection and reasonable coastal-dependent economic growth

containing a detailed and comprehensive statement of policies,

standards and criteria to guide public and private uses of lands and

waters; and mechanisms for timely implementation in specific geographic

areas within the coastal zone.'' This process of collaborative

interagency planning within a geographic area of special sensitivity is

just as applicable in non-coastal areas.

2. A good SAMP reduces the problems associated with the traditional

case-by-case review. Developmental interests can plan with

predictability and environmental interests are assured that individual

and cumulative impacts are analyzed in the context of broad ecosystem

needs.

3. Because SAMP's are very labor intensive, the following

ingredients should usually exist before a district engineer becomes

involved in a SAMP:

a. The area should be environmentally sensitive and under strong

developmental pressure.

b. There should be a sponsoring local agency to ensure that the

plan fully reflects local needs and interests.

c. Ideally there should be full public involvement in the planning

and development process.

d. All parties must express a willingness at the outset to conclude

the SAMP process with a definitive regulatory product (see next

paragraph).

4. An ideal SAMP would conclude with two products: (1) Appropriate

local/State approvals and a Corps general permit (GP) or abbreviated

processing procedure (APP) for activities in specifically defined

situations; and (2) a local/State restriction and/or an environmental

Protection Agency (EPA) 404(c) restriction (preferably both) for

undesirable activities. An individual permit review may be conducted

for activities that do not fall into either category above. However, it

should represent a small number of the total cases addressed by the

SAMP. We recognize that an ideal SAMP is difficult to achieve, and,

therefore, it is intended to represent an upper limit rather than an

absolute requirement.

5. Do not assume that an environmental impact statement is

automatically required to develop a SAMP.

6. EPA's program for advance identification of disposal areas found

at 40 CFR 230.80 can be integrated into a SAMP process.

7. In accordance with this guidance, district engineers are

encouraged to participate in development of SAMP's. However, since

development of a SAMP can require a considerable investment of time,

resources, and money, the SAMP process should be entered only if it is

likely to result in a definitive regulatory product as defined in

paragraph 4. above.

8. This guidance expires 31 December 1988 unless sooner revised or

rescinded.

For the Chief of Engineers.

Peter J. Offringa,

Brigadier General, USA, Deputy Director of Civil Works.

Regulatory Guidance Letter (RGL 92-5)

RGL 92-5, Date: 29 October 1992, Expires: 31 December 1997

Subject: Alternatives Analysis Under the Section 404(b)(1) Guidelines

for Projects Subject to Modification Under the Clean Air Act.

1. Enclosed for implementation is a joint Army Corps of Engineers/

Environmental Protection Agency Memorandum to the Field on alternatives

analysis for existing power plants that must be modified to meet

requirements of the 1990 Clean Air Act. This guidance was developed

jointly by the Corps and EPA.

2. This guidance expires 31 December 1997 unless sooner revised or

rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

EPA/Corps Joint Memorandum for the Field

Subject: Alternatives Analysis under the Section 404(b)(1) Guidelines

for Projects Subject to Modification Under the Clean Air Act

1. The 1990 Clean Air Act (CAA) amendments require most electric

generating plants to reduce emissions of sulfur dioxide in phases

beginning in 1995 and requiring full compliance by 2010. The

congressional endorsement of the industry's ability to select the most

effective compliance method (e.g., sulfur dioxide scrubbers, low sulfur

coal, or other methods) recognizes the expertise of the industry in

these cases and is a fundamental element in the CAA market-based

pollution control program. Given the need for cooling water, a

substantial number of electric power generating plants are located

adjacent, or in close proximity, to waters of the United States,

including wetlands. Depending on the method chosen by the plants to

reduce emissions, we expect that these facilities will be applying for

Clean Water Act Section 404 permits for certain proposed activities.

2. The analysis and regulation under Section 404 of the Clean Water

Act of activities in waters of the United States conducted by specific

power plants to comply with the 1990 Clean Air Act amendments must

ensure protection of the aquatic environment consistent with the

requirements of the Clean Water Act. The review of applications for

such projects will fully consider, consistent with requirements under

the Section 404(b)(1) Guidelines, all practicable alternatives

including non-aquatic alternatives, for proposed discharges associated

with the method selected by the utility to comply with the 1990 Clean

Air Act amendments. For the purposes of the Section 404(b)(1)

Guidelines analysis, the project purpose will be that pollutant

reduction method selected by the permit applicant.

3. For example, a utility may have decided to install sulfur

dioxide scrubbers on an existing power plant in order to meet the new

1990 Clean Air Act standards. The proposed construction of the

scrubbers, treatment ponds and a barge unloading facility could impact

wetlands. In this case, the Section 404 review would evaluate

practicable alternative locations and configurations for the scrubbers,

ponds and of the docking facilities. The analysis will also consider

practicable alternatives which satisfy the project purpose (i.e.,

installing scrubbers) but which have a less adverse impact on the

aquatic environment or do not involve discharges into waters of the

United States. However, in order to best effectuate Congressional

intent reflected in the CAA that electric utilities retain

[[Page 31495]]

flexibility to reduce sulfur dioxide emissions in the most cost

effective manner, the Section 404 review should not evaluate

alternative methods of complying with the Clean Air Act standards not

selected by the applicant (e.g., in this example use of low sulfur

coal).

4. In evaluating the scope of practicable alternatives which

satisfy the project purpose (e.g., constructing additional scrubber

capacity), the alternatives analysis should not be influenced by the

possibility that, based on a conclusion that practicable upland

alternatives are available to the applicant, the project proponent may

decide to pursue other options for meeting Clean Air Act requirements.

Continuing the above example, a Corps determination that practicable

upland alternatives are available for scrubber waste disposal should

not be affected by the possibility that an applicant may subsequently

decide to select a different method for meeting the Clean Air Act

standards (e.g., use of low sulfur coal that reduces waste generated by

scrubbers).

5. The Corps and EPA will also recognize the tight time-frames

under which the industry must meet these new air quality standards.

Robert H. Wayland,

Director, Office of Wetlands, Oceans and Watersheds.

John P. Elmore,

Chief, Operations, Construction and Readiness Division; Directorate of

Civil Works.

Regulatory Guidance Letter (RGL 93-1)

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

Subject: Provisional Permits

1. Purpose: The purpose of this guidance is to establish a process

that clarifies for applicants when the U.S. Army Corps of Engineers has

completed its evaluation and at what point the applicant should contact

the State concerning the status of the Section 401 Water Quality

Certification and/or Coastal Zone Management (CZM) consistency

concurrence. This process also allows for more accurate measurement of

the total length of time spent by the Corps in evaluating permit

applications (i.e., from receipt of a complete application until the

Corps reaches a permit decision). For verification of authorization of

activities under regional general permits, the Corps will use the

appropriate nationwide permit procedures at 33 CFR 330.6.

2. Background: a. A Department of the Army permit involving a

discharge of dredged or fill material cannot be issued until a State

Section 401 Water Quality Certification has been issued or waived.

Also, a Department of the Army permit cannot be issued for an activity

within a State with a federally-approved Coastal Management Program

when that activity that would occur within, or outside, a State's

coastal zone will affect land or water uses or natural resources of the

State's coastal zone, until the State concurs with the applicant's

consistency determination, or concurrence is presumed. In many cases,

the Corps completes its review before the State Section 401 Water

Quality Certification or CZM concurrence requirements have been

satisfied. In such cases, applicants and the public are often confused

regarding who to deal with regarding resolution of any State issues.

b. The ``provisional permit'' procedures described below will

facilitate a formal communication between the Corps and the applicant

to clearly indicate that the applicant should be in contact with the

appropriate State agencies to satisfy the State 401 Water Quality

Certification or CZM concurrence requirements. In addition, the

procedures will allow for a more accurate measurement of the Corps

permit evaluation time.

3. Provisional Permit Procedures: The provisional permit procedures

are optional and may only be used in those cases where: (i) The

District Engineer (DE) has made a provisional individual permit

decision that an individual permit should be issued, and, (ii) the only

action(s) preventing the issuance of that permit is that the State has

not issued a required Section 401 Water Quality Certification (or

waiver has not occurred) or the State has not concurred in the

applicant's CZM consistency determination (or there is not a presumed

concurrence). In such cases, the DE may, using these optional

procedures, send a provisional permit to the applicant.

a. First, the DE will prepare and sign the provisional permit

decision document. Then the provisional permit will be sent to the

applicant by transmittal letter. (The sample transmittal letter at

enclosure 1 contains the minimum information that must be provided.)

b. Next, the applicant would obtain the Section 401 Water Quality

Certification (or waiver) and/or CZM consistency concurrence (or

presumed concurrence). Then the applicant would sign the provisional

permit and return it to the DE along with the appropriate fee and the

Section 401 Water Quality Certification (or proof of waiver) and/or the

CZM consistency concurrence (or proof of presumed concurrence).

c. Finally, the Corps would attach any Section 401 Water Quality

Certification and/or CZM consistency concurrence to the provisional

permit, then sign the provisional permit (which then becomes the issued

final permit), and forward the permit to the applicant.

d. This is the same basic process as the normal standard permit

transmittal process except that the applicant is sent an unsigned

permit (i.e., a provisional permit) prior to obtaining the Section 401

Water Quality Certification (or waiver) and/or CZM consistency

concurrence (or presumed concurrence). (See enclosure 2.) A permit can

not be issued (i.e., signed by the Corps) until the Section 401 and CZM

requirements are satisfied.

