20140727 Ver 1_Federal Register for Corps Permits - 1986_20150218

Federal register
Thursday
November 13, 1986
Part II
Department of Defense
Corps of Engineers, Department of the Army
33 CFR Parts 320 through 330
Regulatory Programs of the Corps of Engineers; Final Rule
Note: This is a scanned copy. Page numbers are accurate, but there are minor
formatting changes. Some letters and numbers may not have been accurately
scanned. Do not use for legal cite. See current Code of Federal Regulations
(CFR).

41206 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
DEPARTMENT OF DEFENSE
Corps of Engineers, Department of
the Army
33 CFR Parts 320, 321, 322, 323, 324,
325, 326, 327, 328, 329 and 330
Final Rule for Regulatory Programs of
the Corps of Engineers
AGENCY: Corps of Engineers, Army
Department, DOD.
ACTION: Final rule.
SUMMARY: We are hereby issuing final
regulations for the regulatory program of
the Corps of Engineers. These regulations
consolidate earlier final, interim final, and
certain proposed regulations along with
numerous changes resulting from the
consideration of the public comments
received. The major changes include
modifications that provide for more
efficient and effective management of the
decision - making processes, clarifications
and modifications of the enforcement
procedures, modifications to the
nationwide permit program, revision of the
permit form, and implementation of
special procedures for artificial reefs as
required by the National Fishing
Enhancement Act of 1984.
EFFECTIVE DATE: January 12, 1987
FOR FURTHER INFORMATION
CONTACT:
Mr. Sam Collinson or Mr. Bernie Goode,
HQDA (DAEN- CWO -N), Washington,
DC 20314 -1000, (202) 272 -0199.
SUPPLEMENTARY INFORMATION:
Consolidation of Corps Permit Regulations
These final regulations consolidate and
complete the six following rulemaking
events affecting the Corps regulatory
program:
1. Interim Final Regulations. These
regulations contained Parts 320 -330 and
were published (47 FR 31794) on July 22,
1982, to incorporate policy and procedural
changes resulting from legislative, judicial,
and administrative actions that had
occurred since the previous final
regulations had been published in 1977.
Because it had been almost two years since
we had proposed changes to the 1977
regulations, we published the 1982
regulations as" interim final" and asked for
public comments. We received nearly 200
comments.
2. Proposed Regulatory Reform
Regulations. On May 12, 1983, we
published (48 FR 21466) proposed
revisions to the interim final regulations to
implement the May 7, 1982, directives of
the Presidential Task Force on Regulatory
Relief. The Task Force directed the Army
to reduce uncertainty and delay, give the
states more authority and responsibility,
reduce conflicting and overlapping
policies, expand the use of general permits,
and redefine and clarify the scope of the
permit program. Since these regulations
proposed changes to our existing
nationwide permits and the addition of two
new nationwide permits, a public hearing
was held in Washington, DC, on October
12, 1983, to obtain comments on these
proposed changes. As a result of the public
comments received, nearly 500 in response
to the proposed regulations and 22 at the
public hearing, we have determined that
some of the proposed revisions should be
adopted and some should not. We have
adopted some of the provisions that were
designed to clarify policies for evaluating
permit applications, to revise certain
permit processing procedures, to add
additional conditions to existing
nationwide permits, and to modify certain
nationwide permit procedures. We have
not adopted some of the other proposed
changes, including the two proposed new
nationwide permits.
3. Settlement Agreement Final
Regulations. On October 5, 1984, we
published (49 FR 39478) final regulations
to implement a settlement agreement
reached in a suit filed by 16 environmental
organizations in December of 1982 against
the Department of the Army and the
Environmental Protection Agency (NWF
v. Marsh) concerning several provisions of
the July 22, 1982, interim final regulations.
The court approved the settlement
agreement on February 10, 1984, and on
March 29, 1984, we published (49 FR
12660) the implementing proposed
regulations. We received over 150
comments on these proposed regulations
covering a full range of views. Those
comments which were applicable to the
provisions of the March 29, 1984,
proposals were considered and addressed
in the final regulations published on
October 5, 1984. The remaining comments
have been considered in the development
of the final regulations we are issuing
today.
In the October 5, 1984, final rule there
were several new provisions relating to the
404(b)(1) guidelines. In 33 CFR
320.4(a)(1) we clarified the fact that no
404 permit can be issued unless it
complies with the 404(b)(1) guidelines.
If a proposed action complies with the
guidelines, a permit will be issued unless
the district engineer determines that it will
be contrary to the public interest. In 33
CFR 323.6(a) we stated that district
engineers will deny permits for discharges
which fail to comply with the 404(b)(1)
guidelines, unless the economic impact on
navigation and anchorage necessitates
permit issuance pursuant to section
404(b)(2) of the Clean Water Act.
Although no 404 permit can be issued
unless compliance with the 404(b)(1)
guidelines is demonstrated (i.e.,
compliance is a prerequisite to issuance),
the 404(b)(1) evaluation is conducted
simultaneously with the public interest
review set forth in 33 CFR 320.4(a).
4. Proposed Permit Form Regulations.
On May 23, 1985, we published (50 FR
21311) proposed revisions to 33 CFR Part
325 (Appendix A), which contains the
standard permit form used for the issuance
of Corps permits and the related provisions
concerning special conditions. This
proposal provided for the complete
revision of the permit form and its related
provisions to make them easier for
permittees to understand. General permit
conditions were written in plain English
and greatly reduced in number;
unnecessary material was deleted; and
material which is informational in nature
was reformatted under a "FURTHER
INFORMATION" heading. We received
18 comments on this proposal.
5. Proposed Regulations to Implement
the National Fishing Enhancement Act of
1984 (NFEA). On July 26, 1985, we
published (50 FR 30479) proposed
regulations to implement a portion of the
Corps regulatory responsibilities pursuant
to the NFEA. Specialized procedures
relative to the processing of Corps permits
for artificial reefs were proposed for
inclusion in Parts 322 and 325. Eight
organizations commented on these
proposed regulations, The NFEA also
authorizes the Secretary of the Army to
assess a civil penalty on any person who,
after notice and an opportunity for a
hearing, is found to have violated any
provision of a permit issued for an
artificial reef. Procedures for
implementing such civil penalties will be
proposed at a later date. In addition, we are
hereby notifying potential applicants for
artificial reef permits that the procedures
contained in Part 323 relating to the
discharge of dredged or fill materials and
those in Part 324 relating to the
transportation of dredged material for the
purpose of dumping in ocean waters will
be used in the processing of artificial reef
permits when applicable.
6. Proposed Regulations (Portion of
Part 323 and All of Part 326 On March
20, 1986, we published (51 FR 969 1) a
proposed change to 33 CFR 323.2(d),
previously 323.20), to reflect the Army's
policy regarding de minimis or incidental
soil movements occurring

41207 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
during normal dredging operations and a
proposed, complete revision of the Corps
of Engineers enforcement procedures (33
CFR Part 326). Seventeen comment letters
were received on these proposed
regulations. These comments and the
resulting changes reflected in the final
regulations for § 323.2(d) and Part 326 are
discussed in detail below.
Environmental Documentation
We have determined that this action
does not constitute a major Federal action
significantly affecting the quality of the
human environment. Appropriate
environmental documentation has been
prepared for all permit decisions.
Environmental assessments for each of the
nationwide permits previously issued or
being modified today are available from
the Corps of Engineers. You may obtain
these assessments by writing to the address
listed in this preamble. Considering the
potential impacts, we have determined that
none required an environmental impact
statement.
Discussion of Public Comments and
Changes
Part 320 Genera /Regulatory Policies
Section 320. ] (a) (6): In order to provide
clarity to the public, we have added a
provision to codify existing practice that
when a district engineer makes certain
determinations under these regulations, the
public can rely on that determination as a
Corps final agency action.
Section 320.3(0): The National Fishing
Enhancement Act of 1984 has been added
to the list of related laws in § 320.3.
Section 320.4: In the May 12, 1983.
proposed rule and the March 29, 1984,
proposed rule we proposed changes to § §
320.4(a)(1)— public interest review,
320.4(b)(5) —effect on wetlands,
320.4(c) —fish and wildlife, 320.4(g)—
consideration of property ownership, and
320.40) —other Federal, state or local
requirements. Changes to these paragraphs
were adopted in the October 5, 1984, final
rule. The various comments relating to
these proposals have been fully discussed
in the October 5, 1984 final rule (49 FR
39478).
Section 320.4 (a) (3): Many commenters
objected, some strongly, to the deletion in
the October 5, 1984, final regulations of
the term "great weight" from § 320.4(c),
the paragraph concerning the consideration
of opinions expressed by fish and wildlife
agencies. Many stated that fish and
wildlife agencies had the expertise and
knowledge to know the impact of work in
wetlands; therefore, their opinions should
be given strong consideration. Some
commenters supported removal of the
"great weight" statement expecting less
value would be given fish and wildlife
agency views. It is not our intention to
reduce or discount the value or expertise of
fish and wildlife agency comments or
those of any other experts in any field.
Comments also varied from support of to
objection to the deletion of the "great
weight" statement from the other policy
statements such as energy and navigation
in § 320.4. Therefore, we added a new
paragraph (a)(3) to clarify our position on
how we consider comments from the
public, including those from persons or
agencies with special expertise on
particular factors in the public interest
review.
Section 320.4 (b) (1): One commenter
objected to the placement of the word
"some" in this paragraph as a rewrite of
E.O. 11990 which places no qualifier on
"wetlands" indicating that all wetlands are
vital. We have found through experience
in administering the Section 404 permit
program that wetlands vary in value.
While some are vital areas, others have
very little value; however, most are
important. We recognize that "some
wetlands are vital ..." is being read by
some people as "Some wetlands are
important ..." This was not our intent. To
avoid this confusion we have revised this
paragraph by deleting "some wetlands are
vital areas . . . " and indicating that "most"
wetlands are important.
Section 320.4(b)(2)(vi): We have
included in the list of important wetlands
those wetlands that are ground water
discharge areas that maintain minimum
baseflows important to aquatic resources.
Scientific research now indicates that
wetlands more often serve as discharge
areas than recharge areas. Those discharge
areas which are necessary to maintain a
minimum baseflow necessary for the
continued existence of aquatic plants and
animals are recognized as important.
Section 320.4(b)(2)(viii): We have
included in the list of important wetlands
those which are unique in nature or scarce
in quantity to the region or local area.
Section 320.4(d): We have revised this
paragraph to clarify that impacts from both
point source and non -point source
pollution are considered in the Corps
public interest review. However, section
208 of the Clean Water Act provides for
control of non -point sources of pollution
by the states.
Section 320.4 U) (1): Clarifying
language has been added to this section to
eliminate confusion regarding denial
procedures when another Federal, state,
and/or local authorization or certification
has been denied.
Section 320.4(p): Some commenters felt
that environmental considerations should
take precedence over other factors. Other
commenters believed that guidance should
be given as to who determines whether
there are environmental benefits to a
project. Many commenters indicated that
the regulation does not define the possible
range of environmental benefits that will
be considered. Environmental benefits are
determined by the district engineer and the
district staff based on responses received
from the general public, special interest
groups, other government agencies and
staff evaluation of the proposed activity.
Defining the possible range of
environmental benefits would be almost
impossible to cover in the rules in
sufficient detail, since circumstances vary
considerably for each permit application.
After considering all the comments we
have decided to make the change as
proposed on May 12, 1983.
Section 320.4(q): Some commenters
believed that this rule would distort review
criteria by inserting inappropriate
economic assumptions and minimizing
environmental criteria. Some commenters
suggested that the Corps revise this
paragraph to include a provision to
challenge an applicant's economic data
and that of governmental agencies as well.
Other commenters believe that economic
factors do not belong in these regulations
since the intent of the Clean Water Act is:
"to restore and maintain the chemical,
physical, and biological integrity of the
nation's waters "; therefore, any regulation
under the CWA should have, as its primary
objective, provisions which give
environmental factors the greatest weight.
They were concerned that this part may be
applied to allow economic benefits to
offset negative environmental effects.
Some' commenters, however, believed that
the Corps should assume that projects
proposed by state and local governmental
interests and private industry are
economically viable and are needed in the
marketplace. They also believed that the
Corps and other governmental agencies
should not engage in detailed economic
evaluations. Economics has been included
in the Corps list of public interest factors
since 1970. However, there has never been
a specific policy on economics in the
regulations. The Corps generally accepts
an applicant's determination that a
proposed activity is needed and will be
economically viable, but makes its own
decision on whether

41208 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
a project should occur in waters of the U.S.
The district engineer may determine that
the impacts of a proposed project on the
public interest may require more than a
cursory evaluation of the need for the
project. The depth of the evaluation would
depend on the significance of the impacts
and in unusual circumstances could
include an independent economic analysis.
The Corps will balance the economic need
for a project along with other factors of the
public interest. Accordingly, § 320.4(q)
has been modified from the proposed rule
to provide that the district engineer may
make an independent review of the need
for a project from the perspective of the
public interest.
Section 320.4(x): Many comments were
offered as to the intent, scope and
implementation of the proposed mitigation
policy. Comments were almost equally
divided between those who felt that the
policy should be expanded and those that
felt it should be more limited. The issues
that were raised include: mitigation should
not be used to outweigh negative public
interest factors; mitigation should not be
integrated into the public interest review;
mitigation should be on -site to the
maximum extent practicable; off -site
mitigation extends the range of concerns
beyond those required by Section 404. A
wide range of views were expressed on our
proposed mitigation policy, but virtually
all commenters expressed need for a
policy. The Corps has been requiring
mitigation as permit conditions for many
years based on our regulations and the
404(b)(1) guidelines. Because of the
apparent confusion on this matter, we have
decided to clarify our existing policy at
320.4(r).
The concept of "mitigation" is many -
faceted, as reflected in the definition
provided in the Council on (Environmental
Quality (CEQ) NEPA regulations at 40
CFR 1508.20. Viewing "mitigation" in its
broadest sense, practically any permit
condition or best management practice
designed to avoid or reduce adverse effects
could be considered "mitigation."
Mitigation considerations occur
throughout the permit application review
process and are conducted in consultation
with state and Federal agencies responsible
for fish and wildlife resources. District
engineers will normally discuss
modifications to minimize project impacts
with applicants at pre - application meetings
(held for large and potentially
controversial projects) and during the
processing of applications. As a result of
these discussions, district engineers may
condition permits to require minor project
modifications, even though that project
may satisfy all legal requirements and the
public interest review test without those
modifications.
For applications involving Section 404
authority, mitigation considerations are
required as part of the Section 404(b)(1)
guidelines analysis; permit conditions
requiring mitigation must be added when
necessary to ensure that a project complies
with the guidelines. To emphasize this, we
have included a footnote to § 320.4(r)
regarding mitigation requirements for
Section 404, Clean Water Act, permit
actions. Some types of mitigation
measures are enumerated in Subpart H of
the guidelines. Other laws such as the
Endangered Species Act may also lead to
mitigation requirements in order to ensure
that the proposal complies with the law. In
addition to the mitigation developed in
preapplication consultations and through
application of the 404(b)(1) guidelines and
other laws, these regulations provide for
further mitigation should the public
interest review so indicate.
One form of mitigation is
,,compensatory mitigation," defined at 40
CFR 1508.20(e) to mean "`compensating
for the impact by replacing or providing
substitute resources or environments."
Federal and state natural resource agencies
sometimes ask the Corps to require permit
applicants to compensate for wetlands to
be destroyed by permitted activities. Such
compensatory mitigation might be
provided by constructing or enhancing a
wetland; by dedicating wetland acreage for
public use; or by contributing to the
construction, enhancement, acquisition or
preservation of such "mitigation lands."
Compensatory mitigation of this type is
often referred to as "'off-site" mitigation.
However, it can be provided either onsite
or off -site. Such mitigation can be required
by permit conditions only in compliance
with 33 CFR 325.4, and specifically with
33 CFR 325.4(a)(3). In addition to those
restrictions, the Corps has for many years
declined to use, and does now decline to
use, the public interest review to require
permit applicants to provide compensatory
mitigation unless that mitigation is
required to ensure that an applicant's
proposed activity is not contrary to the
public interest. If an applicant refuses to
provide compensatory mitigation which
the district engineer determines to be
necessary to ensure that the proposed
activity is not contrary to the public
interest, the permit must be denied. If an
applicant voluntarily offers to provide
compensatory mitigation in excess of the
amount needed to find that the project is
not contrary to the public interest, the
district engineer can incorporate a permit
condition to implement that mitigation at
the applicant's request.
Part 321 Permits for Dams and Dikes in
Navigable Waters of the United States
The Secretary of the Army delegated his
authority under Section 9 of the Rivers and
Harbors Act of 1899, 33 U.S.C. 401 to the
Assistant Secretary of the Army (Civil
Works). The Assistant Secretary in turn
delegated his authority under Section 9 for
structures in intrastate navigable waters of
the United States to the Chief of Engineers
and his authorized representative. District
engineers have been authorized in 33 CFR
325.8 to issue or deny permits for dams or
dikes in intrastate navigable waters of the
United States" under Section 9 of the
Rivers and Harbors Act of 1899. This
section of the regulation and § § 325.5(d)
and 325.8(a) have been revised to reflect
this delegation.
Part 322 Permits for Structures or Work
in or Affecting Navigable Waters of the
United States
Section 322.2(a): We have revised the
term "`navigable waters of the United
States" to reference 33 CFR Part 329 since
it and all other terms relating to the
geographic scope of the Section 10
program are defined at 33 CFR Part 329.
Section 322.2(b): Commenters on the
definition of structures indicated that
several terms needed further amplification.
It was suggested that the term "boom" be
defined to exclude a float boom, as would
be used in front of a spillway. The term
was not redefined because those dams
constructed in Section 10 waters do require
a permit for a float boom. However, most
dams in the United States are constructed
in non - Section 10 waters and do not
require a permit for a boom (floating or
otherwise) unless it involves the discharge
of dredged or fill material. It was
suggested that the term "obstacle or
obstruction" be modified to reinstitute the
language from the July 19, 1977, final
regulations. We have adopted the
suggestion which will clarify our intent
that obstacles or obstructions, whether
permanent or nod do require a permit; it
will also assist in jurisdictional decisions
on enforcement. It was suggested that
"boat docks" and "`boat ramps" be
included in the list of structures, since
these are frequently proposed structures.
These have been included. It was
suggested that the term " "artificial gravel
island" be added, as

41209 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
Congress, by Section 4(e) of the Outer
Continental Shelf Lands Act of 1953,
extended the regulatory program to the
Outer Continental Shelf, and specifically
cited artificial islands as falling under
Section 10 jurisdiction. This type of
structure is also constructed on state lands
within the territorial seas. Accordingly,
artificial islands have been included.
Section 322.2(c): Two commenters
discussed the definition of "'world'; one
stated that it was too broad and the other
that it should be expanded. The present
definition of the term "`work" has
remained unchanged for many years and
has achieved general acceptance by the
regulators and those requiring a permit.
The present language has been retained.
Sections 322.269(2) and 323.2 (n) (2):
Both of these sections are concerned with
the definition of general permits. Several
commenters expressed support for the
additional criteria contained in the May 12,
1983 proposed rule. Other commenters
expressed concern that the proposed
criteria were illegal. Some commenters
believed that the proposal would amount to
a delegation of the Section 404 program to
the states, and that this is not a prerogative
of the Corps of Engineers. Many
commenters expressed serious concern that
state programs were not comprehensive
enough to properly represent the public
interest review. Still others objected to the
proposal because there were no assurances
that the state approved projects themselves
were "` similar in nature" or would have
"minimal adverse environmental effects ";
those objections extended to the proposal
to assess the impacts of the differences in
the State! Corps decisions. Some
commenters suggested that an automatic
"kick -ouf' provision, whereby concerned
agencies could cause the Corps to require
an individual application on a case -by -case
basis, may provide sufficient safeguards
for the proposal to go forward. Some
commenters suggested that a preferred
approach to reducing duplication would be
for the Corps to express, in its regulations,
direction for its districts to vigorously
pursue joint processing, permit
consolidation, pre - application consultation,
joint applications, joint public notices and
special area management planning. This
change was proposed in 1983. At that time
we believed that additional flexibility in
the types of general permits which could
be developed was necessary to effectively
administer the regulatory program. Our
experience since then has shown that the
existing definitions of general permit at
both of these sections is flexible
enough to develop satisfactory general
permits. Therefore we have decided not to
adopt this proposed change. Because
several definitions previously found in Part
323 have been moved to Part 328, §
323.2(n) has been redesignated § 323.2(h).
Section 322.2(g): This section adds the
definition of the term "artificial reefs"
from the National Fishing Enhancement
Act and clarifies what activities or
structures the term does not include. Two
commenters suggested modifications, or
clarifications, to this definition to ensure
that old oil and gas production platforms
can be considered for use as artificial reefs.
We agree with their suggestion. The
definition would include the use of some
production platforms, either abandoned in
place or relocated, as artificial reefs as
long as they are evaluated and permitted as
meeting the standards of Section 203 of
the Act.
Section 322.2(h): This section was
proposed to add the definition of the term
"outer continental shelf' from the Outer
Continental Shelf Lands Act (OCSLA).
Two commenters suggested that the
territorial sea off the Gulf Coast of Florida
and Texas is greater than three nautical
miles from the coast line. We have
determined that this is not the case, and
have decided not to include a definition of
the term "outer continental shelf' in these
regulations and to rely instead on the
definition of this term that is already in the
OCSLA.
Sections 322.3 (a) and 322.4: Activities
which do not require a permit have been
moved from § 322.3 and included in §
322.4. The limitation of the applicability of
Section 154 of the Water Resource
Development Act of 1976 in certain
waterbodies has been deleted because no
such limitation exists in that Act.
Section 322.5(b): This section addresses
the policies and procedures for processing
artificial reef applications. One commenter
suggested that the opportunity for a
general permit should not be precluded by
this section. A general permit for artificial
reefs is not precluded by this regulation
change. Furthermore, the opportunity for
the issuance of general permits may be
enhanced with the implementation of the
National Artificial Reef Plan by the
Department of Commerce.
Section 322.5(b) (1): This section cites
the standards established under section 203
of the National Fishing Enhancement Act.
These standards are to be met in the siting
and construction, and subsequent
monitoring and managing, of artificial
reefs. Two commenters insisted that these
should be called goals or objectives, and
several commenters said that more specific
guidelines or criteria are needed to
evaluate proposed artificial reefs against
the standards or goals. Section 204 of the
Act states that the Department of
Commerce will develop a National
Artificial Reef Plan which will be
consistent with the standards established
under Section 203, and will include criteria
relating to siting, constructing, monitoring,
and managing artificial reefs. Specification
of such criteria in these rules would be
inappropriate in view of the intent of
Congress to have the Department of
Commerce perform this function. The
National Marine Fisheries Service
(NMFS), acting for the Department of
Commerce, has consulted with us in
developing the National Artificial Reef
Plan, and we will continue to consult with
them to ensure permits are issued
consistent with the criteria established in
that plan. The Department of Commerce
announced the availability of the National
Artificial Reef Plan in the Federal Register
on November 14, 1985.
The U.S. Coast Guard was particularly
concerned that these rules be more specific
with regard to information and criteria that
will be used to ensure navigation safety
and the prevention of navigational
obstructions. Section 204 of the National
Fishing Enhancement Act requires that the
Department of Commerce consult the U.S.
Coast Guard in the development of the
National Artificial Reef Plan regarding the
criteria to be established in the plan. One
of the standards with which the criteria
must be consistent is the prevention of
unreasonable obstructions to navigation. In
addition, the district engineer shall consult
with any governmental agency or
interested party, as appropriate, in issuing
permits for artificial reefs. This includes
preapplication consultation with the U.S.
Coast Guard, and placing conditions in
permits recommended by the U.S. Coast
Guard to ensure navigational safety.
Section 322.5(b) (2) and (3): These
sections state that the district engineer will
consider the National Artificial Reef Plan,
and that he will consult with governmental
agencies and interested parties, as
necessary, in evaluating a permit
application. Two commenters supported
this coordination. The NMFS requested
notification of decisions to issue permits
which either deviate from or comply with
the plan. Paragraph (b)(2) requires the
district engineer to notify the Department
of Commerce of any need to deviate from
the plan. In addition, the NMFS receives a
monthly list of permit applications on
which the

41210 Federal Register/ Vol. 51, No. 219 /Thursday, November 13, 1986 /Rules and Regulations
district engineer has taken final action.
This should be sufficient notification for
those permits which do not deviate from
the plan.
Section 322.5(b)(4): Although some
commenters strongly supported this
section describing the liability of
permittees authorized to build artificial
reefs, several expressed concern that this
provision was not clearly written or
required specific criteria to assist the
district engineer in determining financial
liability. This paragraph has been rewritten
to correspond closely with the wording in
the National Fishing Enhancement Act,
and examples of ways an applicant can
demonstrate financial responsibility have
been added.
Section 322.5(g): We have revised this
paragraph on canals and other artificial
waterways by eliminating procedural -only
provisions which are redundant with
requirements in 33 CFR Parts 325 and 326.
Section 322.5(1): A new section on
fairways and anchorage areas has been
added. This section was formerly found at
33 CFR 209.135. We are moving this
provision to consolidate all of the permit
regulations on structures to this part. We
will delete 33 CFR 209.135 by separate
notice in the Federal Register.
Part 323 Permits for Discharges of
Dredged or Fill Material Into Waters of
the United States
Section 323.2: Several commenters
supported moving the definitions relating
to waters of the United States to a separate
paragraph. As proposed on May 12, 1983,
we have moved the term "waters of the
United States" and all other terms related
to the geographic scope of jurisdiction of
Section 404 of the CWA to 33 CFR Part
328 which is titled "Definition of the
Waters of the United States." We believe
that, by setting these definitions apart in a
separate and distinct Part of the regulation
and including in that Part all of the
definitions of terms associated with the
scope of the Section 404 permit program,
we are better able to clarify the scope of
our jurisdiction. We have not changed any
existing definitions nor added any
definitions proposed on May 12, 1983.
Comments related to these definitions are
addressed in Part 328 below.
We have not changed the definition of
fill material at § 323.2(e). However, the
Corps has entered into a Memorandum of
Agreement with the Environmental
Protection Agency to better identify the
difference between section 402 and section
404 discharges under the Clean Water Act.
Section 323.2(d) Previously 323.2y):
The proposed modification of this
paragraph states that "de minimis or
incidental soil movement occurring during
normal dredging operations" is not a
"discharge of dredged material," the term
defined by this paragraph.
Eight commenters raised concerns
relating to this provision. Most of these
supported the regulation of "de minimis or
incidental soil movement occurring during
normal dredging operations" in varying
degrees. Two specifically expressed a
belief that the fallback from dredging
operations constituted a discharge within
the intent of section 404 of the Clean
Water Act. One of these stated that the
proposed provision was contrary to a
binding decision by the U. S. District
Court for the Northern District of Ohio in
Reid v. Marsh, No. C— 81 -690 (N. D.
Ohio, 1984). Another commenter objected
to the provision on the basis that it would
force states that perceived a need to
regulate dredging operations to regulate
such activities under their National
Pollutant Discharge Elimination System
authority. The recommendations of the
above group of commenters included the
regulation of dredging activities on an
individual or general permit basis or on a
selective basis that would take into account
the scopes and anticipated effects of the
projects involved. Two commenters
expressed concern over the fact that
discharge activities such as the sidecasting
of dredged material might be considered
"` soil movement" that was "incidental" to
a "normal dredging operation." The final
concern raised related to the list of
dredging equipment cited as examples.
This list was seen, alternatively, as too
limited or as not limited enough in
reference to the types of equipment that
may be used in a "normal dredging
operation." Four commenters supported
the proposed provision as a reasonable
interpretation of the section 404 authority
of the Corps.
Section 404 clearly directs the Corps to
regulate the discharge of dredged material,
not the dredging itself. Dredging
operations cannot be performed without
some fallback. However, if we were to
define this fallback as a " "discharge of
dredged material," we would, in effect, be
adding the regulation of dredging to
section 404 which we do not believe was
the intent of Congress. We have
consistently provided guidance to our field
offices since 1977 that incidental fallback
is not an activity regulated under section
404. The purpose of dredging is to remove
material from the water, not to discharge
material into the water. Therefore, the
fallback in a " "normal dredging operation'
is incidental to the dredging operation and
de minimis when compared to the overall
quantities removed. If there are tests
involved, we believe they should relate to
the dredging operator's intent and the
result of his dredging operations. If the
intent is to remove material from the water
and the results support this intent, then the
activity involved must be considered as a
"normal dredging operation" that is not
subject to section 404.
Based on the above discussion, we have
not adopted any of the recommendations
relating to the revision or deletion of this
provision for the purpose of bringing about
the regulation of "normal dredging
operations" in varying degrees. We have
replaced the "or" between the words "de
minimis" and "incidental" with a comma
to more clearly reflect the fact that the
incidental fallback from a "normal
dredging operation" is considered to be de
minim /s when compared to the overall
quantities removed. In addition, we have
deleted the examples of dredging
equipment at the end of the proposed
provision to make it clear that de minim /s
or incidental soil movement occurring
during any "normal dredging operation" is
not a "` discharge of dredged material."
However, we wish to also make it clear
that this provision applies only to the
incidental fallback occurring during
"`normal dredging operations" and not to
the disposal of the dredged material
involved. If this material is disposed of in
a water of the United States, by sidecasting
or by other means, this disposal will be
considered to be a "`discharge of dredged
material" and will be subject to regulation
under section 404.
Section 323.4: We have made some
minor corrections to this section to be
consistent with EPA's permit exemption
regulations at 40 CFR Part 233.
Part 324 Ocean Disposal
Section 324.4(c): The language of this
section on the EPA review process has
been rewritten to clarify the procedures the
district engineer will follow when the
Regional Administrator advises that a
proposed dumping activity does not
comply with the criteria established
pursuant to section 102(a) of the Marine
Protection, Research and Sanctuaries Act
(MPRSA), or the restrictions established
pursuant to section 102(c) thereof, in
accordance with the provisions of 40 CFR
225.2(b).
Part 325 Permit Processing
Several minor changes have been made
in this part. These changes involve
requesting additional information from

41211 Federal Register/ Vol. 51, No. 219 /Thursday, November 13, 1986 /Rules and Regulations
an applicant, providing for a reasonable
comment period, combining permit
documentation, and documenting issues of
national importance.
Section 325.1(b): This section has been
rewritten to clarify the pre - application
consultation process for major permit
applications. No significant changes have
been made in the content of this section.
Section 325.1 (d) (1): One commenter
on this content of applications paragraph
asked that where, through experience, it
has been found that specific items of
additional information are routinely
necessary for permit review, the district
engineer should be allowed to develop
supplemental information forms. Another
observed that restricting production of
local forms may inhibit joint permit
application processes. If it becomes
necessary to routinely request additional
information, the Corps can change the
application form, but that must be done at
Corps headquarters with the approval of
the Office of Management and Budget.
This change does not place any additional
restrictions on developing local forms. As
is now the case, local forms may be
developed for joint processing with a
Federal or state agency.
Section 325.1(d) (8): This is a new
section requiring an applicant to include
provisions for siting, construction,
monitoring and managing the artificial reef
as part of his application for a permit. One
commenter suggested that the criteria for
accomplishing these activities must be
completed in the National Artificial Reef
Plan before establishment of such reefs can
be encouraged. Another recommended that
the regulation describe more specifically
the information to be supplied by an
applicant with regard to monitoring and
maintaining an artificial reef. The plan
includes general mechanisms and
methodologies for monitoring the
compliance of reefs with permit
requirements, and managing the use of
those reefs. It can be used as a guide for
the information to be supplied by the
permit applicant. Specific conditions for
monitoring and managing, as well as for
maintaining artificial reefs generally need
to be site - specific and should be developed
during permit processing.
The U.S. Coast Guard requested that
they be provided copies of permit
applications for artificial reefs, and that a
permittee be required to notify the Coast
Guard District Commander when reef
construction begins and when it is
completed so timely information can be
included in notices to mariners. The
district engineer may elect to consult with
the Coast Guard, when appropriate, during
the pre - application phase of the permit
process. At any rate, the Coast Guard will
receive public notices of permit
applications, and may make
recommendations to ensure navigational
safety on a case -by -case basis. Appropriate
conditions can be added to permits to
provide for such safety.
Section 325.1(e): Several commenters
expressed concern with language changes
requiring only additional information
"essential to complete an evaluation"
rather than the former requirement for
information to "`assist in evaluation of the
application." They felt this change would
reduce the data base on which decisions
would be made. They indicated further that
without necessary additional information,
district engineers would not be able to
make a reasonable decision, the public's
ability to provide meaningful comments
would be limited, and resource agencies
would have to spend more time contacting
the applicant and gathering information.
They felt this could increase delays rather
than limiting them. Several commenters
asked that the regulations be altered to
specifically require submission of
information necessary for a 404(b)(1)
evaluation. Similar concerns were
expressed with the change stating that
detailed engineering plans and
specifications would not be required for a
permit application. Commenters advised
that without adequate plans or the ability
to routinely require supplemental
information it may be impossible to insure
compliance with applicable water quality
criteria or make reasonable permit
decisions. Other commenters wanted
further restrictions placed on the district
engineer's ability to request additional
information. Suggestions included altering
the regulations to specify the type, need
for, and level of detail which could be
requested, and requiring the district
engineer to prepare an analysis of costs
and benefits of such information. Some
commenters objected to requirements for
providing information on project
alternatives and on the source and
composition of dredged or fill material.
This paragraph has been changed as
proposed. The intent of this change was to
assure that information necessary to make
a decision would be obtained, while
requests for non - essential information and
delays associated with such requests would
be limited.
Section 325.2(a) (6): The new
requirement to document district engineer
decisions contrary to state and local
decisions was adopted essentially as
proposed. The reference to state or local
decisions in the middle of this paragraph
incorrectly did not reference § 320.40)(4)
in addition to § 320.40)(2). The adopted
paragraph references state and local
decisions in both of these paragraphs.
Section 325.2(b)(1)(ii): The May 12,
1983, proposed regulations sought to speed
up the process by reducing the standard 60
day comment /waiver period to 30 days for
state water quality certifications.
Commenters on this paragraph offered a
complete spectrum of views from strong
support for the proposed changes to strong
opposition to the proposal. Comments
within this spectrum included opinions
that: states must have 60 days; certification
time should be the same as allowed by
EPA (i.e. 6 months); the proposal is
illegal; it conflicts with some state water
quality certification regulations and
procedures; and it would reduce state and
public input to the decision - making
process. Most states objected to this
reduction with many citing established
water quality certification procedures
required by statute and /or regulations
which require notice to the public
(normally 30 days) and which allow
requests for public hearings which cannot
be completed within the 30 -day period.
We have, therefore, retained the 60 day
period in the July 22, 1982, regulations.
Some Corps districts have developed
formal or informal agreements with the
states, which identify procedures and time
limits for submittal of water quality
certifications and waivers. Where these are
in effect, problems associated with
certifications are minimized.
Many commenters objected to the May
12, 1983, proposal to delete from the July
22, 1982, regulations the statement, "`The
request for certification must be made in
accordance with the regulations of the
certifying agency." Deleting this statement
will not delete the requirement that valid
requests for certification must be made in
accordance with State laws. However, we
have found that, on a case -by -case basis in
some states, the state certifying agency and
the district engineer have found it
beneficial to have some flexibility to
determine what constitutes a valid request.
Furthermore, we believe that the state has
the responsibility to determine if it has
received a valid request. If this statement
were retained in the Corps regulation, it
would require the Corps to determine if a
request has been submitted in accordance
with state law. To avoid this problem, we
have decided to eliminate this statement.
Section 325.2 (d) (2): Numerous
commenters expressed concern with
comment periods of less than 30 days.
They were concerned that, in order to
expedite processing times. 15 day

41212 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
notices would become the norm. These
commenters stated that 15 days was
insufficient to prepare substantive
comments and would not allow the public
adequate participation in the permit
process as mandated by Section 101 of the
CWA. State agencies noted that, with
internal and external mail requiring as
much as a week each for the Corps and the
state, 15 days would not provide any time
for consideration of a project. Several
commenters noted that such expedited
review times might actually be counter-
productive, as Federal and state agencies
might routinely oppose projects and
request permit denial so that they would
then have sufficient time to review a
project and to work with an applicant to
resolve conflicts. We recognize that 15
days is a very short comment period
considering internal agency processing and
mail time. We expect that comment
periods as short as 15 days would be used
only for minor projects where experience
has shown there would be little or no
controversy. Some districts have been
routinely using comment periods of less
than 30 days (20 and 25 days) while others
have used such procedures in only a
limited number of special cases. In
adopting this provision, we have modified
the May 12. 1983, proposal to require the
district engineer to consider the nature of
the proposal, mail time, the need to obtain
comments from remote areas, comments
on similar proposals, and the need for site
visits before designating public notice
periods of less than 30 days. Additionally,
after considering the length of the original
comment period as well as those items
noted above, the district engineer may
extend the comment period an additional
30 days if warranted. We believe this
provides the desired flexibility with the
necessary restraints on when to use
comment periods of less than 30 days.
Sections 325.2(e) (1) and 325.5(b) (2):
Commenters supporting the use of letters
of permission (LOP) for minor section 404
activities stated that applicants will realize
significant time savings for minor requests
while there will be no loss in
environmental protection. Objectors
believe that the Corps is seeking
administrative expediency at the cost of
environmental protection. Issues raised by
commenters include: the legality of the
404 LOP procedure without providing for
notice and opportunity for public hearing
(Section 404(a) of the CWA); the legality
of issuing a permit which would become
effective upon the receipt or waiver of 401
certification and /or a consistency
certification under the CZMA; the need to
be more definitive as to the criteria for
making a decision as to the categories of
activities eligible for authorization under
the LOP; and the lack of coordination with
Federal and state resource agencies. A few
commenters were concerned that the
notice in the May 12, 1983, Proposed
Rules was insufficient because it did not
give the scope and location of the work to
be covered. The commenting states also
indicated that the notice was insufficient
for water quality certification and coastal
zone consistency determination purposes.
Other commenters were concerned that,
while LOP's would be coordinated with
Federal and state fish and wildlife
agencies, other resource agencies such as
EPA should also review Section 404
LOP's. Based on the comments on the
proposed 404 LOP procedures, we have
decided not to adopt the 404 LOP
procedures as proposed. We are not
changing § 325.5(b)(2), LOP format, nor
are we changing the section 10 LOP
provisions. Rather, we have revised §
325.2(e)(1) to describe a separate section
404 LOP process. Unlike the section 10
LOP process, the section 404 process
involves the identification of categories of
discharges and a generic public notice.
This LOP process is a type of abbreviated
permit process which could and has been
developed under the July 22, 1982, interim
final regulations. These procedures will
avoid unnecessary paperwork and delays
for many minor section 404 projects in
accordance with the intent of Section
101(f) of the Clean Water Act
Section 325.7(b): We have added a
provision that, when considering a
modification to a permit, the district
engineer will consult with resource
agencies when considering a change to
terms, conditions, or features in which that
agency has expressed a significant interest.
Section 325.9: One commenter
generally supported this section on the
district engineer's authority to determine
jurisdiction but indicated that § 325.9(c)
should not be adopted because it reflects
the provisions of a Memorandum of
Understanding (MOU) with EPA and
would not be applicable if the MOU is
revised or deleted. We have determined
that this paragraph is not now needed and
have decided not to adopt it.
Appendix A— Permit Form and Special
Conditions
A. Permit Form
Project Description: A comment was
received stating that intended use should
be specified for all permitted
work and not just for the fills involved. A
comment was also received suggesting that
we be more specific on what discharges
are covered by permit authorizations. We
agree with these points and have made
appropriate changes to the instructional
material relating to project descriptions.
General Conditions
General Condition 1: Several
commenters stated that the specified three
month lead time on the requesting of
permit extensions was too long. We agree
with these commenters and have,
therefore, reduced this lead time from
three to one month.
General Condition 2: One commenter
recommended that the wording of this
condition, relating to the maintenance of
authorized work, be modified to indicate
that restoration may be required if the
permittee fails to comply with the
condition. We agree and have modified the
condition accordingly. Another commenter
stated that it would not be reasonable to
enforce this condition when a permitted
underground facility is abandoned. We
generally agree with this statement
However, we believe the procedures
governing the enforcement of permit
conditions are flexible enough to allow a
reasonable approach in such situations.
General Condition 3: One commenter
indicated that this condition should be
modified to require the permittee to halt
work that could damage discovered
historic resources and to protect those
resources from inadvertent damage. That
commenter also indicated that under
certain circumstances it would not be
necessary to notify the Corps or to halt
work. This notification requirement has
been in effect since 1982, and the
continuation of this requirement provides
for the Corps to be notified in a timely
manner. With this notification, the Corps
can react quickly to determine the
appropriate course of action. We believe
this approach has proven to be satisfactory.
Therefore, this condition is being adopted
as proposed.
Proposed General Condition 4: In our
proposal, we specifically requested
comments on this condition, which would
require recording the permit on the
property deed. More than half the
comments received were on this proposal.
All but one of the commenters who
addressed this condition were critical of it
to a greater or lesser degree. Institutional
interest observed that this condition would
only add to their costs, since once lands
were purchased they were seldom sold.
Institutional and industrial interests
observed that permits often relate to
easements and

