[Federal Register Volume 59, Number 23 (Thursday, February 3, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-2429]
[[Page Unknown]]
[Federal Register: February 3, 1994]
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DEPARTMENT OF DEFENSE
Corps of Engineers
Regulatory Guidance Letters Issued by the Corps of Engineers
AGENCY: U.S. Army Corps of Engineers, DoD.
ACTION: Notice.
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SUMMARY: The purpose of this notice is to provide current Regulatory
Guidance Letters (RGL's) to all interested parties. RGL's are used by
the U.S. Army Corps of Engineers Headquarters as a means to transmit
guidance on the permit program (33 CFR 320-330) to its division and
district engineers (DE's). Each future RGL will be published in the
Notice section of the Federal Register as a means to insure the widest
dissemination of this information while reducing costs to the Federal
Government. The Corps no longer maintains a mailing list to furnish
copies of the RGL's to the public.
FOR FURTHER INFORMATION CONTACT:
Mr. Ralph Eppard, Regulatory Branch, Office of the Chief of Engineers
at (202) 272-1783.
SUPPLEMENTARY INFORMATION: RGL's were developed by the Corps as a
system to organize and track written guidance issued to its field
agencies. RGL's are normally issued as a result of evolving policy;
judicial decisions and changes to the Corps regulations or another
agency's regulations which affect the permit program. RGL's are used
only to interpret or clarify existing regulatory program policy, but do
provide mandatory guidance to Corps district offices. RGL's are
sequentially numbered and expire on a specified date. After a RGL's
expiration date has passed, it no longer constitutes mandatory guidance
for Corps district and division offices. Nevertheless, many expired
RGL's still provide useful, non-mandatory guidance which Corps field
offices have the discretion to follow. On the other hand, some RGL's
have been superseded by specific provisions of subsequently issued
regulations or RGL's. In addition, other expired RGL's, in whole or in
part, may not be consistent with current Corps policy. The Corps
incorporates most of the guidance provided by RGL's whenever it revises
its permit regulations.
There were three RGL's issued by the Corps during 1993, and all
were published in the Notices section of the Federal Register upon
issuance. We are hereby publishing all current RGL's, beginning with
RGL 91-1 and ending with RGL 93-3. We will continue to publish each RGL
in the Notice Section of the Federal Register upon issuance and in
early 1995, we will again publish the complete list of all current
RGL's.
Dated: January 19, 1994.
Approved:
John R. Brown,
Colonel, Corps of Engineers, Executive Director of Civil Works.
Regulatory Guidance Letter (RGL 91-1)
RGL 91-1
Date: Dec 31, 1991, Expires: Dec 31, 1996
Subject: Extensions of Time For Individual Permit Authorizations
1. The purpose of this guidance is to provide clarification for
district and division offices relating to extensions of time for
Department of Army permits (See 33 CFR 325.6).
2. General: A permittee is informed of the time limit for
completing an authorized activity by General Condition #1 of the
standard permit form (ENG Form 1721). This condition states that a
request for an extension of time should be submitted to the authorizing
official at least one month prior to the expiration date. This request
should be in writing and should explain the basis of the request. The
DE may consider an oral request from the permittee provided it is
followed up with a written request prior to the expiration date. A
request for an extension of time will usually be granted unless the DE
determines that the time extension would be contrary to the public
interest. The one month submittal requirement is a workload management
time limit designed to prevent permittees from filing last minute time
extension requests. Obviously, the one month period is not sufficient
to make a final decision on all time extension requests that are
processed in accordance with 33 CFR 325.2. It should be noted that a
permittee may choose to request a time extension sooner than this
(e.g., six months prior to the expiration date). While there is no
formal time limit of this nature, a request for an extension of time
should generally not be considered by the DE more than one year prior
to the expiration date. A permit will automatically expire if an
extension is not requested and granted prior to the applicable
expiration date (See 33 CFR 325.6(d)).
3. Requests for Time Extensions Prior to Expiration: For requests
of time extensions received prior to the expiration date, the DE should
consider the following procedures if a decision on the request cannot
be completed prior to the permit expiration date:
(a) The DE may grant an interim time extension while a final
decision is being made; or
(b) The DE may, when appropriate, suspend the permit at the same
time that an interim time extension is granted, while a final decision
is being made.
4. Requests for Time Extensions After Expiration: At time extension
cannot be granted if a time extension request is received after the
applicable time limit. In such cases, a new permit application must be
processed, if the permittee wishes to pursue the work. However, the DE
may consider expedited processing procedures when: (1) The request is
received shortly (generally 30 days) after the expiration date, (2) the
DE determines that there have been no substantial changes in the
attendant circumstances since the original authorization was issued,
and (3) the De believes that the time extension would likely have been
granted. Expedited processing procedures may include, but are not
limited to, not requiring that a new application form be submitted or
issuing a 15 day public notice.
5. This guidance expires 31 December 1996 unless sooner revised or
rescinded.
For the Director of Civil Works:
John P. Elmore,
Chief, Operations, Construction and Readiness Division Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 92-1)
RGL 92-1
Date: 13 May 1992, Expires: 31 December 1997
Subject: Federal Agencies Roles and Responsibilities
1. Purpose: The purpose of this guidance is to clarify the Army
Corps of Engineers leadership and decision-making role as ``project
manager'' for the evaluation of permit applications pursuant to section
404 of the Clean Water Act (CWA) and section 10 of the Rivers and
Harbors Act. This guidance is also intended to encourage effective and
efficient coordination among prospective permittees, the Corps, and the
Federal resource agencies (i.e., Environmental Protection Agency (EPA),
Fish and Wildlife Service (FWS), and National Marine Fisheries Service
(NMFS)). Implementation of this guidance will help to streamline the
permit process by minimizing delays and ensuring more timely decisions,
while providing a meaningful opportunity for substantive input from all
Federal agencies.
2. Background:
(a) The Department of the Army Regulatory Program must operate in
an efficient manner in order to protect the aquatic environment and
provide fair, equitable, and timely decisions to the regulated public.
Clear leadership and a predictable decision-making framework will
enhance the public acceptance of the program and allow the program to
meet the important objective of effectively protecting the Nation's
valuable aquatic resources.
(b) On August 9, 1991, the President announced a comprehensive plan
for improving the protection of the Nation's wetlands. The plan seeks
to balance two important objectives--the protection, restoration, and
creation of wetlands and the need for sustained economic growth and
development. The plan, which is designed to slow and eventually stop
the net loss of wetlands, includes measures that will improve and
streamline the current wetlands regulatory system. This Regulatory
Guidance Letter is issued in accordance with the President's plan for
protecting wetlands.
(c) The intent of this guidance is to express clearly that the
Corps is the decision-maker and project manager for the Department of
Army's Regulatory Program. The Corps will consider, to the maximum
extent possible, all timely, project-related comments from other
Federal agencies when making regulatory decisions. Furthermore, the
Corps and relevant Federal agencies will maintain and improve as
necessary their working relationships.
(d) The Federal resource agencies have reviewed and concurred with
this guidance and have agreed to act in accordance with these
provisions. While this guidance does not restrict or impair the
exercise of legal authorities vested in the Federal resource agencies
or States under the CWA or other statutes and regulations (e.g., EPA's
authority under section 404(c), section 404(f), and CWA geographic
jurisdiction and FWS/NMFS authorities under the Fish and Wildlife
Coordination Act and the Endangered Species Act (ESA)), agency comments
on Department of the Army permit applications must be consistent with
the provisions contained in this regulatory guidance letter.
3. The Corps Project Management/Decision Making Role:
(a) The Corps is solely responsible for making final permit
decisions pursuant to section 10 and section 404(a), including final
determinations of compliance with the Corps permit regulations, the
section 404(b)(1) Guidelines, and section 7(a)(2) of the ESA. As such,
the Corps will act as the project manager for the evaluation of all
permit applications. The Corps will advise potential applicants of its
role as the project manager and decision-maker. This guidance does not
restrict EPA's authority to make determinations of compliance with the
Guidelines in carrying out its responsibilities under sections 309 and
404(c) of the Clean Water Act.