4. Provisional Permit: A provisional permit is a standard permit

document with a cover sheet. The cover sheet must clearly indicate the

following: that a provisional permit is enclosed, that the applicant

must obtain the Section 401 Water Quality Certification or CZM

concurrence from the State, that these documents must be sent to the

Corps along with the provisional permit signed by the applicant, and

that the Corps will issue the permit upon receipt of these materials.

The issued permit is the provisional permit signed by the applicant and

the Corps. The provisional permit must contain a statement indicating

that the applicant is required to comply with the Section 401 Water

Quality Certification, including any conditions, and/or the CZM

consistency concurrence, including any conditions. At enclosure 3 is a

sample cover sheet for the provisional permit.

5. Provisional Permit Decision: The DE may reach a final decision

that a permit should be issued provided that the State issues a Section

401 Water Quality Certification and/or a CZM concurrence. In order to

reach such a decision the DE must complete the normal standard permit

evaluation process, prepared and sign a decision document, and prepare

a standard permit, including any conditions or mitigation (i.e., a

provisional permit). The decision document must include a statement

that the DE has determined that the permit will be issued if the State

issues a Section 401 Water Quality Certification or waiver and/or a CZM

concurrence, or presumed concurrence. The standard permit will not

contain a condition that requires or provides for the applicant to

obtain a Section 401 Water Quality Certification and/or CZM

[[Page 31496]]

concurrence. Once the decision document is signed, the applicant has

the right to a DA permit if the State issues a Section 401 Water

Quality Certification or waiver and/or a CZM concurrence, or if

concurrence is presumed. Once the decision document is signed, the

permittee's right to proceed can only be changed by using the

modification, suspension and revocation procedures of 33 CFR 325.7,

unless the State denies the Section 401 Water Quality Certification or

nonconcurs with the applicant's CZM consistency determination.

6. Enforcement: In some cases, applicants might proceed with the

project upon receipt of the provisional permit. The provisional permit

is not a valid permit. In such cases, the Corps has a discretionary

enforcement action to consider and should proceed as the DE determines

to be appropriate. This occurs on occasion during the standard permit

transmittal process. Since the Corps is not changing the normal process

of sending unsigned permits to the applicant for signature, there

should not be an increase in the occurrence of such unauthorized

activities.

7. Modification: a. In most cases the Section 401 Water Quality

Certification, including conditions, and/or CZM consistency

concurrence, including conditions, will be consistent with the

provisional permit. In such cases, the DE will simply sign the final

permit and enclose the 401 water quality certification and/or CZM

consistency concurrence with the final permit (i.e., the signed

provisional permit).

b. In a few cases such State approval may necessitate modifications

to the Corps preliminary permit decision. Such modifications will be

processed in accordance with 33 CFR 325.7.

(1) When the modifications are minor and the DE agrees to such

modifications, then a supplement to the provisional decision document

may be prepared, as appropriate, and the permit issued with such

modifications. (This should usually be done by enclosing the State 401

Water Quality Certification and/or CZM consistency concurrence to the

permit, but in a few cases may require a revision to the permit

document itself.)

(2) When the modification results in substantial change or

measurable increase in adverse impacts or the Corps does not initially

agree with the change, then the modification will be processed and

counted as a separate permit action for reporting purposes. This may

require a new public notice or additional coordination with appropriate

Federal and/or state agencies. The provisional decision document will

be supplemented or may be completely rewritten, as necessary.

8. Denial: If the State denies the Section 401 Water Quality

Certification and/or the State nonconcurs with the applicant's CZM

consistency determination, then the Corps permit is denied without

prejudice.

9. This guidance expires 31 December 1998 unless sooner revised or

rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

3 Encls

Sample

Provisional Permit

Transmittal Letter

Dear: ____________:

We have completed our review of your permit application

identified as [File No., appl. name, etc.] for the following

proposed work:

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

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

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

near/in/at ____________.

Enclosed is a ``PROVISIONAL PERMIT.'' The provisional permit is

NOT VALID and does not authorize you to do your work. The

provisional permit describes the work that will be authorized, and

the General and Special Conditions [if any] which will be placed on

your final Department of the Army (DA) permit, if the State of

____________________ Water Quality Certification and/or Coastal Zone

Management (CZM) consistency requirements are satisfied as described

below. No work is to be performed in the waterway or adjacent

wetlands until you have received a validated copy of the DA permit.

By Federal law no DA permit can be issued until a State Section

401 Water Quality Certification has been issued or has been waived

and/or the State has concurred with a permit applicant's CZM

consistency determination or concurrence has been presumed. As of

this date the [State 401 certification agency] has not issued a

Section 401 Water Quality Certification for your proposed work. If

the [State 401 certification agency] fails or refuses to act by

[date 401 certification must be issued] the Section 401 Water

Quality Certification requirement will be automatically waived.

Also, as of this date the [State CZM agency] has not concurred with

your CZM consistency determination. If the State does not act by

[six months from receipt by the State of the applicant's CZM

consistency determination] then concurrence with your CZM

consistency determination will automatically be presumed.

Conditions of the State Section 401 Water Quality Certification

and/or the State CZM concurrence will become conditions to the final

DA permit. Should the State's action on the required certification

or concurrence preclude validation of the provisional permit in its

current form, a modification to the provisional permit will be

evaluated and you will be notified as appropriate. Substantial

changes may require a new permit evaluation process, including

issuing a new public notice.

Enclosure 1

Final Permit Actions

Normal Permit Process

1. Corps completes permit decision, and state 401/CZM issued/waived

2. Corps sends unsigned permit to applicant

3. Applicant signs permit and returns with fee

4. Corps signs permit

Draft Permit Process

1. Corps completes permit decision, but state 401/CZM not complete

2. Corps sends draft permit to applicant

3. State 401/CZM issued waived

4. Applicant signs permit and returns with fee and 401/CZM action

5. Corps reviews 401/CZM action and signs permit

1. The signed draft permit with the attached 401/CZM action is

to be treated as the applicant's request for a permit subject to any

401/CZM certification/concurrence including any conditions.

2. If the 401/CZM action results in a modification to the draft

permit, then step 4. would be treated as a request for such

modification and if we agree with the modification, then the permit

would be issued with the modification and the decision document

supplemented, as appropriate. If the Corps does not initially agree

with the modification, or it involves a substantial change or

measurable increase in adverse impacts, then the modification would

be processed as a separate permit action for reporting purposes.

Enclosure 2

Once the State has issued the required Section 401 Water Quality

Certification and/or concurred with your CZM consistency

determination or the dates above have passed without the State

acting, and you agree to the terms and conditions of the provisional

permit, you should sign and date both copies and return them to us

[along with your $100.00/$10.00 permit fee]. Your DA permit will not

be valid until we have returned a copy to you bearing both your

signature and the signature of the appropriate Corps official.

If the State denies the required Section 401 Water Quality

Certification and/or nonconcurs with your CZM consistency

determination, then the DA permit is denied without prejudice. If

you should subsequently obtain a Section 401 Water Quality

Certification and/or a CZM consistency determination concurrence,

you should contact this office to determine how to proceed with your

permit application.

If you have any questions concerning your State Section 401

Water Quality Certification, please contact (State 401 certification

contact.

If you have any questions concerning your CZM consistency

determination, please contact (State CZM contact).

[[Page 31497]]

If you have any other questions concerning your application for

a DA permit, please contact [Corps contact] at [Corps contact

telephone number].

Provisional Permit

Not Valid

Do Not Begin Work

This Provisional Permit is Not Valid until:

(1) You obtain: ____________________ a Section 401 Water Quality

Certification (from State Agency).

____________________ a Coastal Zone Consistency determination

concurrence from (State Agency).

(2) You sign and return the enclosed provisional permit with the

State Section 401 Water Quality Certification and/or CZM concurrence

and the appropriate permit fee as indicated below:

____________________ $10.00

____________________ $100.00

No fee required

(3) The Corps signs the permit and returns it to you. Your

permit is denied without prejudice, if the State denies your Section

401 Water Quality Certification and/or nonconcurs with your Coastal

Zone Management consistency determination.

Do Not Begin Work

REGULATORY GUIDANCE LETTER (RGL 93-2)

RGL 93-2, Date: 23 August 1993, Expires: 31 December 1998

Subject: Guidance on Flexibility of the 404(b)(1) Guidelines and

Mitigation Banking.

1. Enclosed are two guidance documents signed by the Office of the

Assistant Secretary of the Army (Civil Works) and the Environmental

Protection Agency. The first document provides guidance on the

flexibility that the U.S. Army Corps of Engineers should be utilizing

when making determinations of compliance with the Section 404(b)(1)

Guidelines, particularly with regard to the alternatives analysis. The

second document provides guidance on the use of mitigation banks as a

means of providing compensatory mitigation for Corps regulatory

decisions.

2. Both enclosed guidance documents should be implemented

immediately. These guidance documents constitute an important aspect of

the President's plan for protecting the Nation's wetlands, ``Protecting

America's Wetlands: A Fair, Flexible and Effective Approach''

(published on 24 August 1993).