41213 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
not to fee simple ownership and that
compliance with the proposed condition, in
such situations, would not be possible or
meaningful in some locations. One
commenter stated that a recordation
condition should not be necessary,
provided permittees complied with
proposed General Condition 5, which
requires owners to notify the Corps when
property is transferred. To strengthen the
property transfer condition, we have
modified the statement preceding the
transferee's signature to specify that the
requirement to comply with the terms and
conditions of the permit moves with the
property. One commenter stated that a
general condition requiring recordation
where possible would be unfair, since it
would not be uniformly applicable to all
permittees. Further coordination with our
field offices indicates that compliance with
and use of the proposed condition probably
occurs only in a few locations. This
coordination also indicates that for some
jurisdictions, where recordation is
possible, the cost of recordation may be so
great that it exceeds the benefits. Given
that recordation may not be practical or
appropriate for all Corps permits, we have
deleted this general condition from the
permit form and renumbered the remaining
general conditions accordingly. On the
other hand. the recordation requirement is
appropriate and useful for many types of
structures needing Corps permits, to
provide fundamental fairness toward future
purchasers of real property and to facilitate
enforcement of permit conditions against
future purchasers. For example, if the
Corps were to issue a permit for a pier, that
permit would require the owner to
maintain the pier in good condition and in
conformance with the terms and conditions
of the permit. If the builder of the pier
were to allow the pier to deteriorate, he
could easily transfer the pier and
associated property with no notice to the
purchaser of the legal obligation to repair
and maintain the pier, unless the permit
were recorded clong with the title
documents relating to the associated
property. This failure to give notice to
prospective purchasers would he unfair,
and would increase the Federal
Government's difficulty in enforcing
permit conditions against future
purchasers. Because of this important
notice function, we have added a
recordation condition under B. Special
Conditions, for use wherever recordation is
found to be reasonably practicable and
appropriate.
General Condition 4 (Proposed General
Condition 5): One commenter suggested
that this condition, relating to the
transference of the permit with the
property, be modified to provide for notice
and approval from the Corps before the
permit is transferred. The reason given for
this suggestion was that the Corps may
have special knowledge of the particular
transferee's history and capabilities and
may wish to modify the terms and
conditions of the permit accordingly. The
suggested change would require the
issuing office to conduct a review and
prepare decision documentation every time
property is transferred and there is a Corps
permit involved. We believe that such a
review in every case involving the transfer
of a permit would constitute an inefficient
use of available resources. Under the
procedures contained in 33 CFR 325.7, a
permit is subject to suspension,
modification, or revocation at any time the
Corps determines such action is warranted.
We believe this is a better approach, and
have, therefore, retained the proposed
wording of this condition.
General Condition 5 (Proposed General
Condition 6): One commenter
recommended that this proposed condition,
which relates to compliance with the
provisions of the water quality
certification, be changed to provide for the
modification of the Corps permit if EPA
promulgates a revised Section 307
standard or prohibition which applies to
the permitted activity. We agree that
permits must be modified when
circumstances warrant. Procedures
governing modifications are contained in
33 CFR 325.7, and we advise permittees of
these procedures in item 5 (Reevaluation
of Permit Decision) under the "Further
Information" heading. Therefore, since we
believe this potential requirement for
permit modifications is adequately covered
under the "` Further Information" heading,
we have retained the proposed wording of
this condition.
General Condition 8 (Proposed General
Condition 7): One commenter noted that
compliance inspections should be
conducted during normal working hours.
As a general rule, this observation seems
reasonable. However, since we believe that
compliance inspections will be scheduled
during normal working hours when
possible, we have not made any changes to
the proposed wording of this condition.
Further Information
Limits of Federal Liability: One
commenter suggested that the Government
could, under certain circumstances, be held
liable for damages caused by activities
authorized by the permit and suggested
that Item 3, which limits the Government's
liability, be deleted in its entirety. While it
is true that same courts have found the
United States liable for damages sustained
by the owners of permitted structures or by
individuals injured in some way by those
structures, it has never been the intent of
the Corps to assume either type of liability
or to insure that no interference or damage
to a permitted structure will occur after it
has been built. In permitting structures
within navigable waters, the Corps does
not assume any duty to guarantee the
safety of that structure from damages
caused by the permittee's work or by other
authorized activities in the water, such as
channel maintenance dredging. This is
viewed as an acceptable limitation on the
privilege of constructing a private structure
for private benefit in a public waterway,
particularly since insurance is readily
available to protect the permittee from any
damage his structure may sustain.
Accordingly, the language in Item 3 has
been further clarified to preclude any
inference that the Government assumes
any liability for interference with or
damage to a permitted structure as a result
of work undertaken by or on behalf o the
United States in the public interest.
Reevaluation of Permit Decision: One
commenter recommended that
reevaluations be limited to the three
circumstances listed. Although we believe
that the vast majority of the reevaluations
required will qualify under one of the three
listed circumstances, we cannot exclude
the possibility of non - qualifying, unique
situations where the public's good may
require a reevaluation of a permit decision.
Therefore, we have retained the wording
which states that reevaluations will not
necessarily be limited to the circumstances
listed. Another commenter recommended
that we add to this item that we have the
authority to issue administrative orders to
require compliance with the terms and
conditions of permits and to initiate legal
actions where appropriate. The procedures
governing these actions are contained in 33
CFR 326.4 and 326.5 and reference was
made to these procedures in the proposed
wording. However, we agree that it would
be helpful to modify the proposed wording
to provide permittees with a better
understanding of our enforcement options;
we have modified the text accordingly.
B. Special Conditions
One commenter suggested that Special
Condition 5, which requires permittees
authorized to perform certain types of
work to provide advance notifications to
the National Ocean

41214 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
Service and the Corps before beginning
work, be changed to allow verbal
notifications followed by written
confirmations, We have determined that
this suggestion, if adopted, would greatly
increase the chance of errors in notice
documents published by the Government
and would not be in the best interest of
mariners. Two weeks advance notice is a
reasonable period of time both for
construction scheduling and for
Government notification to mariners.
Therefore, we have not adopted this
suggestion.
One commenter suggested that a special
condition be added, for use when
appropriate, to require the permittee to
carry out a historic preservation plan
attached to the permit. The wording of
special conditions are normally determined
on a case -by -case basis. Only those that
are used often and are subject to
standardized wording are listed in
Appendix A (13. Special Conditions).
While we agree that special conditions of
this nature may be required, we do not
believe they lend themselves sufficiently
to standardized wording to warrant adding
a specific special condition to Appendix A.
Three comments were received which
related to General Condition (n7 on the
previous permit form. This condition
required the permittee to notify the issuing
office of the date when the work
authorized would start and of any
prolonged suspensions before the work
was complete. Two of the commenters
recommended that this provision be
retained as a general condition, and one
commenter recommended that it be
specified as a special condition. Our
research indicates that this condition, as a
general condition applicable to all
permitted activities, has been virtually
unenforceable in most areas and of limited
use as a permit monitoring tool_ We agree
that special conditions requiring permittees
to notify the Corps, in advance, of the
dates permitted activities will start, are
appropriate in certain situations. Two of
these situations are covered by Special
Condition 3 (maintenance dredging) and
Special Condition 5 (charting of activities
by National Ocean Service). Since we
believe our field offices are in the best
position to identify any other situations in
which similar special conditions would be
appropriate, we have not adopted these
recommendations,
As discussed under Proposed General
Condition 4 above, we have added a sixth
special recordation condition for use where
recordation is found to be reasonably
practicable.
General: In addition to several editorial
changes, we have added definitions for the
word "'you" and its derivatives and the
term "` this office" at the beginning of the
permit form. We have substituted the term
"this office" for references to the district
engineer throughout the form.
Part 326 — Enforcement
General: Three commenters objected to
what they perceived as a lack of specific
requirements and recommended that the
word "'should" be changed to "shall'
throughout Part 326. Another commenter
stated that the proposed regulations were
too specific and recommended that a
significant amount of the procedures in
this Part be deleted and addressed in
internal guidance. The word "should,"
where used, allows district engineers to
base their enforcement actions on an
assessment of what is the best approach on
a case -by -case basis. The word "shall "'
would require district engineers to
implement specified actions even though
such actions may be obviously
inappropriate in relation to a particular
case. We believe this flexibility is
appropriate and have, therefore, retained
the word "should" in most of the places
where it occurred in the proposed
regulations. However, the word "will' is
used at various places in this Part where
flexibility is not appropriate. We believe
that the proposed language achieves a
proper balance between the providing of
necessary guidance and flexibility.
Finally, one commenter suggested that
Part 326 be rewritten to include only two
requirements: orders for immediate
restoration of filled wetlands and referrals
for legal action if these orders are not
complied with. When Congress established
the Corps regulatory authorities, it allowed
for the issuance of permits. To ignore the
issuance of permits as one means of
resolving violations would be
inappropriate.
Section 326.1: As a result of further
internal coordination, we have determined
that it would be appropriate to make it
clear that nothing in this Part establishes a
non - discretionary duty on the part of a
district engineer. Further, nothing in this
Part should be considered as a basis for a
private right of action against a district
engineer. Therefore, we have modified this
paragraph accordingly.
Section 3262: One commenter
recommended that this statement of
general enforcement policy be expanded to
provide priority guidance on enforcement
actions. Two other commenters
recommended strengthening of this
paragraph, with one recommending that it
cite the firm and fair enforcement of the
law to prohibit and deter damage, to
require restoration, and to punish violators
as the purpose of the Corps enforcement
program. In that we refer in this paragraph
to unauthorized activities, we are reflecting
the fact that these activities are
unauthorized and subject to enforcement
actions pursuant to the legal authorities
cited at the beginning of this Part. Further,
the other recommended changes would
simply duplicate the discussions of
enforcement methods and procedures
already contained in § § 326.3, 326.4. and
326.5. However, we have added a
statement to this provision to reflect the
fact that EPA has independent
enforcement authorities under the Clean
Water Act, and thus, district engineers
should normally coordinate with EPA.
Section 3263(b): One commenter
recommended that this paragraph be
amended to require the establishment of
numbered file systems for violations. Most
Corps districts already assign control
numbers to enforcement actions, and since
this is an administrative function, we have
determined that it would be inappropriate
to include this requirement in a Federal
regulation designed to provide
enforcement policy.
Section 3263(c) (2): One commenter
suggested rewording of this paragraph to
make it clear that a violation involving a
completed activity may or may not be
resolved through the issuance of a Corps
permit. The reference in the proposed
wording to not initiating "`any additional
work before obtaining required
Department of the Army authorizations"
apparently led to the commenter
misunderstanding this paragraph. The
intent of this wording related to warning a
violator not to initiate work on other
projects before obtaining required Corps
permits. Since the violator is in the process
of being made aware of the legal
requirements for obtaining Corps permits,
we have determined that this warning is
unnecessary and have, therefore, deleted it.
Section 3263 (c) (3): One commenter
recommended that this paragraph be
amended to indicate that the information
requested will also be used for determining
whether legal action is appropriate in
addition to determining what initial
corrective measures may be required. We
agree that the information obtained from
violators may provide a basis for
enforcement decisions other than those
relating to interim corrective measures.
Therefore, we have revised this provision
to provide for notifying violators of
potential enforcement consequences and
for the more generalized use of the
information provided by violators in the

41215 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
identification of appropriate enforcement
measures.
Section 3263(c) (4): One commenter
recommended that this provision be
reworded to indicate that the limitations on
unauthorized work of an emergency nature
are to be established in conjunction with
Federal and state resource agencies. We
believe it is understandable that actions of
this type will be completed on an
expedited basis with the procedures in §
326.3(c —d) being followed concurrently.
Since § 326.3(d) already provides for
interagency consultations, in appropriate
cases, we do not believe it is necessary to
duplicate that guidance in this provision.
Section 3263 (d) (1): One commenter
recommended that "initial corrective
measures" be defined as measures "which
substantially eliminate all current and
future detrimental impacts resulting from
the unauthorized work." This commenter
also recommended that the procedures in
33 CFR 320.4 and 40 CFR Part 230 be
referenced for use in determining what
"`initial corrective measures" are required.
Essentially, this commenter is
recommending that all violators be denied
a Corps authorization and required to
undertake full corrective measures in the
initial stage of an enforcement action. This
would not be a reasonable or practical
approach, since it would eliminate public
participation and would result in the
removal of work that may have been
permitted under normal circumstances.
Another commenter objected to the
statement that further enforcement actions
"`should normally" be unnecessary if the
initial corrective measures substantially
eliminate all current and future detrimental
impacts. This commenter sees this
provision as barring legal action in
appropriate cases such as those involving
willful, flagrant, or repeated violations.
This is not the case. To say that such
corrective measures "should normally"
resolve a violation does not mean that they
will "always" resolve a violation. Another
commenter stated that consultations with
the Fish and Wildlife Service and the
National Marine Fisheries Service should
be made mandatory in this paragraph
pursuant to the Fish and Wildlife
Coordination Act. The reason given was
that this provision would result in the
issuance of permits which would require
such consultations. This paragraph deals
with initial corrective measures and not
with the issuance of permits. These
agencies will be given an opportunity to
comment in response to a public notice
before any decision is made on an after -
the -fact permit application. In view of the
above discussion, we have retained the
proposed wording of this paragraph.
Section 3263(d) (2): One commenter
recommended that this paragraph be
deleted on the basis that it provided the
district engineer with too much discretion
and questioned the cross - reference to §
326.3(3). This paragraph was intended to
provide guidance to district engineers in
situations involving prior initiations of
litigation or denials of essential
authorizations or certifications by other
Federal, state or local agencies. We believe
district engineers should have the
discretionary authority to determine what
is a reasonable and practical course of
action for the Corps under these
circumstances. However, we have revised
this paragraph to clarify its intent and to
correct the cross - reference.
Section 328.3(d)(3): As a result of
further review within the Corps, we have
determined that the provision proposed as
§ 326.3(e)(1)(i), which states that it is not
necessary to issue a Corps permit for
initial corrective measures, should be
moved to § 326.3(d) to more appropriately
reflect the sequence of enforcement
procedures. Therefore, we have modified
this provision and established it as new §
326.3(d)(3).
Section 3263(e): One commenter
objected to the after - the -fact permit
process, and observed that the process was
generally seen as a mechanism to avoid
compliance with the law. Exceptions to the
processing of after - the -fact permit
applications are contained in §
326.3(e)(i —iv). However, inmost cases,
the public participation associated with the
processing of an application is necessary
before a violation can be appropriately
resolved.
Section 3263(e) (1): One commenter
recommended that this paragraph be
amended to specify the criteria for legal
action and to require that public notices
associated with after - the -fact permit
applications clearly identify that a
violation is involved. The criteria for legal
actions are given in § 326.5(a), and permit
decisions are based on whether an activity
complies with the section 404(b)(1)
Guidelines, where applicable, and on
whether it is or is not found to be contrary
to the public interest. Permit decisions are
not based on whether a permit application
is before or after - the -fact. We have,
therefore, retained the proposed wording
of this paragraph.
Proposed Section 326 3(e)(1)(i): We
have deleted this provision here and have
moved a modified version of it to new §
326.3(d)(3); see discussion under §
326.3(d)(3).
Section 3263 (e) (1) (i) Proposed as
3263 (e)(1)(ii): This provision indicates
that the processing of an after - the -fact
permit application will not be necessary
"when" detrimental impacts have been
eliminated by restoration. One commenter
recommended that district engineers be
required to consult with EPA before
determining that restoration has been
completed that eliminates current and
future detrimental impacts. We have
addressee this comment by modifying §
326.2 and § 326.3(g) to provide for such
coordination when the district engineer is
aware of an enforcement action being
considered by EPA under its independent
enforcement authorities. Another
commenter observed that the word "when"
appeared to be in error and recommended
substituting the word "unless." This would
indicate that the Corps should process an
after - the -fact permit application only after
restoration had taken place and there is no
work requiring a permit. This obviously
would not be reasonable. In view of the
above discussion, we have retained the
proposed wording of this provision.
Section 3263(e)(1)(iii) Proposed as
3263(e)(1)(iv): One commenter
recommended that a provision be added to
this paragraph to prohibit the acceptance of
an application for a Corps permit where an
activity is not in compliance with other
Federal, state, or local authorizations or
certifications. In essence, this amounts to
requiring district engineers to take steps to
enforce the terms and conditions of
another agency's authorization or
certification. We believe this is the issuing
agency's responsibility and not the
responsibility of the Corps. Of course,
where that other agency has denied a
requisite authorization, the Corps would
not accept an application for processing.
Section 3263 (e) (1) (iv) Proposed as
326.3(e)(1)(v): Two commenters
recommended rewording of this paragraph
to prohibit the acceptance or processing of
any after - the -fact permit application when
the Corps is aware of litigation or other
enforcement actions that have been
initiated by other Federal, state or local
agencies, We believe the Corps should, in
appropriate situations, be able to take
positions on cases that are in conflict with
the viewpoints of other agencies.
Therefore, we have retained the wording
of this paragraph essentially as proposed.
However, since EPA has independent
enforcement authorities, we have provided
for coordination with EPA in §§ 326.2 and
326.3(g).
Section 3263(g): One commenter
indicated that this paragraph should
delineate EPA's responsibility over

41216 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
recognizing and reporting unpermitted
discharges. This paragraph deals only with
cases where EPA is considering an
enforcement action. The reporting of
violations is covered under § 326.3(a).
Another commenter recommended that
this paragraph be reworded to ensure that
Corps actions under Part 326 are not in
conflict with EPA enforcement actions.
Another commenter, a state agency,
suggested that this provision be expanded
to require similar consultations with state
agencies that have initiated enforcement
actions. The reason we have provided for
consultations with EPA in this paragraph is
due to the fact that both the Corps and
EPA have overlapping authorities pursuant
to the Clean Water Act. This is not the
case with state agencies. Nevertheless, we
believe district engineers will wish to
consult with state agencies in appropriate
circumstances. In any event, as we stated
in our discussion relating to the wording of
§ 326.3(e)(iv), we believe the Corps
should have the right to take a position that
may conflict with another agency's
viewpoint. However, we have revised this
provision to emphasize that district
engineers should coordinate with EPA
when they are aware of enforcement
actions being considered by EPA under its
independent enforcement authorities.
Section 3264(a -b): As a result of further
internal coordination, we have determined
that § 326.4(a) should make it clear that
district engineers have the discretionary
authority to determine when the inspection
of permitted activities is appropriate. We
have modified § 326.4(a) accordingly. In
addition, we have added a new § 326.4(b)
to further discuss inspection limitations,
Section 326.4(d) Proposed as 3264(c):
One commenter, a state agency, objected
to the provisions in this paragraph for
attempting to obtain voluntary compliance
before issuing a formal compliance order.
The rationale given was that the absence of
a formal order would make coordination
between the Corps and the state difficult.
Another state agency recommended
consultations with state agencies and with
EPA. The proposed, noncompliance
procedures do not prohibit early
coordination with other regulatory
agencies, when appropriate, and
presumably, if the permittee quickly brings
nis work into compliance, such
coordination should not be necessary.
One commenter objected to allowing a
district engineer to issue a compliance
order and to not making the use of Corps
suspension/revocation procedures or legal
actions mandatory. Another commenter
recommended that suspension/ revocation
procedures or legal actions be made
mandatory if a violator fails to comply
with a compliance order. The issuance of a
compliance order is provided for in section
404(s) of the Clean Water Act, and in most
cases, we believe that the methods
available for obtaining voluntary
compliance should be used before
discretionary consideration is given to
using the Corps suspension/ revocation
procedures or initiating legal action.
Another commenter objected to the term
"`significantly serious to require an
enforcement action" on the basis that all
violations are worthy of some enforcement
action. Minor deviations from the terms
and conditions of a Corps permit may not
always warrant an enforcement action. For
example, would a dock authorized to be
constructed with a length of 50 feet but
inadvertently constructed with a length of
51 feet constitute a violation warranting an
enforcement action? We agree there may
be extenuating circumstances, such as the
additional length of the dock being just
enough to impact the water access of a
neighbor. However, this is a judgment that
is best made by the district engineer
involved.
One Commenter objected to the term
,'mutually agreeable solution" on the basis
that such a solution could invalidate the
prior results of coordination with resource
agencies. Since this term refers to bringing
the permitted activity into compliance or
the resolution of the violation with a
permit modification using the modification
procedures in 33 CFR 325.7(b), such
resolutions would not invalidate prior
coordination. In view of the above
discussion, we have retained the proposed
wording of this paragraph.
Section 3265 (a): One commenter
requested that the words "willful" and
"repeated" be deleted from this paragraph,
the rationale being apparently, that most
violators are not repeat or willful offenders
and that the Corps should take the one
opportunity it has to bring legal action
against these one -time violators. We do
not agree with this approach as being
either reasonable or practical. Another
commenter recommended adding
violations that result in substantial impacts
to the list of violations that should be
considered appropriate for legal action. We
agree with this recommendation and have
modified the wording of this provision
accordingly.
Section 320.5(c): One commenter
recommended rewording of this paragraph
to require that copies be provided to EPA
of Corps referrals to local U.S. Attorneys.
We believe it would be more appropriate
to address matters relating to the detailed
aspects of interagency coordination in
interagency agreements. Therefore, we
have retained the proposed wording of this
paragraph.
Section 326.5(d) (2): Asa result of
further internal coordination, we have
determined that litigation cases involving
isolated water no longer need to be
referred to the Washington level on a
routine basis. Therefore, we have deleted
this provision.
Section 3265(e): One commenter
recommended that the word "may" be
replaced with the words "`encouraged to"
in the provision relating to sending
litigation reports to the Office of the Chief
of Engineers when the district engineer
determines that an enforcement case
warrants special attention and the local
U.S. Attorney has declined to take legal
action. We agree with this
recommendation and have made the
change.
Another commenter suggested that
wording be aided to this paragraph to
address circumstances in which permits
are not required. The fact that a legal
option may not be available does not mean
that a permit is not required. If the district
engineer chooses to close the case record,
the activity in question will still be
unauthorized and therefore illegal. Such
unauthorized activities will be taken into
account if the responsible parties become
involved in future violations. One
commenter suggested that Corps attorneys
initiate legal actions as an alternative to
actions by local U.S. Attorneys. However,
the Corps does not have the authority
under existing Federal laws to initiate legal
actions on its own.
Another commenter recommended that
this paragraph be modified to provide for
joint Federal/state prosecution of violators.
Since this involves discretionary decisions
on the part of the Department of Justice, it
would not be appropriate to include a
provision of this nature in the Corps
enforcement regulations,
Part 328 — Definition of Waters of the
United States
This part is being added in order to
clarify the scope of the Section 404 permit
program. This part was added in direct
response to many concerns expressed by
both the public and the Presidential Task
Force on Regulatory Relief. We have not
made changes to existing definitions;
however, we have provided clarification
by simply setting

41217 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
them apart in a separate and distinct Part
328 of the regulation.
The format for Part 328 has been
changed slightly from the proposed
regulation in order to improve clarity and
reduce duplication. The content of the
proposed § 328.2 "General Definitions"
has been partially combined with § 328.3
"Definitions." The remainder has been
reestablished as § 328.5, "Changes in
Limits of Waters of the United States "
Section 328.2 has been established as
"General Scope." The proposed § § 328.4
and 328.5 have been combined into §
328.4 and renamed "Limits of
Jurisdiction."
A number of commenters appeared to
have misinterpreted the intent of this part.
Many thought we were trying to reduce the
scope of jurisdiction while others believed
we were trying to expand the scope of
jurisdiction. Neither is the case. The
purpose was to clarify the scope of the 404
program by defining the terms in
accordance with the way the program is
presently being conducted.
Section 328.3: Definitions. This section
incorporates the definitions previously
found in § 323.3 (a), (c), (d), (f) and (g).
Paragraphs (c), (d), (f) and (g) were
incorporated without change. EPA has
clarified that waters of the United States at
40 CFR 328.3(a)(3) also include the
following waters:
a. Which are or would be used as habitat
by birds protected by Migratory Bird
Treaties; or
b. Which are or would be used as habitat
by other migratory birds which cross state
lines; or
c. Which are or would be used as habitat
for endangered species; or
d. Used to irrigate crops sold in
interstate commerce.
For clarification it should be noted that
we generally do not consider the following
waters to be "Waters of the United States."
However, the Corps reserves the right on a
case -by -case basis to determine that a
particular waterbody within these
categories of waters is a water of the
United States. EPA also has the right to
determine on a case -by -case basis if any of
these waters are "`waters of the United
States."
(a) Non -tidal drainage and irrigation
ditches excavated on dry land.
(b) Artificially irrigated areas which
would revert to upland if the irrigation
ceased.
(c) Artificial lakes or ponds created by
excavating and /or diking dry land to
collect and retain water and which are used
exclusively for such purposes as stock
watering, irrigation, settling basins, or rice
growing,
(d) Artificial reflecting or swimming
pools or other small ornamental bodies of
water created by excavating and /or diking
dry land to retain water for primarily
aesthetic reasons.
(e) Waterfilled depressions created in
dry land incidental to construction activity
and pits excavated in dry land for the
purpose of obtaining fill, sand, or gravel
unless and until the construction or
excavation operation is abandoned and the
resulting body of water meets the
definition of waters of the United States
(see 33 CFR 328.3(a)).
The term "navigable waters of the
United States" has not been added to this
section since it is defined in Part
329.
A number of comments were received
concerning the proposed change to the
definition of the terms "'adjacent" and the
proposed definitions for the terms
"inundation ", "`saturated ", "prevalence ",
and "typically adapted." A number of
commenters believed that these terms may
better define the scope of jurisdiction of
the section 404 program, but such
definitions should more rightfully be
within the province of the Environmental
Protection Agency in order to remain
consistent with the opinion of Benjamin
Civiletti, Attorney General (September 5,
1979). These definitions would require the
prior approval of the Environmental
Protection Agency, which has not been
forthcoming. Therefore, these new
proposed definitions will not be adopted at
this time.
To respond to requests for clarification,
we have added a definition for "tidal
waters." The definition is consistent with
the way the Corps has traditionally
interpreted the term.
Section 328.4: Limits of Jurisdiction.
Section 328.4(c)(1) defines the lateral limit
of jurisdiction in non -tidal waters as the
ordinary high water mark provided the
jurisdiction is not extended by the presence
of wetlands. Therefore, it should be
concluded that in the absence of wetlands
the upstream limit of Corps jurisdiction
also stops when the ordinary high water
mark is no longer perceptible.
Section 328.5: Changes in Limits of
Waters of the United States. This section
was changed to reflect both natural and
man -made changes to the limits of waters
of the United States. This change was
made for clarification and resulted from
consultation with the Environmental
Protection Agency.
Section 328.6: Supplemental
Glorification. Most commenters favored
the Corps plans to give special
consideration to unique areas such as
Arctic Tundra that do not easily fit the
generic" wetlands definition. Several
commenters indicated that the Corps
should clarify its intended use of this
section, and one questioned the need to
"describe" unique areas in the Federal
Register. A number of commenters
indicated that criteria should be specified
for determining wetland types to be
included as unique areas. Some
commenters stated that close coordination
between the Corps and the Environmental
Protection Agency will be necessary when
selecting unique areas and developing
procedures for making wetland
determinations in such areas, since the
Environmental Protection Agency has the
final authority to determine the scope of
"`Waters of the United States."
While we believe that supplemental
clarification of unique areas will be a
positive step in clarifying the scope of
jurisdiction under the section 404 permit
program, we have determined that such
supplemental clarification can be done
under existing regulations of the
Environmental Protection Agency and the
Corps and therefore have deleted this
section.
Part 329 — Definition of Navigable Waters
of the United States
We are currently planning to propose a
complete revision of Part 329 in the near
future, to simplify and clarify the
procedures involved, while retaining the
essential aspects of the relevant policy. In
the interim, we are making the two minor
changes discussed below.
Section 329.11: This section has been
modified to clarify that the lateral extent of
jurisdiction in rivers and lakes extends to
the edge of all such waterbodies as it does
in bays and estuaries (§ 329.12(b)).
Section 329.12(a): This section has been
corrected to reflect that the territorial seas,
for the purpose of Rivers and Harbors Act
of 1899 jurisdiction, extend 3 geographic
miles everywhere and are measured from
the baseline.
Part 330 — Nationwide Permits We are
reissuing the 26 nationwide
permits at § 330.5(a) as modified and
conditioned. The nationwide permits will
be in effect for 5 years beginning with the
effective date of this regulation, unless
sooner revised or revoked.
Section 330.1: This section was
restructured and updated in order to
improve its readability and technical
accuracy. The definition concerning the
division engineer's discretionary authority
was deleted from this section since similar
language appears in § 330.2. "Definitions."
The discussion concerning the
applicability of nationwide permits as they
relate to

41218 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
other Federal, state, and local
authorizations was deleted from this
section and relocated to § 330.5(d)
"Further Information."
Section 330.2: The definition of the
term "`headwaters" was deleted from Part
323 and relocated to § 330.2(b), since the
definition is used as part of the nationwide
permit program. The definition of the term
— natural lake" which was proposed at §
330.2(c) has been deleted. Changes to the
"headwaters " / "' isolated waters"
nationwide permit which is found at §
330.5(a)(26) have obviated the need for
this definition.
Section 330.5: In order to better inform
the public of the statutory authority under
which each nationwide permit has been
issued, we have added the authority by
parenthetical expression at the end of each
nationwide permit.
We had proposed nationwide permits
for activities funded or authorized by
another Federal agency or department and
for activities adjacent to Corps of
Engineers civil works projects. Most
commenters discussed the two proposed
nationwide permits together. The most
frequent comments questioned whether
they would comply with section 404(e) of
the CWA. They believed these nationwide
permits could authorize a wide variety of
Federal projects that would not be similar
in nature and projects which could have
significant adverse environmental impacts
on aquatic resources. Numerous
commenters stated that the Corps would be
delegating its 404(b)(1) compliance
responsibilities to other agencies and that
there is a natural tendency of such
agencies to be self - serving. Many
commenters, including some states,
objected that the public and other agencies
would not have an opportunity to review
some large individual projects. Many
commenters encouraged the adoption of
these nationwide permits: in most cases
they based their opinion upon reduction in
duplication and the expediting of project
authorization. Based on the comments
received we have decided that clarification
of activities that could be covered by
nationwide permits would be necessary to
insure proper understanding and field
application. Because of the complexity of
doing this and an evaluation of the
comments received, we have decided not
to adopt these two nationwide permits.
Section 330.5(a)(3): This nationwide
permit for repair, rehabilitation, or
replacement of existing structures or fill
has been clarified to show that beach
restoration is not authorized by this
nationwide permit.
Section 330.5(a)(6): This nationwide
permit for survey activities was clarified to
show that it does not authorize the drilling
of exploration -type bore holes for oil and
gas exploration.
Section 330.5(0) (7): This nationwide
permit for outfall structures was clarified
by adding language concerning minor
excavation, filling and other work which is
routinely associated with the installation of
intake and outfall structures.
Section 330.5(a)(18): This nationwide
permit for discharges up to 10 cubic yards
was clarified by indicating that it does not
authorize discharges for the purpose of
stream diversion. The footnote was deleted
because it was redundant with the terms of
the nationwide permit itself.
Section 330.5(a) (19): This nationwide
permit for dredging up to 10 cubic yards
was clarified by indicating that it does not
authorize the connection of canals or other
artificial waterways to navigable waters of
the United States.
Section 330.5(a) (22): This nationwide
permit for the removal of obstructions to
navigation was clarified by indicating that
it does not authorize maintenance
dredging, shoal removal, or riverbank
snagging.
Section 330.5(b) (3): This condition for
the protection of endangered species was
modified to set forth more clearly options
available to the district engineer to satisfy
section 7 of the Endangered Species Act
when it has been determined that an
activity may adversely affect any listed
endangered species or its critical habitat.
Section 330.5(b) (7): This condition for
the protection of wild and scenic rivers
was modified to define more clearly
components of the National Wild and
Scenic River System by showing that it
includes any Congressionally designated
"study river."
Section 330.5(b) (9): This condition for
the protection of historic properties was
added in response to numerous comments
which expressed concern for an apparent
lack of consideration which was being
given historic properties. This condition
outlines the procedures to be followed by
both the permittee and the district engineer
to provide for modification, suspension, or
revocation of a nationwide permit or
contact with the Advisory Council on
Historic Preservation if an activity
authorized by a nationwide permit may
adversely affect an historic property.
Section 330.5(b)(IQ: This condition
was added as a result of comments which
expressed concern that activities
performed under the nationwide permits
could impair reserved tribal rights.
Section 330.5(b) (11) and (12): These
conditions were adopted as proposed. They
provide notification to the public that,
within certain states, authorization for the
activity may have been denied without
prejudice as a result of state 401 water
quality certification denial or
nonconcurrence with Coastal Zone
Management consistency. These
conditions trigger the provisions of §§
330.9 and 330.10.
Section 330.5(b)(13): This condition
was added to alert the public that regional
conditions may have been added by the
division engineer in accordance with §
330.8(a).
Section 330.5(c): The Grandfathering
provision included in the October 5, 1984,
final regulations expires on April 5, 1986,
before the effective date of these
regulations and is, therefore, no longer
needed and has been deleted. A new
paragraph has been added to provide the
public further information on nationwide
permits as they relate to such things as
compliance with conditions, other required
authorizations, property rights, Federal
projects, and revised or modified water
quality standards.
Section 330.5(d): This paragraph has
been added to clarify that the Chief of
Engineers has the authority to modify,
suspend, or revoke any nationwide permit.
Some states indicated in their comments
that there might be other ways to reduce
burdens on the public within their state
other than the nationwide permits. One
state suggested that it might be appropriate
to revoke all the nationwide permits in
favor of regional permits subject to
interagency review. The authority exists
for the Chief of Engineers to revoke some
or all of the nationwide permits within a
state. There are also existing provisions in
the regulations for district engineers and
the states to develop a permit system
designed around specific state authorities.
These existing provisions include regional
general permits, programmatic general
permits, transfer of the 404 program (see
33 CFR 323.5), joint processing, permit
consolidation, preapplication consultation
and special area management planning.
Before adopting a permit system designed
around specific state authorities, a public
notice providing an opportunity for a
public hearing would be issued outlining
the proposed permit system within the
state and the proposal to revoke the
nationwide permits. If such a system is
developed, the Chief of Engineers will
consider revoking all or most of the
nationwide permits within a state.

41219 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
Section 330.8(a): The concept of case -by-
case regional conditioning authority
received overwhelming support. This new
paragraph allows the division engineer
through discretionary authority to add
activity specific conditions to nationwide
permits on a case -by -case basis. The
district engineer may do the same when
there is mutual agreement with the
permittee or when conditions are necessary
based on conditions of a state 401
certification.
Section 330.8(c): This paragraph was
modified to clarify that, although the
division engineer has used discretionary
authority to require individual permits, he
may subsequently allow the activity to be
authorized by nationwide permit if the
impediment to using the nationwide
permit, which triggered the discretionary
authority, has been removed.
Section 330.8(c) (2): This paragraph has
been modified to allow division engineers
the discretionary authority to require
individual permits for categories of
activities or specific geographic areas. This
authority was previously exercised by the
Chief of Engineers. However, the Chief of
Engineers is retaining this authority on a
statewide or nationwide basis.
Section 330.9: Many commenters
objected to the issuance of nationwide
permits when a state denies 401
certification. Their objections were based
on the Clean Water Act requirement that
"No license or permit shall be granted until
the certification ... has been obtained or
has been waived." Commenters expressed
strong concerns about the validity of such
permits, and stated that issuance would
constitute a de facto transfer of the
administration of this portion of the 404
permit program to the objecting states. An
attendant concern was that, if states were
unable to respond within the time specified
by the Corps, a waiver would be
presumed, and the nationwide permit
would become effective, whether or not
this would have been the intent of the
state. Some commenters suggested that
states would be forced to deny
certifications because of inadequate time
to ensure that proposed activities would
not violate water quality standards. Most
commenters opposed district engineers
having discretionary authority over
conditions to the 401 certification. One
commenter believes this authority conflicts
with states' rights. Another suggested that
the proposed action could prod states into
adopting thef' own wetland laws and
regulatory programs. Several commenters
supported the proposal, stating that it was a
means of preserving the utility of the
general permit program.
Section 330.9 has been modified to
provide that, if a state denies a required
401 certification for a particular
nationwide permit, then authorization for
all discharges covered by the nationwide
permit within the state is denied without
prejudice until the state issues an
individual or generic water quality
certification or waives its right to do so.
We did not adopt the 30 day waiver period
but rather will rely on the language at
§325.2(b)(1) which defines a reasonable
period of time. This section was also
modified to notify the public that the
district engineer will include conditions of
the 401 water quality certification as
special conditions of the nationwide
permit.
Section 330.9(b): This subsection has
been added to notify the public of the
certification requirements of the various
nationwide permits.
Section 330.10: A number of coastal
states commented that consistency
determination or waiver thereof must have
been obtained prior to the promulgation of
the nationwide permits. Some commenters
asserted that such a requirement is not a
statutory prerequisite to permit issuance.
Others contend that assuming a waiver of
certification preempts the individual state's
authority and thwarts Congressional intent
that the permit process involves oversight
by the state as well as Federal agencies.
Section 330.10 has been modified to
state that in certain instances where a state
has not concurred that a particular
nationwide permit is consistent with its
coastal zone management plan,
authorization for all activities subject to
such nationwide permit within or affecting
the state coastal zone agency's area of
authority is denied without prejudice until
the applicant has furnished to the district
engineer a coastal zone management
consistency determination pursuant to
section 307 of the Coastal Zone
Management Act and the state has either
concurred in that determination or waived
its right to do so.
Section 330.11: This subsection was
added to clarify existing procedures to
establish a time limit in which a permittee
may rely on confirmation from the district
engineer that an activity is covered by a
nationwide permit, and to specify
procedures to modify, suspend, or revoke
the permittee's right to proceed under the
nationwide permit after the district
engineer notified the permittee that the
activity may proceed.
Section 330.12: This subsection was
modified to provide a twelve month
transition period for projects which maybe
affected by future changes in nationwide
permits. After considering equity
established in reliance on the nationwide
permit and that the public will in all
likelihood receive ample notice of
proposed changes, we believe that this
transition period is both reasonable and
equitable. In addition, if necessary on a
case -by -case basis we can, even though
there is a grandfather provision, exercise
discretionary authority pursuant to § 330.8
or modify, suspend or revoke individual
authorization pursuant to 33 CFR 325.7.
State Certification of Nation wide Permits
Most states have issued or waived 401
certification and /or Coastal Zone
Management consistency concurrence for
one or more of the twenty six nationwide
permits. Many states have issued a
conditional certification and some have
denied certification! consistency
concurrence. Final action is still pending in
some of the states but is imminent. The
primary mechanism for keeping the public
informed of the status and /or changes in
state certifications or Coastal Zone
Management consistency concurrence will
be public notices issued by the district
engineers within the affected states. The
district engineers will be issuing public
notices concurrent with the publication of
these regulations. Subsequent notices will
be issued as changes occur.
Listed below are those states which, as
of the date of this printing have either
denied or conditionally issued 401
certification and/or coastal zone
management consistency concurrence for
one or more of the nationwide permits. For
more current and detailed information you
should consult with the appropriate district
engineer.
Alaska, California, Connecticut, Florida,
Hawaii, Illinois, Iowa, Louisiana, Maine,
Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri,
Nebraska, New Hampshire, New Jersey,
New York, North Carolina, Pennsylvania,
Rhode Island, South Carolina, Tennessee,
Vermont, Washington, West Virginia and
Wisconsin. Determinations under
Executive Order 12291 and the Regulatory
Flexibility Act. The Department of the
Army has determined that the revisions to
these regulations do not contain a major
proposal requiring the preparation of a
regulatory analysis under E.O. 12291. The
Department of the Army certifies, pursuant
to section 605(b) of the Regulatory
Flexibility Act of 1980, that these
regulations will not have a significant
economic impact on a substantial number
of entities.