(b) As the project manager, the Corps is responsible for requesting
and evaluating information concerning all permit applications. The
Corps will obtain and utilize this information in a manner that moves,
as rapidly as practical, the regulatory process towards a final permit
decision. The Corps will not evaluate applications as a project
opponent or advocate--but instead will maintain an objective
evaluation, fully considering all relevant factors.
(c) The Corps will fully consider other Federal agencies' project-
related comments when determining compliance with the National
Environmental Policy Act (NEPA), the section 404(b)(1) Guidelines, the
ESA, the National Historic Preservation Act, and other relevant
statutes, regulations, and policies. The Corps will also fully consider
the agencies' views when determining whether to issue the permit, to
issue the permit with conditions and/or mitigation, or to deny the
permit.
4. The Federal Resource Agencies' Role:
(a) It is recognized that the Federal resource agencies have an
important role in the Department of the Army Regulatory Program under
the CWA, NEPA, ESA, Magnuson Fisheries Conservation and Management Act,
and other relevant statutes.
(b) When providing comments, Federal resource agencies will submit
to the Corps only substantive, project-related information on the
impacts of activities being evaluated by the Corps and appropriate and
practicable measures to mitigate adverse impacts. The comments will be
submitted within the time frames established in interagency agreements
and regulations. Federal resource agencies will limit their comments to
their respective areas of expertise and authority to avoid duplication
with the Corps and other agencies and to provide the Corps with a sound
basis for making permit decisions. The Federal resource agencies should
not submit comments that attempt to interpret the Corps regulations or
for the purposes of section 404(a) make determinations concerning
compliance with the section 404(b)(1) Guidelines. Pursuant to its
authority under section 404(b)(1) of the CWA, the EPA may provide
comments to the Corps identifying its views regarding compliance with
the Guidelines. While the Corps will fully consider and utilize agency
comments, the final decision regarding the permit application,
including a determination of compliance with the Guidelines, rests
solely with the Corps.
5. Pre-application Consultation:
(a) To provide potential applicants with the maximum degree of
relevant information at an early phase of project planning, the Corps
will increase its efforts to encourage pre-application consultations in
accordance with regulations at 33 CFR 325.1(b). Furthermore, while
encouraging pre-application consultation, the Corps will emphasize the
need for early consultation concerning mitigation requirements, if
impacts to aquatic resources may occur. The Corps is responsible for
initiating, coordinating, and conducting pre-application consultations
and other discussions and meetings with applicants regarding Department
of the Army permits. This may not apply in instances where the
consultation is associated with the review of a separate permit or
license required from another Federal agency (e.g., the Federal Energy
Regulatory Commission or the Nuclear Regulatory Commission) or in
situations where resource agencies perform work for others outside the
context of a specific Department of the Army permit application (e.g.,
the conservation Reserve Program and technical assistance to applicants
of Federal grants).
(b) For those pre-application consultations involving activities
that may result in impacts to aquatic resources, the Corps will provide
EPA, FWS, NMFS (as appropriate), and other appropriate Federal and
State agencies, a reasonable opportunity to participate in the pre-
application process. The invited agencies will participate to the
maximum extent possible in the pre-application consultation, since this
is generally the best time to consider alternatives for avoiding or
reducing adverse impacts. To the extent practical, the Corps and the
Federal resource agencies will develop local procedures (e.g.,
teleconferencing) to promote reasonable and effective pre-application
consultations within the logistical constraints of all affected
parties.
6. Applications for Individual Permits:
(a) The Corps is responsible for determining the need for, and the
coordination of, interagency meetings, requests for information, and
other interactions between permit applicants and the Federal
Government. In this regard, Federal resource agencies will contact the
Corps to discuss and coordinate any additional need for information for
the applicant. The Corps will cooperate with the Federal resource
agencies to ensure, to the extent practical, that information necessary
for the agencies to carry out their responsibilities is obtained. If it
is determined by the Corps that an applicant meeting is necessary for
the exchange of information with a Federal resource agency and the
Corps chooses not to participate in such a meeting, the Federal
resource agency will apprise the Corps, generally in writing, of that
agency's discussions with the applicant. Notwithstanding such meetings,
the Corps is solely responsible for permit requirements, including
mitigation and other conditions--the Federal resource agencies must not
represent their views as regulatory requirements. In circumstances
where the Corps meets with the applicant and develops information that
will affect the permit decision, the Corps will apprise the Federal
resource agencies of such information.
(b) Consistent with 33 CFR part 325, the Corps will ensure that
public notices contain sufficient information to facilitate the timely
submittal of project-specific comments from the Federal resource
agencies. The resource agencies comments will provide specific
information and/or data related to the proposed project site. The Corps
will fully consider comments regarding the site from a watershed or
landscape scale, including an evaluation of potential cumulative and
secondary impacts.
(c) The Corps must consider cumulative impacts in reaching permit
decisions. In addition to the Corps own expertise and experience, the
Corps will fully consider comments from the Federal resource agencies,
which can provide valuable information on cumulative impacts.
Interested Federal agencies are encouraged to provide periodically to
the Corps generic comments and assessments of impacts (outside the
context of a specific permit application) on issues within the
agencies' area of expertise.
7. General Permits:
(a) The Corps is responsible for proposing potential general
permits, assessing impacts of and comments on proposed general permits,
and deciding whether to issue general permits. The Corps will consider
proposals for general permits from other sources, including the Federal
resource agencies, although the final decision regarding the need to
propose a general permit rests with the Corps. Other interested Federal
agencies should provide comments to the Corps on proposed general
permits. These Federal agency comments will be submitted consistent
with established agreements and regulations and will focus on the
Federal agencies' area(s) of expertise. The Corps will fully consider
such agencies' comments in deciding whether to issue general permits,
including programmatic general permits.
(b) The Corps is responsible for initiating and conducting meetings
that may be necessary in developing and evaluating potential general
permits. Any discussions with a State or local Government regarding
proposed programmatic general permits will be coordinated through and
conducted by the Corps. Prior to issuing a programmatic general permit,
the Corps will ensure that the State or local program, by itself or
with appropriate conditions, will protect the aquatic environment,
including wetlands, to the level required by the section 404 program.
8. This guidance expires 31 December 1997 unless sooner revised or
rescinded.
For the Commander.
Arthur R. Williams,
Major General, USA, Director of Civil Works.
Regulatory Guidance Letter (92-2)
RGL 92-2
Date: 26 June 92, Expires: 31 December 95
CECW-OR
Subject: Water Dependency and Cranberry Production
1. Enclosed for implementation is a joint Army Corps of Engineers/
Environmental Protection Agency Memorandum to the Field on water
dependency with cranberry production. This guidance was developed
jointly by the Army Corps of Engineers and the U.S. Environmental
Protection Agency.
2. This guidance will expire 31 December 1995 unless sooner revised
or rescinded.
For the Director of Civil Works.
John P. Elmore.
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Memorandum to the Field
Subject: Water Dependency and Cranberry Production
1. The purpose of this memorandum is to clarify the applicability
of the section 404(b)(1) Guidelines water dependency provisions (40 CFR
230.10(a)) to the cultivation of cranberries, in light of Army Corps of
Engineers (Corps) regulations at 33 CFR 323.4(a)(1)(iii)(C)(1) (ii) and
(iii), and Environmental Protection Agency (EPA) regulations at 40 CFR
232.3(d)(3)(i) (B) and (C). These sections of the Corps and EPA
regulations state, among other things, that cranberries are a wetland
crop, and that some discharges associated with cranberry production are
considered exempt from regulation under the provisions of section
404(f) of the Clean Water Act. The characterization of cranberries as a
wetland crop has led to inconsistency in determining if cranberry
production is a water dependent activity as defined in the section
404(b)(1) Guidelines (Guidelines).