3. This guidance expires 31 December 1998 unless sooner revised or

rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

2 Encls

Memorandum to the field

Subject: Appropriate level of analysis required for evaluating

compliance with the section 404(b)(1) guidelines alternatives

requirements

1. Purpose: The purpose of this memorandum is to clarify the

appropriate level of analysis required for evaluating compliance with

the Clean Water Act Section 404(b)(1) Guidelines' (Guidelines)

requirements for consideration of alternatives. 40 CFR 230.10(a).

Specifically, this memorandum describes the flexibility afforded by the

Guidelines to make regulatory decisions based on the relative severity

of the environmental impact of proposed discharges of dredged or fill

material into waters of the United States.

2. Background: The Guidelines are the substantive environmental

standards by which all Section 404 permit applications are evaluated.

The Guidelines, which are binding regulations, were published by the

Environmental Protection Agency at 40 CFR Part 230 on December 24,

1980. The fundamental precept of the Guidelines is that discharges of

dredged or fill material into waters of the United States, including

wetlands, should not occur unless it can be demonstrated that such

discharges, either individually or cumulatively, will not result in

unacceptable adverse effects on the aquatic ecosystem. The Guidelines

specifically require that ``no discharge of dredged or fill material

shall be permitted if there is a practicable alternative to the

proposed discharge which would have less adverse impact on the aquatic

ecosystem, so long as the alternative does not have other significant

adverse environmental consequences.'' 40 CFR 230.10(a). Based on this

provision, the applicant is required in every case (irrespective of

whether the discharge site is a special aquatic site or whether the

activity associated with the discharge is water dependent) to evaluate

opportunities for use of non-aquatic areas and other aquatic sites that

would result in less adverse impact on the aquatic ecosystem. A permit

cannot be issued, therefore, in circumstances where a less

environmentally damaging practicable alternative for the proposed

discharge exists (except as provided for under Section 404(b)(2)).

3. Discussion: The Guidelines are, as noted above, binding

regulations. It is important to recognize, however, that this

regulatory status does not limit the inherent flexibility provided in

the Guidelines for implementing these provisions. The preamble to the

Guidelines is very clear in this regard:

Of course, as the regulation itself makes clear, a certain

amount of flexibility is still intended. For example, while the

ultimate conditions of compliance are ``regulatory'', the Guidelines

allow some room for judgment in determining what must be done to

arrive at a conclusion that those conditions have or have not been

met.

Guidelines Preamble, ``Regulation versus Guidelines'', 45 Federal

Register 85336 (December 24, 1980).

Notwithstanding this flexibility, the record must contain

sufficient information to demonstrate that the proposed discharge

complies with the requirements of Section 230.10(a) of the Guidelines.

The amount of information needed to maker such a determination and the

level of scrutiny required by the Guidelines is commensurate with the

severity of the environmental impact (as determined by the functions of

the aquatic resource and the nature of the proposed activity) and the

scope/cost of the project.

a. Analysis Associated with Minor Impacts:

The Guidelines do not contemplate that the same intensity of

analysis will be required for all types of projects but instead

envision a correlation between the scope of the evaluation and the

potential extent of adverse impacts on the aquatic environment. The

introduction to Section 230.10(a) recognizes that the level of analysis

required may vary with the nature and complexity of each individual

case:

Although all requirements in Sec. 230.10 must be met, the

compliance evaluation procedures will vary to reflect the

seriousness of the potential for adverse impacts on the aquatic

ecosystems posed by specific dredged or fill material discharge

activities.

40 CFR 230.10

Similarly, Section 230.6 (``Adaptability'') makes clear that the

Guidelines:

allow evaluation and documentation for a variety of activities,

ranging from those with large, complex impacts on the aquatic

environment to those for which the impact is likely to be innocuous.

It is unlikely that the Guidelines will apply in their entirety to

any one activity, no matter how complex. It is anticipated that

substantial numbers of permit applications will be for minor,

routine activities that have little, if any, potential for

significant degradation of the aquatic environment. It generally is

not intended or

[[Page 31498]]

expected that extensive testing, evaluation or analysis will be

needed to make findings of compliance in such routine cases.

40 CFR 230.6(9) (emphasis added)

Section 230.6 also emphasizes that when making determinations of

compliance with the Guidelines, users:

must recognize the different levels of effort that should be

associated with varying degrees of impact and require or prepare

commensurate documentation. The level of documentation should

reflect the significance and complexity of the discharge activity.

40 CFR 230.6(b) (emphasis added)

Consequently, the Guidelines clearly afford flexibility to adjust

the stringency of the alternatives review for projects that would have

only minor impacts. Minor impacts are associated with activities that

generally would have little potential to degrade the aquatic

environment and include one, and frequently more, of the following

characteristics: are located in aquatic resources of limited natural

function; are small in size and cause little direct impact; have little

potential for secondary or cumulative impacts; or cause only temporary

impacts. It is important to recognize, however, that in some

circumstances even small or temporary fills result in substantial

impacts, and that in such cases a more detailed evaluation is

necessary. The Corps Districts and EPA Regions will, through the

standard permit evaluation process, coordinate with the U.S. Fish and

Wildlife Service, National Marine Fisheries Service and other

appropriate state and Federal agencies in evaluating the likelihood

that adverse impacts would result from a particular proposal. It is not

appropriate to consider compensatory mitigation in determining whether

a proposed discharge will cause only minor impacts for purposes of the

alternatives analysis required by Section 230.10(a).

In reviewing projects that have the potential for only minor

impacts on the aquatic environment, Corps and EPA field offices are

directed to consider, in coordination with state and Federal resource

agencies, the following factors:

(i) Such projects by their nature should not cause or contribute

to significant degradation individually or cumulatively. Therefore,

it generally should not be necessary to conduct or require detailed

analyses to determine compliance with Section 230.10(c).

(ii) Although sufficient information must be developed to

determine whether the proposed activity is in fact the least

damaging practicable alternative, the Guidelines do not require an

elaborate search for practicable alternatives if it is reasonably

anticipated that there are only minor differences between the

environmental impacts of the proposed activity and potentially

practicable alternatives. This decision will be made after

consideration of resource agency comments on the proposed project.

It often makes sense to examine first whether potential alternatives

would result in no identifiable or discernible difference in impact

on the aquatic ecosystem. Those alternatives that do not may be

eliminated from the analysis since Section 230.10(a) of the

Guidelines only prohibits discharges when a practicable alternative

exists which would have less adverse impact on the aquatic

ecosystem. Because evaluating practicability is generally the more

difficult aspect of the alternatives analysis, this approach should

save time and effort for both the applicant and the regulatory

agencies.\1\ By initially focusing the alternatives analysis on the

question of impacts on the aquatic ecosystem, it may be possible to

limit (or in some instances eliminate altogether) the number of

alternatives that have to be evaluated for practicability.

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

\1\ In certain instances, however, it may be easier to examine

practicability first. Some projects may be so site-specific (e.g.,

erosion control, bridge replacement) that no offsite alternative

could be practicable. In such cases the alternatives analysis may

appropriately be limited to onsite options only.

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

(iii) When it is determined that there is no identifiable or

discernible difference in adverse impact on the environment between

the applicant's proposed alternative and all other practicable

alternatives, then the applicant's alternative is considered as

satisfying the requirements of Section 230.10(a).

(iv) Even where a practicable alternative exists that would have

less adverse impact on the aquatic ecosystem, the Guidelines allow

it to be rejected if it would have ``other significant adverse

environmental consequences.'' 40 CFR 230.10(a) As explained in the

preamble, this allows for consideration of ``evidence of damages to

other ecosystems in deciding whether there is a `better'

alternative.'' Hence, in applying the alternatives analysis required

by the Guidelines, it is not appropriate to select an alternative

where minor impacts on the aquatic environment are avoided at the

cost of substantial impacts to other natural environmental values.

(v) in cases of negligible or trivial impacts (e.g., small

discharges to construct individual driveways), it may be possible to

conclude that no alternative location could result in less adverse

impact on the aquatic environment within the meaning of the

Guidelines. In such cases, it may not be necessary to conduct an

offsite alternatives analysis but instead require only any

practicable onsite minimization.

This guidance concerns application of the Section 404(b)(1)

Guidelines to projects with minor impacts. Projects which may cause

more than minor impacts on the aquatic environment, either individually

or cumulatively, should be subjected to a proportionately more detailed

level of analysis to determine compliance or noncompliance with the

Guidelines. Projects which cause substantial impacts, in particular,

must be thoroughly evaluated through the standard permit evaluation

process to determine compliance with all provisions of the Guidelines.

b. Relationship between the Scope of Analysis and the Scope/Cost of

the Proposed Project:

The Guidelines provide the Corps and EPA with discretion for

determining the necessary level of analysis to support a conclusion as

to whether or not an alternative is practicable. Practicable

alternatives are those alternatives that are ``available and capable of

being done after taking into consideration cost, existing technology,

and logistics in light of overall project purposes.'' 40 CFR

230.10(a)(2). The preamble to the Guidelines provides clarification on

how cost is to be considered in the determination of practicability.