41220 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
Note E —The term "he" and its derivatives
used in these regulations are generic and
should be considered as applying to both
male and female.
List of Subjects
33 CFR Part 320
Environmental protection,
Intergovernmental relations, Navigation,
Water pollution control, Waterways.
33 CFR Part 321
Dams, Intergovernmental relations,
Navigation, Waterways.
33 CFR Part 322
Continental shelf, Electric power,
Navigation, Water pollution control,
Waterways.
33 CFR Part 323
Navigation, Water pollution control,
Waterways.
33 CFR Part 324
Water pollution control
33 CFR Part 325
Administrative practice and procedure,
Intergovernmental relations,
Environmental protection, Navigation,
Water pollution control, Waterways.
33 CFR Part 326
Investigations, Intergovernmental
relations, Law enforcement, Navigation,
Water pollution control, Waterways.
33 CFR Part 327
Administrative practice and procedure,
Navigation, Water pollution control,
Waterways.
33 CFR Part 328
Navigation, Water pollution control,
Waterways.
33 CFR Part 329
Waterways.
33 CFR Part 330
Navigation, Water pollution control,
Waterways.
Dated: November 4, 1986, Robert K.
Dawson, Assistant Secretary of the Army
(Ci vil Works).
Accordingly, the Department of the
Army is revising 33 CFR Parts 320, 321,
322, 323, 324, 325, 326, 327, 329, and 330
and adding Part 328 to read as follows:
PART 320 — GENERAL REGULATORY
POLICIES
Sec.
320.1Purpose and scope.
320.2Authorities to issue permits.
320.3Related laws.
Sec.
320AGeneral policies for evaluating
permit applications.
Authority: 33 U.S.C. 401 et seq.; 33
U.S.C. 1344; 33 U.S.C. 1413.
§ 320.1 Purpose and scope.
(a) Regulatory approach of the Corps of
Engineers. (1) The U.S. Army Corps of
Engineers has been involved in regulating
certain activities in the nation's waters
since 1890. Until 1968, the primary thrust
of the Corps' regulatory program was the
protection of navigation. As a result of
several new laws and judicial decisions,
the program has evolved to one involving
the consideration of the full public interest
by balancing the favorable impacts against
the detrimental impacts. This is known as
the "public interest review." The program
is one which reflects the national concerns
for both the protection and utilization of
important resources.
(2) The Corps is a highly decentralized
organization. Most of the authority for
administering the regulatory program has
been delegated to the thirty-six district
engineers and eleven division engineers. If
a district or division engineer makes a final
decision on a permit application in
accordance with the procedures and
authorities contained in these regulations
(33 CFR Parts 320 -330), there is no
administrative appeal of that decision.
(3) The Corps seeks to avoid
unnecessary regulatory controls. The
general permit program described in 33
CF'R Parts 325 and 330 is the primary
method of eliminating unnecessary federal
control over activities which do not justify
individual control or which are adequately
regulated by another agency.
(4) The Corps is neither a proponent nor
opponent of any permit proposal.
However, the Corps believes that
applicants are due a timely decision.
Reducing unnecessary paperwork and
delays is a continuing Corps goal.
(5) The Corps believes that state and
federal regulatory programs should
complement rather than duplicate one
another. The Corps uses general permits,
joint processing procedures, interagency
review, coordination, and authority
transfers (where authorized by law) to
reduce duplication.
(6) The Corps has authorized its district
engineers to issue formal determinations
concerning the applicability of the Clean
Water Act or the Rivers and Harbors Act
of 1899 to activities or tracts of land and
the applicability of general permits or
statutory exemptions to proposed
activities. A determination pursuant to
this authorization shall constitute a Corps
final agency action. Nothing contained in
this section is intended to affect any
authority EPA has under the Clean Water
Act.
(b) Types of activities regulated. This
Part and the Parts that follow (33 CFR
Parts 321 -330) prescribe the statutory
authorities, and general and special
policies and procedures applicable to the
review of applications for Department of
the Army (DA) permits for controlling
certain activities in waters of the United
States or the oceans. This part identifies
the various federal statutes which require
that DA permits be issued before these
activities can be lawfully undertaken; and
related Federal laws and the general
policies applicable to the review of those
activities. Parts 321 -324 and 330 address
special policies and procedures applicable
to the following specific classes of
activities:
(1) Dams or dikes in navigable waters of
the United States (Part 321);
(2) Other structures or work including
excavation, dredging, and/or disposal
activities, in navigable waters of the
United States (Part 322);
(3) Activities that alter or modify the
course, condition, location, or capacity of a
navigable water of the United States (Part
322);
(4) Construction of artificial islands,
installations, and other devices on the
outer continental shelf (Part 322);
(5) Discharges of dredged or fill
material into waters of the United States
(Part 323);
(6) Activities involving the
transportation of dredged material for the
purpose of disposal in ocean waters (Part
324); and
(7) Nationwide general permits for
certain categories of activities (Part 330).
(c) Forms of authorization. DA permits
for the above described activities are
issued under various forms of
authorization. These include individual
permits that are issued following a review
of individual applications and general
permits that authorize a category or
categories of activities in specific
geographical regions or nationwide. The
term "general permit" as used in these
regulations (33 CFR Parts 320 -330)
refers to both those regional permits issued
by district or division engineers on a
regional basis and to nationwide permits
which are issued by the Chief of Engineers
through publication in the Federal Register
and are applicable throughout the nation.
The nationwide permits are found in 33
CFR Part 330. If an activity is covered by
a general permit, an application for a DA
permit.
does not have to be made. In such cases, a
person must only comply with the
conditions contained in the general permit
to satisfy requirements of law for a DA
permit. In certain cases pre - notification

41221 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
may be required before initiating
construction. (See 33 CFR 330.7)
(d) General instructions. General
policies for evaluating permit applications
are found in this part. Special policies that
relate to particular activities are found in
Parts 321 through 324. The procedures for
processing individual permits and general
permits are contained in 33 CFR Part 325.
The terms "navigable waters of the United
States" and "waters of the United States"
are used frequently throughout these
regulations, and it is important from the
outset that the reader understand the
difference between the two. "Navigable
waters of the United States" are defined in
33 CFR Part 329. These are waters that are
navigable in the traditional sense where
permits are required for certain work or
structures pursuant to Sections 9 and 10 of
the Rivers and Harbors Act of 1899,
"Waters of the United States" are defined
in 33 CFR Part 328. These waters include
more than navigable waters of the United
States and are the waters where permits are
required for the discharge of dredged or
fill material pursuant to Section 404 of the
Clean Water Act.
§ 320.2 Authorities to issue permits.
(a) Section 9 of the Rivers and Harbors
Act, approved March 3, 1899 (33 U.S.C.
401) (hereinafter referred to as section 9),
prohibits the construction of any dam or
dike across any navigable water of the
United States in the absence of
Congressional consent and approval of the
plans by the Chief of Engineers and the
Secretary of the Army. Where the
navigable portions of the waterbody lie
wholly within the limits of a single state,
the structure may be built under authority
of the legislature of that state if the
location and plans or any modification
thereof are approved by the Chief of
Engineers and by the Secretary of the
Army. The instrument of authorization is
designated a permit (See 33 CFR Part
321.) Section 9 also pertains to bridges .
and causeways but the authority of the
Secretary of the Army and Chief of
Engineers with respect to bridges and
causeways was transferred to the Secretary
of Transportation under the Department of
Transportation Act of October 15, 1966
(49 U.S.C. 1155g(6)(A)). A DA permit
pursuant to section 404 of the Clean Water
Act is required for the discharge of
dredged or fill material into
waters of the United States associated
with bridges and causeways. (See 33
CFR Part 323.)
(b) Section 10 of the Rivers and Harbors
Act approved March 3, 1899, (33 U.S.C.
403) (hereinafter referred to as section 10),
prohibits the unauthorized obstruction or
alteration of any navigable water of the
United States. The construction of any
structure in or over any navigable water of
the United States, the excavating from or
depositing of material in such waters, or
the accomplishment of any other work
affecting the course, location, condition, or
capacity of such waters is unlawful unless
the work has been recommended by the
Chief of Engineers and authorized by the
Secretary of the Army. The instrument of
authorization is designated a permit. The
authority of the Secretary of the Army to
prevent obstructions to navigation in
navigable waters of the United States was
extended to artificial islands, installations,
and other devices located on the seabed, to
the seaward limit of the outer continental
shelf, by section 4(f) of the Outer
Continental Shelf Lands Act of 1953 as
amended (43 U.S.C. 1333(e)). (See 33
CFR Part 322.)
(c) Section 11 of the Rivers and Harbors
Act approved March 3, 1899, (33 U.S.C.
404), authorizes the Secretary of the Army
to establish harbor lines channelward of
which no piers, wharves, bulkheads, or
other works may be extended or deposits
made without approval of the Secretary of
the Army. Effective May 27, 1970, permits
for work shoreward of those lines must be
obtained in accordance with section 10
and, if applicable, section 404 of the Clean
Water Act (see § 320.4(0) of this Part).
(d) Section 13 of the Rivers and Harbors
Act approved March 3, 1899, (33 U.S.C.
407), provides that the Secretary of the
Army, whenever the Chief of Engineers
determines that anchorage and navigation
will not be injured thereby, may permit the
discharge of refuse into navigable waters.
In the absence of a permit, such discharge
of refuse is prohibited. While the
prohibition of this section, known as the
Refuse Act, is still in effect the permit
authority of the Secretary of the Army has
been superseded by the permit authority
provided the Administrator, Environmental
Protection Agency (EPA), and the states
under sections 402 and 405 of the Clean
Water Act (33 U.S.C. 1342 and 1345).
(See 40 CFR Parts 124 and 125.)
(e) Section 14 of the Rivers and Harbors
Act approved March 3, 1899, (33 U.S.C.
408), provides that the Secretary
of the Army, on the recommendation of
the Chief of Engineers, may grant
permission for the temporary occupation
or use of any sea wall, bulkhead, jetty,
dike, levee, wharf, pier, or other work built
by the United States. This permission will
be granted by an appropriate real estate
instrument in accordance with existing real
estate regulations.
(f) Section 404 of the Clean Water Act
(33 U.S.C. 1344) (hereinafter referred to as
section 404) authorizes the Secretary of the
Army, acting through the Chief of
Engineers, to issue permits, after notice
and opportunity for public hearing, for the
discharge of dredged or fill material into
the waters of the United States at specified
disposal sites. (See 33 CFR Part 323.) The
selection and use of disposal sites will be
in accordance with guidelines developed
by the Administrator of EPA in
conjunction with the Secretary of the
Army and published in 40 CFR Part 230.
If these guidelines prohibit the selection or
use of a disposal site, the Chief of
Engineers shall consider the economic
impact on navigation and anchorage of
such a prohibition in reaching his decision.
Furthermore, the Administrator can deny,
prohibit, restrict or withdraw the use of
any defined area as a disposal site
whenever he determines, after notice and
opportunity for public hearing and after
consultation with the Secretary of the
Army, that the discharge of such materials
into such areas will have an unacceptable
adverse effect on municipal water supplies,
shellfish beds and fishery areas, wildlife,
or recreational areas. (See 40 CFR Part
230).
(g) Section 103 of the Marine
Protection, Research and Sanctuaries Act
of 1972, as amended (33 U.S.C. 1413)
(hereinafter referred to as section 103),
authorizes the Secretary of the Army,
acting through the Chief of Engineers, to
issue permits, after notice and opportunity
for public hearing, for the transportation of
dredged material for the purpose of
disposal in the ocean where it is
determined that the disposal will not
unreasonably degrade or endanger human
health, welfare, or amenities, or the marine
environment, ecological systems, or
economic potentialities. The selection of
disposal sites will be in accordance with
criteria developed by the Administrator of
the EPA in consultation with the Secretary
of the Army and published in 40 CFR
Parts 220 -229. However, similar to the
EPA Administrator's limiting authority
cited in paragraph (f) of this section, the
Administrator can prevent the issuance of
a permit under this authority if he

41222 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
finds that the disposal of the material will
result in an unacceptable adverse Impact
on municipal water supplies, shellfish
beds, wildlife, fisheries, or recreational
areas. (See 33 CFR Part 324).
§ 320.3 Related laws.
(a) Section 401 of the Clean Water Act
(33 U.S.C. 134 1) requires any applicant
for a federal license or permit to conduct
any activity that may result in a discharge
of a pollutant into waters of the United
States to obtain a certification from the
State in which the discharge originates or
would originate, or, if appropriate, from
the interstate water pollution control
agency having jurisdiction over the
affected waters at the point where the
discharge originates or would originate,
that the discharge will comply with the
applicable effluent limitations and water
quality standards. A certification obtained
for the construction of any facility must
also pertain to the subsequent operation of
the facility.
(b) Section 307(c) of the Coastal Zone
Management Act of 1972, as amended (16
U.S.C. 1456(c)), requires federal agencies
conducting activities, including
development projects, directly affecting a
state's coastal zone, to comply to the
maximum extent practicable with an
approved state coastal zone management
program. Indian tribes doing work on
federal lands will be treated as a federal
agency for the purpose of the Coastal Zone
Management Act. The Act also requires
any non - federal applicant for a federal
license or permit to conduct an activity
affecting land or water uses in the state's
coastal zone to furnish a certification that
the proposed activity will comply with the
state's coastal zone management program.
Generally, no permit will be issued until
the state has concurred with the non-
federal applicant's certification. This
provision becomes effective upon approval
by the Secretary of Commerce of the
state's coastal zone management program.
(See 15 CFR Part 930.)
(c) Section 302 of the Marine
Protection, Research and Sanctuaries Act
of 1972, as amended (16 U.S.C. 1432),
authorizes the Secretary of Commerce,
after consultation with other interested
federal agencies and with the approval of
the President, to designate as marine
sanctuaries those areas of the ocean
waters, of the Great Lakes and their
connecting waters, or of other coastal
waters which he determines necessary for
the purpose of preserving or restoring such
areas for their conservation, recreational,
ecological, or aesthetic values. After
designating such an area, the Secretary of
Commerce shall issue regulations to
control any activities within the area.
Activities in the sanctuary authorized
under other authorities are valid only if the
Secretary of Commerce certifies that the
activities are consistent with the purposes
of Title III of the Act and can be carried
out within the regulations for the
sanctuary.
(d) The National Environmental Policy
Act of 1969 (42 U.S.C. 4321 -4347)
declares the national policy to encourage a
productive and enjoyable harmony
between man and his environment. Section
102 of that Act directs that `to the fullest
extent possible: (1) The policies,
regulations, and public laws of the United
States shall be interpreted and
administered in accordance with the
policies set forth in this Act, and (2) all
agencies of the Federal Government shall
* * * insure that presently unquantified
environmental amenities and values may
be given appropriate consideration in
decision - making along with economic and
technical considerations * * * ". (See
Appendix B of 33 CFR Part 325.)
(e) The Fish and Wildlife Act of 1956
(18 U.S.C. 742a, et seq.), the Migratory
Marine Game -Fish Act (16 U.S.C. 760c-
760g), the Fish and Wildlife Coordination
Act (16 U.S.C. 661 -666c) and other acts
express the will of Congress to protect the
quality of the aquatic environment as it
affects the conservation, improvement and
enjoyment of fish and wildlife resources,
Reorganization Plan No. 4 of 1970
transferred certain functions, including
certain fish and wildlife -water resources
coordination responsibilities, from the
Secretary of the Interior to the Secretary of
Commerce. Under the Fish and Wildlife
Coordination Act and Reorganization Plan
No. 4. any federal agency that proposes to
control or modify any body of water must
first consult with the United States Fish
and Wildlife Service or the National
Marine Fisheries Service, as appropriate,
and with the head of the appropriate state
agency exercising administration over the
wildlife resources of the affected state.
(f) The Federal Power Act of 1920 (16
U.S.C. 7 9 1 a et seq.), as amended,
authorizes the Federal Energy Regulatory
Agency (FERC) to issue licenses for the
construction and the operation and
maintenance of dams, water conduits,
reservoirs, power houses, transmission
lines, and other physical structures of a
hydro -power project. However, where
such structures will affect the navigable
capacity of any navigable water of the
United States (as defined in 16 U.S.C.
796), the plans for the dam or other
physical structures affecting navigation
must be approved by the Chief of
Engineers and the Secretary of the Army.
In such cases, the interests of navigation
should normally be protected by a DA
recommendation to FERC for the inclusion
of appropriate provisions in the FERC
license rather than the issuance of a
separate DA permit under 33 U.S.C. 401 et
seq. As to any other activities in navigable
waters not constituting construction and
the operation and maintenance of physical
structures licensed by FERC under the
Federal Power Act of 1920, as amended,
the provisions of 33 U.S.C. 401 et seq.
remain fully applicable. In all cases
involving the discharge of dredged or fill
material into waters of the United States or
the transportation of dredged material for
the purpose of disposal in ocean waters,
section 404 or section 103 will be
applicable.
(g) The National Historic Preservation
Act of 1966 (16 U.S.C. 470) created the
Advisory Council on Historic Preservation
to advise the President and Congress on
matters involving historic preservation. In
performing its function the Council is
authorized to review and comment upon
activities licensed by the Federal
Government which will have an effect
upon properties listed in the National
Register of Historic Places, or eligible for
such listing. The concern of Congress for
the preservation of significant historical
sites is also expressed in the Preservation
of Historical and Archeological Data Act
of 1974 (16 U.S.C. 469 et seq.), which
amends the Act of June 27, 1960. By this
Act, whenever a federal construction
project or federally licensed project,
activity, or program alters any terrain such
that significant historical or archeological
data is threatened, the Secretary of the
Interior may take action necessary to
recover and preserve the data prior to the
commencement of the project.
(h) The hnterstate Land Sales Full
Disclosure Act (15 U.S.C. 1701 et seq.)
prohibits any developer or agent from
selling or leasing any lot in a subdivision
(as defined in 15 U.S.C. 1701(3)) unless
the purchaser is furnished in advance a
printed property report containing
information which the Secretary of
Housing and Urban Development may, by
rules or regulations, require for the
protection of purchasers. In the event the
lot in question is part of a project that
requires DA authorization, the property
report is required by Housing and Urban
Development regulation to state whether

41223 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
or not a permit for the development has
been applied for, issued, or denied by the
Corps of Engineers under section 10 or
section 404. The property report is also
required to state whether or not any
enforcement action has been taken as a
consequence of non - application for or
denial of such permit.
(i) The Endangered Species Act (16
U.S.C. 1531 et seq.) declares the intention
of the Congress to conserve threatened and
endangered species and the ecosystems on
which those species depend. The Act
requires that federal agencies, in
consultation with the U.S. Fish and
Wildlife Service and the National Marine
Fisheries Service, use their authorities in
furtherance of its purposes by carrying out
programs for the conservation of
endangered or threatened species, and by
taking such action necessary to insure that
any action authorized, funded, or carried
out by the Agency is not likely to
jeopardize the continued existence of such
endangered or threatened species or result
in the destruction or adverse modification
of habitat of such species which is
determined by the Secretary of the hiterior
or Commerce, as appropriate, to be
critical. (See 50 CFR Part 17 and 50 CFR
Part 402.)
0) The Deepwater Port Act of 1974 (33
U.S.C. 1501 etseq.) prohibits the
ownership, construction, or operation of a
deepwater port beyond the territorial seas
without a license issued by the Secretary
of Transportation. The Secretary of
Transportation may issue such a license to
an applicant if he determines, among other
things, that the construction and operation
of the deepwater port is in the national
interest and consistent with national
security and other national policy goals
and objectives. An application for a
deepwater port license constitutes an
application for all federal authorizations
required for the ownership, construction,
and operation of a deepwater port,
including applications for section 10,
section 404 and section 103 permits which
may also be required pursuant to the
authorities listed in section 320.2 and the
policies specified in section 320.4 of this
Part.
(k) The Marine Mammal Protection Act
of 1972 (16 U.S.C. 1361 et seq.) expresses
the intent of Congress that marine
mammals be protected and encouraged to
develop in order to maintain the health and
stability of the marine ecosystem. The Act
imposes a perpetual moratorium on the
harassment, hunting, capturing, or killing
of marine mammals and on the importation
of marine mammals and marine mammal
products without a permit from either the
Secretary of the Interior or the Secretary of
Commerce, depending upon the species of
marine mammal involved. Such permits
may be issued only for purposes of
scientific research and for public display if
the purpose is consistent with the policies
of the Act. The appropriate Secretary is
also empowered in certain restricted
circumstances to waive the requirements
of the Act.
(1) Section 7(a) of the Wild and Scenic
Rivers Act (16 U.S.C. 1278 et seq.)
provides that no department or agency of
the United States shall assist by loan,
grant, license, or otherwise in the
construction of any water resources project
that would have a direct and adverse effect
on the values for which such river was
established, as determined by the Secretary
charged with its administration.
(m) The Ocean Thermal Energy
Conversion Act of 1980, (42 U.S.C.
section 9101 et seq.) establishes a
licensing regime administered by the
Administrator of NOAA for the
ownership, construction, location, and
operation of ocean thermal energy
conversion (OTEC) facilities and
plantships. An application for an OTEC
license filed with the Administrator
constitutes an application for all federal
authorizations required for ownership,
construction, location, and operation of an
OTEC facility or plantship, except for
certain activities within the jurisdiction of
the Coast Guard. This includes
applications for section 10, section 404,
section 103 and other DA authorizations
which may be required.
(n) Section 402 of the Clean Water Act
authorizes EPA to issue permits under
procedures established to implement the
National Pollutant Discharge Elimination
System (NPDES) program. The
administration of this program can be, and
in most cases has been, delegated to
individual states. Section 402(b)(6) states
that no NPDES permit will be issued if the
Chief of Engineers, acting for the
Secretary of the Army and after consulting
with the U.S. Coast Guard, determines that
navigation and anchorage in any navigable
water will be substantially impaired as a
result of a proposed activity.
(o) The National Fishing Enhancement
Act of 1984 (Pub. L. 98 -623) provides
for the development of a National
Artificial Reef Plan to promote and
facilitate responsible and effective efforts
to establish artificial reefs. The Act
establishes procedures to be followed by
the Corps in issuing DA permits for
artificial reefs. The Act also establishes the
liability of the permittee and the United
States. The Act further creates a civil
penalty for violation of any provision of a
permit issued for an artificial reef.
§ 320.4 General policies for evaluating
permit applications.
The following policies shall be
applicable to the review of all applications
for DA permits. Additional policies
specifically applicable to certain types of
activities are identified in 33 CFR Parts
321 -324.
(a) Public Interest Review. (1) The
decision whether to issue a permit will be
based on an evaluation of the probable
impacts, including cumulative impacts, of
the proposed activity and its intended use
on the public interest. Evaluation of the
probable impact which the proposed
activity may have on the public interest
requires a careful weighing of all those
factors which become relevant in each
particular case. The benefits which
reasonably may be expected to accrue
from the proposal must be balanced
against its reasonably foreseeable
detriments. The decision whether to
authorize a proposal, and if so, the
conditions under which it will be allowed
to occur, are therefore determined by the
outcome of this general balancing process.
That decision should reflect the national
concern for both protection and utilization
of important resources. All factors which
may be relevant to the proposal must be
considered including the cumulative
effects thereof: among those are
conservation, economics, aesthetics,
general environmental concerns. wetlands,
historic properties, fish and wildlife
values, flood hazards, floodplain values,
land use, navigation, shore erosion and
accretion, recreation, water supply and
conservation, water quality, energy needs,
safety, food and fiber production, mineral
needs, considerations of property
ownership and, in general, the needs and
welfare of the people. For activities
involving 404 discharges, a permit will be
denied if the discharge that would be
authorized by such permit would not
comply with the Environmental Protection
Agency's 404(b)(1) guidelines. Subject to
the preceding sentence and any other
applicable guidelines and criteria (see § §
320.2 and 320.3), a permit will be granted
unless the district engineer determines that
it would be contrary to the public interest.
(2) The following general criteria will
be considered in the evaluation of every
application:
(i) The relative extent of the public and
private need for the proposed structure or
work:

41224 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(ii) Where there are unresolved conflicts
as to resource use, the practicability of
using reasonable alternative locations and
methods to accomplish the objective of the
proposed structure or work; and
(iii) The extent and permanence of the
beneficial and /or detrimental effects which
the proposed structure or work is likely to
have on the public and private uses to
which the area is suited.
(3) The specific weight of each factor is
determined by its importance and
relevance to the particular proposal.
Accordingly, how important a factor is and
how much consideration it deserves will
vary with each proposal. A specific factor
may be given great weight on one
proposal, while it may not be present or as
important on another. However, full
consideration and appropriate weight will
be given to all comments, including those
of federal, state, and local agencies, and
other experts on matters within their
expertise.
(b) Effect on wetlands, (1) Most
wetlands constitute a productive and
valuable public resource, the unnecessary
alteration or destruction of which should
be discouraged as contrary to the public
interest. For projects to be undertaken or
partially or entirely funded by a federal,
state, or local agency, additional
requirements on wetlands considerations
are stated in Executive Order 11990, dated
24 May 1977.
(2) Wetlands considered to perform
functions important to the public interest
include:
(i) Wetlands which serve significant
natural biological functions, including
food chain production, general habitat and
nesting, spawning, rearing and resting sites
for aquatic or land species;
(ii) Wetlands set aside for study of the
aquatic environment or as sanctuaries or
refuges;
(iii) Wetlands the destruction or
alteration of which would affect
detrimentally natural drainage
characteristics, sedimentation patterns.
salinity distribution, flushing
characteristics, current patterns, or other
environmental characteristics;
(iv) Wetlands which are significant in
shielding other areas from wave action,
erosion, or storm damage. Such wetlands
are often associated with barrier beaches,
islands, reefs and bars;
(v) Wetlands which serve as valuable
storage areas for storm and flood waters;
(vi) Wetlands which are ground water
discharge areas that maintain minimum
baseflows important to aquatic resources
and those which are prime natural recharge
areas;
(vii) Wetlands which serve significant
water purification functions; and
(viii) Wetlands which are unique in
nature or scarce in quantity to the region or
local area.
(3) Although a particular alteration of a
wetland may constitute a minor change,
the cumulative effect of numerous
piecemeal changes can result in a major
impairment of wetland resources. Thus,
the particular wetland site for which an
application is made will be evaluated with
the recognition that it may be part of a
complete and interrelated wetland area. In
addition, the district engineer may
undertake, where appropriate, reviews of
particular wetland areas in consultation
with the Regional Director of the The. U.S.
Fish and Wildlife Service, the Regional
Director of the National Marine Fisheries
Service of the National Oceanic and
Atmospheric Administration, the Regional
Administrator of the Environmental
Protection Agency, the local representative
of the Soil Conservation Service of the
Department of Agriculture, and the head of
the appropriate state agency to assess the
cumulative effect of activities in such
areas.
(4) No permit will be granted which
involves the alteration of wetlands
identified as important by paragraph (b)(2)
of this section or because of provisions of
paragraph (b)(3), of this section unless the
district engineer concludes, on the basis of
the analysis required in paragraph (a) of
this section, that the benefits of the
proposed alteration outweigh the damage
to the wetlands resource. In evaluating
whether a particular discharge activity
should be permitted, the district engineer
shall apply the section 404(b)(1)
guidelines (40 CFR Part 230.10(a) (1), (2),
(3))_
(5) In addition to the policies expressed
in this subpart, the Congressional policy
expressed in the Estuary Protection Act,
Pub. L. 90 -454, and state regulatory laws
or programs for classification and
protection of wetlands will be considered.
(c) Fish and wildlife. In accordance with
the Fish and Wildlife Coordination Act
(paragraph 320.3(e) of this section) district
engineers will consult with the Regional
Director, U.S. Fish and Wildlife Service,
the Regional Director, National Marine
Fisheries Service, and the head of the
agency responsible for fish and wildlife for
the state in which work is to be performed,
with a view to the conservation of wildlife
resources by prevention of their direct and
indirect loss and damage due to the
activity proposed in a permit application.
The Army will give full consideration to
the views of those agencies on fish and
wildlife matters in deciding on the
issuance, denial, or conditioning of
individual or general permits.
(d) Water quality. Applications for
permits for activities which may adversely
affect the quality of waters of the United
States will be evaluated for compliance
with applicable effluent limitations and
water quality standards, during the
construction and subsequent operation of
the proposed activity. The evaluation
should include the consideration of both
point and non -point sources of pollution. It
should be noted, however, that the Clean
Water Act assigns responsibility for
control of non -point sources of pollution to
the states. Certification of compliance with
applicable effluent limitations and water
quality standards required under provisions
of section 401 of the Clean Water Act will
be considered conclusive with respect to
water quality considerations unless the
Regional Administrator, Environmental
Protection Agency (EPA), advises of other
water quality aspects to be taken into
consideration.
(e) Historic, cultural, scenic, and
recreational values. Applications for DA
permits may involve areas which possess
recognized historic, cultural, scenic,
conservation, recreational or similar
values. Full evaluation of the general
public interest requires that due
consideration be given to the effect which
the proposed structure or activity may have
on values such as those associated with
wild and scenic rivers, historic properties
and National Landmarks, National Rivers,
National Wilderness Areas, National
Seashores, National Recreation Areas,
National Lakeshores, National Parks,
National Monuments, estuarine and marine
sanctuaries, archeological resources,
including Indian religious or cultural sites,
and such other areas as may be established
under federal or state law for similar and
related purposes. Recognition of those
values is often reflected by state, regional,
or local land use classifications, or by
similar federal controls or policies. Action
on permit applications should, insofar as
possible, be consistent with, and avoid
significant adverse effects on the values or
purposes for which those classifications,
controls, or policies were established.
(f) Effects on limits of the territorial sea.
Structures or work affecting coastal waters
may modify the coast line or base line
from which the territorial sea is measured
for purposes of the Submerged Lands Act
and international law. Generally, the coast
line or base line is the line of ordinary low
water on

41225 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
the mainland; however, there are
exceptions where there are islands or
lowtide elevations offshore (the
Submerged Lands Act, 43 U.S.C. 1301(a)
and United States v. California, 381
U.S.C. 139 (1965), 382 U.S. 448 (1966)).
Applications for structures or work
affecting coastal waters will therefore be
reviewed specifically to determine whether
the coast line or base line might be altered.
If it is determined that such a change might
occur, coordination with the Attorney
General and the Solicitor of the
Department of the Interior is required
before final action is taken. The district
engineer will submit a description of the
proposed work and a copy of the plans to
the Solicitor, Department of the Interior,
Washington, DC 20240, and request his
comments concerning the effects of the
proposed work on the outer continental
rights of the United States. These
comments will be included in the
administrative record of the application.
After completion of standard processing
procedures, the record will be forwarded to
the Chief of Engineers. The decision on
the application will be made by the
Secretary of the Army after coordination
with the Attorney General.
(g) Consideration of property
ownership. Authorization of work or
structures by DA does not convey a
property right, nor authorize any injury to
property or invasion of other rights.
(1) An inherent aspect of property
ownership is a right to reasonable private
use. However, this right is subject to the
rights and interests of the public in the
navigable and other waters of the United
States, including the federal navigation
servitude and federal regulation for
environmental protection.
(2) Because a landowner has the general
right to protect property from erosion,
applications to erect protective structures
will usually receive favorable
consideration. However, if the protective
structure may cause damage to the
property of others, adversely affect public
health and safety, adversely impact
floodplain or wetland values, or otherwise
appears contrary to the public interest the
district engineer will so advise the
applicant and inform him of possible
alternative methods of protecting his
property. Such advice will be given in
terms of general guidance only so as not to
compete with private engineering firms
nor require undue use of government
resources.
(3) A riparian landowner's general right
of access to navigable waters of the United
States is subject to the similar rights of
access held by nearby riparian landowners
and to the general public's right of
navigation on the water surface. In the case
of proposals which create undue
interference with access to, or use of,
navigable waters, the authorization will
generally be denied.
(4) Where it is found that the work for
which a permit is desired is in navigable
waters of the United States (see 33 CFR
Part 329) and may interfere with an
authorized federal project, the applicant
should be apprised in writing of the fact
and of the possibility that a federal project
which may be constructed in the vicinity
of the proposed work might necessitate its
removal or reconstruction. The applicant
should also be informed that the United
States will in no case be liable for any
damage or injury to the structures or work
authorized by Sections 9 or 10 of the
Rivers and Harbors Act of 1899 or by
section 404 of the Clean Water Act which
may be caused by, or result from, future
operations undertaken by the Government
for the conservation or improvement of
navigation or for other purposes, and no
claims or right to compensation will accrue
from any such damage.
(5) Proposed activities in the area of a
federal project which exists or is under
construction will be evaluated to insure
that they are compatible with the purposes
of the project.
(6) A DA permit does not convey any
property rights, either in real estate or
material, or any exclusive privileges.
Furthermore, a DA permit does not
authorize any injury to property or
invasion of rights or any infringement of
Federal, state or local laws or regulations.
The applicant's signature on an application
is an affirmation that the applicant
possesses or will possess the requisite
property interest to undertake the activity
proposed in the application. The district
engineer will not enter into disputes but
will remind the applicant of the above. The
dispute over property ownership will not
be a factor in the Corps public interest
decision.
(h) Activities affecting coastal zones.
Applications for DA permits for activities
affecting the coastal zones of those states
having a coastal zone management
program approved by the Secretary of
Commerce will be evaluated with respect
to compliance with that program. No
permit will be issued to a non - federal
applicant until certification has been
provided that the proposed activity
complies with the coastal zone
management program and the appropriate
state agency has concurred with the
certification or has waived its right to do
so. However, a permit may be issued to a
non - federal applicant if the Secretary of
Commerce, on his own initiative or upon
appeal by the applicant, finds that the
proposed activity is consistent with the
objectives of the Coastal Zone
Management Act of 1972 or is otherwise
necessary in the interest of national
security. Federal agency and Indian tribe
applicants for DA permits are responsible
for complying with the Coastal Zone
Management Act's directives for assuring
that their activities directly affecting the
coastal zone are consistent, to the
maximum extent practicable, with
approved state coastal zone management
programs.
(i) Activities in marine sanctuaries.
Applications for DA authorization for
activities in a marine sanctuary established
by the Secretary of Commerce under
authority of section 302 of the Marine
Protection, Research and Sanctuaries Act
of 1972, as amended, will be evaluated for
impact on the marine sanctuary. No permit
will be issued until the applicant provides
a certification from the Secretary of
Commerce that the proposed activity is
consistent with the purposes of Title Ill of
the Marine Protection, Research and
Sanctuaries Act of 1972, as amended, and
can be carried out within the regulations
promulgated by the Secretary of
Commerce to control activities within the
marine sanctuary.
0) Other Federal, state, or local
requirements. (1) Processing of an
application for a DA permit normally will
proceed concurrently with the processing
of other required Federal, state, and /or
local authorizations or certifications. Final
action on the DA permit will normally not
be delayed pending action by another
Federal, state or local agency (See 33 CFR
325.2 (d)(4)). However, where the required
Federal, state and /or local authorization
and /or certification has been denied for
activities which also require a Department
of the Army permit before final action has
been taken on the Army permit
application, the district engineer will, after
considering the likelihood of subsequent
approval of the other authorization and /or
certification and the time and effort
remaining to complete processing the
Army permit application, either
immediately deny the Army permit
without prejudice or continue processing
the application to a conclusion. If the
district engineer continues processing the
application, he will conclude by either
denying the permit as contrary to the
public interest, or denying it without
prejudice indicating that except for the
other Federal, state or local denial the
Army permit could, under appropriate
conditions, be issued. Denial without
prejudice means that there is no prejudice
to the right of the applicant to reinstate
processing of the Army permit