2. The intent of Corps regulations at 33 CFR 320.4(b) and of the
Guidelines is to avoid the unnecessary destruction or alteration of
waters of the U.S., including wetlands, and to compensate for the
unavoidable loss of such waters. The Guidelines specifically required
that ``no discharge of dredged or fill material shall be permitted if
there is a practicable alternative to the proposed discharge which
would have less adverse impact on the aquatic ecosystem, so long as the
alternative does not have other significant adverse environmental
consequences'' (see 40 CFR 230.10(a)). Based on this provision, an
evaluation is required in every case for use of non-aquatic areas and
other aquatic sites that would result in less adverse impact to the
aquatic ecosystem, irrespective of whther the discharge site is a
special aquatic site or whether the activity associated with the
discharge is water dependent. A permit cannot be issued, therefore, in
circumstances where an environmentally preferable practicable
alternative for the proposed discharge exists (except as provided for
under section 404(b)(2)).
3. For proposed discharges into wetlands and other ``special
acquatic sites,'' the Guidelines alternatives analysis requirement
further considers whether the activity associated with the proposed
discharge is ``water dependent''. The Guidelines define water
dependency in terms of an activity requiring access or proximity to or
siting within a special aquatic site to fulfill its basic project
purpose. Special aquatic sites (as defined in 40 CFR 230.40-230.45)
are: (1) Sanctuaries and refuges; (2) wetlands; (3) mud flats; (4)
vegetated shallows; (5) coral reefs; and (6) riffle and pool complexes.
If an activity is determined not to be water dependent, the Guidelines
establish the follow two presumptions (40 CFR 230.10(a)(3)) that the
applicant is required to rebut before satisfying the alternatives
analysis requirements:
a. That practicable alternatives that do not involve special
aquatic sites are presumed to be available; and,
b. That all practicable alternatives to the proposed discharge
which do not involve a discharge into a special aquatic site are
presumed to have less adverse impact on the aquatic ecosystem.
It is the responsibility of the applicant to clearly rebut these
presumptions in order to demonstrate compliance with the Guidelines
alternatives test.
4. If an activity is determined to be water dependent, the
rebuttable presumptions stated in paragraph 3 of this memorandum do not
apply. However, the proposed discharge, whether or not it is associated
with a water dependent activity, must represent the least
environmentally damaging practicable alternative in order to comply
with the alternatives analysis requirement of the Guidelines as
described in paragraph 2 of this memorandum.
5. As previously indicated, Corps and EPA regulations consider
cranberries as a wetland crop species. This characterization of
cranberries as a wetland crop species is based primarily on the listing
of cranberries as an obligate hydrophyte in the National List of Plant
Species That Occur in Wetlands (U.S. Fish and Wildlife Service
Biological Report 88 (26.1-26.13)) and the fact that cranberries must
be grown in wetlands or areas altered to create a wetland environment.
Therefore, the Corps and EPA consider the construction of cranberry
beds, including associated dikes and water control structures
associated with dikes (i.e., headgates, weirs, drop inlet structures),
to be a water dependent activity. Consequently, discharges directly
associated with cranberry bed construction are not subject to the
presumptions applicable to non-water dependent activities discussed in
paragraph 3 of this memorandum. However, consistent with the
requirements of Sec. 230.10(a), the proposed discharge must represent
the least environmentally damaging practicable alternative, after
considering aquatic and non-aquatic alternatives as appropriate. To be
considered practicable, an alternative must be available and capable of
being done after taking into consideration cost, existing technology,
and logistics in light of overall project purposes. For commercial
cranberry cultivation, practicable alternatives may include upland
sites with proper characteristics for creating the necessary conditions
to grow cranberries. Factors that must be considered in making a
determination of whether or not upland alternatives are practicable
include soil pH, topography, soil permeability, depth to bedrock, depth
to seasonal high water table, adjacent land uses, water supply, and,
for expansion of existing cranberry operations, proximity to existing
cranberry farms. EPA Regions and Corps Districts are encouraged to work
together with local cranberry growers to refine these factors to
reflect their regional conditions.
6. In contrast, the following activities often associated with the
cultivation and harvesting of cranberries are not considered water
dependent: construction of roads, ditches, reservoirs, and pump houses
that are used during the cultivation of cranberries, and construction
of secondary support facilities for shipping, storage, packaging,
parking, etc. Therefore, the rebuttable practicable alternatives
presumptions discussed in paragraph 3 of this memorandum apply to the
discharges associated with these non-water dependent activities.
However, since determinations of practicability under the Guidelines
includes consideration of cost, technical, and logistics factors,
determining the availability of practicable alternatives to discharges
associated with these non-water dependent activities must involve
consideration of the need of an alternative to be proximate to the
cranberry bed in order to achieve the basic project purpose of
cranberry cultivation. Once it has been determined that the location of
the cranberry bed, including associated dikes, and water control
structures, represents the least environmentally damaging practicable
alternative, practicable alternatives for maintenance roads, ditches,
reservoirs and pump houses will generally be limited to the bed itself
and the area in the vicinity of the actual bed. For example, the bed
dikes may be the only practicable alternative for location of
maintenance roads. When practicable alternatives cannot be identified
within such geographic constraints, the applicant must minimize the
impacts of the roads, reservoirs, etc., to the maximum extent
practicable.
7. During review of applications for discharges associated with
cranberry cultivation, it is important to reiterate that proposed
discharges must also comply with the other requirements of the
Guidelines (i.e., 40 CFR 230.10 (b) (c) and (d)). In addition,
evaluations of all discharges, whether or not the proposed discharge is
associated with a water dependent activity, must comply with the
provisions of the National Environmental Policy Act, including an
investigation of alternatives to the proposed discharge. Further,
applications for discharges associated with cranberry cultivation will
continue to be evaluated in accordance with current Corps and EPA
policy and practice concerning mitigation, cumulative impact analysis,
and public interest review factors.
8. This guidance expires 31 December 1995 unless sooner revised or
rescinded.
For the Director of Civil Works.
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S.
Environmental Protection.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (92-3)
RGL 92-3
Date: 19 Aug 92, Expires: 31 Dec 97
Subject: Extension of Regulatory Guidance Letter (RGL) 86-10 RGL 86-10,
subject: ``Special Area Management Plans (SAMP's)'' is extended until
31 December 1997 unless sooner revised or rescinded.
For the Director of Civil Works
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
RGL 86-10
Special Area Management Plans (SAMP's)
Issued 10/2/86, Expired 12/31/88
1. The 1980 Amendments to the Coastal Zone Management Act define
the SAMP process as ``a comprehensive plan providing for natural
resource protection and reasonable coastal-dependent economic growth
containing a detailed and comprehensive statement of policies,
standards and criteria to guide public and private uses of lands and
waters; and mechanisms for timely implementation in specific geographic
areas within the coastal zone.'' This process of collaborative
interagency planning within a geographic area of special sensitivity is
just as applicable in non-coastal areas.
2. A good SAMP reduces the problems associated with the traditional
case-by-case review. Developmental interests can plan with
predictability and environmental interests are assured that individual
and cumulative impacts are analyzed in the context of broad ecosystem
needs.
3. Because SAMP's are very labor intensive, the following
ingredients should usually exist before a district engineer becomes
involved in a SAMP:
1. The area should be environmentally sensitive and under strong
developmental pressure.
b. There should be a sponsoring local agency to ensure that the
plan fully reflects local needs and interests.
c. Ideally there should be full public involvement in the planning
and development process.
d. All parties must express a willingness at the outset to conclude
the SAMP process with a definitive regulatory product (see next
paragraph).