Our intent is to consider those alternatives which are

reasonable in terms of the overall scope/cost of the proposed

project. The term economic [for which the term ``cost'' was

substituted in the final rule] might be construed to include

consideration of the applicants financial standing, or investment,

or market share, a cumbersome inquiry which is not necessarily

material to the objectives of the Guidelines.

Guidelines Preamble, ``Alternatives'', 45 FR 85339 (December 24, 1980)

(emphasis added).

Therefore, the level of analysis required for determining which

alternatives are practicable will vary depending on the type of project

proposed. The determination of what constitutes an unreasonable expense

should generally consider whether the projected cost is substantially

greater than the costs normally associated with the particular type of

project. Generally, as the scope/cost of the project increases, the

level of analysis should also increase. To the extent the Corps obtains

information on the costs associated with the project, such information

may be considered when making a determination of what constitutes an

unreasonable expense.

The preamble to the Guidelines also states that ``[i]f an alleged

alternative is unreasonably expensive to the applicant, the alternative

is not `practicable.''' Guidelines Preamble, ``Economic Factors'', 45

FR 85343 (December 24, 1980). Therefore, to the extent that individual

homeowners and small businesses may typically be associated with small

projects with minor impacts, the nature of the applicant may also be a

relevant consideration in determining what constitutes a practicable

alternative. It is important to emphasize, however, that it

[[Page 31499]]

is not a particular applicant's financial standing that is the primary

consideration for determining practicability, but rather

characteristics of the project and what constitutes a reasonable

expense for these projects that are most relevant to practicability

determinations.

4. The burden of proof to demonstrate compliance with the

Guidelines rests with the applicant' where insufficient information is

provided to determine compliance, the Guidelines require that no permit

be issued. 400 CFR 230.12(a)(3)(iv).

5. A reasonable, common sense approach in applying the requirements

of the Guidelines' alternatives analysis is fully consistent with sound

environmental protection. The Guidelines clearly contemplate that

reasonable discretion should be applied based on the nature of the

aquatic resource and potential impacts of a proposed activity in

determining compliance with the alternatives test. Such an approach

encourages effective decisionmaking and fosters a better understanding

and enhanced confidence in the Section 404 program.

6. This guidance is consistent with the February 6, 1990

``Memorandum of Agreement Between the Environmental Protection Agency

and the Department of the Army Concerning the Determination of

Mitigation under the Clean Water Act Section 404(b)(1) Guidelines.''

Signed August 23, 1993.

Robert H. Wayland, III,

Director, Office of Wetlands, Oceans, and Watersheds, U.S.

Environmental Protection Agency.

Signed August 23, 1993.

Michael L. Davis,

Office of the Assistant Secretary of the Army (Civil Works), Department

of the Army.

Memorandum to the Field

Subject: Establishment and Use of Wetland Mitigation Banks in the Clean

Water Act Section 404 Regulatory Program

1. This memorandum provides general guidelines for the

establishment and use of wetland mitigation banks in the Clean Water

Act Section 404 regulatory program. This memorandum serves as interim

guidance pending completion of Phase I of by the Corps of Engineers'

Institute for Water Resources study on wetland mitigation banking,\2\

at which time this guidance will be reviewed and any appropriate

revisions will be incorporated into final guidelines.

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

\2\ The Corps of Engineers Institute for Water Resources, under

the authority of Section 307(d) of the Water Resources Development

Act of 1990, is undertaking a comprehensive two-year review and

evaluation of wetland mitigation banking to assist in the

development of a national policy on this issue. The interim summary

report documenting the results of the first phase of the study is

scheduled for completion in the fall of 1993.

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

2. For purposes of this guidance, wetland mitigation banking refers

to the restoration, creation, enhancement, and, in exceptional

circumstances, preservation of wetlands or other aquatic habitats

expressly for the purpose of providing compensatory mitigation in

advance of discharges into wetlands permitted under the Section 404

regulatory program. Wetland mitigation banks can have several

advantages over individual mitigation projects, some of which are

listed below:

(a) Compensatory mitigation can be implemented and functioning in

advance of project impacts, thereby reducing temporal losses of wetland

functions and uncertainty over whether the mitigation will be

successful in offsetting wetland losses.

(b) It may be more ecologically advantageous for maintaining the

integrity of the aquatic ecosystem to consolidate compensatory

mitigation for impacts to many smaller, isolated or fragmented habitats

into a single large parcel or contiguous parcels.

(c) Development of a wetland mitigation bank can bring together

financial resources and planning and scientific expertise not

practicable to many individual mitigation proposals. This consolidation

of resources can increase the potential for the establishment and long-

term management of successful mitigation.

(d) Wetland mitigation banking proposals may reduce regulatory

uncertainty and provide more cost-effective compensatory mitigation

opportunities.

3. The Section 404(b)(1) Guidelines (Guidelines), as clarified by

the ``Memorandum of Agreement Concerning the Determination of

Mitigation under the Section 404(b)(1) Guidelines'' (Mitigation MOA)

signed February 6, 1990, by the Environmental Protection Agency and the

Department of the Army, establish a mitigation sequence that is used in

the evaluation of individual permit applications. Under this sequence,

all appropriate and practicable steps must be undertaken by the

applicant to first avoid and then minimize adverse impacts to the

aquatic ecosystem. Remaining unavoidable impacts must then be offset

through compensatory mitigation to the extent appropriate and

practicable. Requirements for compensatory mitigation may be satisfied

through the use of wetland mitigation banks, so long as their use is

consistent with standard practices for evaluating compensatory

mitigation proposals outlined in the Mitigation MOA. It is important to

emphasize that, given the mitigation sequence requirements described

above, permit applicants should not anticipate that the establishment

of, or participation in, a wetland mitigation bank will ultimately lead

to a determination of compliance with the Section 404(b)(1) Guidelines

without adequate demonstration that impacts associated with the

proposed discharge have been avoided and minimized to the extent

practicable.

4. The agencies' preference for on-site, in-kind compensatory

mitigation does not preclude the use of wetland mitigation banks where

it has been determined by the Corps, or other appropriate permitting

agency, in coordination with the Federal resource agencies through the

standard permit evaluation process, that the use of a particular

mitigation bank as compensation for proposed wetland impacts would be

appropriate for offsetting impacts to the aquatic ecosystem. In making

such a determination, careful consideration must be given to wetland

functions, landscape position, and affected species populations at both

the impact and mitigation bank sites. In addition, compensation for

wetland impacts should occur, where appropriate and practicable, within

the same watershed as the impact site. Where a mitigation bank is being

developed in conjunction with a wetland resource planning initiative

(e.g., Special Area Management Plan, State Wetland Conservation Plan)

to satisfy particular wetland restoration objectives, and permitting

agency will determine, in coordination with the Federal resource

agencies, whether use of the bank should be considered an appropriate

form of compensatory mitigation for impacts occurring within the same

watershed.

5. Wetland mitigation banks should generally be in place and

functional before credits may be used to offset permitted wetland

losses. However, it may be appropriate to allow incremental

distribution of credits corresponding to the appropriate stage of

successful establishment of wetland functions. Moreover, variable

mitigation ratios (credit acreage to impacted wetland acreage) may be

used in such circumstances to reflect the wetland functions attained at

a bank site at a particular point in time. For example,

[[Page 31500]]

higher ratios would be required when a bank is not yet fully functional

at the time credits are to be withdrawn.

6. Establishment of each mitigation bank should be accompanied by

the development of a formal written agreement (e.g., memorandum of

agreement) among the Corps, EPA, other relevant resource agencies, and

those parties who will own, develop, operate or otherwise participate

in the bank. The purpose of the agreement is to establish clear

guidelines for establishment and use of the mitigation bank. A wetlands

mitigation bank may also be established through issuance of a Section

404 permit where establishing the proposed bank involves a discharge of

dredged or fill material into waters of the United States. The banking

agreement or, where applicable, special conditions of the permit

establishing the bank should address the following considerations,

where appropriate:

(a) Location of the mitigation bank

(b) Goals and objectives for the mitigation bank project;

(c) Identification of bank sponsors and participants;

(d) Development and maintenance plan;

(e) Evaluation methodology acceptable to all signatories to

establish bank credits and assess bank success in meeting the

project goals and objectives;

(f) Specific accounting procedures for tracking crediting and

debiting;

(g) Geographic area of applicability;

(h) Monitoring requirements and responsibilities;

(i) Remedial action responsibilities including funding; and

(j) Provisions for protecting the mitigation bank in perpetuity.

Agency participation in a wetlands mitigation banking agreement may

not, in any way, restrict or limit the authorities and responsibilities

of the agencies.

7. An appropriate methodology, acceptable to all signatories,

should be identified and used to evaluate the success of wetland

restoration and creation efforts within the mitigation bank and to

identify the appropriate stage of development for issuing mitigation

credits. A full range of wetland functions should be assessed.

Functional evaluations of the mitigation bank should generally be

conducted by a multi-disciplinary team representing involved resource

and regulatory agencies and other appropriate parties. The same

methodology should be used to determine the functions and values of

both credits and debits. As an alternative, credits and debits can be

based on acres of various types of wetlands (e.g., National Wetland

Inventory classes). Final determinations regarding debits and credits

will be made by the Corps, or other appropriate permitting agency, in

consultation with Federal resource agencies.