41226 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
application if subsequent approval is
received from the appropriate Federal.
state and /or local agency on a previously
denied authorization and /or certification,
Even if official certification and /or
authorization is not required by state or
federal law, but a state, regional, or local
agency having jurisdiction or interest over
the particular activity comments on the
application, due consideration shall be
given to those official views as a reflection
of local factors of the public interest.
(2) The primary responsibility for
determining zoning and land use matters
rests with state, local and tribal
governments. The district engineer will
normally accept decisions by such
governments on those matters unless there
are significant issues of overriding national
importance. Such issues would include but
are not necessarily limited to national
security, navigation, national economic
development, water quality, preservation
of special aquatic areas, including
wetlands, with significant interstate
importance, and national energy needs.
Whether a factor has overriding
importance will depend on the degree of
impact in an individual case.
(3) A proposed activity may result in
conflicting comments from several
agencies within the same state. Where a
state has not designated a single
responsible coordinating agency, district
engineers will ask the Governor to express
his views or to designate one state agency
to represent the official state position in
the particular case.
(4) In the absence of overriding national
factors of the public interest that may be
revealed during the evaluation of the
permit application, a permit will generally
be issued following receipt of a favorable
state determination provided the concerns,
policies, goals, and requirements as
expressed in 33 CFR Parts 320 -324, and
the applicable statutes have been
considered and followed: e.g., the National
Environmental Policy Act; the Fish and
Wildlife Coordination Act; the Historical
and Archeological Preservation Act; the
National Historic Preservation Act; the
Endangered Species Act; the Coastal Zone
Management Act; the Marine Protection,
Research and Sanctuaries Act of 1972, as
amended; the Clean Water Act, the
Archeological Resources Act, and the
American Indian Religious Freedom Act.
Similarly, a permit will generally be issued
for Federal and Federally - authorized
activities; another federal agency's
determination to proceed is entitled to
substantial consideration in the Corps'
public interest review.
(5) Where general permits to avoid
duplication are not practical, district
engineers shall develop joint procedures
with those local, state, and other Federal
agencies having ongoing permit programs
for activities also regulated by the
Department of the Army. In such cases,
applications for DA permits may be
processed jointly with the state or other
federal applications to an independent
conclusion and decision by the district
engineer and the appropriate Federal or
state agency. (See 33 CF'R 325.2(e).)
(6) The district engineer shall develop
operating procedures for establishing
official communications with Indian
Tribes within the district. The procedures
shall provide for appointment of a tribal
representative who will receive all
pertinent public notices, and respond to
such notices with the official tribal
position on the proposed activity. This
procedure shall apply only to those tribes
which accept this option. Any adopted
operating procedures shall be distributed
by public notice to inform the tribes of this
option.
(k) Safety of impoundment structures.
To insure that all impoundment structures
are designed for safety, non - Federal
applicants may be required to demonstrate
that the structures comply with established
state dam safety criteria or have been
designed by qualified persons and, in
appropriate cases, that the design has been
independently reviewed (and modified as
the review would indicate) by similarly
qualified persons.
(1) Floodplain management. (1)
Floodplains possess significant natural
values and carry out numerous functions
important to the public interest. These
include:
(i) Water resources values (natural
moderation of floods, water quality
maintenance, and groundwater recharge);
(ii) Living resource values (fish,
wildlife, and plant resources);
(iii) Cultural resource values (open
space, natural beauty, scientific study,
outdoor education, and recreation); and
(iv) Cultivated resource values
(agriculture, aquaculture, and forestry).
(2) Although a particular alteration to a
floodplain may constitute a minor change,
the cumulative impact of such changes
may result in a significant degradation of
floodplain values and functions and in
increased potential for harm to upstream
and downstream activities. In accordance
with the requirements of Executive Order
11988, district engineers, as part of their
public interest review, should avoid to the
extent practicable, long and short term
significant adverse impacts associated with
the occupancy and modification of
floodplains, as well as the direct and
indirect support of floodplain development
whenever there is a practicable alternative.
For those activities which in the public
interest must occur in or impact upon
floodplains, the district engineer shall
ensure, to the maximum extent practicable,
that the impacts of potential flooding on
human health, safety, and welfare are
minimized, the risks of flood losses are
minimized, and, whenever practicable the
natural and beneficial values served by
floodplains are restored and preserved.
(3) In accordance with Executive Order
11988, the district engineer should avoid
authorizing floodplain developments
whenever practicable alternatives exist
outside the floodplain. If there are no such
practicable alternatives, the district
engineer shall consider, as a means of
mitigation, alternatives within the
floodplain which will lessen any
significant adverse impact to the
floodplain.
(m) Water supply and conservation.
Water is an essential resource, basic to
human survival, economic growth, and the
natural environment. Water conservation
requires the efficient use of water
resources in all actions which involve the
significant use of water or that
significantly affect the availability of water
for alternative uses including opportunities
to reduce demand and improve efficiency
in order to minimize new supply
requirements. Actions affecting water
quantities are subject to Congressional
policy as stated in section 101(g) of the
Clean Water Act which provides that the
authority of states to allocate water
quantities shall not be superseded,
abrogated, or otherwise impaired.
(n) Energy conservation and
development. Energy conservation and
development are major national objectives.
District engineers will give high priority to
the processing of permit actions involving
energy projects.
(o) Navigation. (1) Section 11 of the
Rivers and Harbors Act of 1899 authorized
establishment of harbor lines shoreward of
which no individual permits were required.
Because harbor lines were established on
the basis of navigation impacts only, the
Corps of Engineers published a regulation
on 27 May 1970 (33 CFR 209.150) which
declared that permits would thereafter be
required for activities shoreward of the
harbor lines. Review of applications

41227 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
would be based on a full public interest
evaluation and harbor lines would serve as
guidance for assessing navigation impacts.
Accordingly, activities constructed
shoreward of harbor lines prior to 27 May
1970 do not require specific authorization.
(2) The policy of considering harbor
lines as guidance for assessing impacts on
navigation continues.
(3) Protection of navigation in all
navigable waters of the United States
continues to be a primary concern of the
federal government.
(4) District engineers should protect
navigational and anchorage interests in
connection with the NPDES program by
recommending to EPA or to the state, if
the program has been delegated, that a
permit be denied unless appropriate
conditions can be included to avoid any
substantial impairment of navigation and
anchorage.
(p) Environmental benefits. Some
activities that require Department of the
Army permits result in beneficial effects to
the quality of the environment. The district
engineer will weigh these benefits as well
as environmental detriments along with
other factors of the public interest.
(q) Economics. When private enterprise
makes application for a permit, it will
generally be assumed that appropriate
economic evaluations have been
completed, the proposal is economically
viable, and is needed in the market place.
However, the district engineer in
appropriate cases, may make an
independent review of the need for the
project from the perspective of the overall
public interest. The economic benefits of
many projects are important to the local
community and contribute to needed
improvements in the local economic base,
affecting such factors as employment, tax
revenues, community cohesion,
community services, and property values.
Many projects also contribute to the
National Economic Development (NED),
(i.e., the increase in the net value of the
national output of goods and services).
(r) Mitigation' (1) Mitigation is an
important aspect of the review and
balancing process on many Department of
the Army permit applications.
Consideration of mitigation will occur
throughout the permit application
`This is a general statement of mitigation
policy which applies to all Corps of Engineers
regulatory authorities covered by these
regulations (33 CFR Parts 320-330). It is not a
substitute for the mitigation requirements
necessary to ensure that a permit action under
section 404 of the Clean Water Act complies
with the section 404(h)(1) Guidelines. There is
currently an interagency Working Group formed
to develop guidance on implementing mitigation
requirements of the Guidelines.
review process and includes avoiding,
minimizing, rectifying, reducing, or
compensating for resource losses. Losses
will be avoided to the extent practicable.
Compensation may occur on -site or at an
off -site location. Mitigation requirements
generally fall into three categories.
(i) Project modifications to minimize
adverse project impacts should be
discussed with the applicant at pre -
application meetings and during
application processing. As a result of these
discussions and as the district engineer's
evaluation proceeds, the district engineer
may require minor project modifications.
Minor project modifications are those that
are considered feasible (cost,
constructability, etc.) to the applicant and
that, if adopted, will result in a project that
generally meets the applicant's purpose
and need. Such modifications can include
reductions in scope and size; changes in
construction methods, materials or timing;
and operation and maintenance practices
or other similar modifications that reflect a
sensitivity to environmental quality within
the context of the work proposed. For
example, erosion control features could be
required on a fill project to reduce
sedimentation impacts or a pier could be
reoriented to minimize navigational
problems even though those projects may
satisfy all legal requirements (paragraph
(r)(1)(ii) of this section) and the public
interest review test (paragraph (r)(1)(iii) of
this section) without such modifications,
(ii) Further mitigation measures may be
required to satisfy legal requirements. For
Section 404 applications, mitigation shall
be required to ensure that the project
complies with the 404(b)(1) Guidelines.
Some mitigation measures are enumerated
at 40 CFR 230.70 through 40 CFR 230.77
(Subpart H of the 404(b)(1) Guidelines).
(iii) Mitigation measures in addition to
those under paragraphs (r)(1) (i) and (ii) of
this section may be required as a result of
the public interest review process. (See 33
CFR 325.4(a).) Mitigation should be
developed and incorporated within the
public interest review process to the extent
that the mitigation is found by the district
engineer to be reasonable and justified.
Only those measures required to ensure
that the project is not contrary to the public
interest may be required under this
subparagraph.
(2) All compensatory mitigation will be
for significant resource losses which are
specifically identifiable, reasonably likely
to occur, and of importance to the human
or aquatic environment. Also, all
mitigation will be directly related to the
impacts of the proposal, appropriate to the
scope and degree of those impacts, and
reasonably enforceable. District engineers
will require all forms of mitigation,
including compensatory mitigation, only
as provided in paragraphs (r)(1) (i) through
(iii) of this section. Additional mitigation
may be added at the applicants' request.
PART 321 — PERMITS FOR DAMS
AND DIKES IN NAVIGABLE
WATERS OF THE UNITED STATES
Sec.
321.1 General.
321.2 Definitions.
321.3 Special policies and procedures.
Authority: 33 U.S.C. 401.
§ 321.1 General.
This regulation prescribes, in addition to
the general policies of 33 CFR Part 320
and procedures of 33 CFR Part 325, those
special policies, practices, and procedures
to be followed by the Corps of Engineers
in connection with the review of
applications for Department of the Army
(DA) permits to authorize the construction
of a dike or dam in a navigable water of
the United States pursuant to section 9 of
the Rivers and Harbors Act of 1899 (33
U.S.C. 401). See 33 CFR 320.2(a). Dams
and dikes in navigable waters of the
United States also require DA permits
under section 404 of the Clean Water Act,
as amended (33 U.S.C. 1344). Applicants
for DA permits under this Part should also
refer to 33 CFR Part 323 to satisfy the
requirements of section 404.
§ 321.2 Definitions.
For the purpose of this regulation. the
following terms are defined:
(a) The term "navigable waters of the
United States" means those waters of the
United States that are subject to the ebb
and flow of the tide shoreward to the mean
water nark and /or are presently used, or
have been used in past, or may be
susceptible to use to transport interstate or
foreign commerce. See 33 CFR Part 329
for a more complete definition of this term.
(b) The term "dike or dam" means, for
the purposes of section 9, any
impoundment structure that completely
spans a navigable water of the United
States and that may obstruct interstate
waterborne commerce. The term does not
include a weir. Weirs are regulated
pursuant to section 10 of the Rivers and
Harbors Act of 1899. (See 33 CFR Part
322.)

41228 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
§ 321.3 Special policies and procedures.
The following additional special policies
and procedures shall be applicable to the
evaluation of permit applications under
this regulation:
(a) The Assistant Secretary of the Army
(Civil Works) will decide whether DA
authorization for a darn or dike in an
interstate navigable water of the United
States will be issued, since this authority
has not been delegated to the Chief of
Engineers. The conditions to be imposed
in any instrument of authorization will be
recommended by the district engineer
when forwarding the report to the
Assistant Secretary of the Army (Civil
Works), through the Chief of Engineers.
(b) District engineers are authorized to
decide whether DA authorization for a
dam or dike in an intrastate navigable
water of the United States will be issued
(see 33 CFR 325.8).
(c) Processing a DA application under
section 9 will not be completed until the
approval of the United States Congress has
been obtained if the navigable water of the
United States is an interstate waterbody, or
until the approval of the appropriate state
legislature has been obtained if the
navigable water of the United States is an
intrastate waterbody (i.e., the navigable
portion of the navigable water of the
United States is solely within the
boundaries of one state). The district
engineer, upon receipt of such an
application, will notify the applicant that
the consent of Congress or the state
legislature must be obtained before a
permit can be issued.
PART 322 — PERMITS FOR
STRUCTURES OR WORK IN OR
AFFECTING NAVIGABLE WATERS
OF THE UNITED STATES
Sec.
322.1 General.
322.2 Definitions.
322.3 Activities requiring permits.
322.4 Activities not requiring permits.
322.5 Special policies.
Authority: 33 U.S.C. 403.
§ 322.1 General.
This regulation prescribes, in addition to
the general policies of 33 CFR Part 320
and procedures of 33 CFR Part 325, those
special policies, practices, and procedures
to be followed by the Corps of Engineers
in connection with the review of
applications for Department of the Army
(DA) permits to authorize certain
structures or work in or affecting navigable
waters of the United States pursuant to
section 10 of the Rivers and Harbors Act
of 1899 (33 U.S.C. 403) (hereinafter
referred to as section 10). See 33 CFR
320.2(b). Certain structures or work in or
affecting navigable waters of the United
States are also regulated under other
authorities of the DA. These include
discharges of dredged or fill material into
waters of the United States, including the
territorial seas, pursuant to section 404 of
the Clean Water Act (33 U.S.C. 1344; see
33 CFR Part 323) and the transportation of
dredged material by vessel for purposes of
dumping in ocean waters, including the
territorial seas, pursuant to section 103 of
the Marine Protection, Research and
Sanctuaries Act of 1972, as amended (33
U.S.C. 1413; see 33 CFR Part 324). A DA
permit will also be required under these
additional authorities if they are applicable
to structures or work in or affecting
navigable waters of the United States.
Applicants for DA permits under this part
should refer to the other cited authorities
and implementing regulations for these
additional permit requirements to
determine whether they also are applicable
to their proposed activities.
§ 322.2 Definitions.
For the purpose of this regulation, the
following terms are defined:
(a) The term "navigable waters of the
United States" and all other terms relating
to the geographic scope of jurisdiction are
defined at 33 CFR Part 329. Generally,
they are those waters of the United States
that are subject to the ebb and flow of the
tide shoreward to the mean high water
mark, and /or are presently used, or have
been used in the past, or may be
susceptible to use to transport interstate or
foreign commerce.
(b) The term "structure" shall include,
without limitation, any pier, boat dock,
boat ramp, wharf, dolphin, weir, boom,
breakwater, bulkhead, revetment, riprap,
jetty, artificial island, artificial reef,
permanent mooring structure, power
transmission line, permanently moored
floating vessel, piling, aid to navigation, or
any other obstacle or obstruction.
(c) The term "work" shall include,
without limitation, any dredging or
disposal of dredged material, excavation,
filling, or other modification of a
navigable water of the United States.
(d) The term "letter of permission"
means a type of individual permit issued in
accordance with the abbreviated
procedures of 33 CFR 325.2(e).
(e) The term "individual permit' means
• DA authorization that i8 issued following
• case -by -case evaluation of a specific
structure or work in accordance with the
procedures of this regulation and 33 CFR
Part 325, and a determination that the
proposed structure or work is in the public
interest pursuant to 33 CFR Part 320.
(f) The term "general permit' means a
DA authorization that is issued on a
nationwide or regional basis for a category
or categories of activities when:
(1) Those activities are substantially
similar in nature and cause only minimal
individual and cumulative environmental
impacts; or
(2) The general permit would result in
avoiding unnecessary duplication of the
regulatory control exercised by another
Federal, state, or local agency provided it
has been determined that the
environmental consequences of the action
are individually and cumulatively minimal.
(See 33 CFR 325.2(e) and 33 CFR Part
330.)
(g) The term "artificial reef' means a
structure which is constructed or placed in
the navigable waters of the United States
or in the waters overlying the outer
continental shelf for the purpose of
enhancing fishery resources and
commercial and recreational fishing
opportunities. The term does not include
activities or structures such as wing
deflectors, bank stabilization, grade
stabilization structures, or low flow key
ways, all of which may be useful to
enhance fisheries resources.
§ 322.3 Activities requiring permits.
(a) General. DA permits are required
under section 10 for structures and /or work
in or affecting navigable waters of the
United States except as otherwise provided
in § 322.4 below. Certain activities
specified in 33 CFR Part 330 are permitted
by that regulation ( "nationwide general
permits "). Other activities may be
authorized by district or division engineers
on a regional basis ( "regional general
permits "). If an activity is not exempted by
section 322.4 of this part or authorized by
a general permit, an individual section 10
permit will be required for the proposed
activity. Structures or work are in
navigable waters of the United States if
they are within limits defined in 33 CFR
Part 329. Structures or work outside these
limits are subject to the provisions of law
cited in paragraph (a) of this section, if
these structures or work affect the course,
location, or condition of the waterbody in
such a manner as to impact on its
navigable capacity. For purposes of a
section 10 permit, a tunnel or other
structure or work under or over a
navigable water of the United States is
considered to have an impact on the
navigable capacity of the waterbody.
(b) Outer continental shelf DA permits
are required for the construction

41229 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
of artificial islands, installations, and other
devices on the seabed, to the seaward limit
of the outer continental shelf, pursuant to
section 4(f) of the Outer Continental Shelf
Lands Act as amended. (See 33 CF'R
320.2(b).)
(c) Activities of Federal agencies. (1)
Except as specifically provided in this
paragraph, activities of the type described
in paragraphs (a) and (b) of this section,
done by or on behalf of any Federal
agency are subject to the authorization
procedures of these regulations. Work or
structures in or affecting navigable waters
of the United States that are part of the
civil works activities of the Corps of
Engineers, unless covered by a nationwide
or regional general permit issued pursuant
to these regulations, are subject to the
procedures of separate regulations.
Agreement for construction or engineering
services performed for other agencies by
the Corps of Engineers does not constitute
authorization under this regulation.
Division and district engineers will
therefore advise Federal agencies
accordingly, and cooperate to the fullest
extent in expediting the processing of their
applications.
(2) Congress has delegated to the
Secretary of the Army in section 10 the
duty to authorize or prohibit certain work
or structures in navigable waters of the
United States, upon recommendation of
the Chief of Engineers. The general
legislation by which Federal agencies are
empowered to act generally is not
considered to be sufficient authorization
by Congress to satisfy the purposes of
section 10. If an agency asserts that it has
Congressional authorization meeting the
test of section 10 or would otherwise be
exempt from the provisions of section 10,
the legislative history and /or provisions of
the Act should clearly demonstrate that
Congress was approving the exact location
and plans from which Congress could have
considered the effect on navigable waters
of the United States or that Congress
intended to exempt that agency from the
requirements of section 10. Very often
such legislation reserves final approval of
plans or construction for the Chief of
Engineers. In such cases evaluation and
authorization under this regulation are
limited by the intent of the statutory
language involved.
(3) The policy provisions set out in 33
CFR 320.40) relating to state or local
certifications and /or authorizations, do not
apply to work or structures undertaken by
Federal agencies, except where
compliance with non - Federal authorization
is required by Federal law or Executive
policy, e.g., section 313 and section 401 of
the Clean Water Act.
§ 322.4 Activities not requiring permits.
(a) Activities that were commenced or
completed shoreward of established
Federal harbor lines before May 27, 1970
(see 33 CFR 320.4(0)) do not require
section 10 permits; however, if those
activities involve the discharge of dredged
or fill material into waters of the United
States after October 18, 1972. a section
404 permit is required (See 33 CFR Part
323.)
(b) Pursuant to section 154 of the Water
Resource Development Act of 1976 (Pub.
L. 94 -587), Department of the Army
permits are not required under section 10
to construct wharves and piers in any
waterbody, located entirely within one
state, that is a navigable water of the
United States solely on the basis of its
historical use to transport interstate
commerce,
§ 322.5 Special policies.
The Secretary of the Army has
delegated to the Chief of Engineers the
authority to issue or deny section 10
permits. The following additional special
policies and procedures shall also be
applicable to the evaluation of permit
applications under this regulation.
(a) General. DA permits are required for
structures or work in or affecting navigable
waters of the United States. However,
certain structures or work specified in 33
CFR Part 330 are permitted by that
regulation. If a structure or work is not
permitted by that regulation, an individual
or regional section 10 permit will be
required.
(b) Artificial Reefs. (1) When
considering an application for an artificial
reef, as defined in 33 CFR 322.2(g), the
district engineer will review the
applicant's provisions for siting,
constructing, monitoring, operating,
maintaining, and managing the proposed
artificial reef and shall determine if those
provisions are consistent with the
following standards:
(i) The enhancement of fishery
resources to the maximum extent
practicable;
(ii) The facilitation of access and
utilization by United States recreational
and commercial fishermen;
(iii) The minimization of conflicts.
among competing uses of the navigable
waters or waters overlying the outer
continental shelf and of the resources in
such waters;
(iv) The minimization of
environmental risks and risks to personal
health and property;
(v) Generally accepted principles of
international law; and
(vi) the prevention of any
unreasonable obstructions to navigation. If
the district engineer decides that the
applicant's provisions are not consistent
with these standards, he shall deny the
permit. If the district engineer decides that
the provisions are consistent with these
standards, and if he decides to issue the
permit after the public interest review, he
shall make the provisions part of the
permit.
(2) In addition, the district engineer will
consider the National Artificial Reef Plan
developed pursuant to section 204 of the
National Fishing Enhancement Act of
1984, and if he decides to issue the permit,
will notify the Secretary of Commerce of
any need to deviate from that plan.
(3) The district engineer will comply
with all coordination provisions required
by a written agreement between the DOD
and the Federal agencies relative to
artificial reefs. In addition, if the district
engineer decides that further consultation
beyond the normal public commenting
process is required to evaluate fully the
proposed artificial reef, he may initiate
such consultation with any Federal agency.
state or local government, or other
interested party.
(4) The district engineer will issue a
permit for the proposed artificial reef only
if the applicant demonstrates, to the district
engineer's satisfaction, that the title to the
artificial reef construction material is
unambiguous, that responsibility for
maintenance of the reef is clearly
established, and that he has the financial
ability to assume liability for all damages
that may arise with respect to the proposed
artificial reef. A demonstration of financial
responsibility might include evidence of
insurance, sponsorship, or available assets.
(i) A person to whom a permit is issued
in accordance with these regulations and
any insurer of that person shall not be
liable for damages caused by activities
required to be undertaken under any terms
and conditions of the permit, if the
permittee is in compliance with such terms
and conditions.
(ii) A person to whom a permit is issued
in accordance with these regulations and
any insurer of that person shall be liable, to
the extent determined under applicable
law, for damages to which paragraph (i)
does not apply.
(iii) Any person who has transferred
title to artificial reef construction materials
to a person to whom a permit is issued in
accordance with these regulations shall not
be liable for damages arising from the use
of such materials in an artificial reef, if
such materials meet applicable
requirements

41230 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
of the plan published under section 204 of
the National Artificial Reef Plan, and are
not otherwise defective at the time title is
transferred.
(c) Non - Federal dredging for
navigation. (1) The benefits which an
authorized Federal navigation project are
intended to produce will often require
similar and related operations of non-
Federal agencies (e.g., dredging access
channels to docks and berthing facilities or
deepening such channels to correspond to
the Federal project depth). These non-
Federal activities will be considered by
Corps of Engineers officials in planning
the construction and maintenance of
Federal navigation projects and, to the
maximum practical extent, will be
coordinated with interested Federal, state,
regional and local agencies and the general
public simultaneously with the associated
Federal projects. Non - Federal activities
which are not so coordinated will be
individually evaluated in accordance with
these regulations. in evaluating the public
interest in connection with applications for
permits for such coordinated operations,
equal treatment will be accorded to the
fullest extent possible to both Federal and
non - Federal operations. Permits for non-
Federal dredging operations will normally
contain conditions requiring the permittee
to com ply with the same practices or
requirements utilized in connection with
related Federal dredging operations with
respect to such matters as turbidity, water
quality, containment of material, nature
and location of approved spoil disposal
areas (non - Federal use of Federal
contained disposal areas will be in
accordance with laws authorizing such
areas and regulations governing their use),
extent and period of dredging, and other
factors relating to protection of
environmental and ecological values.
(2) A permit for the dredging of a
channel, slip, or other such project for
navigation may also authorize the periodic
maintenance dredging of the project.
Authorization procedures and limitations
for maintenance dredging shall be as
prescribed in 33 CFR 325.6(e). The permit
will require the permittee to give advance
notice to the district engineer each time
maintenance dredging is to be performed.
Where the maintenance dredging involves
the discharge of dredged material into
waters of the United States or the
transportation of dredged material for the
purpose of dumping it in ocean waters, the
procedures in 33 CFR Parts 323 and 324
respectively shall also be followed.
(d) Structures for small boats. (1) In the
absence of overriding public interest.
favorable consideration will generally be
given to applications from riparian owners
for permits for piers, boat docks,
moorings, platforms and similar structures
for small boats. Particular attention will be
given to the location and general design of
such structures to prevent possible
obstructions to navigation with respect to
both the public's use of the waterway and
the neighboring proprietors' access to the
waterway. Obstructions can result from
both the existence of the structure,
particularly in conjunction with other
similar facilities in the immediate vicinity,
and from its inability to withstand wave
action or other forces which can be
expected. District engineers will inform
applicants of the hazards involved and
encourage safety in location, design, and
operation. District engineers will
encourage cooperative or group use
facilities in lieu of individual proprietary
use facilities.
(2) Floating structures for small
recreational boats or other recreational
purposes in lakes controlled by the Corps
of Engineers under a resource manager are
normally subject to permit authorities cited
in § 322.3, of this section, when those
waters are regarded as navigable waters of
the United States. However, such
structures will not be authorized under this
regulation but will be regulated under
applicable regulations of the Chief of
Engineers published in 36 CFR 327.19 if
the land surrounding those lakes is under
complete Federal ownership. District
engineers will delineate those portions of
the navigable waters of the United States
where this provision is applicable and post
notices of this designation in the vicinity
of the lake resource manager's office.
(e) Aids to navigation. The placing of
fixed and floating aids to navigation in a
navigable water of the United States is
within the purview of Section 10 of the
Rivers and Harbors Act of 1899.
Furthermore, these aids are of particular
interest to the U.S. Coast Guard because of
its control of marking, lighting and
standardization of such navigation aids. A
Section 10 nationwide permit has been
issued for such aids provided they are
approved by, and installed in accordance
with the requirements of the U.S. Coast
Guard (33 CFR 330.5(a)(1)). Electrical
service cables to such aids are not included
in the nationwide permit (an individual or
regional Section 10 permit will be
required).
(f) Outer continental shelf Artificial
islands, installations, and other devices
located on the seabed, to the seaward
limit of the outer continental shelf, are
subject to the standard permit procedures
of this regulation. Where the islands,
installations and other devices are to be
constructed on lands which are under
mineral lease from the Mineral
Management Service, Department of the
Interior, that agency. in cooperation with
other federal agencies, fully evaluates the
potential effect of the leasing program on
the total environment. Accordingly, the
decision whether to issue a permit on lands
which are under mineral lease from the
Department of the Interior will be limited
to an evaluation of the impact of the
proposed work on navigation and national
security. The public notice will so identify
the criteria.
(g) Canals and other artificial
waterways connected to navigable waters
of the United States. A canal or similar
artificial waterway is subject to the
regulatory authorities discussed in § 322.3,
of this Part, if it constitutes a navigable
water of the United States, or if it is
connected to navigable waters of the
United States a manner which affects their
course, location, condition or capacity, or
if at some point in its construction or
operation it results in an effect on the
course, location, condition, or capacity of
navigable waters of the United States. In
all cases the connection to navigable
waters of he United States requires a
permit. Where the canal itself constitutes a
navigable water of the United States,
evaluation of the permit application and
further exercise of regulatory authority
will be in accordance with the standard
procedures of these regulations. For all
other canals, the exercise of regulatory
authority is restricted to those activities
which affect the course, location,
condition, or capacity of the navigable
waters of the United States. The district
engineer will consider, for applications for
canal work, a proposed plan of the entire
development and the location and
description of anticipated docks, piers and
other similar structures which will be
placed in the canal.
(h) Facilities at the borders of the
United States. (1) The construction
operation, maintenance, or connection of
facilities at the borders of the United States
are subject to Executive control and must
be authorized by the President, Secretary
of State, or other delegated official.
(2) Applications for permits for the
construction, operation, maintenance, or
connection at the borders of the United
States of facilities for the transmission of
electric energy between the United States
and a foreign country, or for the
exportation or importation of natural

41231 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
gas to or from a foreign country, must be
made to the Secretary of Energy.
(Executive Order 10485, September 3,
1953, 16 U.S.C. 824(a)(e), 15 U.S.C.
717(b), as amended by Executive Order
12038, February 3, 1978, and 18 CFR
Parts 32 and 153).
(3) Applications for the landing or
operation of submarine cables must be
made to the Federal Communications
Commission. (Executive Order 10530,
May 10, 1954, 47 U.S.C. 34 to 39, and 47
CFR 1.766).
(4) The Secretary of State is to receive
applications for permits for the
construction, connection, operation, or
maintenance, at the borders of the United
States, of pipelines, conveyor belts, and
similar facilities for the exportation or
importation of petroleum products, coals,
minerals, or other products to or from a
foreign country; facilities for the
exportation or importation of water or
sewage to or from a foreign country; and
monorails, aerial cable cars, aerial
tramways, and similar facilities for the
transportation of persons and /or things, to
or from a foreign country. (Executive
Order 11423, August 16, 1968).
(5) A DA permit under section 10 of the
Rivers and Harbors Act of 1899 is also
required for all of the above facilities
which affect the navigable waters of the
United States, but in each case in which a
permit has been issued as provided above,
the district engineer, in evaluating the
general public interest, may consider the
basic existence and operation of the
facility to have been primarily examined
and permitted as provided by the
Executive Orders. Furthermore, in those
cases where the construction, maintenance,
or operation at the above facilities involves
the discharge of dredged or fill material in
waters of the United States or the
transportation of dredged material for the
purpose of dumping it into ocean waters,
appropriate DA authorizations under
section 404 of the Clean Water Act or
under section 103 of the Marine
Protection, Research and Sanctuaries Act
of 1972, as amended, are also required.
(See 33 CFR Parts 323 and 324.)
(i) Power transmission lines. (1) Permits
under section 10 of the Rivers and Harbors
Act of 1899 are required for power
transmission lines crossing navigable
waters of the United States unless those
lines are part of a water power project
subject to the regulatory authorities of the
Department of Energy under the Federal
Power Act of 1920. If an application is
received for a permit for lines which are
part of such a water power project, the
applicant will be instructed to submit the
application to the Department of Energy. If
the lines are not part of such a water power
project, the application will be processed
in accordance with the procedures of these
regulations.
(2) The following minimum clearances
are required for aerial electric power
transmission lines crossing navigable
waters of the United States. These
clearances are related to the clearances
over the navigable channel provided by
existing fixed bridges, or the clearances
which would be required by the U.S. Coast
Guard for new fixed bridges, in the
vicinity of the proposed power line
crossing. The clearances are based on the
low point of the line under conditions
which produce the greatest sag, taking into
consideration temperature, load, wind,
length or span, and type of supports as
outlined in the National Electrical Safety
Code.
Nominal system
Minimum additional
voltage. KV
clearance (feet)
above clearance
required for bridges
115 and below
20
138
22
161
24
230
26
350
30
500
35
700
42
750 -765
45
(3) Clearances for communication lines,
stream gaging cables, ferry cables, and
other aerial crossings are usually required
to be a minimum of ten feet above
clearances required for bridges. Greater
clearances will be required if the public
interest so indicates.
(4) Corps of Engineer regulation ER
1110 -2401 prescribes minimum
vertical clearances for power and
communication lines over Corps lake
projects. In instances where both this
regulation and ER 1110 -2 -4401 apply.
the greater minimum clearance is required.
0) Seaplane operations. (1) Structures
in navigable waters of the United States
associated with seaplane operations require
DA permits, but close coordination with
the Federal Aviation Administration
(FAA), Department of Transportation, is
required on such applications.
(2) The FAA must be notified by an
applicant whenever he proposes to
establish or operate a seaplane base. The
FAA will study the proposal and advise
the applicant, district engineer, and other
interested parties as to the effects of the
proposal on the use of airspace. The
district engineer will, therefore, refer any
objections regarding the effect of the
proposal on the use of airspace to the
FAA, and give due consideration to its
recommendations when evaluating the
general public interest.
(3) If the seaplane base would serve air
carriers licensed by the Department of
Transportation, the applicant must receive
an airport operating certificate from the
FAA. That certificate reflects a
determination and conditions relating to
the installation, operation, and
maintenance of adequate air navigation
facilities and safety equipment.
Accordingly, the district engineer may, in
evaluating the general public interest,
consider such matters to have been
primarily evaluated by the FAA.
(4) For regulations pertaining to
seaplane landings at Corps of Engineers
projects, see 36 CFR 327.4.
(k) Foreign trade zones. The Foreign
Trade Zones Act (48 Stat. 998 -1003. 19
U.S.C. 8 l to 8In, as amended) authorizes
the establishment of foreign -trade zones in
or adjacent to United States ports of entry
under terms of a grant and regulations
prescribed by the Foreign -Trade Zones
Board. Pertinent regulations are published
at Title 15 of the Code of Federal
Regulations, Part 400. The Secretary of the
Army is a member of the Board, and
construction of a zone is under the
supervision of the district engineer. Laws
governing the navigable waters of the
United States remain applicable to foreign -
trade zones, including the general
requirements of these regulations.
Evaluation by a district engineer of a
permit application may give recognition to
the consideration by the Board of the
general economic effects of the zone on
local and foreign commerce, general
location of wharves and facilities, and
other factors pertinent to construction,
operation, and maintenance of the zone
(1) Shipping safety fairways and
anchorage areas. DA permits are required
for structures located within shipping
safety fairways and anchorage areas
established by the U.S. Coast Guard.
(1) The Department of the Army will
grant no permits for the erection of
structures in areas designated as fairways,
except that district engineers may permit
temporary anchors and attendant cables or
chains for floating or semisubmersible
drilling rigs to be placed within a fairway
provided the following conditions are met:
(i) The installation of anchors to
stabilize semisubmersible drilling rigs
within fairways must be temporary and
shall be allowed to remain only 120 days.
This period may be extended by the
district engineer provided reasonable cause
for such extension can

41232 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
be shown and the extension is otherwise
justified.
(ii) Drilling rigs must be at least 500
feet from any fairway boundary or
whatever distance necessary to insure that
minimum clearance over an anchor line
within a fairway will be 125 feet.
(iii) No anchor buoys or floats or related
rigging will be allowed on the surface of
the water or to a depth of 125 feet from the
surface, within the fairway.
(iv) Drilling rigs may not be placed
closer than 2 nautical miles of any other
drilling rig situated along a fairway
boundary, and not closer than 3 nautical
miles to any drilling rig located on the
opposite side of the fairway.
(v) The permittee must notify the
district engineer. Bureau of Land
Management, Mineral Management
Service, U.S. Coast Guard, National
Oceanic and Atmospheric Administration
and the U.S. Navy Hydrographic Office of
the approximate dates (commencement
and completion) the anchors will be in
place to insure maximum notification to
mariners.
(vi) Navigation aids or danger markings
must be installed as required by the U.S.
Coast Guard.
(2) District engineers may grant permits
for the erection of structures within an area
designated as an anchorage area, but the
number of structures will be limited by
spacing, as follows: The center of a
structure to be erected shall be not less
than two (2) nautical miles from the center
of any existing structure. In a drilling or
production complex, associated structures
shall be as close together as practicable
having due consideration for the safety
factors involved. A complex of associated
structures, when connected by walkways,
shall be considered one structure for the
purpose of spacing. A vessel fixed in place
by moorings and used in conjunction with
the associated structures of a drilling or
production complex, shall be considered
an attendant vessel and its extent shall
include its moorings. When a drilling or
production complex includes an attendant
vessel and the complex extends more than
five hundred (500) yards from the center
or the complex, a structure to be erected
shall be not closer than two (2) nautical
miles from the near outer limit of the
complex. An underwater completion
installation in and anchorage area shall be
considered a structure and shall be marked
with a lighted buoy as approved by the
United States Coast Guard.
PART 323 — PERMITS FOR
DISCHARGES OF DREDGED OR
FILL MATERIAL INTO WATERS OF
THE UNITED STATES
Sec.
323.1 General.
323.2 Definitions.
323.3 Discharges requiring permits.
323.4 Discharges not requiring permits.
323.5 Program transfer to states.
323.6 Special policies and procedures.
Authority: 33 U.S.C. 1344.
§ 323.1 General.
This regulation prescribes, in addition to
the general policies of 33 CFR Part 320
and procedures of 33 CFR Part 325, those
special policies, practices, and procedures
to be followed by the Corps of Engineers
in connection with the review of
applications for DA permits to authorize
the discharge of dredged or fill material
into waters of the United States pursuant to
section 404 of the Clean Water Act
(CWA) (33 U.S.C. 1344) (hereinafter
referred to as section 404). (See 33 CFR
320.2(g).) Certain discharges of dredged or
fill material into waters of the United
States are also regulated under other
authorities of the Department of the Army.
These include dams and dikes in navigable
waters of the United States pursuant to
section 9 of the Rivers and Harbors Act of
1899 (33 U.S.C. 401; see 33 CFR Part
321) and certain structures or work in or
affecting navigable waters of the United
States pursuant to section 10 of the Rivers
and Harbors Act of 1899 (33 U.S.C. 403;
see 33 CFR Part 322). A DA permit will
also be required under these additional
authorities if they are applicable to
activities involving discharges of dredged
or fill material into waters of the United
States. Applicants for DA permits under
this part should refer to the other cited
authorities and implementing regulations
for these additional permit requirements to
determine whether they also are applicable
to their proposed activities.
§ 323.2 Definitions.
For the purpose of this part. the
following terms are defined:
(a) The term "waters of the United
States" and all other terms relating to the
geographic scope of jurisdiction are
defined at 33 CFR Part 328.
(b) The term "lake" means a standing
body of open water that occurs in a natural
depression fed by one or more streams
from which a stream may flow. that occurs
due to the widening or natural blockage or
cutoff of a river or stream, or that occurs in
an isolated natural depression that is not a
part of a surface river or stream. The term
also includes a standing body of open
water created by artificially blocking or
restricting the flow of a river, stream, or
tidal area. As used in this regulation, the
term does not include artificial lakes or
ponds created by excavating and /or diking
dry land to collect and retain water for
such purposes as stock watering, irrigation,
settling basins, cooling, or rice growing.
(c) The term "dredged material' means
material that is excavated or dredged from
waters of the United States.
(d) The term "discharge of dredged
material' means any addition of dredged
material into the waters of the United
States. The term includes, without
limitation, the addition of dredged material
to a specified discharge site located in
waters of the United States and the runoff
or overflow from a contained land or water
disposal area. Discharges of pollutants into
waters of the United States resulting from
the onshore subsequent processing of
dredged material that is extracted for any
commercial use (other than fill) are not
included within this term and are subject to
section 402 of the Clean Water Act even
though the extraction and deposit of such
material may require a permit from the
Corps of Engineers. The term does not
include plowing, cultivating, seeding and
harvesting for the production of food,
fiber, and forest products (See § 323.4 for
the definition of these terms). The term
does not include de minimis, incidental soil
movement occurring during normal
dredging operations.
(e) The term "fill material' means any
material used for the primary purpose of
replacing an aquatic area with dry land or
of changing the bottom elevation of an
waterbody. The term does not include any
pollutant discharged into the water
primarily to dispose of waste, as that
activity is regulated under section 402 of
the Clean Water Act.
(f) The term "discharge of fill material'
means the addition of fill material into
waters of the United States. The term
generally includes, without limitation, the
following activities: Placement of fill that
is necessary for the construction of any
structure in a water of the United States;
the building of any structure or
impoundment requiring rock, sand, dirt, or
other material for its construction:
site - development fills for recreational,
industrial, commercial, residential, and
other uses; causeways or road fills; dams
and dikes; artificial islands; property
protection and /or reclamation devices such
as riprap, groins, seawalls, breakwaters,
and revetments; beach nourishment;
levees; fill for structures such as sewage
treatment facilities,