4. An ideal SAMP would conclude with two products: (1) Appropriate
local/State approvals and a Corps general permit (GP) or abbreviated
processing procedure (APP) for activities in specifically defined
situations; and (2) a local/State restriction and/or an Environmental
Protection Agency (EPA) 404(c) restriction (preferably both) for
undesirable activities. An individual permit review may be conducted
for activities that do not fall into either category above. However, it
should represent a small number of the total cases addressed by the
SAMP. We recognize that an ideal SAMP is difficult to achieve, and,
therefore, it is intended to represent an upper limit rather than an
absolute requirement.
5. Do not assume that an environmental impact statement is
automatically required to develop a SAMP.
6. EPA's program for advance identification of disposal areas found
at 40 CFR 230.80 can be integrated into a SAMP process.
7. In accordance with this guidance, district engineers are
encouraged to participate in development of SAMP's. However, since
development of a SAMP can require a considerable investment of time,
resources, and money, the SAMP process should be entered only if it is
likely to result in a definitive regulatory product as defined in
paragraph 4. above.
8. This guidance expires 31 December 1988 unless sooner revised or
rescinded.
For the Chief of Engineers.
Peter J. Offringa,
Brigadier General, USA, Deputy Director of Civil Works.
Regulatory Guidance Letter (RGL-92-4)
RGL-92-4
Date: 14 Sep 1992, Expires: 21 January 1997
Subject: Section 401 Water Quality Certification and Coastal Zone
Management Act Conditions for Nationwide Permits
1. The purpose of this Regulatory Guidance Letter (RGL) is to
provide additional guidance and clarification for divisions and
districts involved in developing acceptable conditions under the
section 401 Water Quality Certifications and Coastal Zone Management
Act (CZM) concurrences for the Nationwide Permit (NWP) Program. This
RGL represents a clarification if 330.4(c) (2) and (3) and 330.4(d) (2)
and (3), concerning when NWP Section 401 and CZM conditions should not
be accepted and thus treated as a denial without prejudice. The
principles contained in this RGL also apply to 401 certification and
CZM concurrence conditions associated with individual permits and
regional general permits.
2. Corps divisions and districts should work closely and
cooperatively with the States to develop reasonable 401 and CZM
conditions. All involved parties should participate in achieving the
purpose of the NWP program, which is to provide the public with an
expeditious permitting process while, at the same time, safeguarding
the environment by only authorizing activities which result in no more
than minimal individual and cumulative adverse effects. When a State
certifying agency or CZM agency proposes conditions, the division
engineer is responsible for determining whether 401 Water Quality
Certification or CZM concurrence conditions are acceptable and comply
with the provisions of 33 CFR 325.4. In most cases it is expected that
the conditions will be acceptable and the division engineer shall
recognize these conditions as regional conditions of the NWP's.
3. Unacceptable Conditions: There will be cases when certain
conditions will clearly be unacceptable and those conditioned 401
certifications or CZM concurrences shall be considered administratively
denied. Consequently, authorization for an activity which meets the
terms and conditions of such NWP(s) is denied without prejudice.
a. Illegal conditions are clearly unacceptable. Illegal conditions
would result in violation of a law or regulation, or would require an
illegal action. For example, a condition which would require an
applicant to obtain a 401 certification or CZM concurrence, where the
State as previously denied certification or concurrence, prior to
submitting a predischarge notification (PDN) to the Corps in accordance
with PDN procedures, would violate the Corps regulation at 33 CFR
330.4(c)(6). Another example would be a case where an applicant would
be required, through a condition, to apply for an individual Department
of the Army permit. Another example is a requirement by the State
agency to utilize the 1989 Federal Wetland Delineation Manual to
establish jurisdiction.
b. As a general rule, a condition that would require the Corps or
another Federal agency to take an action which we would not otherwise
take and do not choose to take, would be clearly unacceptable. For
example, where the certification or concurrence is conditioned to
require a PDN, where the proposed activity did not previously require a
PDN, the Corps should not accept that condition, since implicitly the
Corps would have to accept and utilize the PDN. Another example would
be a situation where the U.S. Fish and Wildlife Service is required,
through a condition, to provide any type of formal review or approval.
c. Section 401 or CZM conditions which provide for limits
(quantities, dimensions, etc.) different from those imposed by the NWP
do not change the NWP limits.
1. Higher limits are clearly not acceptable. For example,
increasing NWP 18 for minor discharges from 10 to 50 cubic yards would
not be acceptable. Such conditions would confuse the regulated public
and could contribute to violations.
2. Lower limits are acceptable but have the effect of denial
without prejudice of those activities that are higher than the Section
401 or CZM condition limit but within the NWP limit. Thus, if an
applicant obtains an individual 401 water quality certification and/or
CZM concurrence for work within the limits of an NWP where the State
had denied certification and/or CZM concurrence, then the activity
could be authorized by the NWP.
d. A condition which would delete, modify, or reduce NWP conditions
would be clearly unacceptable.
4. Discretionary Enforcement: The initiation of enforcement actions
by the Corps, whether directed at unauthorized activities or to ensure
compliance with permit conditions, is discretionary. The district
engineer will consider the following situations when determining
whether to enforce 401 and/or CZM conditions.
a. Unenforceable Conditions--Some conditions that a State may
propose will not be reasonably enforceable by the Corps (e.g., a
condition requiring compliance with the specific terms of another State
permit). Provided such conditions do not violate paragraph 3 above, the
conditions will be accepted by the Corps as regional conditions.
However, limited Corps resources should not be utilized in an attempt
to enforce compliance with 401 or CZM conditions which the district
engineer believes to be essentially unenforceable, or of low
enforcement priority for limited Corps resources.
b. Enforceable Conditions--Some other conditions proposed by a
State may be considered enforceable, (e.g., a condition requiring the
applicant to obtain another State permit), but of low priority for
Federal enforcement, since the Federal Government would not have
required those conditions but for the State's requirement. Furthermore,
the Corps will generally not enforce such State-imposed conditions
except in very unusual cases, due to our limited personnel and
financial resources.
5. NWP Verification and PDN Responses: In response to NWP
verification requests and PDN's, district engineers should utilize the
sample paragraphs presented below. This language should be used where
conditional 401 certification or CZM concurrence has been issued. This
specifically addresses situations when the conditions included with the
certification or concurrence are such that the district engineer
determines they are unforceable or the district engineer cannot clearly
determine compliance with the 401/CZM conditions (see 4.a.).
``Based on our review of your proposal to [describe proposal], we
have determined that the activity qualifies for the nationwide permit
authorizations [insert NWP No(s.)], subject to the terms and conditions
of the permit.
[Insert paragraph on any Corps required activity-specific
conditions].
Enclosed you will find a copy of the Section 401 Water Quality
Certification and/or Coastal Zone Management special conditions, which
are conditions of your authorization under Nationwide Permit [insert
NWP No(s.)]. If you have questions concerning compliance with the
conditions of the 401 certification or Coastal Zone Management
concurrence, you should contact the [insert appropriate State agency].
If you do not or cannot comply with these State Section 401
certification conditions and/or CZM conditions, then in order to be
authorized by this Nationwide Permit, you must furnish this office with
an individual 401 certification or Coastal Zone Management concurrence
from [insert appropriate State agency], or a copy of the application to
the State for such certification or concurrence, [insert ``60 days''
for Section 401 water quality certification, unless another reasonable
period of time has been determined pursuant to 33 CFR 330.4(c)(6), or
insert ``six months'' for CZM concurrence] after you submit it to the
State agency.''
6. This guidance expires 21 January 1997 unless sooner revised or
rescinded.
For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 92-5)
RGL 92-5
Date: 29 October 1992, Expires: 31 December 1997
Subject: Alternatives Analysis Under the section 404(b)(1) Guidelines
for Projects Subject to Modification Under the Clean Air Act.
1. Enclosed for implementation is a joint Army Corps of Engineers/
Environmental Protection Agency Memorandum to the Field on alternatives
analysis for existing power plants that must be modified to meet
requirements of the 1990 Clean Air Act. This guidance was developed
jointly by the Corps and EPA.
2. This guidance expires 31 December 1997 unless sooner revised or
rescinded.