8. Permit applicants may draw upon the available credits of a third

party mitigation bank (i.e., a bank developed and operated by an entity

other than the permit applicant). The Section 404 permit, however, must

state explicitly that the permittee remains responsible for ensuring

that the mitigation requirements are satisfied.

9. To ensure legal enforceability of the mitigation conditions, use

of mitigation bank credits must be conditioned in the Section 404

permit by referencing the banking agreement or Section 404 permit

establishing the bank; however, such a provision should not limit the

responsibility of the Section 404 permittee for satisfying all legal

requirements of the permit.

Signed August 23, 1993.

Robert H. Wayland, III,

Director, Office of Wetlands, Oceans, and Watersheds, U.S.

Environmental Protection Agency.

Signed August 23, 1993.

Michael L. Davis,

Office of the Assistant Secretary of the Army (Civil Works), Department

of the Army.

Regulatory Guidance Letter (RGL 93-3)

RGL 93-3, Issued: September 13, 1993, Expires: not applicable

Subject: Rescission of Regulatory Guidance Letters (RGL) 90-5, 90-7,

and 90-8

1. On 25 August 1993 the final ``Excavation Rule'' was published in

the Federal Register (58 FR 45008) and becomes effective on 24

September 1993. This regulation modifies the definition of ``Discharge

of Dredged Material'' to address landclearing activities (see 33 CFR

323.2(d)); modifies the definitions of ``Fill Material'' and

``Discharge of Fill Material'' to address the placement of pilings (see

33 CFR 323.2 (e) and (f) and 323.3(c)); and modifies the definition of

``waters of the United States'' to address prior converted cropland

(see 33 CFR 328.(a)(8)).

2. Therefore, RGL 90-5, Subject: ``Landclearing Activities Subject

to Section 404 Jurisdiction''; RGL 90-7, Subject: ``Clarification of

the Phrase `Normal Circumstances' as it pertains to Cropped Wetlands'';

and RGL 90-8, Subject: ``Applicability of Section 404 to Pilings''; are

hereby rescinded effective 24 September 1993. Furthermore, although RGL

90-5, Subject: ``Landclearing Activities Subject to Section 404

Jurisdiction'' expired on 31 December 1992 it should continue to be

applied until 24 September 1993.

3. In addition, RGL's 90-5, 90-7, and 90-8 as of 24 September 1993

will no longer be used for guidance since the guidance contained in

those RGL's has been superseded by the regulation.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

Regulatory Guidance Letter (RGL 94-1)

Issued: 23 May 1994, Expires: 31 December 1999

Subject: Expiration of Geographic Jurisdictional Determinations.

1. Regulatory Guidance Letter (RGL) 90-6, Subject: ``Expiration

Dates for Wetlands Jurisdictional Delineations'' is extended until 31

December 1999, subject to the following revisions.

2. This guidance should be applied to all jurisdictional

determinations for all waters of the United States made pursuant to

Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the

Clean Water Act, and Section 103 of the Marine Protection Research and

Sanctuaries Act of 1972.

3. To be consistent with paragraph IV.A. of the 6 January 1994,

interagency Memorandum of Agreement Concerning the Delineation of

Wetlands for Purposes of Section 404 of the Clean Water Act and

Subtitle B of the Food Security Act, all U.S. Army Corps of Engineers

geographic jurisdictional determinations shall be in writing and

normally remain valid for a period of five years. The Corps letter (see

paragraph 4.(d) of RGL 90-6) should include a statement that the

jurisdictional determination is valid for a period of five years from

the date of the letter unless new information warrants revision of the

determination before the expiration date.

4. For wetland jurisdictional delineations the ``effective date of

this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 was and

remains 14 August 1990. For jurisdictional determinations, other than

wetlands jurisdictional delineations, the ``effective date of this

RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 will be the date of

this RGL.

5. Previous Corps written jurisdictional determinations, including

wetland jurisdictional delineations, with a validity period of three

years remain valid for the stated period of three years. The district

engineer is not required to issue new letters to extend such period

from three years to a total of five years. However, if requested to do

so, the district engineer will normally extend the three year period to

a total of five years unless new

[[Page 31501]]

information warrants a new jurisdictional determination.

6. Districts are not required to issue a public notice on this

guidance but may do so at their discretion.

7. This guidance expires on 31 December 1999 unless sooner revised

or rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division Directorate of

Civil Works.

Regulatory Guidance Letter (RGL 94-2)

Issued: 17 AUGUST 1994, Expires: 31 DEC 1999

Subject: Superfund Projects

1. Regulatory Guidance Letter (RGL) 85-07, subject: ``Superfund

Projects'' is hereby reissued (copy enclosed).

2. This RGL was previously extended by RGL 89-2. Although the

extension expired, RGL 85-07 has continued to be U.S. Army Corps of

Engineers policy.

3. This guidance expires 31 December 1999 unless sooner revised or

rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

Encl

Regulatory Guidance Letter (RGL 85-7)

Issued: 5 July 1985, Expires DEC 1987

Subject: Superfund Projects

1. Recently, the Chief Counsel, Mr. Lester Edelman, responded to a

letter from Mr. William N. Hedeman, Jr., Director, Office of Emergency

and Remedial Response, Environmental Protection Agency (EPA) which

dealt with the need for Department of Army authorizations for the

Comprehensive Environmental Response, Compensation and Liability Act

(CERCLA) actions. This letter summarizes Mr. Edelman's opinion and

provides operating guidance for field interaction with the EPA.

2. The EPA's basic position is that Congress did not intend for

CERCLA response actions to be subject to other environmental laws.

Rather, as a matter of sound practice, CERCLA response actions

generally should meet the standards established by those laws.

Consequently, it is the EPA's position that neither it nor the states,

in pursuing response actions at the location of the release or

threatened release under the authority of CERCLA, are required to

obtain permits under Section 404 of the Clean Water Act or Section 10

of the Rivers and Harbors Act for those actions.

3. Mr. Edelman stated in part that he has some reservations about

the position that the EPA has taken. Nevertheless, he recognizes that

the EPA has the primary authority for the interpretation and

application of CERCLA, and therefore would defer to the EPA's reading

of its own statutory authorities, at least for the time being.

4. In light of this legal opinion, FOAs should not require

applications for the EPA or state response actions at the location of

the release or threatened release in pursued under the authority of

CERCLA. Any permit applications in process should be terminated.

5. Both the EPA and OCE believe that the FOAs expertise in

assessing the public interest factors for dredging and filling

operations can contribute to the overall quality of the CERCLA response

action. The Director of Civil Works will be establishing a group from

his staff to work with the EPA staff to develop a framework for

integrating the Corps Section 10, Section 404 and, if appropriate,

Section 103 concerns into the EPA's substantive Superfund reviews.

6. Until specific guidance is provided from OCE, FOAs should

provide technical support to the EPA regions and/or the states on

matters within their field of expertise.

For the Chief of Engineers.

C.E. Edgar III

Regulatory Guidance Letter (RGL 95-1)

Issued: 31 March 1995, Expires: 31 December 2000

Subject: Guidance on Individual Permit Flexibility for Small Landowners

1. Enclosed is a memorandum for the field signed by the Acting

Assistant Secretary of the Army (Civil Works) and the Environmental

Protection Agency dated 6 March 1995. This memorandum provides guidance

on flexibility that the U.S. Army Corps of Engineers should apply when

making determinations of compliance with the Section 404(b)(1)

Guidelines with regard to the alternatives analysis.

2. This memorandum should be implemented immediately. It

constitutes an important aspect of the President's Plan for protecting

the Nation's wetlands, ``Protecting America's Wetlands: A Fair,

Flexible, and Effective Approach'' (published on 24 August 1993).

3. This guidance expires on 31 December 2000 unless sooner revised

or rescinded.

For the Director of Civil Works.

Daniel R. Burns,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

Encl

United States Environmental Protection Agency

Office of Water

Washington, DC 20460

United States Department of the Army

Office of the Assistant Secretary

Washington, DC 20310-0103

Memorandum for the Field, March 6, 1995

Subject: Individual Permit Flexibility for Small Landowners

In order to clearly affirm the flexibility afforded to small

landowners under Section 404 of the Clean Water Act, this policy

clarifies that for discharges of dredged or fill material affecting up

to two acres of non-tidal wetlands for the construction or expansion of

a home or farm building, or expansion of a small business, it is

presumed that alternatives located on property not currently owned by

the applicant are not practicable under the Section 404(b)(1)

Guidelines. Specifically, for those activities involving discharges of

dredged or fill material affecting up to two acres into jurisdictional

wetlands for:

(1) The construction or expansion of a single family home and

attendant features, such as a driveway, garage, storage shed, or septic

field;

(2) The construction or expansion of a barn or other farm building;

or

(3) The expansion of a small business facility; which are not

otherwise covered by a general permit, it is presumed that alternatives

located on property not currently owned by the applicant are not

practicable under the Section 404(b)(1) Guidelines. The Guidelines'

requirements to appropriately and practicably minimize and compensate

for any adverse environmental impacts of such activities remain.