41233 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
intake and outfall pipes associated with
power plants and subaqueous utility lines;
and artificial reefs. The term does not
include plowing, cultivating, seeding and
harvesting for the production of food,
fiber, and forest products (See § 323.4 for
the definition of these terms).
(g) The term "individual permit" means
a Department of the Army authorization
that is issued following a case -by -case
evaluation of a specific project involving
the proposed discharge(s) in accordance
with the procedures of this part and 33
CFR Part 325 and a determination that the
proposed discharge is in the public interest
pursuant to 33 CFR Part 320.
(h) The term "general permit" means a
Department of the Army authorization that
is issued on a nationwide or regional basis
for a category or categories of activities
when:
(1) Those activities are substantially
similar in nature and cause only minimal
individual and cumulative environmental
impacts; or
(2) The general permit would result in
avoiding unnecessary duplication of
regulatory control exercised by another
Federal, state, or local agency provided it
has been determined that the
environmental consequences of the action
are individually and cumulatively minimal.
(See 33 CFR 325.2(e) and 33 CFR Part
330.)
§ 323.3 Discharges requiring permits.
(a) General. Except as provided in §
323.4 of this Part, DA permits will be
required for the discharge of dredged or
fill material into waters of the United
States. Certain discharges specified in 33
CFR Part 330 are permitted by that
regulation (`nationwide permits "). Other
discharges may be authorized by district or
division engineers on a regional basis
(`regional permits "), If a discharge of
dredged or fill material is not exempted by
§ 323.4 of this Part or permitted by 33
CFR Part 330. an individual or regional
section 404 permit will be required for the
discharge of dredged or fill material into
waters of the United States.
(b) Activities of Federal agencies.
Discharges of dredged or fill material into
waters of the United States done by or on
behalf of any Federal agency, other than
the Corps of Engineers (see 33 CFR Part
209.145), are subject to the authorization
procedures of these regulations.
Agreement for construction or engineering
services performed for other agencies by
the Corps of Engineers does not constitute
authorization under the regulations.
Division and district engineers will
therefore advise Federal agencies and
instrumentalities accordingly and
cooperate to the fullest extent in expediting
the processing of their applications.
§ 323.4 Discharges not requiring
permits.
(a) General. Except as specified in
paragraphs (b) and (c) of this section, any
discharge of dredged or fill material that
may result from any of the following
activities is not prohibited by or otherwise
subject to regulation under section 404:
(1)(i) Normal farming, silviculture and
ranching activities such as plowing,
seeding, cultivating, minor drainage, and
harvesting for the production of food,
fiber, and forest products, or upland soil
and water conservation practices, as
defined in paragraph (a)(1)(iii) of this
section.
(ii) To fall under this exemption, the
activities specified in paragraph (a)(1)(i) of
this section must be part of an established
(i.e., on- going) farming, silviculture, or
ranching operation and must be in
accordance with definitions in §
323.4(a)(1)(iii). Activities on areas lying
fallow as part of a conventional rotational
cycle are part of an established operation.
Activities which bring an area into
farming, silviculture, or ranching use are
not part of an established operation. An
operation ceases to be established when
the area on which it was conducted has
been converted to another use or has lain
idle so long that modifications to the
hydrological regime are necessary to
resume operations. If an activity takes
place outside the waters of the United
States, or if it does not involve a discharge,
it does not need a section 404 permit
whether or not it is part of an established
farming, silviculture, or ranching
operation.
(iii) (A) Cultivating means physical
methods of soil treatment employed within
established farming, ranching and
silviculture lands on farm, ranch, or forest
crops to aid and improve their growth,
quality or yield.
(B) Harvesting means physical
measures employed directly upon farm,
forest, or ranch crops within established
agricultural and silvicultural lands to bring
about their removal from farm, forest, or
ranch land, but does not include the
construction of farm, forest, or ranch
roads.
(C)(1) Minor Drainage means:
(1) The discharge of dredged or fill
material incidental to connecting upland
drainage facilities to waters of the United
States, adequate to effect the removal of
excess soil moisture from upland
croplands. (Construction and maintenance
of upland (dryland) facilities, such as
ditching and tiling, incidental to the
planting, cultivating, protecting, or
harvesting of crops, involve no discharge
of dredged or fill material into waters of
the United States, and as such never
require a section 404 permit.);
(h) The discharge of dredged or fill
material for the purpose of installing
ditching or other such water control
facilities incidental to planting, cultivating,
protecting, or harvesting of rice,
cranberries or other wetland crop species,
where these activities and the discharge
occur in waters of the United States which
are in established use for such agricultural
and silvicultural wetland crop production;
(iii) The discharge of dredged or fill
material for the purpose of manipulating
the water levels of, or regulating the flow
or distribution of water within, existing
impoundments which have been
constructed in accordance with applicable
requirements of CWA, and which are in
established use for the production of rice,
cranberries, or other wetland crop species.
(The provisions of paragraphs
(a)(1)(rii)(C)(1) (ii) and (iii) of this section
apply to areas that are in established use
exclusively for wetland crop production as
well as areas in established use for
conventional wetland /non - wetland crop
rotation (e.g., the rotations of rice and
soybeans) where such rotation results in
the cyclical or intermittent temporary
dewatering of such areas.)
(iv) The discharges of dredged or fill
material incidental to the emergency
removal of sandbars, gravel bars, or other
similar blockages which are formed during
flood flows or other events, where such
blockages close or constrict previously
existing drainageways and, if not promptly
removed, would result in damage to or loss
of existing crops or would impair or
prevent the plowing, seeding. harvesting or
cultivating of crops on land in established
use for crop production. Such removal
does not include enlarging or extending the
dimensions of, or changing the bottom
elevations of, the affected drainageway as
it existed prior to the formation of the
blockage. Removal must be accomplished
within one year of discovery of such
blockages in order to be eligible for
exemption.
(2) Minor drainage in waters of the U.S.
is limited to drainage within areas that are
part of an established farming or
silviculture operation. It does not include
drainage associated with the immediate or
gradual conversion of a wetland to a non-
wetland (e.g., wetland species to upland
species not typically adapted to life in
saturated soil conditions), or conversion
from one wetland use to another (for
example. silviculture to farming). In
addition,

41234 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
minor drainage does not include the
construction of any canal, ditch, dike or
other waterway or structure which drains
or otherwise significantly modifies a
stream, lake, swamp, bog or any other
wetland or aquatic area constituting waters
of the United States. Any discharge of
dredged or fill material into the waters of
the United States incidental to the
construction of any such structure or
waterway requires a permit.
(D) Plowing means all forms of primary
tillage, including moldboard, chisel, or
wide -blade plowing, discing, harrowing
and similar physical means utilized on
farm, forest or ranch land for the breaking
up, cutting, turning over, or stirring of soil
to prepare it for the planting of crops. The
term does not include the redistribution of
soil, rock, sand, or other surficial materials
in a manner which changes any area of the
waters of the United States to dry land. For
example, the redistribution of surface
materials by blading, grading, or other
means to fill in wetland areas is not
plowing. Rock crushing activities which
result in the loss of natural drainage
characteristics, the reduction of water
storage and recharge capabilities, or the
overburden of natural water filtration
capacities do not constitute plowing.
Plowing as described above will never
involve a discharge of dredged or fill
material.
(E) Seeding means the sowing of seed
and placement of seedlings to produce
farm, ranch, or forest crops and includes
the placement of soil beds for seeds or
seedlings on established farm and forest
lands.
(2) Maintenance, including emergency
reconstruction of recently damaged parts,
of currently serviceable structures such as
dikes, dams, levees, groins, riprap,
breakwaters, causeways, bridge abutments
or approaches, and transportation
structures. Maintenance does not include
any modification that changes the
character, scope, or size of the original fill
design. Emergency reconstruction must
occur within a reasonable period of time
after damage occurs in order to qualify for
this exemption.
(3) Construction or maintenance of farm
or stock ponds or irrigation ditches, or the
maintenance (but not construction) of
drainage ditches. Discharges associated
with siphons, pumps, headgates,
wingwalls, weirs, diversion structures, and
such other facilities as are appurtenant and
functionally related to irrigation ditches
are included in this exemption.
(4) Construction of temporary
sedimentation basins on a construction site
which does not include placement of fill
material into waters of the U.S. The term
"construction site" refers to any site
involving the erection of buildings, roads,
and other discrete structures and the
installation of support facilities necessary
for construction and utilization of such
structures. The term also includes any
other land areas which involve land -
disturbing excavation activities, including
quarrying or other mining activities, where
an increase in the runoff of sediment is
controlled through the use of temporary
sedimentation basins.
(5) Any activity with respect to which a
state has an approved program under
section 208(b)(4) of the CWA which meets
the requirements of sections 208(b)(4) (B)
and (C).
(6) Construction or maintenance of farm
roads, forest roads, or temporary roads for
moving mining equipment, where such
roads are constructed and maintained in
accordance with best management
practices (BMPs) to assure that flow and
circulation patterns and chemical and
biological characteristics of waters of the
United States are not impaired, that the
reach of the waters of the United States is
not reduced, and that any adverse effect on
the aquatic environment will be otherwise
minimized. These BMPs which must be
applied to satisfy this provision shall
include those detailed BMPs described in
the state's approved program description
pursuant to the requirements of 40 CFR
Part 233.22(1), and shall also include the
following baseline provisions:
(i) Permanent roads (for farming or
forestry activities), temporary access roads
(for mining, forestry, or farm purposes)
and skid trails (for logging) in waters of
the U.S. shall be held to the minimum
feasible number, width, and total length
consistent with the purpose of specific
farming, silvicultural or mining operations,
and local topographic and climatic
conditions;
(ii) All roads, temporary or permanent,
shall be located sufficiently far from
streams or other water bodies (except for
portions of such roads which must cross
water bodies) to minimize discharges of
dredged or fill material into waters of the
U.S.;
(iii) The road fill shall be bridged,
culverted, or otherwise designed to prevent
the restriction of expected flood flows;
(iv) The fill shall be properly stabilized
and maintained during and following
construction to prevent erosion;
(v) Discharges of dredged or fill
material into waters of the United States to
construct a road fill shall be made in a
manner that minimizes the encroachment
of trucks, tractors, bulldozers, or other
heavy equipment within waters of the
United States (including adjacent
wetlands) that lie outside the lateral
boundaries of the fill itself,
(vi) In designing, constructing, and
maintaining roads, vegetative disturbance
in the waters of the U.S. shall be kept to a
minimum;
(vii) The design, construction and
maintenance of the road crossing shall not
disrupt the migration or other movement of
those species of aquatic life inhabiting the
water body;
(viii) Borrow material shall be taken
from upland sources whenever feasible;
(ix) The discharge shall not take, or
jeopardize the continued existence of, a
threatened or endangered species as
defined under the Endangered Species Act,
or adversely modify or destroy the critical
habitat of such species;
(x) Discharges into breeding and nesting
areas for migratory waterfowl, spawning
areas, and wetlands shall be avoided if
practical alternatives exist;
(xi) The discharge shall not be located
in the proximity of a public water supply
intake;
(xii) The discharge shall not occur in
areas of concentrated shellfish production;
(xiii) The discharge shall not occur in a
component of the National Wild and
Scenic River System;
(xiv) The discharge of material shall
consist of suitable material free from toxic
pollutants in toxic amounts; and
(xv) All temporary fills shall be
removed in their entirety and the area
restored to its original elevation.
(b) If any discharge of dredged or fill
material resulting from the activities listed
in paragraphs (a) (1) —(6) of this section
contains any toxic pollutant listed under
section 307 of the CWA such discharge
shall be subject to any applicable toxic
effluent standard or prohibition, and shall
require a Section 404 permit.
(c) Any discharge of dredged or fill
material into waters of the United States
incidental to any of the activities identified
in paragraphs (a) (1)--(6) of this section
must have a permit if it is part of an
activity whose purpose is to convert an
area of the waters of the United States into
a use to which it was not previously
subject, where the flow or circulation of
waters of the United States nay be
impaired or the reach of such waters
reduced. Where the proposed discharge
will result in significant discernible
alterations to flow or circulation, the
presumption is that flow or circulation may
be impaired by such alteration. For
example, a

41235 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
permit will be required for the conversion
of a cypress swamp to some other use or
the conversion of a wetland from
silvicultural to agricultural use when there
is a discharge of dredged or fill material
into waters of the United States in
conjunction with construction of dikes,
drainage ditches or other works or
structures used to effect such conversion.
A conversion of a Section 404 wetland to a
non - wetland is a change in use of an area
of waters of the United States. A discharge
which elevates the bottom of waters of the
United States without converting it to dry
land does not thereby reduce the reach of,
but may alter the flow or circulation of,
waters of the United States.
(d) Federal projects which qualify under
the criteria contained in section 404(r) of
the CWA are exempt from section 404
permit requirements, but may be subject to
other state or Federal requirements.
§ 323.5 Program transfer to states.
Section 404(h) of the CWA allows the
Administrator of the Environmental
Protection Agency (EPA) to transfer
administration of the section 404 permit
program for discharges into certain waters
of the United States to qualified states.
(The program cannot be transferred for
those waters which are presently used, or
are susceptible to use in their natural
condition or by reasonable improvement as
a means to transport interstate or foreign
commerce shoreward to their ordinary
high water mark, including all waters
which are subject to the ebb and flow of
the tide shoreward to the high tide line.
including wetlands adjacent thereto). See
40 CFR Parts 233 and 124 for procedural
regulations for transferring Section 404
programs to states. Once a state's 404
program is approved and in effect, the
Corps of Engineers will suspend
processing of section 404 applications in
the applicable waters and will transfer
pending applications to the state agency
responsible for administering the program.
District engineers will assist EPA and the
states in any way practicable to effect
transfer and will develop appropriate
procedures to ensure orderly and
expeditious transfer.
§ 323.8 Special policies and procedures.
(a) The Secretary of the Army has
delegated to the Chief of Engineers the
authority to issue or deny section 404
permits. The district engineer will review
applications for permits for the discharge
of dredged or fill material into waters of
the United States in accordance with
guidelines promulgated
by the Administrator, EPA, under
authority of section 404(b)(1) of the CWA.
(see 40 CFR Part 230.) Subject to
consideration of any economic impact on
navigation and anchorage pursuant to
section 404(b)(2), a permit will be denied
if the discharge that would be authorized
by such a permit would not comply with
the 404(b)(1) guidelines. If the district
engineer determines that the proposed
discharge would comply with the
404(b)(1) guidelines, he will grant the
permit unless issuance would be contrary
to the public interest.
(b) The Corps will not issue a permit
where the regional administrator of EPA
has notified the district engineer and
applicant in writing pursuant to 40 CFR
231.3(a)(1) that he intends to issue a public
notice of a proposed determination to
prohibit or withdraw the specification, or
to deny, restrict or withdraw the use for
specification, of any defined area as a
disposal site in accordance with section
404(c) of the Clean Water Act. However
the Corps will continue to complete the
administrative processing of the
application while the section 404(c)
procedures are underway including
completion of final coordination with EPA
under 33 CFR Part 325.
PART 324 — PERMITS FOR OCEAN
DUMPING OF DREDGED
MATERIAL
Sec.
324.1 General.
324.2 Definitions.
324.3 Activities requiring permits.
324.4 Special procedures.
Authority: 33 U.S.C. 1413.
§ 324.1 General.
This regulation prescribes in addition to
the general policies of 33 CFR Part 820
and procedures of 33 CFR Part 325, those
special policies, practices and procedures
to be followed by the Corps of Engineers
in connection with the review of
applications for Department of the Army
(DA) permits to authorize the
transportation of dredged material by
vessel or other vehicle for the purpose of
dumping it in ocean waters at dumping
sites designated under 40 CFR Part 228
pursuant to section 103 of the Marine
Protection, Research and Sanctuaries Act
of 1972, as amended (33 U.S.C. 1413)
(hereinafter referred to as section 103). See
33 CFR 320.2(h). Activities involving the
transportation of dredged material for the
purpose of dumping in the ocean waters
also require DA permits under Section 10
of the Rivers and Harbors Act of 1899 (33
U.S.C. 403) for the dredging in navigable
waters of the United States. Applicants for
DA permits under this Part should also
refer
to 33 CFR Part 322 to satisfy the
requirements of Section 10.
§ 324.2 Definitions.
For the purpose of this regulation. the
following terms are defined:
(a) The term "ocean waters" means
those waters of the open seas lying
seaward of the base line from which the
territorial sea is measured, as provided for
in the Convention on the Territorial Sea
and the Contiguous Zone (15 UST 1606:
TIAS 5639).
(b) The term `dredged material" means
any material excavated or dredged from
navigable waters of the United States,
(c) The term "transport" or
"transportation" refers to the conveyance
and related handling of dredged material
by a vessel or other vehicle,
§ 324.3 Activities requiring permits.
(a) General. DA permits are required for
the transportation of dredged material for
the purpose of dumping it in ocean waters.
(b) Activities of Federal agencies. (1)
The transportation of dredged material for
the purpose of disposal in ocean waters
done by or on behalf of any Federal
agency other than the activities of the
Corps of Engineers is subject to the
procedures of this regulation. Agreement
for construction or engineering services
performed for other agencies by the Corps
of Engineers does not constitute
authorization under these regulations.
Division and district engineers will
therefore advise Federal agencies
accordingly and cooperate to the fullest
extent in the expeditious processing of
their applications. The activities of the
Corps of Engineers that involve the
transportation of dredged material for
disposal in ocean waters are regulated by
33 CFR 209.145.
(2) The policy provisions set out in 33
CFR 320.40) relating to state or local
authorizations do not apply to work or
structures undertaken by Federal agencies,
except where compliance with non - Federal
authorization is required by Federal law or
Executive policy. Federal agencies are
responsible for conformance with such
laws and policies. (See EO 12088. October
18, 1978.) Federal agencies are not
required to obtain and provide certification
of compliance with effluent limitations
am.. water quality standards from state or
interstate water pollution control agencies
in connection with activities involving the
transport of dredged material for dumping
into ocean waters beyond the territorial
sea.

41236 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
§ 324.4 Special procedures.
The Secretary of the Army has
delegated to the Chief of Engineers the
authority to issue or deny section 103
permits. The following additional
procedures shall also be applicable under
this regulation.
(a) Public notice. For all applications for
section 103 permits, the district engineer
will issue a public notice which shall
contain the information specified in 33
CFR 325.3.
(b) Evaluation. Applications for permits
for the transportation of dredged material
for the purpose of dumping it in ocean
waters will be evaluated to determine
whether the proposed dumping will
unreasonably degrade or endanger human
health, welfare, amenities, or the marine
environment, ecological systems or
economic potentialities. District engineers
will apply the criteria established by the
Administrator of EPA pursuant to section
102 of the Marine Protection, Research
and Sanctuaries Act of 1972 in making this
evaluation. (See 40 CFR Parts 220 -229)
Where ocean dumping is determined to be
necessary, the district engineer will, to the
extent feasible, specify disposal sites using
the recommendations of the Administrator
pursuant to section 102(c) of the Act.
(c) EPA review. When the Regional
Administrator, EPA, in accordance with 40
CFR 225.2(b), advises the district
engineer, in writing, that the proposed
dumping will comply with the criteria, the
district engineer will complete his
evaluation of the application under this
part and 33 CFR Parts 320 and 325. If,
however, the Regional Administrator
advises the district engineer, in writing,
that the proposed dumping does not
comply with the criteria, the district
engineer will proceed as follows:
(1) The district engineer will determine
whether there is an economically feasible
alternative method or site available other
than the proposed ocean disposal site. If
there are other feasible alternative methods
or sites available, the district engineer will
evaluate them in accordance with 33 CFR
Parts 320, 322, 323, and 325 and this Park
as appropriate.
(2) If the district engineer determines
that there is no economically feasible
alternative method or site available, and
the proposed project is otherwise found to
be not contrary to the public interest, he
will so advise the Regional Administrator
setting forth his reasons for such
determination. If the Regional
Administrator has not removed his
objection within 15 days, the district
engineer will submit a report of his
determination to the Chief of Engineers for
further coordination with the
Administrator, EPA, and decision. The
report forwarding the case will contain the
analysis of whether there are other
economically feasible methods or sites
available to dispose of the dredged
material.
(d) Chief of Engineers review. The
Chief of Engineers shall evaluate the
permit application and make a decision to
deny the permit or recommend its
issuance. If the decision of the Chief of
Engineers is that ocean dumping at the
proposed disposal site is required because
of the unavailability of economically
feasible alternatives, he shall so certify and
request that the Secretary of the Army seek
a waiver from the Administrator, EPA, of
the criteria or of the critical site
designation in accordance with 40 CFR
225.4.
PART 325— PROCESSING OF
DEPARTMENT OF THE ARMY
PERMITS
Sec.
325.1 Applications for permits.
325.2 Processing of applications.
325.3 Public notice.
325.4 Conditioning of permits.
325.5 Forms of permits.
325.6 Duration of permits.
325.7 Modification, suspension, or
revocation of permits.
325.8 Authority to issue or deny permits.
325.9 Authority to determine jurisdiction.
325.10 Publicity.
Appendix A— Permit Form and Special
Conditions
Appendix B.— Reserved (For Future
NEPA Regulation)
Appendix C— Reserved (For Historic
Properties Regulation)
Authority: 33 U.S.C. 401 et seq.; 33
U.S. C. 1344: 33 USC 1413.
§ 325.1 Applications for permits.
(a) General. The processing procedures
of this Part apply to any Department of the
Army (DA) permit. Special procedures and
additional information are contained in 33
CFR Parts 320 through 324, 327 and Part
330. This Part is arranged in the basic
timing sequence used by the Corps of
Engineers in processing applications for
DA permits.
(b) Pre- application consultation for
major applications. The district staff
element having responsibility for
administering, processing, and enforcing
federal laws and regulations relating to the
Corps of Engineers regulatory program
shall be available to advise potential
applicants of studies or other information
foreseeably required for later federal
action. The district engineer will establish
local procedures and policies including
appropriate publicity programs which will
allow potential applicants to contact the
district engineer or the regulatory staff
element to request pre - application
consultation. Upon receipt of such request,
the district engineer will assure the
conduct of an orderly process which may
involve other staff elements and affected
agencies (Federal, state, or local) and the
public. This early process should be brief
but thorough so that the potential applicant
may begin to assess the viability of some
of the more obvious potential alternatives
in the application. The district engineer
will endeavor, at this stage, to provide the
potential applicant with all helpful
information necessary in pursuing the
application, including factors which the
Corps must consider in its permit decision
making process. Whenever the district
engineer becomes aware of planning for
work which may require a DA permit and
which may involve the preparation of an
environmental document, he shall contact
the principals involved to advise them of
the requirement for the permit(s) and the
attendant public interest review including
the development of an environmental
document. Whenever a potential applicant
indicates the intent to submit an
application for work which may require
the preparation of an environmental
document, a single point of contact shall
be designated within the district's
regulatory staff to effectively coordinate
the regulatory process, including the
National Environmental Policy Act
(NEPA) procedures and all attendant
reviews, meetings, hearings, and other
actions, including the scoping process if
appropriate, leading to a decision by the
district engineer. Effort devoted to this
process should be commensurate with the
likelihood of a permit application actually
being submitted to the Corps. The
regulatory staff coordinator shall maintain
an open relationship with each potential
applicant or his consultants so as to assure
that the potential applicant is fully aware
of the substance (both quantitative and
qualitative) of the data required by the
district engineer for use in preparing an
environmental assessment or an
environmental impact statement (EIS) in
accordance with 33 CFR Part 230,
Appendix B.
(c) Application form. Applicants for all
individual DA permits must use the
standard application form (ENG Form
4345, OMB Approval No. OMB 49-
R0420). Local variations of the application
form for purposes of facilitating
coordination with federal, state and local
agencies may be used. The appropriate
form may be obtained from the district
office having

41237 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
jurisdiction over the waters in which the
activity is proposed to be located. Certain
activities have been authorized by general
permits and do not require submission of
an application form but may require a
separate notification.
(d) Content of application. (1) The
application must include a complete
description of the proposed activity
including necessary drawings, sketches, or
plans sufficient for public notice (detailed
engineering plans and specifications are
not required); the location. purpose and
need for the proposed activity; scheduling
of the activity; the names and addresses of
adjoining property owners; the location
and dimensions of adjacent structures; and
a list of authorizations required by other
federal_ interstate, state, or local agencies
for the work, including all approvals
received or denials already made. See §
325.3 for information required to be in
public notices. District and division
engineers are not authorized to develop
additional information forms but may
request specific information on a case -by-
case basis. (See § 325.1(e)).
(2) All activities which the applicant
plans to undertake which are reasonably
related to the same project and for which a
DA permit would be required should be
included in the same permit application.
District engineers should reject, as
Incomplete, any permit application which
fails to comply with this requirement. For
example, a permit application for a marina
will include dredging required for access
as well as any fill associated with
construction of the marina.
(3) If the activity would involve
dredging in navigable waters of the United
States, the application must include a
description of the type, composition and
quantity of the material to be dredged, the
method of dredging, and the site and plans
for disposal of the dredged material.
(4) If the activity would include the
discharge of dredged or fill material into
the waters of the United States or the
transportation of dredged material for the
purpose of disposing of it in ocean waters
the application must include the source of
the material: the purpose of the discharge,
a description of the type, composition and
quantity of the material; the method of
transportation and disposal of the material;
and the location of the disposal site.
Certification under section 401 of the
Clean Water Act is required for such
discharges into waters of the United States.
(5) If the activity would include the
construction of a filled area or pile or float -
supported platform the project
description must include the use of, and
specific structures to be erected on. the fill
or platform.
(6) if the activity would involve the
construction of an impoundment structure,
the applicant may be required to
demonstrate that the structure complies
with established state dam safety criteria or
that the structure has been designed by
qualified persons and, in appropriate cases,
independently reviewed (and modified as
the review would indicate) by similarly
qualified persons. No specific design
criteria are to be prescribed nor i8 an
independent detailed engineering review to
be made by the district engineer.
(7) Signature on application. The
application must be signed by the person
who desires to undertake the proposed
activity (i.e. the applicant) or by a duly
authorized agent. When the applicant is
represented by an agent that information
will be included in the space provided on
the application or by a separate written
statement. The signature of the applicant
or the agent will be an affirmation that the
applicant possesses or will possess the
requisite property interest to undertake the
activity proposed in the application, except
where the lands are under the control of
the Corps of Engineers, in which cases the
district engineer will coordinate the
transfer of the real estate and the permit
action. An application may include the
activity of more than one owner provided
the character of the activity of each owner
is similar and in the same general area and
each owner submits a statement
designating the same agent.
(8) If the activity would involve the
construction or placement of an artificial
reef, as defined in 33 CFR 322.2(g), in the
navigable waters of the United States or in
the waters overlying the outer continental
shelf, the - application must include
provisions for siting, constructing,
monitoring, and managing the artificial
reef.
(9) Complete application. An
application will he determined to be
complete when sufficient information is
received to issue a public notice (See 33
CFR 325.1(d) and 325.3(a).) The issuance
of a public notice will not be delayed to
obtain information necessary to evaluate
an application.
(a) Additional information. In addition
to the information indicated in paragraph
(d) of this section, the applicant will be
required to furnish only such additional
information as the district engineer deems
essential to make a public interest
determination including, where applicable,
a determination of compliance with the
section 404(b)(1) guidelines or ocean
dumping criteria. Such additional
information may include environmental
data and information on alternate methods
and sites as may be necessary for the
preparation of the required environmental
documentation.
(f) Fees. Fees are required for permits
under section 404 of the Clean Water Act,
section 103 of the Marine Protection,
Research and Sanctuaries Act of 1972, as
amended, and sections 9 and 10 of the
Rivers and Harbors Act of 1899. A fee of
$100.00 will be charged when the planned
or ultimate purpose of the project is
commercial or industrial in nature and is in
support of operations that charge for the
production, distribution or sale of goods or
services. A $10.00 fee will be charged for
permit applications when the proposed
work is non - commercial in nature and
would provide personal benefits that have
no connection with a commercial
enterprise. The final decision as to the
basis for a fee (commercial vs. non-
commercial) shall be solely the
responsibility of the district engineer. No
fee will be charged if the applicant
withdraws the application at any time prior
to issuance of the permit or if the permit is
denied. Collection of the fee will be
deferred until the proposed activity has
been determined to be not contrary to the
public interest. Multiple fees are not to be
charged if more than one law is applicable.
Any modification significant enough to
require publication of a public notice will
also require a fee. No fee will be assessed
when a permit is transferred from one
property owner to another. No fees will be
charged for time extensions, general
permits or letters of permission. Agencies
or instrumentalities of federal, state or
local governments will not be required to
pay any fee in connection with permits.
§ 325.2 Processing of applications.
(a) Standard procedures. (1) When an
application for a permit is received the
district engineer shall immediately assign
it a number for identification, acknowledge
receipt thereof. and advise the applicant of
the number assigned to it. He shall review
the application for completeness, and if the
application is incomplete, request from the
applicant within 15 days of receipt of the
application any additional information
necessary for further processing.
(2) Within 15 days of receipt of an
application the district engineer will either
determine that the application is complete
(see 33 CFR 325.1(d)(9) and issue a public
notice as described in § 325.3 of this Part,
unless specifically exempted by other
provisions of this

41238 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
regulation or that it is incomplete and
notify the applicant of the information
necessary for a complete application. The
district engineer will issue a supplemental,
revised, or corrected public notice if in his
view there is a change in the application
data that would affect the public's review
of the proposal.
(3) The district engineer will consider
all comments received in response to the
public notice in his subsequent actions on
the permit application. Receipt of the
comments will be acknowledged, if
appropriate, and they will be made a part
of the administrative record of the
application. Comments received as form
letters or petitions may be acknowledged
as a group to the person or organization
responsible for the form letter or petition.
If comments relate to matters within the
special expertise of another federal agency,
the district engineer may seek the advice
of that agency. if the district engineer
determines, based on comments received,
that he must have the views of the
applicant on a particular issue to make a
public interest determination, the applicant
will be given the opportunity to furnish his
views on such issue to the district engineer
(see § 325.2(d)(5)). At the earliest
practicable time other substantive
comments will be furnished to the
applicant for his information and any
views he may wish to offer. A summary of
the comments, the actual letters or portions
thereof, or representative comment letters
may be furnished to the applicant. The
applicant may voluntarily elect to contact
objectors in an attempt to resolve
objections but will not be required to do
so. District engineers will ensure that all
parties are informed that the Corps alone is
responsible for reaching a decision on the
merits of any application. The district
engineer may also offer Corps regulatory
staff to be present at meetings between
applicants and objectors, where
appropriate, to provide information on the
process, to mediate differences, or to
gather information to aid in the decision
process. The district engineer should not
delay processing of the application unless
the applicant requests a reasonable delay,
normally not to exceed 30 days, to provide
additional information or comments.
(4) The district engineer will follow
Appendix B of 33 CFR Part 230 for
environmental procedures and
documentation required by the National
Environmental Policy Act of 1969. A
decision on a permit application will
require either an environmental assessment
or an environmental impact statement
unless it is included within a categorical
exclusion.
(5) The district engineer will also
evaluate the application to determine the
need for a public hearing pursuant to 33
CFR Part 327.
(6) After all above actions have been
completed, the district engineer will
determine in accordance with the record
and applicable regulations whether or not
the permit should be issued. He shall
prepare a statement of findings (SOT) or,
where an EIS has been prepared, a record
of decision (ROD), on all permit decisions.
The SOF or ROD shall include the district
engineer's views on the probable effect of
the proposed work on the public interest
including conformity with the guidelines
published for the discharge of dredged or
fill material into waters of the United
States (40 CFR Part 230) or with the
criteria for dumping of dredged material in
ocean waters (40 CFR Parts 220 to 229), if
applicable, and the conclusions of the
district engineer. The SOF or ROD shall
be dated, signed, and included in the
record prior to final action on the
application. Where the district engineer
has delegated authority to sign permits for
and in his behalf, he may similarly
delegate the signing of the SOF or ROD. If
a district engineer makes a decision on a
permit application which is contrary to
state or local decisions (33 CFR 320.40)
(2) & (4)), the district engineer will
include in the decision document the
significant national issues and explain how
they are overriding in importance. If a
permit is warranted, the district engineer
will determine the special conditions, if
any, and duration which should be
incorporated into the permit. In accordance
with the authorities specified in Section
325.8 of this Part, the district engineer will
take final action or forward the application
with all pertinent comments, records. and
studies, including the final EIS or
environmental assessment, through
channels to the official authorized to make
the final decision. The report forwarding
the application for decision will be in a
format prescribed by the Chief of
Engineers. District and division engineers
will notify the applicant and interested
federal and state agencies that the
application has been forwarded to higher
headquarters. The district or division
engineer may, at his option, disclose his
recommendation to the news media and
other interested parties, with the caution
that it is only a recommendation and not a
final decision. Such disclosure is
encouraged in permit cases which have
become controversial and have been the
subject of stories in the media or have
generated strong public interest. In those
cases where the application is forwarded
for decision in the format prescribed by the
Chief of Engineers, the report will serve as
the SOF or ROD. District engineers will
generally combine the SOT, environmental
assessment, and findings of no significant
impact (FONSI), 404(b)(1) guideline
analysis, and /or the criteria for dumping of
dredged material in ocean waters into a
single document.
(7) If the final decision is to deny the
permit, the applicant will be advised in
writing of the reason(s) for denial. If the
final decision is to issue the permit and a
standard individual permit form will be
used, the issuing official will forward the
permit to the applicant for signature
accepting the conditions of the permit. The
permit is not valid until signed by the
issuing official. Letters of permission
require only the signature of the issuing
official. Final action on the permit
application is the signature on the letter
notifying the applicant of the denial of the
permit or signature of the issuing official
on the authorizing document.
(8) The district engineer will publish
monthly a list of permits issued or denied
during the previous month. The list will
identify each action by public notice
number, name of applicant, and brief
description of activity involved. It will also
note that relevant environmental
documents and the SOFs or RODS are
available upon written request and, where
applicable, upon the payment of
administrative fees, This list will be
distributed to all persons who may have an
interest in any of the public notices listed.
(9) Copies of permits will be furnished
to other agencies in appropriate cases as
follows:
(i) If the activity involves the
construction of artificial islands,
installations or other devices on the outer
continental shelf, to the Director, Defense
Mapping Agency, Hydrographic Center,
Washington, DC 20390 Attention, Code
NS 12, and to the Charting and Geodetic
Services, N/ CG2 ?2, National Ocean
Service NOAA. Rockville, Maryland
20852.
(ii) If the activity involves the
construction of structures to enhance fish
propagation (e.g., fishing reefs) along the
coasts of the United States, to the Defense
Mapping Agency, Hydrographic Center
and National Ocean Service as in
paragraph (a)(9)(i) of this section and to
the Director, Office of Marine
Recreational Fisheries, National Marine
Fisheries Service. Washington, DC 20235.
(iii) If the activity involves the erection
of an aerial transmission line, submerged
cable, or submerged pipeline

41239 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
across a navigable water of the United
States, to the Charting and Geodetic
Services N /CG222, National Ocean
Service NOAA, Rockville, Maryland
20852.
(iv) If the activity is listed in paragraphs
(a)(9) (i), (ii), or (iii) of this section, or
involves the transportation of dredged
material for the purpose of dumping it in
ocean waters, to the appropriate District
Commander, U.S. Coast Guard.
(b) Procedures for particular types of
permit situations. (1) Section 407 Water
Quality Certification. If the district
engineer determines that water quality
certification for the proposed activity is
necessary under the provisions of section
401 of the Clean Water Act, he shall so
notify the applicant and obtain from him or
the certifying agency a copy of such
certification.
(i) The public notice for such activity,
which will contain a statement on
certification requirements (see §
325.3(a)(8)), will serve as the notification
to the Administrator of the Environmental
Protection Agency (EPA) pursuant to
section 401(a)(2) of the Clean Water Act.
If EPA determines that the proposed
discharge may affect the quality of the
waters of any state other than the state in
which the discharge will originate, it will
so notify such other state, the district
engineer, and the applicant. If such notice
or a request for supplemental information
is not received within 30 days of issuance
of the public notice, the district engineer
will assume EPA has made a negative
determination with respect to section
401(a)(2). If EPA determines another
state's waters may be affected, such state
has 60 days from receipt of EPA's notice
to determine if the proposed discharge will
affect the quality of its waters so as to
violate any water quality requirement in
such state, to notify EPA and the district
engineer in writing of its objection to
permit issuance, and to request a public
hearing. If such occurs, the district
engineer will hold a public hearing in the
objecting state. Except as stated below, the
hearing will be conducted in accordance
with 33 CFR Part 327. The issues to be
considered at the public hearing will be
limited to water quality impacts. EPA will
submit its evaluation and
recommendations at the hearing with
respect to the state's objection to permit
issuance. Based upon the
recommendations of the objecting state,
EPA, and any additional evidence
presented at the hearing the district
engineer will condition the permit, if
issued, in such a manner as may be
necessary to insure compliance with
applicable water quality requirements. If
the imposition of conditions cannot in the
district engineer's opinion, insure such
compliance, he will deny the permit.
(ii) No permit will be granted until
required certification has been obtained or
has been waived. A waiver may be
explicit, or will be deemed to occur if the
certifying agency fails or refuses to act on
a request for certification within sixty days
after receipt of such a request unless the
district engineer determines a shorter or
longer period is reasonable for the state to
act. In determining whether or not a waiver
period has commenced or waiver has
occurred, the district engineer will verify
that the certifying agency has received a
valid request for certification. If, however,
special circumstances identified by the
district engineer require that action on an
application be taken within a more limited
period of time, the district engineer shall
determine a reasonable lesser period of
time, advise the certifying agency of the
need for action by a particular date, and
that, if certification is not received by that
date, it will be considered that the
requirement for certification has been
waived. Similarly, if it appears that
circumstances may reasonably require a
period of time longer than sixty days, the
district engineer, based on information
provided by the certifying agency, will
determine a longer reasonable period of
time, not to exceed one year, at which time
a waiver will be deemed to occur.
(2) Coastal Zone Management
Consistency. If the proposed activity is to
be undertaken in a state operating under a
coastal zone management program
approved by the Secretary of Commerce
pursuant to the Coastal Zone Management
(CZM) Act (see 33 CFR 320.3(b)), the
district engineer shall proceed as follows:
(i) If the applicant is a federal agency,
and the application involves a federal
activity in or affecting the coastal zone, the
district engineer shall forward a copy of
the public notice to the agency of the state
responsible for reviewing the consistency
of federal activities. The federal agency
applicant shall be responsible for
complying with the CZM Act's directive
for ensuring that federal agency activities
are undertaken in a manner which is
consistent, to the maximum extent
practicable, with approved CZM
Programs. (See 15 CFR Part 930.) If the
state coastal zone agency objects to the
proposed federal activity on the basis of its
inconsistency with the state's approved
CZM Program, the district engineer shall
not make a final decision on the
application until the disagreeing parties
have had an opportunity to utilize the
procedures specified by the CZM Act for
resolving such disagreements.
(ii) If the applicant is not a federal
agency and the application involves an
activity affecting the coastal zone, the
district engineer shall obtain from the
applicant a certification that his proposed
activity complies with and will be
conducted in a manner that is consistent
with the approved state CZM Program.
Upon receipt of the certification, the
district engineer will forward a copy of the
public notice (which will include the
applicant's certification statement) to the
state coastal zone agency and request its
concurrence or objection. If the state
agency objects to the certification or issues
a decision indicating that the proposed
activity requires further review, the district
engineer shall not issue the permit until the
state concurs with the certification
statement or the Secretary of Commerce
determines that the proposed activity is
consistent with the purposes of the CZM
Act or is necessary in the interest of
national security. If the state agency fails
to concur or object to a certification
statement within six months of the state
agency's receipt of the certification
statement, state agency concurrence with
the certification statement shall be
conclusively presumed. District engineers
will seek agreements with state CZM
agencies that the agency's failure to
provide comments during the public notice
comment period will be considered as a
concurrence with the certification or
waiver of the right to concur or non -
concur.
(iii) If the applicant is requesting a
permit for work on Indian reservation
lands which are in the coastal zone, the
district engineer shall treat the application
in the same manner as prescribed for a
Federal applicant in paragraph (b)(2)(i) of
this section. However, if the applicant is
requesting a permit on non -trust Indian
lands, and the state CZM agency has
decided to assert jurisdiction over such
lands, the district engineer shall treat the
application in the same manner as
prescribed for a non - Federal applicant in
paragraph (b)(2)(ii) of this section.
(3) Historic Properties. If the proposed
activity would involve any property listed
or eligible for listing in the National
Register of Historic Places, the district
engineer will proceed in accordance with
Corps National Historic Preservation Act
implementing regulations.