For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
EPA/Corps Joint Memorandum for the Field
Subject: Alternatives Analysis under the section 404(b)(1) Guidelines
for Projects Subject to Modification Under the Clean Air Act.
1. The 1990 Clean Air Act (CAA) amendments require most electric
generating plants to reduce emissions of sulfur dioxide in phases
beginning in 1995 and requiring full compliance by 2010. The
congressional endorsement of the industry's ability to select the most
effective compliance method (e.g., sulfur dioxide scrubbers, low sulfur
coal, or other methods) recognizes the expertise of the industry in
these cases and is a fundamental element in the CAA market-based
pollution control program. Given the need for cooling water, a
substantial number of electric power generating plants are located
adjacent, or in close proximity, to waters of the United States,
including wetlands. Depending on the method chosen by the plants to
reduce emissions, we expect that these facilities will be applying for
Clean Water Act section 404 permits for certain proposed activities.
2. The analysis and regulation under section 404 of the Clean Water
Act of activities in waters of the United States conducted by specific
power plants to comply with the 1990 Clean Air Act amendments must
ensure protection of the aquatic environment consistent with the
requirements of the Clean Water Act. The review of applications for
such projects will fully consider, consistent with requirements under
the section 404(b)(1) Guidelines, all practicable alternatives
including non-aquatic alternatives, for proposed discharges associated
with the method selected by the utility to comply with the 1990 Clean
Air Act amendments. For the purposes of the section 404(b)(1)
Guidelines analysis, the project purpose will be that pollutant
reduction method selected by the permit applicant.
3. For example, a utility may have decided to install sulfur
dioxide scrubbers on an existing power plant in order to meet the new
1990 Clean Air Act standards. The proposed construction of the
scrubbers, treatment ponds and a barge unloading facility could impact
wetlands. In this case, the section 404 review would evaluate
practicable alternative locations and configurations for the scrubbers,
ponds and of the docking facilities. The analysis will also consider
practicable alternatives which satisfy the project purpose (i.e.,
installing scrubbers) but which have a less adverse impact on the
aquatic environment or do not involve discharges into waters of the
United States. However, in order to best effectuate Congressional
intent reflected in the CAA that electric utilities retain flexibility
to reduce sulfur dioxide emissions in the most cost effective manner,
the section 404 review should not evaluate alternative methods of
complying with the Clean Air Act standards not selected by the
applicant (e.g., in this example use of low sulfur coal).
4. In evaluating the scope of practicable alternatives which
satisfy the project purpose (e.g., constructing additional scrubber
capacity), the alternatives analysis should not be influenced by the
possibility that, based on a conclusion that practicable upland
alternatives are available to the applicant, the project proponent may
decide to pursue other options for meeting Clean Air Act requirements.
Continuing the above example, a Corps determination that practicable
upland alternatives are available for scrubber waste disposal should
not be affected by the possibility that an applicant may subsequently
decide to select a different method for meeting the Clean Air Act
standards (e.g., use of low sulfur coal that reduces waste generated by
scrubbers).
5. The Corps and EPA will also recognize the tight time-frames
under which the industry must meet these new air quality standards.
Robert H. Wayland,
Director, Office of Wetlands, Oceans and Watersheds.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Regulatory Guidance Letter (RGL 93-1)
RGL 93-1
Issued: April 20, 1993, Expires: December 31, 1998
CECW-OR
Subject: Provisional Permits
1. Purpose: The purpose of this guidance is to establish a process
that clarifies for applicants when the U.S. Army Corps of Engineers has
completed its evaluation and at what point the applicant should contact
the State concerning the status of the Section 401 Water Quality
Certification and/or Coastal Zone Management (CZM) consistency
concurrence. This process also allows for more accurate measurement of
the total length of time spent by the Corps in evaluating permit
applications (i.e., from receipt of a complete application until the
Corps reaches a permit decision). For verification of authorization of
activities under regional general permits, the Corps will use the
appropriate nationwide permit procedures at 33 CFR 330.6.
2. Background: a. A Department of the Army permit involving a
discharge of dredged or fill material cannot be issued until a State
Section 401 Water Quality Certification has been issued or waived.
Also, a Department of the Army permit cannot be issued for a activity
within a State with a federally-approved Coastal Management Program
when that activity that would occur within, or outside, a State's
coastal zone will affect land or water uses or natural resources of the
State's coastal zone, until the State concurs with the applicant's
consistency determination, or concurrence is presumed. In many cases,
the Corps completes its review before the State Section 401 Water
Quality Certification or CZM concurrence requirements have been
satisfied. In such cases, applicants and the public are often confused
regarding who to deal with regarding resolution of any State issues.
b. The ``provisional permit'' procedures described below will
facilitate a formal communication between the Corps and the applicant
to clearly indicate that the applicant should be in contact with the
appropriate State agencies to satisfy the State 401 Water Quality
Certification or CZM concurrence requirements. In addition, the
procedures will allow for a more accurate measurement of the Corps
permit evaluation time.
3. Provisional Permit Procedures: The provisional permit procedures
are optional and may only be used in those cases where: (i) The
District Engineer (DE) has made a provisional individual permit
decision that an individual permit should be issued, and (ii) the only
action(s) preventing the issuance of that permit is that the State has
not issued a required Section 401 Water Quality Certification (or
waiver has not occurred) or the State has not concurred in the
applicant's CZM consistency determination (or there is not a presumed
concurrence). In such cases, the DE may, using these optional
procedures, send a provisional permit to the applicant.
a. First, the DE will prepare and sign the provisional permit
decision document. Then the provisional permit will be sent to the
applicant by transmittal letter. (The sample transmittal letter at
enclosure 1 contains the minimum information that must be provided.)
b. Next, the applicant would obtain the Section 401 Water Quality
Certification (or waiver) and/or CZM consistency concurrence (or
presumed concurrence). Then the applicant would sign the provisional
permit and return it to the DE along with the appropriate fee and the
Section 401 Water Quality Certification (or proof of wavier) and/or the
CZM consistency concurrence (or proof of presumed concurrence).
c. Finally, the Corps would attach any Section 401 Water Quality
Certification and/or CZM consistency concurrence to the provisional
permit, then sign the provisional permit (which then becomes the issued
final permit), and forward the permit to the applicant.
d. This is the same basic process as the normal standard permit
transmittal process except that the applicant is sent an unsigned
permit (i.e., a provisional permit) prior to obtaining the Section 401
Water Quality Certification (or waiver) and/or CZM consistency
concurrence (or presumed concurrence). (See enclosure 2.) A permit
cannot be issued (i.e., signed by the Corps) until the Section 401 and
CZM requirements are satisfied.
4. Provisional Permit: A provisional permit is a standard permit
document with a cover sheet. The cover sheet must clearly indicate the
following: that a provisional permit is enclosed, that the applicant
must obtain the section 401 Water Quality Certification or CZM
concurrence from the State, that these documents must be sent to the
Corps along with the provisional permit signed by the applicant, and
that the Corps will issue the permit upon receipt of these materials.
The issued permit is the provisional permit signed by the applicant and
the Corps. The provisional permit must contain a statement indicating
that the applicant is required to comply with the Section 401 Water
Quality Certification, including any conditions, and/or the CZM
consistency concurrence, including any conditions. At enclosure 3 is a
sample cover sheet for the provisional permit.
5. Provisional Permit Decision: The DE may reach a final decision
that a permit should be issued provided that the State issues a Section
401 Water Quality Certification and/or a CZM concurrence. In order to
reach such a decision the DE must complete the normal standard permit
evaluation process, prepare and sign a decision document, and prepare a
standard permit, including any conditions or mitigation (i.e., a
provisional permit). The decision document must include a statement
that the DE has determined that the permit will be issued if the State
issues a Section 401 Water Quality Certification or waiver and/or a CZM
concurrence, or presumed concurrence. The standard permit will not
contain a condition that requires or provides for the applicant to
obtain a Section 401 Water Quality Certification and/or CZM
concurrence. Once the decision document is signed, the applicant has
the right to a DA permit if the State issues a Section 401 Water
Quality Certification or waiver and/or a CZM concurrence, or if
concurrence is presumed. Once the decision document is signed, the
permittee's right to proceed can only be changed by using the
modification, suspension and revocation procedures of 33 CFR 325.7,
unless the State denies the Section 401 Water Quality Certification or
nonconcurs with the applicant's CZM consistency determination.