Discussion

The Clean Water Act Section 404 regulatory program provides that

the Army Corps of Engineers evaluate permit applications for the

discharge of dredged or fill material into waters of the U.S.,

including wetlands, in accordance with regulatory requirements of the

Section 404(b)(1) Guidelines (Guidelines). The Guidelines are

substantive environmental criteria used in evaluating discharges of

dredged or fill material.

The Section 404(b)(1) Guidelines establish a mitigation sequence

that provides a sound framework to ensure that the environmental

impacts of permitted actions are acceptable. Under this framework,

there is a three-step

[[Page 31502]]

sequence for mitigating potential adverse impacts to the aquatic

environment associated with a proposed discharge--first avoidance, then

minimization, and lastly compensation for unavoidable impacts to

aquatic resources.

The Guideline's mitigation sequence is designed to establish a

consistent approach to be used in ensuring that all practicable

measures have been taken to reduce potential adverse impacts associated

with proposed projects in wetlands and other aquatic systems. The

Guidelines define the term ``practicable'' as ``available and capable

of being done [by the applicant] after taking into consideration cost,

existing technology, and logistics in light of overall project

purposes'' (40 CFR 230.3(q)). The first step in the sequence requires

the evaluation of potential alternative sites under Sec. 230.10(a) of

the Guidelines, to locate the proposed project so that aquatic impacts

are avoided to the extent practicable.

This policy statement clarifies that, for the purposes of the

alternatives analysis, it is presumed that practicable alternatives are

limited to property owned by the permit applicant in circumstances

involving certain small projects affecting less than two acres of non-

tidal wetlands. This presumption is consistent with the practicability

considerations required under the Guidelines and reflects the nature of

the projects to which the presumption applies--specifically, the

construction or expansion of a single family home and attendant

features, the construction or expansion of a barn or other farm

building, or the expansion of a business. For such small projects that

would solely expand an existing structure, the basic project purpose is

so tied to the existing structures owned by the applicant, that it

would be highly unusual that the project could be practicably located

on other sites not owned by the applicant. In these cases, such as

construction of driveways, garages, or storage sheds, or with home and

barn additions, proximity to the existing structure is typically a

fundamental aspect of the project purpose.

In the evaluation of potential practicable alternatives, the

guidelines do not exclude the consideration of sites that, while not

currently owned by the permit applicant, could reasonably be obtained

to satisfy the project purpose. However, it is the experience of the

Army Corps of Engineers and EPA that areas not currently owned by the

applicant have, in the great majority of circumstances, not been

determined to be practicable alternatives in cases involving the small

landowner activities described above. Cost, availability, and

logistical and capability considerations inherent in the determination

of practicability under the guidelines have been the basis for this

conclusion by the agencies.

The agencies recognize that the presumption characterized in this

policy statement may be rebutted in certain circumstances. For example,

a more thorough review of practicable alternatives would be warranted

for individual sites comprising a subdivision of homes, if following

issuance of this policy statement, a real estate developer subdivided a

large, contiguous wetlands parcel into numerous parcels. In addition,

the presumption is applicable to the expansion of existing small

business facilities. Small businesses are typically confined to only

one location and with economic and logistical limitations that

generally preclude the availability of practicable alternative

locations to meet their expansion needs. Conversely, larger businesses

with multiple locations and greater resources are expected to consider

opportunities to practicably avoid adverse aquatic impacts by

evaluating off-site alternatives.

Finally,it is important to note that this presumption of

practicable alternatives is intended to apply to the individual permit

process. Alternatives are not evaluated for activities covered by

general permits. Many activities related to the construction or

expansion of a home, farm, or business, are already covered by a

general permit. In addition, in conjunction with the issuance of this

policy statement, a nationwide general permit authorizing discharges

related to single family residential development is being proposed and

will be available for public comment.

If you have any questions regarding this memorandum, please contact

Gregory Peck of EPA's Wetlands Division at (202) 260-8794 or Michael

Davis of the Corps of Engineer's Regulatory Branch at (202) 272-0199.

Robert Perciasepe,

Assistant Administrator for Water, U.S. Environmental Protection

Agency.

John Zirschky,

Acting Assistant Secretary of the Army (Civil Works).

Regulatory Guidance Letter (RGL 96-1)

Issued: 5 November 1996, EXPIRES: 31 December 2001

Subject: Use of Nationwide Permit Number 23 for U.S. Coast Guard

Categorical Exclusions

1. We have concurred with the categorical exclusions (CE)

(enclosure) submitted by the United States Coast Guard (Coast Guard)

pursuant to the subject nationwide permit number 23 at 33 CFR Part 330,

including a notification requirement for CE numbers (6) and (8). The

U.S. Army Corps of Engineers published the Coast Guard CEs in 61 FR

18573, April 26, 1996, for comment regarding the applicability of

nationwide permit number 23 for those activities requiring Department

of the Army authorization. This Regulatory Guidance Letter supersedes

the Coast Guard CEs previously approved under nationwide permit number

23 in accordance with Regulatory Guidance Letter 83-5, dated 18 April

1983.

2. The Corps has conditioned the nationwide permit to require

notification to the appropriate Corps office prior to beginning work

under Coast Guard CE number (6) to address potential impacts to

wetlands (notification is only required to the Corps for projects where

wetland impacts are proposed) and number (8) to address potential

impacts/encroachment on Federal navigation projects. The District

Engineer will review the notification and will either verify whether

the activity meets the terms and conditions of nationwide permit 23,

will require evaluation under standard permit procedures, or that

additional conditioning of the activity is necessary to ensure that no

unacceptable adverse effects will result to wetlands for projects under

CE number (6) or to a Federal navigation project under CE number (8).

Authorization of the Coast Guard CEs does not restrict the Division or

District Engineers' authorities to exercise discretionary authority, or

the Corps modification, suspension or revocation procedures.

Development of local procedures to streamline coordination is

encouraged where a Corps division or district further conditions the

nationwide permit to require a notification for additional activities.

3. It should be noted that the Coast Guard provided a complete

listing of CEs, including many that do not require Department of the

Army authorization. However, to reduce confusion when referencing the

CE number, we have included all Coast Guard CEs in the enclosure.

4. This guidance expires 31 December 2001 unless sooner revised or

rescinded.

[[Page 31503]]

For the Director of Civil Works.

Daniel R. Burns,

Chief, Operations, Construction and Readiness Division, Directorate of

Civil Works.

Enclosure

U.S. Coast Guard Categorical Exclusion List

The following is a consolidated list prepared from the U.S. Coast

Guard Federal Register notices (59 FR 38654, July 29, 1994, 60 FR

46317, September 6, 1995, 60 FR 32197, June 20, 1995, and 61 FR 13563,

March 27, 1996). The list does not include the procedures the U.S.

Coast Guard must follow to determine whether certain activities qualify

for a categorical exclusion. Notification to the U.S. Army Corps of

Engineers is required prior to initiation of work for activities

conducted under numbers (6) (notification is only required to the Corps

for projects when wetland impacts are proposed) and number (8).

(1) Routine personnel, fiscal, and administrative activities,

actions, procedures, and policies which clearly do not have any

environmental impacts, such as military and civilian personnel

recruiting, processing, paying, and record keeping.

(2) Routine procurement activities and actions for goods and

services, including office supplies, equipment, mobile assets, and

utility services for routine administration, operations, and

maintenance.

(3) Maintenance dredging and debris disposal where no new depths

are required, applicable permits are secured, and disposal will be at

an existing approved disposal site.

(4) Routine repair, renovation, and maintenance actions on aircraft

and vessels.

(5) Routine repair and maintenance of buildings, roads, airfields,

grounds and equipment, and other facilities which do not result in a

change in functional use, or an impact on a historically significant

element or settings.

(6) Minor renovations and additions to buildings, roads, airfields,

grounds, equipment, and other facilities which do not result in a

chance in functional use, a historically significant element, or

historically significant setting. (When wetland impacts are proposed,

notification is required to the appropriate office of U.S. Army Corps

of Engineers prior to initiation of work)

(7) Routine repair and maintenance to waterfront facilities,

including mooring piles, fixed floating piers, existing piers, and

unburied power cables.

(8) Minor renovations and additions to waterfront facilities,

including mooring piles, fixed floating piers, existing piers, and

unburied power cables, which do not require special, site-specific

regulatory permits. (Notification is required to the appropriate office

of U.S. Army Corps of Engineers prior to initiation of work)

(9) Routine grounds maintenance and activities at units and

facilities. Examples include localized pest management actions and

actions to maintain improved grounds (such as landscaping, lawn care

and minor erosion control measures) that are conducted in accordance

with applicable Federal, State and local directives.

(10) Installation of devices to protect human or animal life, such

as raptor electrocution prevention devices, fencing to restrict

wildlife movement on to airfields, and fencing and grating to prevent

accidental entry to hazardous areas.

(11) New construction on heavily developed portions of Coast Guard

property, when construction, use, and operation will comply with

regulatory requirements and constraints.

(12) Decisions to decommission equipment or temporarily discontinue

use of facilities or equipment. This does not preclude the need to

review decommissioning under section 106 of the National Historic

Preservation Act.