41240 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(4) Activities Associated with Federal
Projects. If the proposed activity would
consist of the dredging of an access
channel and /or berthing facility associated
with an authorized federal navigation
project the activity will be included in the
planning and coordination of the
construction or maintenance of the federal
project to the maximum extent feasible.
Separate notice, hearing, and
environmental documentation will not be
required for activities so included and
coordinated, and the public notice issued
by the district engineer for these federal
and associated non - federal activities will
be the notice of intent to issue permits for
those included non - federal dredging
activities, The decision whether to issue or
deny such a permit will be consistent with
the decision on the federal project unless
special considerations applicable to the
proposed activity are identified. (See §
322.5(c).)
(5) Endangered Species. Applications
will be reviewed for the potential impact
on threatened or endangered species
pursuant to section 7 of the Endangered
Species Act as amended. The district
engineer will include a statement in the
public notice of his current knowledge of
endangered species based on his initial
review of the application (see 33 CFR
325.2(a)(2)). If the district engineer
determines that the proposed activity
would not affect listed species or their
critical habitat, he will include a statement
to this effect in the public notice. If he
finds the proposed activity may affect an
endangered or threatened species or their
critical habitat he will initiate formal
consultation procedures with the U.S. Fish
and Wildlife Service or National Marine
Fisheries Service. Public notices
forwarded to the U.S. Fish and Wildlife
Service or National Marine Fisheries
Service will serve as the request for
information on whether any listed or
proposed to be listed endangered or
threatened species may be present in the
area which would be affected by the
proposed activity. pursuant to section 7(c)
of the Act. References, definitions, and
consultation procedures are found in 50
CFR Part 402.
(c) (Reserved)
(d) Timing of processing of
applications. The district engineer will be
guided by the following time limits for the
indicated steps in the evaluation process:
(1) The public notice will be issued
within 15 days of receipt of all information
required to be submitted by the applicant
in accordance with paragraph 325. L(d) of
this Part.
(2) The comment period on the public
notice should be for a reasonable period of
time within which interested parties may
express their views concerning the permit.
The comment period should not be more
than 30 days nor less than 15 days from
the date of the notice. Before designating
comment periods less than 30 days, the
district engineer will consider: (1) Whether
the proposal is routine or noncontroversial,
(ii) mail time and need for comments from
remote areas, (iii) comments from similar
proposals, and (iv) the need for a site visit.
After considering the length of the original
comment period, paragraphs (a)(2) (i)
through (iv) of this section, and other
pertinent factors, the district engineer may
extend the comment period up to an
additional 30 days if warranted.
(3) District engineers will decide on all
applications not later than 60 days after
receipt of a complete application, unless (i)
precluded as a matter of law or procedures
required by law (see below). (ii) the case
must be referred to higher authority (see §
325.8 of this Part), (iii) the comment
period is extended, (iv) a timely submittal
of information or comments is not received
from the applicant, (v) the processing is
suspended at the request of the applicant
or (vi) information needed by the district
engineer for a decision on the application
cannot reasonably be obtained within the
60 -day period. Once the cause for
preventing the decision from being made
within the normal 60 -day period has been
satisfied or eliminated, the 60 -day clock
will start running again from where it was
suspended. For example, if the comment
period is extended by 30 days, the district
engineer will, absent other restraints,
decide on the application within 90 days of
receipt of a complete application. Certain
laws (e.g., the Clean Water Act, the CZM
Act, the National Environmental Policy
Act the National Historic Preservation
Act, the Preservation of Historical and
Archeological Data Act, the Endangered
Species Act, the Wild and Scenic Rivers
Act, and the Marine Protection, Research
and Sanctuaries Act) require procedures
such as state or other federal agency
certifications, public hearings,
environmental impact statements,
consultation, special studies, and testing
which may prevent district engineers from
being able to decide certain applications
within 60 days.
(4) Once the district engineer has
sufficient information to make his public
interest determination, he should decide
the permit application even though other
agencies which may have regulatory
jurisdiction have not yet granted their
authorizations, except where such
authorizations are, by federal law, a
prerequisite to making a decision on the
DA permit application. Permits granted
prior to other (non - prerequisite)
authorizations by other agencies should,
where appropriate, be conditioned in such
manner as to give those other authorities
an opportunity to undertake their review
without the applicant biasing such review
by making substantial resource
commitments on the basis of the DA
permit. In unusual cases the district
engineer may decide that due to the nature
or scope of a specific proposal, it would be
prudent to defer taking final action until
another agency has acted on its
authorization. In such cases, he may advise
the other agency of his position on the DA
permit while deferring his final decision.
(5) The applicant will be given a
reasonable time, not to exceed 30 days. to
respond to requests of the district engineer.
The district engineer may make such
requests by certified letter and clearly
inform the applicant that if he does not
respond with the requested information or
a justification why additional time is
necessary, then his application will be
considered withdrawn or a final decision
will be made, whichever is appropriate. If
additional time is requested, the district
engineer will either grant the time, make a
final decision, or consider the application
as withdrawn,
(6) The time requirements in these
regulations are in terms of calendar days
rather than in terms of working days.
(e) Alternative procedures. Division and
district engineers are authorized to use
alternative procedures as follows:
(1) Letters of permission. Letters of
permission are a type of permit issued
through an abbreviated processing
procedure which includes coordination
with Federal and state fish and wildlife
agencies, as required by the Fish and
Wildlife Coordination Act, and a public
interest evaluation, but without the
publishing of an individual public notice.
The letter of permission will not be used to
authorize the transportation of dredged
material for the purpose of dumping it in
ocean waters. Letters of permission may
be used:
(i) In those cases subject to section 10 of
the Rivers and Harbors Act of 1899 when,
in the opinion of the district engineer, the
proposed work would be minor, would not
have significant individual or cumulative
impacts on environmental values, and
should encounter no appreciable
opposition.
(ii) In those cases subject to section 404
of the Clean Water Act after:
(A) The district engineer, through
consultation with Federal and state fish
and wildlife agencies, the Regional

41241 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
Administrator, Environmental Protection
Agency, the state water quality certifying
agency, and, if appropriate, the state
Coastal Zone Management Agency,
develops a list of categories of activities
proposed for authorization under LOP
procedures;
(B) The district engineer issues a public
notice advertising the proposed list and the
LOP procedures, requesting comments and
offering an opportunity for public hearing;
and
(C) A 401 certification has been issued
or waived and, if appropriate, CZM
consistency concurrence obtained or
presumed either on a generic or individual
basis.
(2) Regional permits. Regional permits
are a type of general permit as defined in
33 CFR 322.2(f) and 33 CFR 323.2(n).
They may be issued by a division or
district engineer after compliance with the
other procedures of this regulation. After a
regional permit has been issued, individual
activities falling within those categories
that are authorized by such regional
permits do not have to be further
authorized by the procedures of this
regulation. The issuing authority will
determine and add appropriate conditions
to protect the public interest. When the
issuing authority determines on a case -by-
case basis that the concerns for the aquatic
environment so indicate, he may exercise
discretionary authority to override the
regional permit and require an individual
application and review. A regional permit
may be revoked by the issuing authority if
it is determined that it is contrary to the
public interest provided the procedures of
§ 325.7 of this Part are followed.
Following revocation, applications for
future activities in areas covered by the
regional permit shall be processed as
applications for individual permits. No
regional permit shall be issued for a period
of more than five years.
(3) Joint procedures. Division and
district engineers are authorized and
encouraged to develop joint procedures
with states and other Federal agencies with
ongoing permit programs for activities also
regulated by the Department of the Army.
Such procedures may be substituted for the
procedures in paragraphs (a)(1) through
(a)(5) of this section provided that the
substantive requirements of those sections
are maintained. Division and district
engineers are also encouraged to develop
management techniques such as joint
agency review meetings to expedite the
decision - making process. However, in
doing so, the applicant's rights to a full
public interest review and independent
decision by the district or division engineer
must be strictly observed.
(4) Emergency procedures. Division
engineers are authorized to approve special
processing procedures in emergency
situations. An "emergency" is a situation
which would result in an unacceptable
hazard to life, a significant loss of
property, or an immediate, unforeseen, and
significant economic hardship if corrective
action requiring a permit is not undertaken
within a time period less than the normal
time needed to process the application
under standard procedures. In emergency
situations, the district engineer will explain
the circumstances and recommend special
procedures to the division engineer who
will instruct the district engineer as to
further processing of the application. Even
in an emergency situation, reasonable
efforts will be made to receive comments
from interested Federal, state, and local
agencies and the affected public. Also,
notice of any special procedures
authorized and their rationale is to be
appropriately published as soon as
practicable.
§ 325.3 Public notice.
(a) General. The public notice is the
primary method of advising all interested
parties of the proposed activity for which a
permit is sought and of soliciting
comments and information necessary to
evaluate the probable impact on the public
interest. The notice must, therefore,
include sufficient information to give a
clear understanding of the nature and
magnitude of the activity to generate
meaningful comment. The notice should
include the following items of information:
(1) Applicable statutory authority or
authorities;
(2) The name and address of the
applicant;
(3) The name or title, address and
telephone number of the Corps employee
from whom additional information
concerning the application may be
obtained;
(4) The location of the proposed
activity;
(5) A brief description of the proposed
activity, its purpose and intended use, so as
to provide sufficient information
concerning the nature of the activity to
generate meaningful comments, including
a description of the type of structures, if
any, to be erected on fills or pile or float -
supported platforms, and a description of
the type, composition, and quantity of
materials to be discharged or disposed of
in the ocean;
(6) A plan and elevation drawing
showing the general and specific site
location and character of all proposed
activities, including the size relationship of
the proposed structures to the size of the
impacted waterway and depth of water in
the area;
(7) If the proposed activity would occur
in the territorial seas or ocean waters, a
description of the activity's relationship to
the baseline from which the territorial sea
is measured;
(8) A list of other government
authorizations obtained or requested by the
applicant, including required certifications
relative to water quality, coastal zone
management, or marine sanctuaries;
(9) If appropriate, a statement that the
activity is a categorical exclusion for
purposes of NEPA (see paragraph 7 of
Appendix B to 33 CFR Part 230);
(10) A statement of the district
engineer's current knowledge on historic
properties;
(11) A statement of the district
engineer's current knowledge on
endangered species (see § 325.2(b)(5));
(12) A statement(s) on evaluation
factors (see § 325.3(c));
(13) Any other available information
which may assist interested parties in
evaluating the likely impact of the
proposed activity, if any, on factors
affecting the public interest;
(14) The comment period based on §
325.2(d)(2);
(15) A statement that any person may
request, in writing, within the comment
period specified in the notice, that a public
hearing be held to consider the application.
Requests for public hearings shall state,
with particularity, the reasons for holding a
public hearing;
(16) For non - federal applications in
states with an approved CZM Plan, a
statement on compliance with the
approved Plan; and
(17) In addition, for section 103 (ocean
dumping) activities:
(i) The specific location of the proposed
disposal site and its physical boundaries;
(ii) A statement as to whether the
proposed disposal site has been designated
for use by the Administrator, EPA,
pursuant to section 102(c) of the Act;
(iii) If the proposed disposal site has not
been designated by the Administrator,
EPA, a description of the characteristics of
the proposed disposal site and an
explanation as to why no previously
designated disposal site is feasible;
(iv) A brief description of known
dredged material discharges at the
proposed disposal site;
(v) Existence and documented effects of
other authorized disposals that have been
made in the disposal area (e.g.,

41242 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
heavy metal background reading and
organic carbon content);
(vi) An estimate of the length of time
during which disposal would continue at
the proposed site; and
(vii) Information on the characteristics
and composition of the dredged material.
(b) Public notice for general permits.
District engineers will publish a public
notice for all proposed regional general
permits and for significant modifications
to, or reissuance of, existing regional
permits within their area of jurisdiction.
Public notices for statewide regional
permits may be issued jointly by the
affected Corps districts. `The notice will
include all applicable information
necessary to provide a clear understanding
of the proposal. In addition, the notice will
state the availability of information at the
district office which reveals the Corps'
provisional determination that the
proposed activities comply with the
requirements for issuance of general
permits. District engineers will publish a
public notice for nationwide permits in
accordance with 33 CFR 330.4.
(c) Evaluation factors. A paragraph
describing the various evaluation factors
on which decisions are based shall be
included in every public notice.
(1) Except as provided in paragraph
(c)(3) of this section, the following will be
included:
"The decision whether to issue a permit will
be based on an evaluation of the probable
impact including cumulative impacts of the
proposed activity on the public interest. That
decision will reflect the national concern for
both protection and utilization of important
resources. The benefit which reasonably may be
expected to accrue from the proposal must be
balanced against its reasonably foreseeable
detriments. All factors which may be relevant to
the proposal will be considered including the
cumulative effects thereof, among those are
conservation, economics, aesthetics, general
environmental concerns, wetlands, historic
properties, fish and wildlife values, flood
hazards, floodplain values, land use, navigation,
shoreline erosion and accretion, recreation,
water supply and conservation, water quality,
energy needs, safety, food and fiber production,
mineral needs, considerations ofproperty
ownership and, in general, the needs and
welfare of the people."
(2) If the activity would involve the
discharge of dredged or fill material into
the waters of the United States or the
transportation of dredged material for the
purpose of disposing of it in ocean waters,
the public notice shall also indicate that the
evaluation of the impact of the activity on
the public interest will include application
of the guidelines promulgated by the
Administrator, EPA, (40 CFR Part 230) or
of the criteria established under authority
of section 102(a) of the Marine Protection,
Research and Sanctuaries Act of 1972, as
amended (40 CFR Parts 220 to 229), as
appropriate. (See 33 CFR Parts 323 and
324).
(3) In cases involving construction of
artificial islands, installations and other
devices on outer continental shelf lands
which are under mineral lease from the
Department of the Interior, the notice will
contain the following statement:
"The decision as to whether a permit will
be issued will be based on an evaluation of
the impact of the proposed work on
navigation and national security."
(d) Distribution ofpublic notices. (1)
Public notices will be distributed for
posting in post offices or other appropriate
public places in the vicinity of the site of
the proposed work and will be sent to the
applicant, to appropriate city and county
officials, to adjoining property owners, to
appropriate state agencies, to appropriate
Indian Tribes or tribal representatives, to
concerned Federal agencies, to local,
regional and national shipping and other
concerned business and conservation
organizations, to appropriate River Basin
Commissions, to appropriate state and
areawide clearing houses as prescribed by
OMB Circular A -95, to local news media
and to any other interested party. Copies of
public notices will be sent to all parties
who have specifically requested copies of
public notices, to the U.S. Senators and
Representatives for the area where the
work is to be performed, the field
representative of the Secretary of the
Interior, the Regional Director of the Fish
and Wildlife Service, the Regional
Director of the National Park Service, the
Regional Administrator of the
Environmental Protection Agency (EPA),
the Regional Director of the National
Marine Fisheries Service of the National
Oceanic and Atmospheric Administration
(NOAA), the head of the state agency
responsible for fish and wildlife resources,
the State Historic Preservation Officer, and
the District Commander, U.S. Coast
Guard.
(2) In addition to the general
distribution of public notices cited above,
notices will be sent to other addressees in
appropriate cases as follows:
(i) If the activity would involve
structures or dredging along the shores of
the seas or Great Lakes, to the Coastal
Engineering Research Center, Washington,
DC 20010.
(ii) If the activity would involve
construction of fixed structures or artificial
islands on the outer continental shelf or in
the territorial seas, to the Assistant
Secretary of Defense (Manpower,
Installations, and Logistics (ASD(MI &L)),
Washington, DC 20310; the Director,
Defense Mapping Agency (Hydrographic
Center) Washington, DC 20390, Attention,
Code NS 12; and the Charting and
Geodetic Services, N/ CG222, National
Ocean Service NOAA, Rockville,
Maryland 20852, and to affected military
installations and activities.
(iii) If the activity involves the
construction of structures to enhance fish
propagation (e.g., fishing reefs) along the
coasts of the United States, to the Director,
Office of Marine Recreational Fisheries,
National Marine Fisheries Service,
Washington, DC 20235.
(iv) If the activity involves the
construction of structures which may
affect aircraft operations or for purposes
associated with seaplane operations, to the
Regional Director of the Federal Aviation
Administration.
(v) If the activity would be in
connection with a foreign -trade zone, to
the Executive Secretary, Foreign -Trade
Zones Board, Department of Commerce,
Washington, DC 20230 and to the
appropriate District Director of Customs as
Resident Representative, Foreign Trade
Zones Board.
(3) It is presumed that all interested
parties and agencies will wish to respond
to public notices; therefore, a lack of
response will be interpreted as meaning
that there is no objection to the proposed
project. A copy of the public notice with
the list of the addresses to whom the notice
was sent will be included in the record. If a
question develops with respect to an
activity for which another agency has
responsibility and that other agency has
not responded to the public notice, the
district engineer may request its
comments. Whenever a response to a
public notice has been received from a
member of Congress, either in behalf of a
constituent or himself, the district engineer
will inform the member of Congress of the
final decision.
(4) District engineers will update public
notice mailing lists at least once every two
years.
§ 325.4. Conditioning of permits.
(a) District engineers will add special
conditions to Department of the Army
permits when such conditions are
necessary to satisfy legal requirements or
to otherwise satisfy the public interest
requirement. Permit conditions will be
directly related to the impacts of the
proposal, appropriate to the scope and
degree of those impacts, and reasonably
enforceable.

41243 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(1) Legal requirements which may be
satisfied by means of Corps permit
conditions include compliance with the
404(b)(1) guidelines, the EPA ocean
dumping criteria, the Endangered Species
Act, and requirements imposed by
conditions on state section 401 water
quality certifications.
(2) Where appropriate, the district
engineer may take into account the
existence of controls imposed under other
federal, state, or local programs which
would achieve the objective of the desired
condition, or the existence of an
enforceable agreement between the
applicant and another party concerned with
the resource in question, in determining
whether a proposal complies with the
404(b)(1) guidelines. ocean dumping
criteria, and other applicable statutes, and
is not contrary to the public interest. In
such cases, the Department of the Army
permit will be conditioned to state that
material changes in, or a failure to
implement and enforce such program or
agreement, will be grounds for modifying,
suspending, or revoking the permit.
(3) Such conditions may be
accomplished on -site, or may be
accomplished off -site for mitigation of
significant losses which are specifically
identifiable, reasonably likely to occur.
and of importance to the human or aquatic
environment.
(b) District engineers are authorized to
add special conditions, exclusive of
paragraph (a) of this section, at the
applicant's request or to clarify the permit
application.
(c) If the district engineer determines
that special conditions are necessary to
insure the proposal will not be contrary to
the public interest but those conditions
would not be reasonably implementable or
enforceable, he will deny the permit.
(d) Bonds, lithe district engineer has
reason to consider that the permittee might
be prevented from completing work which
is necessary to protect the public interest
he may require the permittee to post a
bond of sufficient amount to indemnify the
government against any loss as a result of
corrective action it might take.
§ 325.5 Forms of permits.
(a) General discussion. (1) DA permits
under this regulation will be in the form of
individual permits or general permits. The
basic format shall be ENG Form 1721, DA
Permit (Appendix A).
(2) The general conditions included in
ENG Form 1721 are normally applicable
to all permits; however, some conditions
may not apply to certain permits and may
be deleted by the issuing officer. Special
conditions applicable to the
specific activity will be included in the
permit as necessary to protect the public
interest in accordance with Section 325.4
of this Part.
(b) Individual permits—(]) Standard
permits. A standard permit is one which
has been processed through the public
interest review procedures, including
public notice and receipt of comments,
described throughout this Part. The
standard individual permit shall be issued
using ENG Form 1721.
(2) Letters of permission. A letter of
permission will be issued where
procedures of paragraph 325.2(e)(1) have
been followed. It will be in letter form and
will identify the permittee, the authorized
work and location of the work, the
statutory authority, any limitations on the
work, a construction time limit and a
requirement for a report of completed
work. A copy of the relevant general
conditions from ENG Form 1721 will be
attached and will be incorporated by
reference into the letter of permission.
(c) General permits (i) Regional
permits. Regional permits are a type of
general permit. They may be issued by a
division or district engineer after
compliance with the other procedures of
this regulation. if the public interest so
requires, the issuing authority may
condition the regional permit to require a
case -by -case reporting and
acknowledgment system. However, no
separate applications or other authorization
documents will be required.
(2) Nationwide permits. Nationwide
permits are a type of general permit and
represent DA authorizations that have been
issued by the regulation (33 CFR Part 330)
for certain specified activities nationwide.
If certain conditions are met, the specified
activities can take place without the need
for an individual or regional permit.
(3) Programmatic permits.
Programmatic permits are a type of general
permit founded on an existing state, local
or other Federal agency program and
designed to avoid duplication with that
program.
(d) Section 9 permits. Permits for
structures in interstate navigable waters of
the United States under section 9 of the
Rivers and Harbors Act of 1899 will be
drafted at DA level.
§ 325.6 Duration of permits.
(a) General. DA permits may authorize
both the work and the resulting use.
Permits continue in effect until they
automatically expire or are modified,
suspended, or revoked.
(b) Structures. Permits for the existence
of a structure or other activity of a
permanent nature are usually for an
indefinite duration with no expiration date
cited. However, where a temporary
structure is authorized, or where
restoration of a waterway is contemplated,
the permit will be of limited duration with
a definite expiration date.
(c) Works. Permits for construction
work, discharge of dredged or fill material,
or other activity and any construction
period for a structure with a permit of
indefinite duration under paragraph (b) of
this section will specify time limits for
completing the work or activity. The
permit may also specify a date by which
the work must be started, normally within
one year from the date of issuance. The
date will be established by the issuing
official and will provide reasonable times
based on the scope and nature of the work
involved. Permits issued for the transport
of dredged material for the purpose of
disposing of it in ocean waters will specify
a completion date for the disposal not to
exceed three years from the date of permit
issuance.
(d) Extensions of time. An authorization
or construction period will automatically
expire if the permittee fails to request and
receive an extension of time. Extensions of
time may be granted by the district
engineer. The permittee must request the
extension and explain the ba8is of the
request, which will be granted unless the
district engineer determines that an
extension would be contrary to the public
interest. Requests for extensions will be
processed in accordance with the regular
procedures of § 325.2 of this Part,
including issuance of a public notice,
except that such processing is not required
where the district engineer determines that
there have been no significant changes in
the attendant circumstances since the
authorization was issued.
(e) Maintenance dredging. lithe
authorized work includes periodic
maintenance dredging, an expiration date
for the authorization of that maintenance
dredging will be included in the permit.
The expiration date, which in no event is
to exceed ten years from the date of
issuance of the permit, will be established
by the issuing official after evaluation of
the proposed method of dredging and
disposal of the dredged material in
accordance with the requirements of 33
CFR Parts 320 to 325. In such cases, the
district engineer shall require notification
of the maintenance dredging prior to actual
performance to insure continued
compliance with the requirements of this
regulation and 33 CFR Parts 320 to 324. If
the permittee desires to continue
maintenance

41244 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
dredging beyond the expiration date, he
must request a new permit. The permittee
should be advised to apply for the new
permit six months prior to the time he
wishes to do the maintenance work.
§ 325.7 Modification, suspension, or
revocation of permits.
(a) General. The district engineer may
reevaluate the circumstances and
conditions of any permit, including
regional permits, either on his own motion,
at the request of the permittee, or a third
party, or as the result of periodic progress
inspections, and initiate action to modify,
suspend, or revoke a permit as may be
made necessary by considerations of the
public interest. in the case of regional
permits, this reevaluation may cover
individual activities, categories of
activities, or geographic areas. Among the
factors to be considered are the extent of
the permittee's compliance with the terms
and conditions of the permit; whether or
not circumstances relating to the
authorized activity have changed since the
permit was issued or extended. and the
continuing adequacy of or need for the
permit conditions; any significant
objections to the authorized activity which
were not earlier considered: revisions to
applicable statutory and /or regulatory
authorities; and the extent to which
modification, suspension, or other action
would adversely affect plans, investments
and actions the permittee has reasonably
made or taken in reliance on the permit.
Significant increases in scope of a
permitted activity will be processed as new
applications for permits in accordance with
§ 325.2 of this Part, and not as
modifications under this section.
(b) Modification. Upon request by the
permittee or, as a result of reevaluation of
the circumstances and conditions of a
permit the district engineer may determine
that the public interest requires a
modification of the terms or conditions of
the permit. In such cases, the district
engineer will hold informal consultations
with the permittee to ascertain whether the
terms and conditions can be modified by
mutual agreement. If a mutual agreement
is reached on modification of the terms
and conditions of the permit, the district
engineer will give the permittee written
notice of the modification, which will then
become effective on such date as the
district engineer may establish, In the
event a mutual agreement cannot be
reached by the district engineer and the
permittee, the district engineer will
proceed in accordance with paragraph (c)
of this section if immediate suspension is
warranted. In cases where immediate
suspension is not warranted but the district
engineer determines that the permit should
be modified, he will notify the permittee of
the proposed modification and reasons
therefor, and that he may request a meeting
with the district engineer and /or a public
hearing. The modification will become
effective on the date set by the district
engineer which shall be at least ten days
after receipt of the notice by the permittee
unless a hearing or meeting is requested
within that period. If the permittee fails or
refuses to comply with the modification,
the district engineer will proceed in
accordance with 33 CFR Part 326. The
district engineer shall consult with
resource agencies before modifying any
permit terms or conditions, that would
result in greater impacts, for a project
about which that agency expressed a
significant interest in the term, condition,
or feature being modified prior to permit
issuance.
(c) Suspension. The district engineer
may suspend a permit after preparing a
written determination and finding that
immediate suspension would be in the
public interest. The district engineer will
notify the permittee in writing by the most
expeditious means available that the
permit has been suspended with the
reasons therefor, and order the permittee to
stop those activities previously authorized
by the suspended permit. The permittee
will also be advised that following this
suspension a decision will be made to
either reinstate, modify, or revoke the
permit, and that he may within 10 days of
receipt of notice of the suspension, request
• meeting with the district engineer and/ or
• public hearing to present information in
this matter. If a hearing is requested, the
procedures prescribed in 33 CFR Part 327
will be followed. After the completion of
the meeting or hearing (or within a
reasonable period of time after issuance of
the notice to the permittee that the permit
has been suspended if no hearing or
meeting is requested), the district engineer
will take action to reinstate, modify, or
revoke the permit.
(d) Revocation. Following completion
of the suspension procedures in paragraph
(c) of this section, if revocation of the
permit is found to be in the public interest
the authority who made the decision on the
original permit may revoke it. The
permittee will be advised in writing of the
final decision.
(e) Regional permits. The issuing
official may, by following the procedures
of this section, revoke regional permits for
individual activities, categories of
activities, or geographic areas. Where
groups of permittees are involved, such as
for categories of activities or geographic
areas, the informal discussions provided in
paragraph (b) of this section may be
waived and any written notification nay be
made through the general public notice
procedures of this regulation. If a regional
permit is revoked, any permittee may then
apply for an individual permit which shall
be processed in accordance with these
regulations.
§ 325.8 Authority to issue or deny
permits
(a) General. Except as otherwise
provided in this regulation, the Secretary
of the Army, subject to such conditions as
he or his authorized representative may
from time to time impose, has authorized
the Chief of Engineers and his authorized
representatives to issue or deny permits for
dams or dikes in intrastate waters of the
United States pursuant to section 9 of the
Rivers and Harbors Act of 1899; for
construction or other work in or affecting
navigable waters of the United States
pursuant to section 10 of the Rivers and
Harbors Act of 1899; for the discharge of
dredged or fill material into waters of the
United States pursuant to section 404 of
the Clean Water Act; or for the
transportation of dredged material for the
purpose of disposing of it into ocean
waters pursuant to section 103 of the
Marine Protection, Research and
Sanctuaries Act of 1972, as amended. The
authority to issue or deny permits in
interstate navigable waters of the United
States pursuant to section 9 of the Rivers
and Harbors Act of March 3, 1899 has not
been delegated to the Chief of Engineers
or his authorized representatives.
(b) District engineer's authority.
District engineers are authorized to issue
or deny permits in accordance with these
regulations pursuant to sections 9 and 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, as
amended, in all cases not required to be
referred to higher authority (see below). It
is essential to the legality of a permit that it
contain the name of the district engineer as
the issuing officer. However, the permit
need not be signed by the district engineer
in person but may be signed for and in
behalf of him by whomever he designates,
In cases where permits are denied for
reasons other than navigation or failure to
obtain required local, state, or other federal
approvals or certifications, the Statement
of Findings must conclusively justify a
denial decision. District

41245 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
engineers are authorized to deny permits
without issuing a public notice or taking
other procedural steps where required
local, state, or other federal permits for the
proposed activity have been denied or
where he determines that the activity will
clearly interfere with navigation except in
all cases required to be referred to higher
authority (see below). District engineers
are also authorized to add, modify, or
delete special conditions in permits in
accordance with § 325.4 of this Part,
except for those conditions which may
have been imposed by higher authority,
and to modify, suspend and revoke permits
according to the procedures of § 325.7 of
this Part. District engineers will refer the
following applications to the division
engineer for resolution:
(1) When a referral is required by a
written agreement between the head of a
Federal agency and the Secretary of the
Army;
(2) When the recommended decision is
contrary to the written position of the
Governor of the state in which the work
would be performed;
(3) When there is substantial doubt as to
authority, law, regulations, or policies
applicable to the proposed activity;
(4) When higher authority requests the
application be forwarded for decision; or
(5) When the district engineer is
precluded by law or procedures required
by law from taking final action on the
application (e.g. section 9 of the Rivers
and Harbors Act of 1899, or territorial sea
baseline changes).
(c) Division engineer's authority.
Division engineers will review and
evaluate all permit applications referred by
district engineers. Division engineers may
authorize the issuance or denial of permits
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, as amended;
and the inclusion of conditions in
accordance with § 325.4 of this Part in all
cases not required to be referred to the
Chief of Engineers.
Division engineers will refer the
following applications to the Chief of
Engineers for resolution:
(1) When a referral is required by a
written agreement between the head of a
Federal agency and the Secretary of the
Army;
(2) When there is substantial doubt as
to authority, law, regulations, or policies
applicable to the proposed activity;
(3) When higher authority requests the
application be forwarded for decision:
or
(4) When the division engineer is
precluded by law or procedures required
by law from taking final action on the
application.
§ 325.9 Authority to determine
jurisdiction.
District engineers are authorized to
determine the area defined by the terms
"navigable waters of the United States"
and "waters of the United States" except:
(a) When a determination of
navigability is made pursuant to 33 CFR
329.14 (division engineers have this
authority); or
(b) When EPA makes a section 404
jurisdiction determination under its
authority.
§ 325.10 Publicity.
The district engineer will establish and
maintain a program to assure that potential
applicants for permits are informed of the
requirements of this regulation and of the
steps required to obtain permits for
activities in waters of the United States or
ocean waters. Whenever the district
engineer becomes aware of plans being
developed by either private or public
entities which might require permits for
implementation, he should advise the
potential applicant in writing of the
statutory requirements and the provisions
of this regulation. Whenever the district
engineer is aware of changes in Corps of
Engineers regulatory jurisdiction, he will
issue appropriate public notices.
Appendix A— Permit Form and Special
Conditions
A. Permit Form
Department of the Army Permit
Permittee
Permit No.
Issuing Office
Note. The term "you" and its derivatives, as
used in this permit, means the permittee or any
future transferee. The term "this office" refers to
the appropriate district or division office of the
Corps of Engineers having jurisdiction over the
permitted activity or the appropriate official of
that office acting under the authority of the
commanding officer.
You are authorized to perform work in
accordance with the terms and conditions
specified below.
Project Description: (Describe the
permitted activity and its intended use with
references to any attached plans or drawings
that are considered to be a part of the project
description. Include a description of the types
and quantities of dredged or fill materials to be
discharged in jurisdictional waters.)
Project Location: (Where appropriate,
provide the names of and the locations on the
waters where the permitted activity and any off -
site disposals will take place. Also, using name,
distance, and direction, locate the permitted
activity in reference to a nearby landmark such
as a town or city.)
Permit Conditions:
General Conditions:
1. The time limit for completing the work
authorized ends on . If you find
that you need more time to complete the
authorized activity, submit your request for a
time extension to this office for consideration at
least one month before the above date is
reached.
2. You must maintain the activity authorized
by this permit in good condition and in
conformance with the terms and conditions of
this permit. You are not relieved of this
requirement if you abandon the permitted
activity, although you may make a good faith
transfer to a third party in compliance with
General Condition 4 below. Should you wish to
cease to maintain the authorized activity or
should you desire to abandon it without a good
faith transfer, you must obtain a modification of
this permit from this office, which may require
restoration of the area.
3. If you discover any previously unknown
historic or archeological remains while
accomplishing the activity authorized by this
permit, you must immediately notify this office
of what you have found. We will initiate the
Federal and state coordination required to
determine if the remains warrant a recovery
effort or if the site is eligible for listing in the
National Register of Historic Places.
4. If you sell the property associated with this
permit, you must obtain the signature of the new
owner in the space provided and forward a copy
of the permit to this office to validate the
transfer of this authorization.
5. If a conditioned water quality certification
has been issued for your project. you must
comply with the conditions specified in the
certification as special conditions to this permit.
For your convenience, a copy of the certification
is attached if it contains such conditions.
6. You must allow representatives from this
office to inspect the authorized activity at any
time deemed necessary to ensure that it is being
or has been accomplished in accordance with
the terms and conditions of your permit.
Special Conditions: (Add special conditions
as required in this space with reference to a
continuation sheet if necessary.)
Further Information:
1. Congressional Authorities: You have been
authorized to undertake the activity described
above pursuant to:
( ) Section 10 of the Rivers and Harbors Act
of 1899 (33 U.S.C. 403).
( ) Section 404 of the Clean Water Act (33
U.S.C. 1344).
( ) Section 103 of the Marine Protection,
Research and Sanctuaries Act of 1972 (33
U.S.C. 1410).
2. Limits ofthis authorization.
a. This permit does not obviate the need to
obtain other Federal, state, or local
authorizations required by law.
b. This permit does not grant any property
rights or exclusive privileges.
c. This permit does not authorize any injury
to the property or rights of others.

41246 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
d. This permit does not authorize interference
with any existing or proposed Federal project.
3. Limits of Federal Liability. In issuing this
permit, the Federal Government does not
assume any liability for the following:
a. Damages to the permitted project or uses
thereof as a result of other permitted or
unpermitted activities or from natural causes.
b. Damages to the permitted project or uses
thereof as a result of current or future activities
undertaken by or on behalf of the United States
in the public interest.
c. Damages to persons, property, or to other
permitted or unpermitted activities or structures
caused by the activity authorized by this permit.
d. Design or construction deficiencies
associated with the permitted work.
e. Damage claims associated with any future
modification, suspension, or revocation ofthis
permit.
4. Reliance on Applicant's Data: The
determination ofthis office that issuance ofthis
permit is not contrary to the public interest was
made in reliance on the information you
provided.
5. Reevaluation of Permit Decision. This
office may reevaluate its decision on this permit
at any time the circumstance8 warrant.
Circumstances that could require a reevaluation
include, but are not limited to, the following:
a. You fail to comply with the terms and
conditions ofthis permit.
b. The information provided by you in
support of your permit application proves to
have been false, incomplete, or inaccurate (See
4 above).
c. Significant new information surfaces
which this office did not consider in reaching
the original public interest decision.
Such a reevaluation may result in a
determination that it is appropriate to use the
suspension, modification, and revocation
procedures contained in 33 CFR 325.7 or
enforcement procedures such as those contained
in 33 CFR 326.4 and 326.5. The referenced
enforcement procedures provide for the issuance
of an administrative order requiring you to
comply with the terms and conditions of your
permit and for the initiation of legal action
where appropriate. You will be required to pay
for any corrective measures ordered by this
office, and if you fail to comply with such
directive, this office may in certain situations
(such as those specified in 33 CFR 209.170)
accomplish the corrective measures by contract
or otherwise and bill you for the cost.
6. Extensions. General condition 1 establishes
a time limit for the completion of the activity
authorized by this permit. Unless there are
circumstances requiring either aprompt
completion of the authorized activity or a
reevaluation of the public interest decision, the
Corps will normally give favorable
consideration to a request for an extension of
this time limit.
Your signature below, as permittee, indicates
that you accept and agree to comply with the
terms and conditions ofthis permit.
Permittee
(Date)
This permit becomes effective when the
Federal official, designated to act for the
Secretary of the Army, has signed below.
(District Engineer
(Date)
When the structures or work authorized by
this permit are still in existence at the time the
property is transferred, the terms and conditions
ofthis permit will continue to be binding on the
new owner(s) of the property. To validate the
transfer ofthis permit and the associated
liabilities associated with compliance with its
terms and conditions, have the transferee sign
and date below.
(Transferee)
(Date)
B. Special Conditions. No special conditions
will be preprinted on the permit form. The
following and other special conditions should be
added, as appropriate, in the space provided
after the general conditions or on a referenced
continuation sheet:
1. Your use of the permitted activity must not
interfere with the public's right to free
navigation on all navigable waters of the United
States.
2. You must have a copy of this permit
available on the vessel used for the authorized
transportation and disposal of dredged material.
3. You must advise this office in writing, at
least two weeks before you start maintenance
dredging activities under the authority ofthis
permit.
4. You must install and maintain, at your
expense, any safety lights and signals prescribed
by the United States Coast Guard (USCG),
through regulations or otherwise, on your
authorized facilities. The USCG maybe reached
at the following address and telephone number:
5. The condition below will be used when a
Corps permit authorizes an artificial reef, an
aerial transmission line, a submerged cable or
pipeline, or a structure on the outer continental
shelf.
National Ocean Service (NOS) has been
notified of this authorization. You must notify
NOS and this office in writing, at least two
weeks before you begin work and upon
completion of the activity authorized by this
permit. Your notification of completion must
include a drawing which certifies the location
and configuration of the completed activity (a
certified permit drawing may be used).
Notifications to NOS will be sent to the
following address: The Director, National
Ocean Service (N /CG 222), Rockville,
Maryland 20852.
6. The following condition should be used for
every permit where legal recordation of the
permit would be reasonably practicable and
recordation could put a subsequent purchaser or
owner of property on notice of permit
conditions.
You must take the actions required to record
this permit with the Registrar of Deeds or other
appropriate official charged with the
responsibility for maintaining records of title to
or interest in real property.
Appendix B— (Reserved) (For Future
NEPA Regulation)
Appendix C--- (Reserved) (For Historic
Properties Regulation)
PART 326 — ENFORCEMENT
Sec.
326.1 Purpose.
326.2 Policy.
326.3 Unauthorized activities.
328.4 Supervision of authorized activities.
326.5 Legal action.
Authority: 33 U.S.C. 401 et seq.: 33
U.S.C. 1344: 33 U.S.C. 1413.
§ 326.1 Purpose.
This Part prescribes enforcement
policies (§ 326.2) and procedures
applicable to activities performed without
required Department of the Army permits
(§ 326.3) and to activities not in
compliance with the terms and conditions
of issued Department of the Army permits
(§ 326.4). Procedures for initiating legal
actions are prescribed in § 326.5. Nothing
contained in this Part shall establish a non-
discretionary duty on the part of district
engineers nor shall deviation from these
procedures give rise to a private right of
action against a district engineer.
§ 326.2 Policy.
Enforcement, as part of the overall
regulatory program of the Corps, is based
on a policy of regulating the waters of the
United States by discouraging activities
that have not been properly authorized and
by requiring corrective measures, where
appropriate, to ensure those waters are not
misused and to maintain the integrity of
the program. There are several methods
discussed in the remainder of this part
which can be used either singly or in
combination to implement this policy,
while making the most effective use of the
enforcement resources available. As EPA
has independent enforcement authority
under the Clean Water Act for
unauthorized discharges, the district
engineer should normally coordinate with
EPA to determine the most effective and
efficient manner by which resolution of a
section 404 violation can be achieved.
§ 326.3 Unauthorized activities.
(a) Surveillance. To detect unauthorized
activities requiring permits, district
engineers should make the best use of all
available resources.