6. Enforcement: In some cases, applicants might proceed with the
project upon receipt of the provisional permit. The provisional permit
is not a valid permit. In such cases, the Corps has a discretionary
enforcement action to consider and should proceed as the DE determines
to be appropriate. This occurs on occasion during the standard permit
transmittal process. Since the Corps is not changing the normal process
of sending unsigned permits to the applicant for signature, there
should not be an increase in occurrence of such unauthorized
activities.
7. Modification: a. In most cases the Section 401 Water Quality
Certification, including conditions, and/or CZM consistency
concurrence, including conditions, will be consistent with the
provisional permit. In such cases, the DE will simply sign the final
permit enclose the 401 water quality certification and/or CZM
consistency concurrence with the final permit (i.e., the signed
provisional permit).
b. In a few cases such State approval may necessitate modifications
to the Corps preliminary permit decision. Such modifications will be
processed in accordance with 33 CFR 325.7.
(1) When the modifications are minor and the DE agrees to such
modifications, then a supplement to the provisional decision document
may be prepared, as appropriate, and the permit issued with such
modifications. (This should usually be done by enclosing the State 401
Water Quality Certification and/or CZM consistency concurrence to the
permit, but in a few cases may require a revision to the permit
document itself.)
(2) When the modification results in substantial change or
measurable increase in adverse impacts or the Corps does not initially
agree with the change, then the modification will be processed and
counted as a separate permit action for reporting purposes. This may
require a new public notice or additional coordination with appropriate
Federal and/or state agencies. The provisional decision document will
be supplemented or may be completely rewritten, as necessary.
8. Denial: If the State denies the Section 401 Water Quality
Certification and/or the State nonconcurs with the applicant's CZM
consistency determination, then the Corps permit is denied without
prejudice.
9. This guidance expires 31 December 1998 unless sooner revised or
rescinded.
For the Director of Civil Works.
3 Encls
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Sample
Provisional Permit Transmittal Letter
Dear ______:
We have completed our review of your permit application
identified as [File No., appl. name, etc.] for the following
proposed work:
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----------------------------------------------------------------------
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near/in/at____________________.
Enclosed is a ``PROVISIONAL PERMIT.'' The provisional permit is NOT
VALID and does not authorize you to do your work. The provisional
permit describes the work that will be authorized, and the General and
Special Conditions [if any] which will be placed on your final
Department of the Army (DA) permit, if the State of ______ Water
Quality Certification and/or Coastal Zone Management (CZM) consistency
requirements are satisfied as described below. No work is to be
performed in the waterway or adjacent wetlands until you have received
a validated copy of the DA permit.
By Federal law no DA permit can be issued until a State Section 401
Water Quality Certification has been issued or has been waived and/or
the State has concurred with a permit applicant's CZM consistency
determination or concurrence has been presumed. As of this date the
[State 401 certification agency] has not issued a Section 401 Water
Quality Certification for your proposed work. If the [State 401
certification agency] fails or refuses to act by [date 401
certification must be issued] the Section 401 Water Quality
Certification requirement will be automatically waived. Also, as of
this date the [State CZM agency] has not concurred with your CZM
consistency determination. If the State does not act by [six months
from receipt by the State of the applicant's CZM consistency
determination] then concurrence with your CZM consistency determination
will automatically be presumed.
Conditions of the State Section 401 Water Quality Certification
and/or the State CZM concurrence will become conditions to the final DA
permit. Should the State's action on the required certification or
concurrence preclude validation of the provisional permit in its
current form, a modification to the provisional permit will be
evaluated and you will be notified as appropriate. Substantial changes
may require a new permit evaluation process, including issuing a new
public notice.
Enclosure 1
Final Permit Actions
Normal Permit Process
1. Corps Completes permit decision, and state 401/CZM issued/waived
2. Corps sends unsigned permit to applicant
3. Applicant signs permit and returns with fee
4. Corps signs permit
Draft Permit Process
1. Corps Completes permit decision, but state 401/CZM not complete
2. Corps sends draft permit to applicant
3. State 401/CZM issued waived
4. Applicant signs permit and returns with fee and 401/CZM action
5. Corps reviews 401/CZM action and signs permit
1. The signed draft permit with the attached 401/CZM action is to
be treated as the applicant's request for a permit subject to any 401/
CZM certification/concurrence including any conditions.
2. If the 401/CZM action results in a modification to the draft
permit, then step 4. would be treated as a request for such
modification and if we agree with the modification, then the permit
would be issued with the modification and the decision document
supplemented, as appropriate. If the Corps does not initially agree
with the modification, or it involves a substantial change or
measurable increase in adverse impacts, then the modification would be
processed as a separate permit action for reporting purposes.
Enclosure 2
Once the State has issued the required Section 401 Water Quality
Certification and/or concurred with your CZM consistency determination
or the dates above have passed without the State acting, and you agree
to the terms and conditions of the provisional permit, you should sign
and date both copies and return them to us along with your $100.00/
$10.00 permit fee]. Your DA permit will not be valid until we have
returned a copy to you bearing both your signature and the signature of
the appropriate Corps official.
If the State denies the required Section 401 Water Quality
Certification and/or nonconcurs with your CZM consistency
determination, then the DA permit is denied without prejudice. If you
should subsequently obtain a Section 401 Water Quality Certification
and/or a CZM consistency determination concurrence, you should contact
this office to determine how to proceed with your permit application.
If you have any questions concerning your State Section 401 Water
Quality Certification, please contact (State 401 certification
contact).
If you have any questions concerning your CZM consistency
determination, please contact (State CZM contact).
If you have any other questions concerning your application for a
DA permit, please contact [Corps contact] at [Corps contact telephone
number].
Provisional Permit Not Valid; Do Not Begin Work
This PROVISIONAL PERMIT is NOT VALID until:
(1) You obtain:
______ a Section 401 Water Quality Certification from State Agency)
______ a Coastal Zone Consistency determination concurrence from (State
Agency)
(2) You sign and return the enclosed provisional permit with the
State Section 401 Water Quality Certification and/or CZM concurrence
and the appropriate permit fee as indicated below:
______ $10.00
______ $100.00
______ No fee required
(3) The Corps signs the permit and returns it to you. Your permit
is denied without prejudice, if the State denies your Section 401 Water
Quality Certification and/or nonconcurs with your Coastal Zone
Management consistency determination.
(Do Not Begin Work)
Regulatory Guidance Letter, (RGL 93-2)
RGL 93-2
Date: 23 August 1993, Expires: 31 December 1998
Subject: Guidance on Flexibility of the 404(b)(1) Guidelines and
Mitigation Banking.
1. Enclosed are two guidance documents signed by the Office of the
Assistant Secretary of the Army (Civil Works) and the Environmental
Protection Agency. The first document provides guidance on the
flexibility that the U.S. Army Corps of Engineers should be utilizing
when making determinations of compliance with the Section 404(b)(1)
Guidelines, particularly with regard to the alternatives analysis. The
second Document provides guidance on the use of mitigation banks as a
means of providing compensatory mitigation for Corps regulatory
Decisions.
2. Both enclosed guidance documents should be implemented
immediately. These guidance documents constitute an important aspect of
the President's plan for protecting the Nation's wetlands, ``Protecting
America's Wetlands: A Fair, Flexible and Effective Approach''
(published on 24 August 1993).
3. This guidance expires 31 December 1998 unless sooner revised or
rescinded.