(13) Demolition or disposal actions that involve buildings or

structures when conducted in accordance with regulations applying to

removal of asbestos, PCB's, and other hazardous materials, or disposal

actions mandated by Congress. In addition, if the building or structure

is listed, or eligible for listing, in the National Register of

Historic Places, then compliance with section 106 of the National

Historic Preservation Act is required.

(14) Outleasing of historic lighthouse properties as outlined in

the Programmatic Memorandum of Agreement between the Coast Guard,

Advisory Council on Historic Preservation, and the National Conference

of State Historic Preservation Officers.

(15) Transfer of real property from the Coast Guard to the General

Services Administration, Department of the Interior, and other Federal

departments and agencies, or as mandated by Congress; and the granting

of leases, permits, and easements where there is no substantial change

in use of the property.

(16) Renewals and minor amendments of existing real estate licenses

or grants for use of government-owned real property where prior

environmental review has determined that no significant environmental

effects would occur.

(17) New grants or renewal of existing grants of license,

easements, or similar arrangements for the use of existing rights-of-

way or incidental easements complementing the use of existing rights-

of-way for use by vehicles; for such existing rights-of-way as

electrical, telephone, and other transmission and communications lines;

water, wastewater, stormwater, and irrigation pipelines, pumping

stations, and irrigation facilities; and for similar utility and

transportation uses.

(18) Defense preparedness training and exercises conducted on other

than Coast Guard property, where the legal agency or department is not

Coast Guard or Department of Transportation and the lead agency or

department has completed its NEPA analysis and documentation

requirements.

(19) Defense preparedness training and exercise conducted on Coast

Guard property that do not involve undeveloped property or increase

noise levels over adjacent property and that involve a limited number

of personnel, such as exercises involving primarily electric simulation

or command post personnel.

(20) Simulated exercises, including tactical and logistical

exercises that involve small numbers of personnel.

(21) Training of an administrative or classroom nature.

(22) Operations to carry out maritime safety, maritime law

enforcement, search and rescue, domestic ice breaking, and oil or

hazardous substance removal programs.

(23) Actions performed as a part of Coast Guard operations and the

Aids to Navigation Program to carry out statutory authority in the area

of establishment of floating and minor fixed aids to navigation, except

electronic sound signals.

(24) Routine movement of personnel and equipment, and the routine

movement, handling, and distribution of nonhazardous materials and

wastes in accordance with applicable regulations.

(25) Coast Guard participation in disaster relief efforts under the

guidance or leadership of another Federal agency that has taken

responsibility for NEPA compliance.

(26) Data gathering, information gathering, and studies that

involve no physical change to the environment. Examples include

topographic surveys, bird counts, wetland mapping, and other

inventories.

(27) Natural and cultural resource management and research

activities that are in accordance with interagency agreements and which

are designed to

[[Page 31504]]

improve or upgrade the Coast Guard's ability to manage those resources.

(28) Contracts for activities conducted at established laboratories

and facilities, to include contractor-operated laboratories and

facilities, on Coast Guard-owned property where all airborne emissions,

waterborne effluents, external radiation levels, outdoor noise, and

solid and bulk waste disposal practices are in compliance with existing

applicable Federal, State, and local laws and regulations.

(29) Approval of recreational activities (such as a Coast Guard

unit picnic) which do not involve significant physical alteration of

the environment, increase disturbance by humans of sensitive natural

habitats, or disturbance of historic properties, and which do not occur

in, or adjacent to, areas inhabited by threatened or endangered

species.

(30) Review of documents, such as studies, reports, and analyses,

prepared for legislative proposals that did not originate in DOT and

that relate to matters that are not the primary responsibility of the

Coast Guard.

(31) Planning and technical studies which do not contain

recommendations for authorization or funding for future construction,

but may recommend further study. This includes engineering efforts or

environmental studies undertaken to define the elements of a proposal

or alternatives sufficiently so that the environmental effects may be

assessed and does not exclude consideration of environmental matters in

the studies.

(32) Bridge Administration Program actions which can be described

as one of the following:

(a) Modification or replacement of an existing bridge on

essentially the same alignment or location. Excluded are bridges with

historic significance or bridges providing access to undeveloped

barrier islands and beaches. (Approach fills regulated by the U.S. Army

Corps or Engineers under Section 404 of the Clean Water Act will

require a separate individual or general permit.)

(b) Construction of pipeline bridges for transporting potable

water.

(c) Construction of pedestrian, bicycle, or equestrian bridges and

stream gauging cableways used to transport people.

(d) Temporary replacement of a bridge immediately after a natural

disaster or a catastrophic failure for reasons of public safety,

health, or welfare.

(e) Promulgation of operating regulations or procedures for

drawbridges.

(f) Identification of advance approval waterways under 33 CFR

115.70,

(g) Any Bridge Program action which is classified as a CE by

another Department of Transportation agency acting as lead agency for

such action.

(33) Preparation of guidance documents that implement, without

substantive change, the applicable Commandant Instruction or other

Federal agency regulations, procedures, manuals, and other guidance

documents.

(34) Promulgation of the following regulations:

(a) Regulations which are editorial or procedural, such as those

updating addresses or establishing application procedures.

(b) Regulations concerning internal agency functions or

organization or personnel administration, such as funding, establishing

Captain of the Port boundaries, or delegating authority.

(c) Regulations concerning the training, qualifying, licensing, and

disciplining of maritime personnel.

(d) Regulations concerning manning, documentation, admeasurement,

inspection, and equipping of vessels.

(e) Regulations concerning equipment approval and carriage

requirements.

(f) Regulations establishing, disestablishing, or changing the size

of Special Anchorage Areas or anchorage grounds.

(g) Regulations establishing, disestablishing, or changing

Regulated Navigation Areas and security or safety zones.

(h) Special local regulations issued in conjunction with a regatta

or marine parade; provided that, if a permit is required, the

environmental analysis conducted for the permit included an analysis of

the impact of the regulations.

(i) Regulations in aid of navigation, such as those concerning

rules of the road, International Regulations for the Prevention of

Collisions at Sea (COLREGS), bridge-to-bridge communication, vessel

traffic services, and marking, of navigation systems.

(35) Approvals of regatta and marine parade event permits for the

following events:

(a) Events that are not located in, proximate to, or above an area

designated as environmentally sensitive by an environmental agency of

the Federal, State, or local Government. For example, environmentally

sensitive areas may include such areas as critical habitats or

migration routes for endangered or threatened species or important fish

or shellfish nursery areas.

(b) Events that are located in, proximate to, or above an area

designated as environmentally sensitive by an environmental agency of

the Federal, State, or local Government and for which the Coast Guard

determines, based on consultation with the Government agency, that the

event will not significantly affect the environmentally sensitive area.

Regulatory Guidance Letter (RGL 96-2)

Issued 12 December 1997, Expires 31 December 2001

Subject: Applicability of Exemptions under Section 404(f) to ``Deep-

Ripping'' Activities in Wetlands

1. Enclosed is a memorandum to the field jointly signed by the U.S.

Environmental Protection Agency and U.S. Army Corps of Engineers. The

memorandum provides guidance clarifying when ``deep-ripping''

activities within wetlands require Department of Army authorization.

2. This guidance expires 31 December 2001, unless sooner revised or

rescinded.

For the Director of Civil Works.

Daniel R. Burns,

Chief, Operations, Construction, and Readiness Division, Directorate of

Civil Works.

Enclosure

Department of the Army

U.S. Army Corps of Engineers

United States Environmental Protection Agency

Memorandum to the Field, 12 Dec 1996

Subject: Applicability of Exemptions under Section 404(f) to ``Deep-

Ripping'' Activities in Wetlands

Purpose: The purpose of this memorandum is to clarify the applicability

of exemptions provided under Section 404(f) of the Clean Water Act

(CWA) to discharges associated with ``deep-ripping'' and related

activities in wetlands.\1\

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

\1\ As this guidance addresses primary agricultural-related

activities, characterizations of such practices have been developed

in consultation with experts at the U.S. Department of Agriculture

(USDA), Natural Resources Conservation Service.

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

Background

1. Section 404(f)(1) of the CWA exempts from the permit requirement

certain discharges associated with normal farming, forestry, and

ranching practices in waters of the United States, including wetlands.

Discharges into waters subject to the Act associated with farming,

forestry, and ranching practices identified under Section 404(f)(1) do

not require a permit except as provided under Section 404(f)(2).

2. Section 404(f)(1) does not provide a total, automatic exemption

for all activities related to agricultural, silvicultural, or ranching

practices.

[[Page 31505]]

Rather, Section 404(f)(1) exempts only those activities specifically

identified in paragraphs (A) through (F), and ``other activities of

essentially the same character as named'' [44 FR 34264]. For example,

Section 404(f)(1)(A) lists discharges of dredged or fill material from

``normal farming, silvicultural and ranching activities, such as

plowing, seeding, cultivating, minor drainage, harvesting for the

production of food, fiber, and forest products, or upland soil and

water conservation practices.''

3. Section 404(f)(1)(A) is limited to activities that are part of

an ``established (i.e., ongoing) farming, silviculture, or ranching

operation.'' This ``established'' requirement is intended to reconcile

the dual intent reflected in the legislative history that although

Section 404 should not unnecessarily restrict farming, forestry, or

ranching from continuing at a particular site, discharge activities

which could destroy wetlands or other waters should be subject to

regulation.