41247 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
Corps employees; members of the public;
and representatives of state. local, and
other Federal agencies should be
encouraged to report suspected violations.
Additionally, district engineers should
consider developing joint surveillance
procedures with Federal, state, or local
agencies having similar regulatory
responsibilities, special expertise, or
interest.
(b) Initial investigation. District
engineers should take steps to investigate
suspected violations in a timely manner.
The scheduling of investigations will
reflect the nature and location of the
suspected violations, the anticipated
impacts, and the most effective use of
inspection resources available to the
district engineer. These investigations
should confirm whether a violation exists,
and if so, will identify the extent of the
violation and the parties responsible.
(c) Formal notifications to parties
responsible for violations. Once the district
engineer has determined that a violation
exists, he should take appropriate steps to
notify the responsible parties.
(1) If the violation involves a project
that is not complete, the district engineer's
notification should be in the form of a
cease and desist order prohibiting any
further work pending resolution of the
violation in accordance with the
procedures contained in this part. See
paragraph (c)(4) of this section for
exception to this procedure.
(2) If the violation involves a completed
project, a cease and desist order should not
be necessary. However, the district
engineer should still notify the responsible
parties of the violation.
(3) All notifications, pursuant to
paragraphs (c) (1) and (2) of this section,
should identify the relevant statutory
authorities, indicate potential enforcement
consequences and direct the responsible
parties to submit any additional
information that the district engineer may
need at that time to determine what course
of action he should pursue in resolving the
violation; further information may be
requested, as needed, in the future.
(4) In situations which would, if a
violation were not involved, qualify for
emergency procedures pursuant to 33 CFR
Part 325.2(e)(4), the district engineer may
decide it would not be appropriate to direct
that the unauthorized work be stopped.
Therefore, in such situations, the district
engineer may, at his discretion, allow the
work to continue, subject to appropriate
limitations and conditions as he may
prescribe, while the violation is being
resolved in accordance with the procedures
contained in this part.
(5) When an unauthorized activity
requiring a permit has been undertaken by
American Indians (including Alaskan
natives, Eskimos, and Aleuts. but not
including Native Hawaiians) on
reservation lands or in pursuit of specific
treaty rights, the district engineer should
use appropriate means to coordinate
proposed directives and orders with the
Assistant Chief Counsel for Indian Affairs
(DAEN —CCI).
(6) When an unauthorized activity
requiring a permit has been undertaken by
an official acting on behalf of a foreign
government, the district engineer should
use appropriate means to coordinate
proposed directives and orders with the
Office, Chief of Engineers, ATTN:
DAEN -CCK.
(d) Initial corrective measures. (1) The
district engineer should, in appropriate
cases, depending upon the nature of the
impacts associated with the unauthorized,
completed work, solicit the views of the
Environmental Protection Agency; the
U.S. Fish and Wildlife Service; the
National Marine Fisheries Service, and
other Federal, state, and local agencies to
facilitate his decision on what initial
corrective measures are required. If the
district engineer determines as a result of
his investigation, coordination, and
preliminary evaluation that initial
corrective measures are required, he
should issue an appropriate order to the
parties responsible for the violation. In
determining what initial corrective
measures are required, the district engineer
should consider whether serious jeopardy
to life, property, or important public
resources (see 33 CFR Part 320.4) may be
reasonably anticipated to occur during the
period required for the ultimate resolution
of the violation. In his order, the district
engineer will specify the initial corrective
measures required and the time limits for
completing this work. In unusual cases
where initial corrective measures
substantially eliminate all current and
future detrimental impacts resulting from
the unauthorized work, further
enforcement actions should normally be
unnecessary. For all other cases, the
district engineer's order should normally
specify that compliance with the order will
not foreclose the Government's options to
initiate appropriate legal action or to later
require the submission of a permit
application.
(2) An order requiring initial corrective
measures that resolve the violation may
also be issued by the district engineer in
situations where the acceptance or
processing of an after - the -fact permit
application is prohibited or considered not
appropriate pursuant to § 326.3(e)(1)
(iii)--(iv) below. However, such orders
will be issued only when the district
engineer has reached an independent
determination that such measures are
necessary and appropriate.
(3) It will not be necessary to issue a
Corps permit in connection with initial
corrective measures undertaken at the
direction of the district engineer.
(e) After-the-fact permit applications.
(1) Following the completion of any
required initial corrective measures, the
district engineer will accept an after -the-
fact permit application unless he
determines that one of the exceptions listed
in subparagraphs i —iv below is applicable.
Applications for after - the -fact permits will
be processed in accordance with the
applicable procedures in 33 CFR Parts
320 -325. Situations where no permit
application will be processed or where the
acceptance of a permit application must be
deferred are as follows:
(i) No permit application will be
processed when restoration of the waters
of the United States has been completed
that eliminates current and future
detrimental impacts to the Satisfaction of
the district engineer.
(ii) No permit application will be
accepted in connection with a violation
where the district engineer determines that
legal action is appropriate (* 326.5(a))
until such legal action has been completed.
(iii) No permit application will be
accepted where a Federal, state, or local
authorization or certification, required by
Federal law, has already been denied.
(iv) No permit application will be
accepted nor will the processing of an
application be continued when the district
engineer is aware of enforcement litigation
that has been initiated by other Federal,
state, or local regulatory agencies, unless
he determines that concurrent processing
of an after - the -fact permit application is
clearly appropriate.
(2) Upon completion of his review in
accordance with 33 CFR Parts 320 -325,
the district engineer will determine if a
permit should be issued, with special
conditions if appropriate, or denied. In
reaching a decision to issue, be must
determine that the work involved is not
contrary to the public interest, and if
section 404 is applicable, that the work
also complies with the Environmental
Protection Agency's section 404(b)(1)
guidelines. if he determines that a denial is
warranted, his notification of denial should
prescribe any final corrective

41248 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
actions required. His notification should
also establish a reasonable period of time
for the applicant to complete such actions
unless he determines that further
information is required before the
corrective measures can be specified. If
further information is required, the final
corrective measures may be specified at a
later date. If an applicant refuses to
undertake prescribed corrective actions
ordered subsequent to permit denial or
refuses to accept a conditioned permit, the
district engineer may initiate legal action
in accordance with § 326.5.
(f) Combining steps. The procedural
steps in this section are in the normal
sequence. However, these regulations do
not prohibit the streamlining of the
enforcement process through the
combining of steps.
(g) Coordination with EPA. In all cases
where the district engineer is aware that
EPA is considering enforcement action, he
should coordinate with EPA to attempt to
avoid conflict or duplication. Such
coordination applies to interim protective
measures and after - the -fact permitting, as
well as to appropriate legal enforcement
actions.
§ 326.4 Supervision of authorized
activities.
(a) Inspections. District engineers will,
at their discretion, take reasonable
measures to inspect permitted activities, as
required, to ensure that these activities
comply with specified terms and
conditions. To supplement inspections by
their enforcement personnel, district
engineers should encourage their other
personnel; members of the public; and
interested state, local, and other Federal
agency representatives to report suspected
violations of Corps permits. To facilitate
inspections, district engineers will, in
appropriate cases, require that copies of
ENG Form 4336 be posted conspicuously
at the sites of authorized activities and will
make available to all interested persons
information on the terms and conditions of
issued permits. The U.S. Coast Guard will
inspect permitted ocean dumping activities
pursuant to section 107(c) of the Marine
Protection, Research and Sanctuaries Act
of 1972, as amended.
(b) Inspection limitations. Section 326.4
does not establish a non - discretionary duty
to inspect permitted activities for safety,
sound engineering practices, or
interference with other permitted or
unpermitted structures or uses in the area.
Further, the regulations implementing the
Corps regulatory program do not establish
a non - discretionary duty to inspect
permitted activities for any other purpose.
(c) Inspection expenses. The expenses
incurred in connection with the inspection
of permitted activities will normally be
paid by the Federal Government unless
daily supervision or other unusual
expenses are involved. In such unusual
cases, the district engineer may condition
permits to require permittees to pay
inspection expenses pursuant to the
authority contained in Section 9701 of Pub
L. 97 -258 (33 U.S.C. 9701). The
collection and disposition of inspection
expense funds obtained from applicants
will be administered in accordance with
the relevant Corps regulations governing
such funds.
(d) Non - compliance. If a district
engineer determines that a permittee has
violated the terms or conditions of the
permit and that the violation is sufficiently
serious to require an enforcement action,
then he should, unless at his discretion he
deems it inappropriate: (1) First contact the
permittee; (2) request corrected plans
reflecting actual work, if needed; and (3)
attempt to resolve the violation. Resolution
of the violation may take the form of the
permitted project being voluntarily brought
into compliance or of a permit
modification (33 CFR 325.7(b)). If a
mutually agreeable solution cannot be
reached, a written order requiring
compliance should normally be issued and
delivered by personal service. Issuance of
an order is not, however, a prerequisite to
legal action. If an order is issued, it will
specify a time period of not more than 30
days for bringing the permitted project into
compliance, and a copy will be sent to the
appropriate state official pursuant to
section 404(s)(2) of the Clean Water Act.
If the permittee fails to comply with the
order within the specified period of time,
the district engineer may consider using
the suspension/revocation procedures in 33
CFR 325.7(c) and/or he may recommend
legal action in accordance with § 326.5.
§ 326.5 Legal action.
(a) General. For cases the district
engineer determines to be appropriate, he
will recommend criminal or civil actions to
obtain penalties for violations, compliance
with the orders and directives he has
issued pursuant to § § 326.3 and 326.4, or
other relief as appropriate. Appropriate
cases for criminal or civil action include,
but are not limited to, violations which, in
the district engineer's opinion, are willful,
repeated, flagrant, or of substantial impact.
(b) Preparation of case. If the district
engineer determines that legal action is
appropriate, he will prepare a litigation
report or such other documentation that he
and the local U.S. Attorney have mutually
agreed to, which contains an analysis of
the information obtained during his
investigation of the violation or during the
processing of a permit application and a
recommendation of appropriate legal
action. The litigation report or alternative
documentation will also recommend what,
if any, restoration or mitigative measures
are required and will provide the rationale
for any such recommendation.
(c) Referral to the local U.S. Attorney.
Except as provided in paragraph (d) of this
section, district engineers are authorized to
refer cases directly to the U.S. Attorney.
Because of the unique legal system in the
Trust Territories, all cases over which the
Department of Justice has no authority will
be referred to the Attorney General for the
trust Territories. hiformation copies of all
letters of referral shall be forwarded to the
appropriate division counsel, the Office,
Chief of Engineers, ATTN: DAEN —CCK,
the Office of the Assistant Secretary of the
Army (Civil Works), and the Chief of the
Environmental Defense Section, Lands
and Natural Resources Division, U.S.
Department of Justice.
(d) Referral to the Office, Chief of
Engineers. District engineers will forward
litigation reports with recommendations
through division offices to the Office,
Chief of Engineers, ATTN: DAEN —CCK,
for all cases that qualify under the
following criteria:
(1) Significant precedential or
controversial questions of law or fact;
(2) Requests for elevation to the
Washington level by the Department of
Justice;
(3) Violations of section 9 of the Rivers
and Harbors Act of 1899;
(4) Violations of section 103 the Marine
Protection, Research and Sanctuaries Act
of 1972;
(5) All cases involving violations by
American Indians (original of litigation
report to DAEN —CCI with copy to
DAEN —CCK) on reservation lands or in
pursuit of specific treaty rights;
(6) All cases involving violations by
officials acting on behalf of foreign
governments; and
(7) Cases requiring action pursuant to
paragraph (e) of this section.
(e) Legal option not available, In cases
where the local U.S. Attorney declines to
take legal action, it would be appropriate
for the district engineer to close the
enforcement case record unless he believes
that the case warrants special attention. In
that situation, he is encouraged to forward
a litigation report to the Office, Chief of
Engineers, ATTN: DAEN —CCK. for

41249 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
direct coordination through the Office of
the Assistant Secretary of the Army (Civil
Works) with the Department of Justice.
Further, the case record should not be
closed if the district engineer anticipates
that further administrative enforcement
actions, taken in accordance with the
procedures prescribed in this part, will
identify remedial measures which, if not
complied with by the parties responsible
for the violation, will result in appropriate
legal action at a later date,
PART 327 — PUBLIC HEARINGS
Sec.
327.1 Purpose.
327.2 Applicability.
327.3 Definitions.
327.4 General policies.
327.5 Presiding officer.
327.6 Legal adviser.
327.7 Representation.
327.8 Conduct of hearings.
327.9 Filing of transcript of the public
hearing.
327.10 Authority of the presiding officer
327.11 Public notice.
Authority: 33 U.S.C. 1344: 33 U.S.C.
1413.
§ 327.1 Purpose.
This regulation prescribes the policy.
practice and procedures to be followed by
the U.S. Army Corps of Engineers in the
conduct of public hearings conducted in
the evaluation of a proposed DA permit
action or Federal project as defined in §
327.3 of this Part including those held
pursuant to section 404 of the Clean Water
Act (33 U.S.C. 1344) and section 103 of
the Marine Protection, Research and
Sanctuaries Act (MPRSA), as amended
(33 U.S.C. 1413).
§ 327.2 Applicability.
This regulation is applicable to all
divisions and districts responsible for the
conduct of public hearings.
§ 327.3 Definitions.
(a) Public hearing means a public
proceeding conducted for the purpose of
acquiring information or evidence which
will be considered in evaluating a
proposed DA permit action, or Federal
project. and which affords the public an
opportunity to present their views,
opinions, and information on such permit
actions or Federal projects.
(b) Permit action, as used herein means
the evaluation of and decision on an
application for a DA permit pursuant to
sections 9 or 10 of the Rivers and Harbors
Act of 1899, section 404 of the Clean
Water Act or section 103 of the MPRSA,
as amended, or the modification,
suspension or revocation of any DA permit
(see 33 CFR 325.7).
(c) Federal project means a Corps of
Engineers project (work or activity of any
nature for any purpose which is to be
performed by the Chief of Engineers
pursuant to Congressional authorizations)
involving the discharge of dredged or fill
material into waters of the United States or
the transportation of dredged material for
the purpose of dumping it in ocean waters
subject to section 404 of the Clean Water
Act, or section 103 of the MPRSA.
§ 327.4 General polices.
(a) A public hearing will be held in
connection with the consideration of a DA
permit application or a Federal project
whenever a public hearing is needed for
making a decision on such permit
application or Federal project. In addition,
a public hearing may be held when it is
proposed to modify or revoke a permit.
(See 33 CFR 325.7).
(b) Unless the public notice specifies
that a public hearing will be held, any
person may request, in writing, within the
comment period specified in the public
notice on a DA permit application or on a
Federal project, that a public hearing be
held to consider the material matters at
issue in the permit application or with
respect to Federal project. Upon receipt of
any such request stating with particularity
the reasons for holding a public hearing,
the district engineer may expeditiously
attempt to resolve the issues informally.
Otherwise, he shall promptly set a time
and place for the public hearing, and give
due notice thereof, as prescribed in §
327.11 of this Part. Requests for a public
hearing under this paragraph shall be
granted, unless the district engineer
determines that the issues raised are
insubstantial or there is otherwise no valid
interest to be served by a hearing. The
district engineer will make such a
determination in writing. and communicate
his reasons therefor to all requesting
parties. Comments received as form letters
or petitions may be acknowledged as a
group to the person or organization
responsible for the form letter or petition.
(c) In case of doubt, a public hearing
shall be held. HQDA has the discretionary
power to require hearings in any case.
(d) in fixing the time and place for a
hearing, the convenience and necessity of
the interested public will be duly
considered.
§ 327.5 Presiding officer.
(a) The district engineer, in whose
district a matter arises, shall normally
serve as the presiding officer. When the
district engineer is unable to serve, he may
designate the deputy district engineer or
other qualified person as presiding officer.
In cases of unusual interest, the Chief of
Engineers or the division engineer may
appoint such person as he deems
appropriate to serve as the presiding
officer.
(b) The presiding officer shall include in
the administrative record of the permit
action the request or requests for the
hearing and any data or material submitted
in justification thereof, materials submitted
in opposition to or in support of the
proposed action, the hearing transcript, and
such other material as may be relevant or
pertinent to the subject matter of the
hearing. The administrative record shall be
available for public inspection with the
exception of material exempt from
disclosure under the Freedom of
Information Act.
§ 327.6 Legal adviser.
At each public hearing, the district
counsel or his designee may serve as legal
advisor to the presiding officer. In
appropriate circumstances, the district
engineer may waive the requirement for a
legal advisor to be present.
§ 327.7 Representation.
At the public hearing, any person may
appear on his own behalf, or may be
represented by counsel, or by other
representatives.
§ 327.8 Conduct of hearings.
(a) The presiding officer shall make an
opening statement outlining the purpose of
the hearing and prescribing the general
procedures to be followed.
(b) Hearings shall be conducted by the
presiding officer in an orderly but
expeditious manner. Any person shall be
permitted to submit oral or written
statements concerning the subject matter
of the hearing, to call witnesses who may
present oral or written statements, and to
present recommendations as to an
appropriate decision, Any person may
present written statements for the hearing
record prior to the time the hearing record
is closed to public submissions, and may
present proposed findings and
recommendations. The presiding officer
shall afford participants a reasonable
opportunity for rebuttal.
(c) The presiding officer shall have
discretion to establish reasonable limits
upon the time allowed for statements of
witnesses, for arguments of parties or their
counsel or representatives, and upon the
number of rebuttals.
(d) Cross - examination of witnesses shall
not be permitted.
(e) All public hearings shall be reported
verbatim. Copies of the transcripts of
proceedings may be

41250 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
purchased by any person from the Corps of
Engineers or the reporter of such hearing.
A copy will be available for public
inspection at the office of the appropriate
district engineer.
(f) All written statements, charts,
tabulations, and similar data offered in
evidence at the hearing shall, subject to
exclusion by the presiding officer for
reasons of redundancy, be received in
evidence and shall constitute a part of the
record.
(g) The presiding officer shall allow a
period of not less than 10 days after the
close of the public hearing for submission
of written comments.
(h) In appropriate cases, the district
engineer may participate in joint public
hearings with other Federal or state
agencies, provided the procedures of those
hearings meet the requirements of this
regulation. In those cases in which the
other Federal or state agency allows a
cross - examination in its public hearing, the
district engineer may still participate in the
joint public hearing but shall not require
cross examination as a part of his
participation.
§ 327.9 Filing of the transcript of the
public hearing.
Where the presiding officer is the initial
action authority, the transcript of the
public hearing, together with all evidence
introduced at the public hearing, shall be
made a part of the administrative record of
the permit action or Federal project. The
initial action authority shall fully consider
the matters discussed at the public hearing
in arriving at his initial decision or
recommendation and shall address, in his
decision or recommendation, all
substantial and valid issues presented at
the hearing. Where a person other than the
initial action authority serves as presiding
officer, such person shall forward the
transcript of the public hearing and all
evidence received in connection therewith
to the initial action authority together with
a report summarizing the issues covered at
the hearing. The report of the presiding
officer and the transcript of the public
hearing and evidence submitted thereat
shall in such cases be fully considered by
the initial action authority in malting his
decision or recommendation to higher
authority as to such permit action or
Federal project.
§ 327.10 Authority of the presiding
officer.
Presiding officers shall have the
following authority:
(a) To regulate the course of the hearing
including the order of all sessions and the
scheduling thereof. after any initial
session, and the
recessing, reconvening, and adjournment
thereof, and
(b) To take any other action necessary
or appropriate to the discharge of the
duties vested in them, consistent with the
statutory or other authority under which
the Chief of Engineers functions, and with
the policies and directives of the Chief of
Engineers and the Secretary of the Army.
§ 327.11 Public notice.
(a) Public notice shall be given of any
public hearing to be held pursuant to this
regulation, Such notice should normally
provide for a period of not less than 30
days following the date of public notice
during which time interested parties may
prepare themselves for the hearing. Notice
shall also be given to all Federal agencies
affected by the proposed action, and to
state and local agencies and other parties
having an interest in the subject matter of
the hearing. Notice shall be sent to all
persons requesting a hearing and shall be
posted in appropriate government
buildings and provided to newspapers of
general circulation for publication.
Comments received as form letters or
petitions may be acknowledged as a group
to the person or organization responsible
for the form letter or petition.
(b) The notice shall contain time, place,
and nature of hearing; the legal authority
and jurisdiction under which the hearing is
held; and location of and availability of the
draft environmental impact statement or
environmental assessment.
PART 328 — DEFINITION OF
WATERS OF THE UNITED STATES
Sec.
328.1 Purpose.
328.2 General scope.
328.3 Definitions.
328.4 Limits of jurisdiction.
328.5 Changes in limits of waters of the
United States.
Authority: 33 U.S.C. 1344.
§ 328.1 Purpose.
This section defines the term "waters of
the United States" as it applies to the
jurisdictional limits of the authority of the
Corps of Engineers under the Clean Water
Act. It prescribes the policy, practice, and
procedures to be used in determining the
extent of jurisdiction of the Corps of
Engineers concerning "waters of the
United States," The terminology used by
section 404 of the Clean Water Act
includes "navigable waters" which is
defined at section 502(7) of the Act as
"waters of the United States including the
territorial seas," To provide clarity and to
avoid
confusion with other Corps of Engineer
regulatory programs, the term "waters of
the United States" is used throughout 33
CFR Parts 320 -330. This section does
not apply to authorities under the Rivers
and Harbors Act of 1899 except that some
of the same waters may be regulated under
both statutes (see 33 CFR Parts 322 and
329).
§ 328.2 General scope.
Waters of the United States include
those waters listed in § 328.3(a). The
lateral limits of jurisdiction in those waters
may be divided into three categories. The
categories include the territorial seas, tidal
waters, and non -tidal waters (see 33 CFR
328.4 (a), (b), and (c), respectively).
§ 328.3 Definitions.
For the purpose of this regulation these
terms are defined as follows:
(a) The term "waters of the United
States" means
(1) All waters which are currently used,
or were used in the past, or may be
susceptible to use in interstate or foreign
commerce, including all waters which are
subject to the ebb and flow of the tide;
(2) All interstate waters including
interstate wetlands;
(3) All other waters such as intrastate
lakes, rivers, streams (including
intermittent streams), mudflats, sandflats,
wetlands, sloughs, prairie potholes, wet
meadows, playa lakes, or natural ponds,
the use, degradation or destruction of
which could affect interstate or foreign
commerce including any such waters:
(i) Which are or could be used by
interstate or foreign travelers for
recreational or other purposes; or
(ii) From which fish or shellfish are or
could be taken and sold in interstate or
foreign commerce; or
(iii) Which are used or could be used for
industrial purpose by industries in
interstate commerce;
(4) All impoundments of waters
otherwise defined as waters of the United
States under the definition;
(5) Tributaries of waters identified in
paragraphs (a) (1) —(4) of this section:
(6) The territorial seas;
(7) Wetlands adjacent to waters (other
than waters that are themselves wetlands)
identified in paragraphs (a) (1)--(6) of this
section.
Waste treatment systems, including
treatment ponds or lagoons designed to
meet the requirements of CWA (other than
cooling ponds as defined in 40 CFR
123.11(m) which also meet the criteria of
this definition) are not waters of the United
States.

41251 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(b) The term "wetlands" means those
areas that are inundated or saturated by
surface or ground water at a frequency and
duration sufficient to support, and that
under normal circumstances do support. a
prevalence of vegetation typically adapted
for life in saturated soil conditions.
Wetlands generally include swamps,
marshes, bogs, and similar areas.
(c) The term "adjacent" means
bordering, contiguous, or neighboring.
Wetlands separated from other waters of
the United States by man -made dikes or
barriers, natural river bergs, beach dunes
and the like are "adjacent wetlands."
(d) The term "high tide line" means the
line of intersection of the land with the
water's surface at the maximum height
reached by a rising tide. The high tide line
may be determined, in the absence of
actual data, by a line of oil or scum along
shore objects, a more or less continuous
deposit of fine shell or debris on the
foreshore or berm, other physical markings
or characteristics, vegetation lines, tidal
gages, or other suitable means that
delineate the general height reached by a
rising tide. The line encompasses spring
high tides and other high tides that occur
with periodic frequency but does not
include storm surges in which there is a
departure from the normal or predicted
reach of the tide due to the piling up of
water against a coast by strong winds such
as those accompanying a hurricane or
other intense storm.
(e) The term "ordinary high water marl'
means that line on the shore established by
the fluctuations of water and indicated by
physical characteristics such as clear,
natural line impressed on the bank,
shelving. changes in the character of soil,
destruction of terrestrial vegetation, the
presence of litter and debris, or other
appropriate means that consider the
characteristics of the surrounding areas.
(f) The term "tidal waters" means those
waters that rise and fall in a predictable
and measurable rhythm or cycle due to the
gravitational pulls of the moon and sun.
Tidal waters end where the rise and fall of
the water surface can no longer be
practically measured in a predictable
rhythm due to masking by hydrologic,
wind, or other effects.
§ 328.4 Limits of jurisdiction.
(a) Territorial Seas. The limit of
jurisdiction in the territorial seas is
measured from the baseline in a seaward
direction a distance of three nautical miles.
(See 33 CFR 329.12)
(b) Tidal Waters of the United States.
The landward limits of jurisdiction in tidal
waters:
(1) Extends to the high tide line, or
(2) When adjacent non -tidal waters of
the United States are present, the
jurisdiction extends to the limits identified
in paragraph (c) of this section.
(c) Non -Tidal Waters of the United
States. The limits of jurisdiction in non-
tidal waters:
(1) In the absence of adjacent wetlands,
the jurisdiction extends to the ordinary
high water mark, or
(2) When adjacent wetlands are present.
the jurisdiction extends beyond the
ordinary high water mark to the limit of
the adjacent wetlands.
(3) When the water of the United States
consists only of wetlands the jurisdiction
extends to the limit of the wetland.
§ 328.5 Changes in limits of waters of
the United States.
Permanent changes of the shoreline
configuration result in similar alterations
of the boundaries of waters of the United
States. Gradual changes which are due to
natural causes and are perceptible only
over some period of time constitute
changes in the bed of a waterway which
also change the boundaries of the waters of
the United States. For example, changing
sea levels or subsidence of land may cause
some areas to become waters of the United
States while siltation or a change in
drainage may remove an area from waters
of the United States. Man -made changes
may affect the limits of waters of the
United States; however, permanent
changes should not be presumed until the
particular circumstances have been
examined and verified by the district
engineer. Verification of changes to the
lateral limits of jurisdiction may be
obtained from the district engineer.
PART 329 — DEFINITION OF
NAVIGABLE WATERS OF THE
UNITED STATES
Sec.
329.1 Purpose.
329.2 Applicability.
329.3 General policies.
329.4 General definitions.
329.5 General scope of determination.
329.6 Interstate or foreign commerce.
329.7 Intrastate or interstate nature of
waterway.
329.8 Improved or natural conditions of
the waterbody.
329.9 Time at which commerce exists or
determination is made.
329.10 Existence of obstructions.
Sec.
329.11 Geographic and jurisdictional
limits of rivers and lakes.
329.12 Geographic and jurisdictional
limits of oceanic and tidal waters.
329.13 Geographic limits: shifting
boundaries.
329.14 Determination of navigability.
329.15 Inquiries regarding determinations.
329.16 Use and maintenance of lists of
determinations.
Authority: 33 U.S.C. 401 ofseq.
§ 329.1 Purpose.
This regulation defines the term
"navigable waters of the United States" as
it is used to define authorities of the Corps
of Engineers. It also prescribes the policy,
practice and procedure to be used in
determining the extent of the jurisdiction
of the Corps of Engineers and in
answering inquiries concerning "navigable
waters of the United States." This
definition does not apply to authorities
under the Clean Water Act which
definitions are described under 33 CFR
Parts 323 and 328.
§ 329.2 Applicability.
This regulation is applicable to all Corps
of Engineers districts and divisions having
civil works responsibilities.
§ 329.3 General policies.
Precise definitions of "navigable waters
of the United States" or "navigability' are
ultimately dependent on judicial
interpretation and cannot be made
conclusively by administrative agencies.
However, the policies and criteria
contained in this regulation are in close
conformance with the tests used by Federal
courts and determinations made under this
regulation are considered binding in regard
to the activities of the Corps of Engineers.
§ 329.4 General definition.
Navigable waters of the United States
are those waters that are subject to the ebb
and flow of the tide and /or are presently
used, or have been used in the past, or may
be susceptible for use to transport
interstate or foreign commerce. A
determination of
navigability, once made, applies laterally
over the entire surface of the waterbody,
and is not extinguished by later actions or
events which impede or destroy navigable
capacity.
§ 329.5 General scope of determination.
The several factors which must be
examined when making a determination
whether a waterbody is a navigable water
of the United States are discussed in detail
below. Generally, the following conditions
must be satisfied:

41252 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(a) Past, present, or potential presence of
interstate or foreign commerce:
(b) Physical capabilities for use by
commerce as in paragraph (a) of this
section; and
(c) Defined geographic limits of the
waterbody.
§ 329.6 Interstate or foreign commerce.
(a) Nature of commerce: type. means,
and extent of use. The types of commercial
use of a waterway are extremely varied
and will depend on the character of the
region, its products, and the difficulties or
dangers of navigation. It is the
waterbody's capability of use by the public
for purposes of transportation of
commerce which is the determinative
factor, and not the time, extent or manner
of that use. As discussed in § 329.9 of this
Part, it is sufficient to establish the
potential for commercial use at any past,
present, or future time. Thus, sufficient
commerce may be shown by historical use
of canoes, bateaux, or other frontier craft,
as long as that type of boat was common
or well - suited to the place and period.
Similarly, the particular items of
commerce may vary widely, depending
again on the region and period. The goods
involved might be grain, furs, or other
commerce of the time. Logs are a common
example; transportation of logs has been a
substantial and well recognized
commercial use of many navigable waters
of the United States. Note, however, that
the mere presence of floating logs will not
of itself make the river "navigable''; the
logs must have been related to a
commercial venture. Similarly, the
presence of recreational craft may indicate
that a waterbody is capable of bearing
some forms of commerce, either presently,
in the future, or at a past point in time.
(b) Nature of commerce: interstate and
intrastate. Interstate commerce may of
course be existent on an intrastate voyage
which occurs only between places within
the same state. It is only necessary that
goods may be brought from, or eventually
be destined to go to, another state. (For
purposes of this regulation, the term
"interstate commerce" hereinafter includes
"foreign commerce" as well.)
§ 329.7 intrastate or interstate nature of
waterway.
A waterbody may be entirely within a
state, yet still be capable of carrying
interstate commerce. This is especially
clear when it physically connects with a
generally acknowledged avenue of
interstate commerce, such as the ocean or
one of the Great Lakes, and is yet wholly
within one state. Nor is it necessary that
there be a physically
navigable connection across a state
boundary. Where a waterbody extends
through one or more states, but substantial
portions, which are capable of bearing
interstate commerce, are located in only
one of the states, the entirety of the
waterway up to the head (upper limit) of
navigation is subject to Federal
jurisdiction,
§ 329.8 improved or natural conditions
of the waterbody.
Determinations are not limited to the
natural or original condition of the
waterbody. Navigability may also be found
where artificial aids have been or may be
used to make the waterbody suitable for
use in navigation.
(a) Existing improvements: artificial
waterbodies. (1) An artificial channel may
often constitute a navigable water of the
United States, even though it has been
privately developed and maintained, or
passes through private property. The test is
generally as developed above, that is,
whether the waterbody is capable of use to
transport interstate commerce. Canals
which connect two navigable waters of the
United States and which are used for
commerce clearly fall within the test, and
themselves become navigable. A canal
open to navigable waters of the United
States on only one end is itself navigable
where it in fact supports interstate
commerce. A canal or other artificial
waterbody that is subject to ebb and flow
of the tide is also a navigable water of the
United States.
(2) The artificial waterbody may be a
major portion of a river or harbor area or
merely a minor backwash, slip, or turning
area (see paragraph 329.12(b) of this Part).
(3) Private ownership of the lands
underlying the waterbody, or of the lands
through which it runs, does not preclude a
finding of navigability. Ownership does
become a controlling factor if a privately
constructed and operated canal is not used
to transport interstate commerce nor used
by the public; it is then not considered to
be a navigable water of the United States.
However, a private waterbody, even
though not itself navigable, may so affect
the navigable capacity of nearby waters as
to nevertheless be subject to certain
regulatory authorities.
(b) Non - existing improvements, past or
potential. A waterbody may also be
considered navigable depending on the
feasibility of use to transport interstate
commerce after the construction of
whatever "reasonable" improvements may
potentially be made. The improvement
need not exist, be planned, nor even
authorized: it is enough that potentially
they could be made. What is a
"reasonable" improvement is always a
matter of degree; there must be a balance
between cost and need at a time when the
improvement would be (or would have
been) useful. Thus, if an improvement
were "reasonable" at a time of past use, the
water was therefore navigable in law from
that time forward. The changes in
engineering practices or the coming of new
industries with varying classes of freight
may affect the type of the improvement:
those which may be entirely reasonable in
a thickly populated, highly developed
industrial region may have been entirely
too costly for the same region in the days
of the pioneers. The determination of
reasonable improvement is often similar to
the cost analyses presently made in Corps
of Engineers studies.
§ 329.9 Time at which commerce exists
or determination is made.
(a) Past use. A waterbody which was
navigable in its natural or improved state,
or which was susceptible of reasonable
improvement (as discussed in paragraph
329.8(b) of this Part) retains its character
as "navigable in law" even though it is not
presently used for commerce, or is
presently incapable of such use because of
changed conditions or the presence of
obstructions. Nor does absence of use
because of changed economic conditions
affect the legal character of the waterbody.
Once having attained the character of
"navigable in law," the Federal authority
remains in existence, and cannot be
abandoned by administrative officers or
court action. Nor is mere inattention or
ambiguous action by Congress an
abandonment of Federal control. However,
express statutory declarations by Congress
that described portions of a waterbody are
non - navigable, or have been abandoned,
are binding upon the Department of the
Army. Each statute must be carefully
examined, since Congress often reserves
the power to amend the Act, or assigns
special duties of supervision and control to
the Secretary of the Army or Chief of
Engineers.
(b) Future or potential use. Navigability
may also be found in a waterbody's
susceptibility for use in its ordinary
condition or by reasonable improvement to
transport interstate commerce. This may be
either in its natural or improved condition,
and may thus be existent although there
has been no actual use to date. Non -use in
the past therefore does not prevent
recognition of the potential for future use.