For the Director of Civil Works.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
Memorandum to the Field
Subject: Appropriate Level of Analysis Required for Evaluating
Compliance with the Section 404(b)(1) Guidelines Alternatives
Requirements
1. Purpose: The purpose of this memorandum is to clarify the
appropriate level of analysis required for evaluating compliance with
the Clean Water Act Section 404(b)(1) Guidelines' (Guidelines)
requirements for consideration of alternatives. 40 CFR 230.10(a).
Specifically, this memorandum describes the flexibility afforded by the
Guidelines to make regulatory decisions based on the relative severity
of the environmental impact of proposed discharges of dredged or fill
material into waters of the United States.
2. Background: The Guidelines are the substantive environmental
standards by which all Section 404 permit applications are evaluated.
The Guidelines, which are binding regulations, were published by the
Environmental Protection Agency at 40 CFR part 230 on December 24,
1980. The fundamental precept of the Guidelines is that discharges of
dredged or fill material into waters of the United States, including
wetlands, should not occur unless it can be demonstrated that such
discharges, either individually or cumulatively, will not result in
unacceptable adverse effects on the aquatic ecosystem. The Guidelines
specifically require that ``no discharge of dredged or fill material
shall be permitted if there is a practicable alternative to the
proposed discharge which would have less adverse impact on the aquatic
ecosystem, so long as the alternative does not have other significant
adverse environmental consequences.'' 40 CFR 230.10(a). Based on this
provision, the applicant is required in every case (irrespective of
whether the discharge site is a special aquatic site or whether the
activity associated with the discharge is water dependent) to evaluate
opportunities for use of non-aquatic areas and other aquatic sites that
would result in less adverse impact on the aquatic ecosystem. A permit
cannot be issued, therefore, in circumstances where a less
environmentally damaging practicable alternative for the proposed
discharge exists (except as provided for under Section 404(b)(2)).
3. Discussion: The Guidelines are, as noted above, binding
regulations. It is important to recognize, however, that this
regulatory status does not limit the inherent flexibility provided in
the Guidelines for implementing these provisions. The preamble to the
Guidelines is very clear in this regard:
Of course, as the regulation itself makes clear, a certain
amount of flexibility is still intended. For example, while the
ultimate conditions of compliance are ``regulatory'', the Guidelines
allow some room for judgment in determining what must be done to
arrive at a conclusion that those conditions have or have not been
met.
Guidelines Preamble, ``Regulation versus Guidelines'', 45 FR 85336
(December 24, 1980).
Notwithstanding this flexibility, the record must contain
sufficient information to demonstrate that the proposed discharge
complies with the requirements of Section 230.10(a) of the Guidelines.
The amount of information needed to make a determination and the level
of scrutiny required by the Guidelines is commensurate with the
severity of the environmental impact (as determined by the functions of
the aquatic resource and the nature of the proposed activity) and the
scope/cost of the project.
a. Analysis Associated With Minor Impacts
The Guidelines do not contemplate that the same intensity of
analysis will be required for all types of projects but instead
envision a correlation between the scope of the evaluation and the
potential extent of adverse impacts on the aquatic environment. The
introduction to Sec. 230.10(a) recognizes that the level of analysis
required may vary with the nature and complexity of each individual
case:
Although all requirements in Sec. 230.10 must be met, the
compliance evaluation procedures will vary to reflect the
seriousness of the potential for adverse impacts on the aquatic
ecosystems posed by specific dredged or fill material discharge
activities.
40 CFR 230.10
Similarly, Sec. 230.6 (``Adaptability'') makes clear that the
Guidelines:
Allow evaluation and documentation for a variety of activities,
ranging from those large, complex impacts on the aquatic environment
to those for which the impact is likely to be innocuous. It is
unlikely that the Guidelines will apply in their entirety to any one
activity, no matter how complex. It is anticipated that substantial
numbers of permit applications will be for minor, routine activities
that have little, if any, potential for significant degradation of
the aquatic environment. It generally is not intended or expected
that extensive testing, evaluation or analysis will be needed to
make findings of compliance in such routine cases.
40 CFR 230.6(9) (emphasis added)
Section 230.6 also emphasizes that when making determinations of
compliance with the Guidelines, users:
Must recognize the different levels of effort that should be
associated with varying degrees of impact and require or prepare
commensurate documentation. The level of documentation should
reflect the significance and complexity of the discharge activity.
40 CFR 230.6(b) (emphasis added)
Consequently, the Guidelines clearly afford flexibility to adjust
the stringency of the alternatives review for projects that would have
only minor impacts. Minor impacts are associated with activities that
generally would have little potential to degrade the aquatic
environment and include one, and frequently more, of the following
characteristics: Are located in aquatic resources of limited natural
function; are small in size and cause little direct impact; have little
potential for secondary or cumulative impacts; or cause only temporary
impacts. It is important to recognize, however, that in some
circumstances even small or temporary fills result in substantial
impacts, and that in such cases a more detailed evaluation is
necessary. The Corps Districts and EPA Regions will, through the
standard permit evaluation process, coordinate with the U.S. Fish and
Wildlife Service, National Marine Fisheries Service and other
appropriate state and Federal agencies in evaluating the likelihood
that adverse impacts would result from a particular proposal. It is not
appropriate to consider compensatory mitigation in determining whether
a proposed discharge will cause only minor impacts for purposes of the
alternatives analysis required by Sec. 230.10(a).
In reviewing projects that have the potential for only minor
impacts on the aquatic environment, Corps and EPA field offices are
directed to consider, in coordination with state and Federal resource
agencies, the following factors:
(i) Such projects by their nature should not cause or contribute to
significant degradation individually or cumulatively. Therefore, it
generally should not be necessary to conduct or require detailed
analyses to determine compliance with Sec. 230.10(c).
(ii) Although sufficient information must be developed to determine
whether the proposed activity is in fact the least damaging practicable
alternative, the Guidelines do not require an elaborate search for
practicable alternatives if it is reasonably anticipated that there are
only minor differences between the environmental impacts of the
proposed activity and potentially practicable alternatives. This
decision will be made after consideration of resource agency comments
on the proposed project. It often makes sense to examine first whether
potential alternatives would result in no identifiable or discernible
difference in impact on the aquatic ecosystem. Those alternatives that
do not may be eliminated from the analysis since Sec. 230.10(a) of the
Guidelines only prohibits discharges when a practicable alternative
exists which would have less adverse impact on the aquatic ecosystem.
Because evaluating practicability is generally the more difficult
aspect of the alternatives analysis, this approach should save time and
effort for both the applicant and the regulatory agencies.\1\ By
initially focusing the alternatives analysis on the question of impacts
on the aquatic ecosystem, it may be possible to limit (or in some
instances eliminate altogether) the number of alternatives that have to
be evaluated for practicability.
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\1\In certain instances, however, it may be easier to examine
practicability first. Some projects may be so site-specific (e.g.,
erosion control, bridge replacement) that no offsite alternative
could be practicable. In such cases the alternatives analysis may
appropriately be limited to onsite options only.
---------------------------------------------------------------------------
(iii) When it is determined that there is no identifiable or
discernible difference in adverse impact on the environment between the
applicant's proposed alternative and all other practicable
alternatives, then the applicant's alternative is considered as
satisfying the requirements of Section 230.10(a).
(iv) Even where a practicable alternative exists that would have
less adverse impact on the aquatic ecosystem, the Guidelines allow it
to be rejected if it would have ``other significant adverse
environmental consequences.'' 40 CFR 230.10(a). As explained in the
preamble, this allows for consideration of ``evidence of damages to
other ecosystems in deciding whether there is a `better' alternative.''
Hence, in applying the alternatives analysis required by the
Guidelines, it is not appropriate to select an alternative where minor
impacts on the aquatic environment are avoided at the cost of
substantial impacts to other natural environmental values.
(v) In cases of negligible or trivial impacts (e.g., small
discharges to construct individual driveways), it may be possible to
conclude that no alternative location could result in less adverse
impact on the aquatic environment within the meaning of the Guidelines.