4. EPA and Corps regulations [40 CFR 230 and 33 CFR 320] and

preamble define in some detail the specific ``normal'' activities

listed in Section 404(f)(1)(A). Three points may be useful in the

current context:

a. As explained in the preamble to the 1979 proposed

regulations, the words ``such as'' have been consistently

interpreted as restricting the section ``to the activities named in

the statute and other activities of essentially the same character

as named, ``and'' `preclude the extension of the exemption * * * to

activities that are unlike those named.'' [44 FR 34264].

b. Plowing is specifically defined in the regulations not to

include the redistribution of surface material in a manner which

converts wetlands areas to uplands [See 40 CFR

233.35(a)(1)((iii)(D)].

c. Discharges associated with activities that establish an

agricultural operation in wetlands where previously ranching had

been conducted, represents a ``change in use'' within the meaning of

Section 404(f)(2). Similarly, discharges that establish forestry

practices in wetlands historically subject to agriculture also

represent a change in use of the site [See 40 CFR 233.35(c)].

5. The statute includes a provision at Section 404(f)(2) that

``recaptures'' or reestablishes the permit requirement for those

otherwise exempt discharges which:

a. Convert an area of the waters of the U.S. to a new use, and

b. Impair the flow or circulation of waters of the U.S. or reduce the

reach of waters of the U.S.

Conversion of an area of waters of the U.S. to uplands triggers both

provisions (a) and (b) above. Thus, at a minimum, any otherwise exempt

discharge that results in the conversion of waters of the U.S. to

upland is recaptured under Section 404(f)(2) and requires a permit. It

should be noted that in order to trigger the recapture provisions of

Section 404(f)(2), the discharges themselves need not be the sole cause

of the destruction of the wetland or other change in use or sole cause

of the reduction or impairment of reach, flow, or circulation of waters

of the U.S. Rather, the discharges need only be ``incidental to'' or

``part of'' an activity which is intended to or will foreseeably bring

about that result. Thus, in applying Section 404(f)(2), one must

consider discharges in context, rather than isolation.

Issue:

1. Questions have been raised involving ``deep-ripping'' and

related activities in wetlands and whether discharges associated with

these actions fall within the exemptions at Section 404(f)(1)(A). In

addition, the issue has been raised whether, if such activities fall

within the exemption, they would be recaptured under Section 404(f)(2).

2. ``Deep-ripping'' is defined as the mechanical manipulation of

the soil to break up or pierce highly compacted, impermeable or slowly

permeable subsurface soil layers, or other similar kinds of restrictive

soil layers. These practices are typically used to break up these

subsoil layers (e.g., impermeable soil layer, hardpan) as part of the

initial preparation of the soil to establish an agricultural or

silvicultural operation. Deep-ripping and related activities are also

used in established farming operations to break up highly compacted

soil. Although deep-ripping and related activities may be required more

than once, the activity is typically not an annual practice. Deep-

ripping and related activities are undertaken to improve site drainage

and facilitate deep root growth, and often occur to depths greater than

16 inches and, in some cases, exceeding 4 feet below the surface. As

such, it requires the use of heavy equipment, including bulldozers,

equipped with ripper-blades, shanks, or chisels often several feet in

length. Deep-ripping and related activities involve extending the

blades to appropriate depths and dragging them through the soil to

break up the restrictive layer.

3. Conversely, plowing is defined in EPA and Corps regulations [40

CFR part 230 and 33 CFR part 320] as ``all forms of primary tillage * *

* used * * * for the breaking up, cutting, turning over, or stirring of

soil to prepare it for the planting of crops'' [40 CFR 232.3(d)(4)]. As

a general matter, normal plowing activities involve the annual or at

least regular, preparation of soil prior to seeding or other planting

activities. According to USDA, plowing generally involves the use of a

blade, chisel or series of blades, chisels, or discs, usually 8-10

inches in length, pulled behind farm vehicle to prepare the soil for

the planting of annual crops or to support an ongoing farming practice.

Plowing is commonly used to break up the surface of the soil to

maintain soil tilth and to facilitate infiltration throughout the upper

root zone.

Discussion

1. Plowing in wetlands is exempt from regulation consistent with

the following circumstances:

a. it is conducted as part of an ongoing, established agricultural,

silvicultural or ranching operation; and

b. the activity is consistent with the definition of plowing in EPA and

Corps regulations [40 CFR 230 and 33 CFR 320]; and

c. the plowing is not incidental to an activity that results in the

immediate or gradual conversion of wetlands to non-waters.

2. Deep-ripping and related activities are distinguishable from

plowing and similar practices (e.g., discing harrowing) with regard to

the purposes and circumstances under which it is conducted, the nature

of the equipment that is used, and its effect, including in particular

the impacts to the hydrology of the site.

a. Deep-ripping and related activities are commonly conducted to

depths exceeding 16 inches, and as deep as 6-8 feet below the soil

surface to break restrictive soil layers and improve water drainage at

sites that have not supported deeper rooting crops. Plowing depths,

according to USDA, rarely exceed one foot into the soil and not deeper

than 16 inches without the use of special equipment involving special

circumstances. As such, deep-ripping and related activities typically

involve the use of specialized equipment, including heavy mechanized

equipment and bulldozers, equipped with elongated ripping blades

shanks, or chisels often several feet in length. Moreover, while

plowing is generally associated with ongoing operations, deep-ripping

and related activities are typically conducted to prepare a site for

establishing crops not previously planted at the site. Although deep-

ripping may have to be redone at regular intervals in some

circumstances to maintain proper soil drainage, the activity is

typically not an annual or routine practice.

[[Page 31506]]

b. Frequently, deep-ripping and related activities are conducted as

a preliminary step for converting a ``natural'' system or for preparing

rangeland for a new use such as farming or silviculture. In those

instances, deep ripping and related activities are often required to

break up naturally-occurring impermeable or slowly permeable subsurface

soil layers to facilitate proper root growth. For example, for certain

depressions wetlands types such as vernal pools, the silica-cemented

hardpan (durapan) or other restrictive layer traps precipitation and

seasonal runoff creating ponding and saturation conditions at the soil

surface. The presence of these impermeable or slowly permeable subsoil

layers is essential to support the hydrology of the system. Once these

layers are disturbed by activities such as deep-ripping, the hydrology

of the system is disturbed and the wetland is often destroyed.

c. In contrast, there are other circumstances where activities such

as deep-ripping and related activities are a standard practice of an

established on-going farming operation. For example, in parts of the

Southeast, where there are deep soils having a high clay content,

mechanized farming practices can lead to the compaction of the soil

below the oil surface, it may be necessary to break up, on a regular

although not annual basis, these restrictive layers in order to allow

for normal root development and infiltration. Such activities may

require special equipment and can sometimes occur to depths greater

than 16 inches. However, because of particular physical conditions,

including the presence of a water table at or near the surface for part

of the growing season, the activity typically does not have the effect

of impairing the hydrology of the system or otherwise altering the

wetland characteristics of the site.

Conclusion

1. When deep-ripping and related activities are undertaken as part

of an established, ongoing agricultural silvicultural or ranching

operation, to break up compacted soil layers and where the hydrology of

the site will not be altered such that it would result in conversion of

waters of the U.S. to upland, such activities are exempt under Section

404(f)(1)(A).

2. Deep-ripping and related activities in wetlands are not exempt,

when such practices are conducted in association with efforts to

establish for the first time (or when a previously established

operation was abandoned) an agricultural, silvicultural or ranching

operation. In addition, deep-ripping and related activities are not

exempt in circumstances where such practices would trigger the

``recapture'' provision of Section 404(f)(2):

(a) Deep-ripping to establish a farming operation at a site

where a ranching or forestry operation was in place is a change in

use of such a site. Deep-ripping and related activities that also

have the effect of altering or removing the wetland hydrology of the

site would trigger Section 404(f)(2) and such ripping would require

a permit.

(b) Deep-ripping a site that has the effect of converting

wetlands to non-waters would also trigger Section 404(f)(2) and such

ripping would require a permit.

3. It is the agencies' experience that certain wetland types are

particularly vulnerable to hydrological alteration as a result of deep-

ripping and related activities. Depressional wetland systems such as

prairie potholes, vernal pools and playas whose hydrology is critically

dependent upon the presence of an impermeable or slowly permeable

subsoil layer are particularly sensitive to disturbance or alteration

of this subsoil layer. Based upon this experience, the agencies have

concluded that, as a general matter, deep-ripping and similar

practices, consistent with the descriptions above, conducted in prairie

potholes, vernal pools, playas and similar depressions wetlands destroy

the hydrological integrity of these wetlands. In these circumstances,

deep-ripping in prairie potholes, vernal pools, and playas is

recaptured under Section 404(f)(2) and requires a permit under the

Clean Water Act.

Robert H. Wayland III,

Director, Office of Wetlands, Oceans and Watersheds, Environmental

Protection Agency.

Daniel R. Burns,

Cheif, Operations, Construction and Readiness Division, Directorate of

Civil Works, U.S. Army Corps of Engineers.

[FR Doc. 97-15001 Filed 6-6-97; 8:45 am]

BILLING CODE 3710-92-M