41253 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
§ 329.10 Existence of obstructions.
A stream may be navigable despite the
existence of falls, rapids, sand bars.
bridges, portages, shifting currents, or
similar obstructions. Thus, a waterway in
its original condition might have had
substantial obstructions which were
overcome by frontier boats and /or
portages, and nevertheless be a "'channel"
of commerce, even though boats had to be
removed from the water in some stretches,
or logs be brought around an obstruction
by means of artificial chutes. However, the
question is ultimately a matter of degree,
and it must be recognized that there is
some point beyond which navigability
could not be established,
§ 329.11 Geographic and jurisdictional
limits of rivers and lakes.
(a) Jurisdiction over entire bed. Federal
regulatory jurisdiction, and powers of
improvement for navigation, extend
laterally to the entire water surface and bed
of a navigable waterbody, which includes
all the land and waters below the ordinary
high water mark. Jurisdiction thus extends
to the edge (as determined above) of all
such waterbodies. even though portions of
the waterbody may be extremely shallow,
or obstructed by shoals, vegetation or other
barriers. Marshlands and similar areas are
thus considered navigable in law, but only
so far as the area is subject to inundation
by the ordinary high waters.
(1) The "ordinary high water mark" on
non -tidal rivers is the line on the shore
established by the fluctuations of water
and indicated by physical characteristics
such as a clear, natural line impressed on
the bank; shelving; changes in the
character of soil; destruction of terrestrial
vegetation; the presence of litter and
debris; or other appropriate means that
consider the characteristics of the
surrounding areas.
(2) Ownership of a river or lake bed or
of the lands between high and low water
marks will vary according to state law;
however, private ownership of the
underlying lands has no bearing on the
existence or extent of the dominant Federal
jurisdiction over a navigable waterbody.
(b) Upper limit of navigability. The
character of a river will, at some point
along its length, change from navigable to
non navigable. Very often that point will
be at a major fall or rapids, or other place
where there is a marked decrease in the
navigable capacity of the river. The upper
limit will therefore often be the same point
traditionally recognized as the head of
navigation, but may, under some of the
tests described above. be at some point yet
farther upstream.
§ 329.12 Geographic and jurisdictional
limits of oceanic and tidal waters.
(a) Ocean and coastal waters. The
navigable waters of the United States over
which Corps of Engineers regulatory
jurisdiction extends include all ocean and
coastal waters within a zone three
geographic (nautical) miles seaward from
the baseline (The Territorial Seas). Wider
zones are recognized for special regulatory
powers exercised over the outer
continental shelf. (See 33 CFR 322.3(b)).
(1) Baseline defined, Generally, where
the shore directly contacts the open sea,
the line on the shore reached by the
ordinary low tides comprises the baseline
from which the distance of three
geographic miles is measured. The
baseline has significance for both domestic
and international law and is subject to
precise definitions. Special problems arise
when offshore rocks, islands, or other
bodies exist, and the baseline may have to
be drawn seaward of such bodies.
(2) Shoreward limit of jurisdiction.
Regulatory jurisdiction in coastal areas
extends to the line on the shore reached by
the plane of the mean (average) high
water. Where precise determination of the
actual location of the line becomes
necessary, it must be established by survey
with reference to the available tidal datum,
preferably averaged over a period of 18.6
years. Less precise methods, such as
observation of the "apparent shoreline"
which is determined by reference to
physical markings, lines of vegetation, or
changes in type of vegetation, may be used
only where an estimate is needed of the
line reached by the mean high water.
(b) Bays and estuaries, Regulatory
jurisdiction extends to the entire surface
and bed of all waterbodies subject to tidal
action. Jurisdiction thus extends to the
edge (as determined by paragraph (a)(2) of
this section) of all such waterbodies, even
though portions of the waterbody may be
extremely shallow, or obstructed by
shoals, vegetation, or other barriers.
Marshlands and similar areas are thus
considered "navigable in law," but only so
far as the area is subject to inundation by
the mean high waters. The relevant test is
therefore the presence of the mean high
tidal waters, and not the general test
described above, which generally applies
to inland rivers and lakes.
§ 329.13 Geographic Limits: shifting
boundaries.
Permanent changes of the shoreline
configuration result in similar alterations
of the boundaries of the navigable waters
of the United States.
Thus, gradual changes which are due to
natural causes and are perceptible only
over some period of time constitute
changes in the bed of a waterbody which
also change the shoreline boundaries of the
navigable waters of the United States.
However, an area will remain "navigable
in law," even though no longer covered
with water, whenever the change has
occurred suddenly, or was caused by
artificial forces intended to produce that
change. For example, shifting sand bars
within a river or estuary remain part of the
navigable water of the United States,
regardless that they may be dry at a
particular point in time.
§ 329.14 Determination of navigability.
(a) Effect on determinations. Although
conclusive determinations of navigability
can be made only by federal Courts, those
made by federal agencies are nevertheless
accorded substantial weight by the courts.
It is therefore necessary that when
jurisdictional questions arise, district
personnel carefully investigate those
waters which may be subject to Federal
regulatory jurisdiction under guidelines set
out above, as the resulting determination
may have substantial impact upon a
judicial body. Official determinations by
an agency made in the past can be revised
or reversed as necessary to reflect changed
rules or interpretations of the law.
(b) Procedures of determination. A
determination whether a waterbody is a
navigable water of the United States will
be made by the division engineer, and will
be based on a report of findings prepared
at the district level in accordance with the
criteria set out in this regulation. Each
report of findings will be prepared by the
district engineer, accompanied by an
opinion of the district counsel, and
forwarded to the division engineer for final
determination. Each report of findings will
be based substantially on applicable
portions of the format in paragraph (c) of
this section.
(c) Suggested format of report of
findings:
(1) Name of waterbody:
(2) Tributary to:
(3) Physical characteristics:
(i) Type: (river, bay, slough, estuary,
etc.)
(ii) Length:
(iii) Approximate discharge volumes:
Maximum, Minimum, Mean:
(iv) Fall per mile:
(v) Extent of tidal influence:
(vi) Range between ordinary high and
ordinary low water:

41254 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(vii) Description of improvements to
navigation not listed in paragraph (c)(5) of
this section:
(4) Nature and location of significant
obstructions to navigation in portions of
the waterbody used or potentially capable
of use in interstate commerce:
(5) Authorized projects:
(i) Nature, condition and location of any
improvements made under projects
authorized by Congress:
(ii) Description of projects authorized
but not constructed:
(iii) List of known survey documents or
reports describing the waterbody:
(6) Past or present interstate commerce:
(i) General types, extent, and period in
time:
(ii) Documentation if necessary:
(7) Potential use for interstate
commerce, if applicable:
(i) If in natural condition:
(ii) If improved:
(8) Nature of jurisdiction known to have
been exercised by Federal agencies if any:
(9) State or Federal court decisions
relating to navigability of the waterbody, if
any:
(10) Remarks:
(11) Finding of navigability (with date)
and recommendation for determination:
§ 329.15 Inquiries regarding
determinations.
(a) Findings and determinations should
be made whenever a question arises
regarding the navigability of a waterbody.
Where no determination has been made, a
report of findings will be prepared and
forwarded to the division engineer, as
described above. Inquiries may be
answered by an interim reply which
indicates that a final agency determination
must be made by the division engineer. If a
need develops for an emergency
determination, district engineers may act in
reliance on a finding prepared as in
Section 329.14 of this Part. The report of
findings should then be forwarded to the
division engineer on an expedited basis.
(b) Where determinations have been
made by the division engineer, inquiries
regarding the navigability of specific
portions of waterbodies covered by these
determinations may be answered as
follows:
This Department, in the administration
of the laws enacted by Congress for the
protection and preservation of the
navigable waters of the United States, has
determined that
(River) (Bay) (Lake, etc.) is a
navigable water of the United States from
to . Actions which modify or
otherwise affect those waters are subject to
the jurisdiction of this
Department, whether such actions occur
within or outside the navigable areas.
(c) Specific inquiries regarding the
jurisdiction of the Corps of Engineers can
be answered only after a determination
whether (1) the waters are navigable
waters of the United States or (2) if not
navigable, whether the proposed type of
activity may nevertheless so affect the
navigable waters of the United States that
the assertion of regulatory jurisdiction is
deemed necessary.
§ 329.16 Use and maintenance of lists of
determinations.
(a) Tabulated lists of final
determinations of navigability are to be
maintained in each district office, and be
updated as necessitated by court decisions,
jurisdictional inquiries, or other changed
conditions.
(b) It should be noted that the lists
represent only those waterbodies for which
determinations have been made: absence
from that list should not be taken as an
indication that the waterbody is not
navigable.
(c) Deletions from the list are not
authorized. If a change in status of a
waterbody from navigable to non-
navigable is deemed necessary, an updated
finding should be forwarded to the division
engineer: changes are not considered final
until a determination has been made by the
division engineer.
PART 330 — NATIONWIDE PERMITS
Sec.
330.1 General.
330.2 Definitions.
330.3 Activities occurring before certain
dates.
330.4 Public notice.
330.5 Nationwide permits.
330.6 Management practices.
330.7 Notification procedures.
330.8 Discretionary Authority.
330.9 State water quality certification.
330.10 Coastal Zone Management
consistency determination.
330.11 Nationwide permit verification.
330.12 Expiration of nationwide permits.
Authority: 33 U.S.C. 401 et seq.: 33
U.S.C. 1344: 33 U.S.C. 1413.
§ 330.1 General.
The purpose of this regulation is to
describe the Department of the Army's
(DA) nationwide permit program and to
list all current nationwide permits which
have been issued by publication herein. A
nationwide permit is a form of general
permit which may authorize activities
throughout the nation. (Another type of
general permit is a "regional permit" and is
issued by division or district engineers on
a regional basis in accordance with 33
CFR Part 325). Copies of regional
conditions and modifications, if any, to the
nationwide permits can be obtained from
the appropriate district engineer.
Nationwide permits are designed to allow
certain activities to occur with little, if any,
delay or paperwork. Nationwide permits
are valid only if the conditions applicable
to the nationwide permits are met. Failure
to comply with a condition does not
necessarily mean the activity cannot be
authorized but rather that the activity can
only be authorized by an individual or
regional permit. Several of the nationwide
permits require notification to the district
engineer prior to commencement of the
authorized activity. The procedures for this
notification are located at § 330.7 of this
Part. Nationwide permits can be issued to
satisfy the requirements of section 10 of
the Rivers and Harbors Act of 1899,
section 404 of the Clean Water Act. and /or
section 103 of the Marine Protection,
Research and Sanctuaries Act. The
applicable authority is indicated at the end
of each nationwide permit.
§ 330.2 Definitions.
(a) The definitions of 33 CFR Parts
321 -329 are applicable to the terms used
in this Part.
(b) The term "headwaters" means the
point on a non -tidal stream above which
the average annual flow is less than five
cubic feet per second. The district engineer
may estimate this point from available data
by using the mean annual area
precipitation, area drainage basin maps,
and the average runoff coefficient, or by
similar means. For streams that are dry for
long periods of the year, district engineers
may establish the "headwaters" as that
point on the stream where a flow of five
cubic feet per second is equaled or
exceeded 50 percent of the time.
(c) Discretionary authority means the
authority delegated to division engineers in
§ 330.8 of this part to override provisions
of nationwide permits, to add regional
conditions, or to require individual permit
application.
§ 330.3 Activities occurring before
certain dates.
The following activities were permitted
by nationwide permits issued on July 19,
1977, and unless modified do not require
further permitting:
(a) Discharges of dredged or fill
material into waters of the United States
outside the limits of navigable waters of
the United States that occurred before the
phase -in dates which began. July 25, 1975,
and extended section 404 jurisdiction to all
waters of the United

41255 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
States. (These phase -in dates are: After
July 25. 1975, discharges into navigable
waters of the United States and adjacent
wetlands; after September 1. 1976,
discharges into navigable waters of the
United States and their primary tributaries,
including adjacent wetlands, and into
natural lakes, greater than 5 acres in
surface area: and after July 1, 1977,
discharges into all waters of the United
States.) (Section 404)
(b) Structures or work completed before
December 18, 1968, or in waterbodies over
which the district engineer had not asserted
jurisdiction at the time the activity
occurred provided, in both instances, there
is no interference with navigation. (Section
10)
§ 330.4 Public notice.
(a) Chief of Engineers. Upon proposed
issuance of new nationwide permits,
modification to, or reissuance of, existing
nationwide permits, the Chief of Engineers
will publish a notice in the Federal
Register seeking public comments and
including the opportunity for a public
hearing. This notice will state the
availability of information at the Office of
the Chief of Engineers and at all district
offices which reveals the Corps'
provisional determination that the
proposed activities comply with the
requirements for issuance under general
permit authority. The Chief of Engineers
will prepare this information which will be
supplemented, if appropriate, by division
engineers.
(b) District engineers. Concurrent with
publication in the Federal Register of
proposed, new, or reissued nationwide
permits by the Chief of Engineers, district
engineers will so notify the known
interested public by an appropriate notice.
The notice will include regional
conditions, if any, developed by the
division engineer.
§ 330.5 Nationwide permits.
(a) Authorized activities. The following
activities are hereby permitted provided
they meet the conditions listed in
paragraph (b) of this section and, where
required, comply with the notification
procedures, of § 330.7.
(1) The placement of aids to navigation
and regulatory markers which are
approved by and installed in accordance
with the requirements of the U.S. Coast
Guard (33 CFR Part 66, Subchapter C).
(Section 10)
(2) Structures constructed in artificial
canals within principally residential
developments where the connection of the
canal to a navigable water of the United
States has been previously authorized (see
33 CFR Part 322.5(g)). (Section 10)
(3) The repair, rehabilitation, or
replacement of any previously authorized,
currently serviceable, structure or fill, or of
any currently serviceable structure or fill
constructed prior to the requirement for
authorization, provided such repair,
rehabilitation, or replacement does not
result in a deviation from the plans of the
original structure or fill, and further
provided that the structure or fill has not
been put to uses differing from uses
specified for it in any permit authorizing
its original construction. Minor deviations
due to changes in materials or construction
techniques and which are necessary to
make repair, rehabilitation, or replacement
are permitted. Maintenance dredging and
beach restoration are not authorized by this
nationwide permit. (Section 10 and 404)
(4) Fish and wildlife harvesting devices
and activities such as pound nets, crab
traps, eel pots, lobster traps, duck blinds,
and clam and oyster digging. (Section 10)
(5) Staff gages, tide gages, water
recording devices, water quality testing
and improvement devices, and similar
scientific structures. (Section 10)
(6) Survey activities including core
sampling, seismic exploratory operations,
and plugging of seismic shot holes and
other exploratory-type bore holes. Drilling
of exploration -type bore holes for oil and
gas exploration is not authorized by this
nationwide permit; the plugging of such
holes is authorized, (Sections 10 and 404).
(7) Outfall structures and associated
intake structures where the effluent from
that outfall has been permitted under the
National Pollutant Discharge Elimination
System program (Section 402 of the Clean
Water Act) (see 40 CFR Part 122)
provided that the district or division
engineer makes a determination that the
individual and cumulative adverse
environmental effects of the structure itself
are minimal in accordance with § 330.7
(c)(2) and (d). Intake structures per se are
not included —only those directly
associated with an outfall structure are
covered by this nationwide permit. This
permit includes minor excavation, filling
and other work associated with installation
of the intake and outfall structures.
(Sections 10 and 404)
(8) Structures for the exploration.
production, and transportation of oil, gas,
and minerals on the outer continental shelf
within areas leased for such purposes by
the Department of Interior, Mineral
Management Service, provided those
structures are not placed within the limits
of any designated shipping safety fairway
or traffic
separation scheme (where such limits have
not been designated or where changes are
anticipated, district engineers will consider
recommending the discretionary authority
provided by 330.8 of this Part, and further
subject to the provisions of the fairway
regulations in 33 CFR 322.5(1) (Section
10).
(9) Structures placed within anchorage
or fleeting areas to facilitate moorage of
vessels where such areas have been
established for that purpose by the U.S.
Coast Guard. (Section 10)
(10) Non - commercial, single -boat,
mooring buoys. (Section 10)
(11) Temporary buoys and markers
placed for recreational use such as water
skiing and boat racing provided that the
buoy or marker is removed within 30 days
after its use has been discontinued. At
Corps of Engineers reservoirs, the
reservoir manager must approve each buoy
or marker individually. (Section 10)
(12) Discharge of material for backfill
or bedding for utility lines, including
outfall and intake structures, provided
there is no change in preconstruction
bottom contours (excess material must be
removed to an upland disposal area). A
"utility line" is defined as any pipe or
pipeline for the transportation of any
gaseous, liquid, liquifiable, or slurry
substance, for any purpose, and any cable,
line, or wire for the transmission for any
purpose of electrical energy, telephone and
telegraph messages, and radio and
television communication. (The utility line
and outfall and intake structures will
require a Section 10 permit if in navigable
waters of the United States. See 33 CFR
Part 322. See also paragraph (a)(7) of this
section). (Section 404)
(13) Bank stabilization activities
provided:
(i) The bank stabilization activity is less
than 500 feet in length;
(ii) The activity is necessary for erosion
prevention;
(iii) The activity is limited to less than
an average of one cubic yard per running
foot placed along the bank within waters
of the United States;
(iv) No material is placed in excess of
the minimum needed for erosion
protection;
(v) No material is placed in any wetland
area;
(vi) No material is placed in any
location or in any manner so as to impair
surface water flow into or out of any
wetland area;
(vii) Only clean material free of waste
metal products, organic materials,
unsightly debris, etc. is used; and
(viii) The activity is a single and
complete project. (Sections 10 and 404)

41256 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
(14) Minor road crossing fills including
all attendant features, both temporary and
permanent, that are part of a single and
complete project for crossing of a non -tidal
waterbody, provided that the crossing is
culverted, bridged or otherwise designed to
prevent the restriction of, and to withstand,
expected high flows and provided further
that discharges into any wetlands adjacent
to the waterbody do not extend beyond
100 feet on either side of the ordinary high
water mark of that waterbody. A "minor
road crossing fill" is defined as a crossing
that involves the discharge of less than 200
cubic yards of fill material below the plane
of ordinary high water. The crossing may
require a permit from the US Coast Guard
if located in navigable waters of the United
States. Some road fills may be eligible for
an exemption from the need for a Section
404 permit altogether (see 33 CFR 323.4).
District engineers are authorized, where
local circumstances indicate the need, to
define the term "expected high flows" for
the purpose of establishing applicability of
this nationwide permit. (Sections 10 and
404)
(15) Discharges of dredged or fill
material incidental to the construction of
bridges across navigable waters of the
United States, including cofferdams,
abutments, foundation seals, piers, and
temporary construction and access fills
provided such discharge has been
authorized by the US Coast Guard as part
of the bridge permit. Causeways and
approach fills are not included in this
nationwide permit and will require an
individual or regional Section 404 permit.
(Section 404)
(16) Return water from an upland,
contained dredged material disposal area
(see 33 CFR 323.2(d)) provided the state
has issued a site specific or generic
certification under section 401 of the Clean
Water Act (see also 33 CFR 325.2(b)(1)).
The dredging itself requires a Section 10
permit if located in navigable waters of the
United States. The return water or runoff
from a contained disposal area is
administratively defined as a discharge of
dredged material by 33 CFR 323.2(d) even
though the disposal itself occurs on the
upland and thus does not require a section
404 permit. This nationwide permit
satisfies the technical requirement for a
section 404 permit for the return water
where the quality of the return water is
controlled by the state through the section
401 certification procedures. (Section 404)
(17) Fills associated with small
hydropower projects at existing reservoirs
where the project which includes the fill is
licensed by the Federal Energy Regulatory
Commission (FERC) under the Federal
Power Act of 1920, as amended; has a
total generating capacity of not more than
1500 kw (2.000 horsepower); qualifies for
the short -form licensing procedures of the
FERC (see 18 CFR 4.61); and the district
or division engineer makes a determination
that the individual and cumulative adverse
effects on the environment are minimal in
accordance with § 330.7 (c)(2) and (d).
(Section 404)
(18) Discharges of dredged or fill
material into all waters of the United
States other than wetlands that do not
exceed ten cubic yards as part of a single
and complete project provided the material
is not placed for the purpose of stream
diversion. (Sections 10 and 404)
(19) Dredging of no more than ten cubic
yards from navigable waters of the United
States as part of a single and complete
project. This permit does not authorize the
connection of canals or other artificial
waterways to navigable waters of the
United States (see Section 33 CFR
322.5(g)). (Section 10)
(20) Structures, work, and discharges
for the containment and cleanup of oil and
hazardous substances which are subject to
the National Oil and Hazardous
Substances Pollution Contingency Plan,
(40 CFR Part 300), provided the Regional
Response Team which is activated under
the Plan concurs with the proposed
containment and cleanup action. (Sections
10 and 404)
(21) Structures, work, discharges
associated with surface coal mining
activities provided they were authorized by
the Department of the Interior, Office of
Surface Mining, or by states with approved
programs under Title V of the Surface
Mining Control and Reclamation Act of
1977; the appropriate district engineer is
given the opportunity to review the Title V
permit application and all relevant Office
of Surface Mining or state (as the case may
be) documentation prior to any decision on
that application; and the district or division
engineer makes a determination that the
individual and cumulative adverse effects
on the environment from such structures,
work, or discharges are minimal in
accordance with § § 330.7 (c) (2) and (3)
and (d). (Sections 10 and 404)
(22) Minor work, fills, or temporary
structures required for the removal of
wrecked, abandoned, or disabled vessels,
or the removal of man -made obstructions
to navigation. This permit does not
authorize maintenance dredging, shoal
removal, or river bank snagging. (Sections
10 and 404)
(23) Activities, work, and discharges
undertaken, assisted, authorized, regulated,
funded, or financed, in whole or in part, by
another federal agency or department
where that agency or department has
determined, pursuant to the CEQ
Regulation for Implementing the
Procedural Provisions of the National
Environmental Policy Act (40 CFR Part
1500 et seq.), that the activity, work, or
discharge is categorically excluded from
environmental documentation because it is
included within a category of actions
which neither individually nor
cumulatively have a significant effect on
the human environment, and the Office of
the Chief of Engineers (ATTN: DAEN-
CWO—N) has been furnished notice of
the agency's or department's application
for the categorical exclusion and concurs
with that determination. Prior to approval
for purposes of this nationwide permit of
any agency's categorical exclusions, the
Chief of Engineers will solicit comments
through publication in the Federal
Rte. (Sections 10 and 404)
(24) Any activity permitted by a state
administering its own Section 404 permit
program for the discharge of dredged or
fill material authorized at 33 U.S.C.
1344(g) —(1) is permitted pursuant to
section 10 of the Rivers and Harbors Act
of 1899. Those activities which do not
involve a section 404 state permit are not
included in this nationwide permit but
many will be exempted by section 154 of
Pub. L. 94 -587. (See 33 CFR
322.3(a)(2)). (Section 10)
(25) Discharge of concrete into tightly
sealed forms or cells where the concrete is
used as a structural member which would
not otherwise be subject to Clean Water
Act jurisdiction. (Section 404)
(26) Discharges of dredged or fill
material into the waters listed in
paragraphs (a)(26) (i) and (ii) of this
section except those which cause the loss
or substantial adverse modificatioil of 10
acres or more of such waters of the United
States, including wetlands. For discharges
which cause the loss or substantial adverse
modification of 1 to 10 acres of such
waters, including wetlands, notification to
the district engineer is required in
accordance with section 330.7 of this
section. (Section 404).
(i) Non -tidal rivers, streams, and their
lakes and impoundments, including
adjacent wetlands, that are located above
the headwaters.
(ii) Other non -tidal waters of the United
States, including adjacent wetlands, that
are not part of a surface tributary system to
interstate waters or

41257 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
navigable waters of the United States (i.e.,
isolated waters).
(b) Conditions. The following special
conditions must be followed in order for
the nationwide permits identified in
paragraph (a) of this section to be valid:
(1) That any discharge of dredged or fill
material will not occur in the proximity of
a public water supply intake.
(2) That any discharge of dredged or fill
material will not occur in areas of
concentrated shellfish production unless
the discharge is directly related to a
shellfish harvesting activity authorized by
paragraph (a)(4) of this section.
(3) That the activity will not jeopardize
a threatened or endangered species as
identified under the Endangered Species
Act (ESA), or destroy or adversely modify
the critical habitat of such species. In the
case of federal agencies, it is the agencies'
responsibility to comply with the
requirements of the ESA. If the activity
may adversely affect any listed species or
critical habitat the district engineer must
initiate Section 7 consultation in
accordance with the ESA. in such cases,
the district engineer may:
(i) Initiate section 7 consultation and
then, upon completion, authorize the
activity under the nationwide permit by
adding, if appropriate, activity specific
conditions, or
(ii) Prior to or concurrent with section 7
consultation he may recommend
discretionary authority (See section 330.8)
or use modification, suspension, or
revocation procedures (See 33 CFR
325.7).
(4) That the activity shall not
significantly disrupt the movement of
those species of aquatic life indigenous to
the waterbody (unless the primary purpose
of the fill is to impound water);
(5) That any discharge of dredged or fill
material shall consist of suitable material
free from toxic pollutants (see section 307
of the Clean Water Act) in toxic amounts;
(6) That any structure or fill authorized
shall be properly maintained.
(7) That the activity will not occur in a
component of the National Wild and
Scenic River System; nor in a river
officially designated by Congress as a
"study river" for possible inclusion in the
system, while the river is in an official
study status;
(8) That the activity shall not cause an
unacceptable interference with navigation;
(9) That, if the activity may adversely
affect historic properties which the
National Park Service has listed on, or
determined eligible for listing on, the
National Register of Historic Places, the
permittee will notify the district engineer.
If the district engineer determines that such
historic properties may be adversely
affected, he will provide the Advisory
Council on Historic Preservation an
opportunity to comment on the effects on
such historic properties or he will consider
modification, suspension, or revocation in
accordance with 33 CFR 325.7.
Furthermore, that, if the permittee before
or during prosecution of the work
authorized, encounters a historic property
that has not been listed or determined
eligible for listing on the National
Register, but which may be eligible for
listing in the National Register. he shall
immediately notify the district engineer;
(10) That the construction or operation
of the activity will not impair reserved
tribal rights, including but not limited to,
reserved water rights and treaty fishing and
hunting rights;
(11) That in certain states, an individual
state water quality certification must be
obtained or waived (See § 330.9);
(12) That in certain states, an individual
state coastal zone management consistency
concurrence must be obtained or waived
(See § 330.10);
(13) That the activity will comply with
regional conditions which may have been
added by the division engineer (See §
330.8(a)); and
(14) That the management practices
listed in § 330.6 of this part shall be
followed to the maximum extent
practicable.
(c) Further information. (1) District
engineers are authorized to determine if an
activity complies with the terms and
conditions of a nationwide permit unless
that decision must be made by the division
engineer in accordance with § 330.7.
(2) Nationwide permits do not obviate
the need to obtain other Federal, state or
local authorizations required by law,
(3) Nationwide permits do not grant any
property rights or exclusive privileges.
(4) Nationwide permits do not authorize
any injury to the property or rights of
others.
(5) Nationwide permits do not authorize
interference with any existing or proposed
Federal project.
(d) Modification, Suspension or
Revocation of Nationwide Permits. The
Chief of Engineers may modify, suspend,
or revoke nationwide permits in
accordance with the relevant procedures of
33 CFR 325.7. Such authority includes,
but is not limited to: adding individual,
regional, or nationwide conditions;
revoking authorization for a category of
activities or a category of waters by
requiring individual or regional permits; or
revoking an authorization on a case -by-
case basis. This authority is not limited to
concerns for the aquatic environment as is
the discretionary authority in § 330.8.
§ 330.6 Management practices.
(a) In addition to the conditions
specified in § 330.5 of this Part, the
following management practices shall be
followed, to the maximum extent
practicable, in order to minimize the
adverse effects of these discharges on the
aquatic environment. Failure to comply
with these practices may be cause for the
district engineer to recommend, or the
division engineer to take, discretionary
authority to regulate the activity on an
individual or regional basis pursuant to §
330.8 of this Part.
(1) Discharges of dredged or fill
material into waters of the United States
shall be avoided or minimized through the
use of other practical alternatives.
(2) Discharges in spawning areas during
spawning seasons shall be avoided.
(3) Discharges shall not restrict or
impede the movement of aquatic species
indigenous to the waters or the passage of
normal or expected high flows or cause the
relocation of the water (unless the primary
purpose of the fill is to impound waters).
(4) If the discharge creates an
impoundment of water, adverse impacts on
the aquatic system caused by the
accelerated passage of water and /or the
restriction of its flow shall be minimized,
(5) Discharge in wetlands dress shall be
avoided.
(6) Heavy equipment working in
wetlands shall be placed on mats.
(7) Discharges into breeding areas for
migratory waterfowl shall be avoided.
(8) All temporary fills shall be removed
in their entirety.
§ 330.7 Notification procedures.
(a) The general permittee shall not begin
discharges requiring pre- discharge
notification pursuant to the nationwide
permit at § 330.5(a)(26):
(1) Until notified by the district engineer
that the work may proceed under the
nationwide permit with any special
conditions imposed by the district or
division engineer; or
(2) if notified by the district or division
engineer that an individual permit may be
required; or
(3) Unless 20 days have passed from
receipt of the notification by the district
engineer and no notice has been

41258 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
received from the district or division
engineer.
(b) Notification pursuant to the
nationwide permit at § 330.5(a)(26) must
be in writing and include the information
listed below. Notification is not an
admission that the proposed work would
result in more than minimal impacts to
waters of the United States; it simply
allows the district or division engineer to
evaluate specific activities for compliance
with general permit criteria.
(1) Name, address, and phone number
of the general permittee;
(2) Location of the planned work; (3)
Brief description of the proposed work, its
purpose, and the approximate size of the
waters, including wetlands, which would
be lost or substantially adversely modified
as a result of the work; and
(4) Any specific information required by
the nationwide permit and any other
information that the permittee believes is
appropriate.
(c) District engineer review of
notification. Upon receipt of notification,
the district engineer will promptly review
the general permittee's notification to
determine which of the following
procedures should be followed:
(1) If the nationwide permit at §
330.5(a)(26) is involved and the district
engineer determines either, (i) the
proposed activity falls within a class of
discharges or will occur in a category of
waters which has been previously
identified by the Regional Administrator,
Environmental Protection Agency; the
Regional Director, Fish and Wildlife
Service; the Regional Director, National
Marine Fisheries Service; or the heads of
the appropriate state natural resource
agencies as being of particular interest to
those agencies; or (ii) the particular
discharge has not been previously
identified but he believes it may be of
importance to those agencies, he will
promptly forward the notification to the
division engineer and the head and
appropriate staff officials of those agencies
to afford those agencies an adequate
opportunity before such discharge occurs
to consider such notification and express
their views, if any, to the district engineer
concerning whether individual permits
should be required.
(2) If the nationwide permits at §
330.5(a) (7), (17), or (21) are involved and
the Environmental Protection Agency, the
Fish and Wildlife Service, the National
Marine Fisheries Service or the
appropriate state natural resource or water
quality agencies forward concerns to the
district engineer, he will forward those
concerns to the division engineer
together with a statement of the factors
pertinent to a determination of the
environmental effects of the proposed
discharges, including those set forth in the
404(b)(1) guidelines, and his views on the
specific points raised by those agencies.
(3) If the nationwide permit at §
330.5(a)(21) is involved the district
engineer will give notice to the
Environmental Protection Agency and the
appropriate state water quality agency.
This notice will include as a minimum the
information required by paragraph (b) of
this section.
(d) Division engineer review of
notification. The division engineer will
review all notifications referred to him in
accordance with paragraph (c)(1) or (c)(2)
of this section. The division engineer will
require an individual permit when he
determines that an activity does not
comply with the terms or conditions of a
nationwide permit or does not meet the
definition of a general permit (see 33 CFR
322.2(f) and 323.2(n)) including
discharges under the nationwide permit at
§ 330.5(a)(26) which have more than
minimal adverse environmental effects on
the aquatic environment when viewed
either cumulatively or separately. In
reaching his decision, he will review
factors pertinent to a determination of the
environmental effects of the proposed
discharge, including those set forth in the
404(b)(1) guidelines, and will give full
consideration to the views, if any, of the
federal and state natural resource agencies
identified in paragraph (c) of this section.
If the division engineer decides that an
individual permit is not required, and a
federal or appropriate state natural
resource agency has indicated in writing
that an activity may result in more than
minimal adverse environmental impacts,
he will prepare a written statement
available to the public on request, which
sets forth his response to the specific
points raised by the commenting agency.
When the division engineer reaches his
decision he will notify the district
engineer, who will immediately notify the
general permittee of the division
engineer's decision.
§ 330.8 Discretionary authority
Except as provided in paragraphs (c) (2)
and (d) of this section, division engineers
on their own initiative or upon
recommendation of a district engineer are
authorized to modify nationwide permits
by adding regional conditions or to
override nationwide permits by requiring
individual permit applications on a case -
by -case basis, for a category of activities,
or in specific geographic areas.
Discretionary authority will be
based on concerns for the aquatic
environment as expressed in the guidelines
published by EPA pursuant to section
404(b)(1). (40 CFR Part 230)
(a) Activity Specific conditions. Division
engineers are authorized to modify
nationwide permits by adding individual
conditions on a case -by -case basis
applicable to certain activities within their
division. Activity specific conditions may
be added by the District Engineer in
instances where there is mutual agreement
between the district engineer and the
permittee. Furthermore, district engineers
will condition NWPs with conditions
which have been imposed on a state
section 401 water quality certification
issued pursuant to § 330.9 of this Part.
(b) Regional conditions. Division
engineers are authorized to modify
nationwide permits by adding conditions
on a generic basis applicable to certain
activities or specific geographic areas
within their divisions. In developing
regional conditions, division and district
engineers will follow standard permit
processing procedures as prescribed in 33
CFR Part 325 applying the evaluation
criteria of 33 CFR Part 320 and
appropriate parts of 33 CFR Parts 321,
322, 323, and 324. Division and district
engineers will take appropriate measures
to inform the public of the additional
conditions.
(c) Individual permits—(]) Case -by-
Case. In nationwide permit cases where
additional individual or regional
conditioning may not be sufficient to
address concerns for the aquatic
environment or where there is not
sufficient time to develop such conditions
under paragraphs (a) or (b) of this section,
the division engineer may suspend use of
the nationwide permit and require an
individual permit application on a case -by-
case basis. The district engineer will
evaluate the application and will either
issue or deny a permit. However, if at any
time the reason for taking discretionary
authority is satisfied, then the division
engineer may remove the suspension,
reactivating authority under the nationwide
permit. Where time is of the essence, the
district engineer may telephonically
recommend that the division engineer
assert discretionary authority to require an
individual permit application for a specific
activity. If the division engineer concurs,
he may orally authorize the district
engineer to implement that authority. Oral
authorization should be followed by
written confirmation.
(2) Category. Additionally, after notice
and opportunity for public hearing,
division engineers may decide that
individual permit applications

41259 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
should be required for categories of
activities, or in specific geographic areas.
However, only the Chief of Engineers may
modify, suspend, or revoke nationwide
permits on a statewide or nationwide basis.
The division engineer will announce the
decision to persons affected by the action.
The district engineer will then regulate the
activity or activities by processing an
application(s) for an individual permit(s)
pursuant to 33 CFR Part 325.
(d) For the nationwide permit found at §
330.5(a)(26). after the applicable
provisions of § 330.7(a) (1) and (3) have
been satisfied, the permittee's right to
proceed under the general permit may be
modified, suspended, or revoked only in
accordance with the procedure set forth in
33 CFR 325.7.
(e) A copy of all modifications or
revocations of activities covered by
nationwide permits will be forwarded to
the Office of the Chief of Engineers,
ATFN: DAEN— CWO - -N.
§ 330.9 State water quality certification.
(a) State water quality certification is
required for nationwide permits which
may result in any discharge into waters of
the United States. If a state issues a water
quality certification which includes special
conditions, the district engineer will add
these conditions as conditions of the
nationwide permit in that state. However,
if such conditions do not comply with the
provisions of 33 CFR 325.4 or if a state
denies a required 401 certification for a
particular nationwide permit, authorization
for all discharges covered by the
nationwide permit within the state is
denied without prejudice until the state
issues an individual or generic water
quality certification or waives its right to
do so. A district engineer will not process
an individual permit application for an
activity for which authorization has been
denied without prejudice under the
nationwide permit program. However, if
the division engineer determines that it
would otherwise be appropriate to exercise
his discretionary authority, pursuant to §
330.8, to override the nationwide permit or
permits in question, he may do so, and the
district engineer may proceed with the
processing of individual permit
applications. In instances where a state has
denied the 401 water quality certification
for discharges under a particular
nationwide permit, applicants must furnish
the district engineer with an individual or
generic 401 certification or a copy of the
application to the state for the certification.
If a state fails to act within a reasonable
period of time (see § 325 2(b)(1)(ii)), a
waiver will be presumed. Upon receipt of
an individual or generic certification or a
waiver of certification, the proposed work
is authorized under the nationwide permit.
If a state issues a conditioned individual
certification, the district engineer will
include those conditions that comply with
33 CFR 325.4 as special conditions of the
nationwide permit (see 33 CFR Part
330.8(a)) and notify the applicant that the
work is authorized under the nationwide
permit provided all conditions are met.
(b) Certification requirements for
nationwide permits fall into the following
general categories:
(1) No certification required.
Nationwide permits numbered 1, 2, 4, 5, 8,
9, 10, 11, and 19 do not involve activities
which may result in a discharge and
therefore 401 certification is not
applicable.
(2) Certification sometimes required.
Nationwide permits numbered 3, 6, 7, 13,
20, 21, 22, and 23 each involve various
activities, some of which may result in a
discharge and require certification, and
others of which do not. State denial of
certification for any specific nationwide
permit in this category affects only those
activities involving discharges, Those not
involving discharges remain in effect.
(3) Certification required. Nationwide
permits numbered 12, 14, 15, 16, 17, 18,
24, 25, and 26 involve activities which
would result in discharges and therefore
401 certification is required.
(c) District engineers will take
appropriate measures to inform the public
of which waterbodies or regions within the
state, and for which nationwide permits, an
individual 401 water quality certification is
required.
§ 330.10 Coastal zone management
consistency determination.
In instances where a state has not
concurred that a particular nationwide
permit is consistent with an approved
coastal zone management plan,
authorization for all activities subject to
such nationwide permit within or affecting
the state coastal zone agency's area of
authority is denied without prejudice until
the applicant has furnished to the district
engineer a coastal zone management
consistency determination pursuant to
section 307 of the Coastal Zone
Management Act and the state has
concurred in it. If a state does not act on an
applicant's consistency statement within
six months after receipt by the state,
consistency shall be presumed. District
engineers will take appropriate measures
to inform the public of which waterbodies
or regions within the state, and for which
nationwide permits, such individual
consistency determination is required.
District engineers will not process any
permit application for an activity which
has been denied without prejudice under
the nationwide permit program. However,
if the division engineer determines that it
would otherwise be appropriate to exercise
his discretionary authority, pursuant to §
330.8, to override the nationwide permit or
permits in question, he may do so, and the
district engineer may proceed with the
processing of individual permit
applications.
§ 330.11 Nationwide permit verification.
(a) General permittees may, and in some
cases must, request from a district engineer
confirmation that an activity complies with
the terms and conditions of a nationwide
permit. District engineers will respond
promptly to such requests. The response
will state that the verification is valid for a
period of no more than two years or a
lesser period of time if deemed
appropriate. Section 330.12 takes
precedence over this section, therefore, it
is incumbent upon the permittee to remain
informed of changes to nationwide
permits.
(b) If the district engineer decides that
an activity does not comply with the terms
or conditions of a nationwide permit, he
will so notify the person desiring to do the
work and indicate that an individual permit
is required (unless covered by a regional
permit).
(c) If the district engineer decides that
an activity does comply with the terms and
conditions of a nationwide permit he will
so notify the general permittee. In such
cases, as with any activity which qualifies
under a nationwide permit, the general
permittee's right to proceed with the
activities under the nationwide permit may
be modified, suspended, or revoked only in
accordance with the procedures of 33 CFR
325.7.
§ 330.12 Expiration of nationwide
permits.
The Chief of Engineers will review
nationwide permits on a continual basis,
and will decide to either modify, reissue
(extend) or revoke the permits at least
every five years. If a nationwide permit is
not modified or reissued within five years
of publication in the Federal Resister, it
automatically expires and becomes null
and void. Authorization of activities which
have commenced or are under contract to
commence in reliance upon a nationwide
permit will remain in effect provided the
activity is completed within twelve months
of the date a nationwide permit has expired
or was revoked unless discretionary permit
authority has been exercised in

41260 Federal Register / Vol. 51, No. 219 / Thursday, November 13, 1986 / Rules and Regulations
accordance with § 330.8 of this Part or
modification, suspension, or revocation
procedures are initiated in accordance with
the relevant provisions of 33 CFR 325.7.
Activities completed under the
authorization of a nationwide permit which
was in effect at the time the activity was
completed continue to be authorized by
that nationwide permit.
[FR Doc. 86 -25301 Filed 11- 12 -86; 8:45
am]
BILLING CODE 3710 -92 -M