In such cases, it may not be necessary to conduct an offsite
alternatives analysis but instead require only any practicable onsite
minimization.
This guidance concerns application of the Section 404(b)(1)
Guidelines to projects with minor impacts. Projects which may cause
more than minor impacts on the aquatic environment, either individually
or cumulatively, should be subjected to a proportionately more detailed
level of analysis to determine compliance or noncompliance with the
Guidelines. Projects which cause substantial impacts, in particular,
must be thoroughly evaluated through the standard permit evaluation
process to determine compliance with all provisions of the Guidelines.
b. Relationship Between the Scope of Analysis and the Scope/Cost of the
Proposed Project
The Guidelines provide the Corps and EPA with discretion for
determining the necessary level of analysis to support a conclusion as
to whether or not an alternative is practicable. Practicable
alternatives are those alternatives that are ``available and capable of
being done after taking into consideration cost, existing technology,
and logistics in light of overall project purposes.'' 40 CFR
230.10(a)(2). The preamble to the Guidelines provides clarification on
how cost is to be considered in the determination of practicability:
Our intent is to consider those alternatives which are
reasonable in terms of the overall scope/cost of the proposed
project. The term economic [for which the term ``cost'' was
substituted in the final rule] might be construed to include
consideration of the applicant's financial standing, or investment,
or market share, a cumbersome inquiry which is not necessarily
material to the objectives of the Guidelines.
Guidelines Preamble, ``Alternatives'', 45 FR 85339 (December 24, 1980)
(emphasis added).
Therefore, the level of analysis required for determining which
alternatives are practicable will vary depending on the type of project
proposed. The determination of what constitutes an unreasonable expense
should generally consider whether the projected cost is substantially
greater than the costs normally associated with the particular type of
project. Generally, as the scope/cost of the project increases, the
level of analysis should also increase. To the extent the Corps obtains
information on the costs associated with the project, such information
may be considered when making a determination of what constitutes an
unreasonable expense.
The preamble to the Guidelines also states that ``[i]f an alleged
alternative is unreasonably expensive to the applicant, the alternative
is not `practicable.''' Guidelines Preamble, ``Economic Factors'', 45
FR 85343 (December 24, 1980). Therefore, to the extent that individual
homeowners and small businesses may typically be associated with small
projects with minor impacts, the nature of the applicant may also be a
relevant consideration in determining what constitutes a practicable
alternative. It is important to emphasize, however, that it is not a
particular applicant's financial standing that is the primary
consideration for determining practicability, but rather
characteristics of the project and what constitutes a reasonable
expense for these projects that are most relevant to practicability
determinations.
4. The burden of proof to demonstrate compliance with the
Guidelines rests with the applicant; where insufficient information is
provided to determine compliance, the Guidelines require that no permit
be issued. 40 CFR 230.12(a)(3)(iv).
5. A reasonable, common sense approach in applying the requirements
of the Guidelines' alternatives analysis is fully consistent with sound
environmental protection. The Guidelines clearly contemplate that
reasonable discretion should be applied based on the nature of the
aquatic resource and potential impacts of a proposed activity in
determining compliance with the alternatives test. Such an approach
encourages effective decisionmaking and fosters a better understanding
and enhanced confidence in the Section 404 program.
6. This guidance is consistent with the February 6, 1990
``Memorandum of Agreement Between the Environmental Protection Agency
and the Department of the Army Concerning the Determination of
Mitigation under the Clean Water Act Section 404(b)(1) Guidelines.''
Signed: August 23, 1993.
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S.
Environmental Protection Agency.
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department
of the Army.
Memorandum to the Field
Subject: Establishment and Use of Wetland Mitigation Banks in the Clean
Water Act Section 404 (Regulatory Program
1. This memorandum provides general guidelines for the
establishment and use of wetland mitigation banks in the Clean Water
Act Section 404 regulatory program. This memorandum serves as interim
guidance pending completion of Phase I by the Corps of Engineer's
Institute for Water Resources study on wetland mitigation banking,\2\
at which time this guidance will be reviewed and any appropriate
revisions will be incorporated into final guidelines.
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\2\The Corps of Engineers Institute for Water Resources, under
the authority of Section 307(d) of the Water Resources Development
Act of 1990, is undertaking a comprehensive two-year review and
evaluation of wetland mitigation banking to assist in the
development of a national policy on this issue. The interim summary
report documenting the results of the first phase of the study is
scheduled for completion in the fall of 1993.
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2. For purposes of this guidance, wetland mitigation banking refers
to the restoration, creation, enhancement, and, in exceptional
circumstances, preservation of wetlands or other aquatic habitats
expressly for the purpose of providing compensatory mitigation in
advance of discharges into wetlands permitted under the Section 404
regulatory program. Wetland mitigation banks can have several
advantages over individual mitigation projects, some of which are
listed below:
(a) Compensatory mitigation can be implemented and functioning in
advance of project impacts, thereby reducing temporal losses of wetland
functions and uncertainty over whether the mitigation will be
successful in offsetting wetland losses.
(b) It may be more ecologically advantageous for maintaining the
integrity of the aquatic ecosystem to consolidate compensatory
mitigation for impacts to many smaller, isolated or fragmented habitats
into a single large parcel or contiguous parcels.
(c) Development of a wetland mitigation bank can bring together
financial resources and planning and scientific expertise not
practicable to many individual mitigation proposals. This consolidation
of resources can increase the potential for the establishment and long-
term management of successful mitigation.
(d) Wetland mitigation banking proposals may reduce regulatory
uncertainty and Provide more cost-effective compensatory mitigation
opportunities.
3. The Section 404(b)(1) Guidelines (Guidelines), as clarified by
the ``Memorandum of Agreement Concerning the Determination of
Mitigation under the section 404(b)(1) Guidelines'' (Mitigation (MOA)
signed February 6, 1990, by the Environmental Protection Agency and the
Department of the Army, establish a mitigation sequence that is used in
the evaluation of individual permit applications. Under this sequence,
all appropriate and practicable steps must be undertaken by the
applicant to first avoid and then minimize adverse impacts to the
aquatic ecosystem. Remaining unavoidable impacts must then be offset
through compensatory mitigation to the extent appropriate and
practicable. Requirements for compensatory mitigation may be satisfied
through the use of wetland mitigation banks, so long as their use is
consistent with standard practices for evaluating compensatory
mitigation proposals outlined in the Mitigation MOA. It is important to
emphasize that, given the mitigation sequence requirements described
above, permit applicants should not anticipate that the establishment
of, or participation in, a wetland mitigation bank will ultimately lead
to a determination of compliance with the section 404(b)(1) Guidelines
without adequate demonstration that impacts associated with the
proposed discharge have been avoided and minimized to the extent
practicable.
4. The agencies' preference for on-site, in-kind compensatory
mitigation does not preclude the use of wetland mitigation banks where
it has been determined by the Corps, or other appropriate permitting
agency, in coordination with the Federal resource agencies through the
standard permit evaluation process, that the use of a particular
mitigation bank as compensation for proposed wetland impacts would be
appropriate for offsetting impacts to the aquatic ecosystem. In making
such a determination, careful consideration must be given to wetland
functions, landscape position, and affected species populations at both
the impact and mitigation bank sites. In addition, compensation for
wetland impacts should occur, where appropriate and practicable, within
the same watershed as the impact site. Where a mitigation bank is being
developed in conjunction with a wetland resource planning initiative
(e.g., Special Area Management Plan, State Wetland Conservation Plan)
to satisfy particular wetland restoration objectives, the permitting
agency will determine, in coordination with the Federal resource
agencies, whether use of the bank should be considered an appropriate
form of compensatory mitigation for impacts occurring within the same
watershed.
5. Wetland mitigation banks should generally be in place and
functional before credits may be used to offset permitted wetland
losses. However, it may be appropriate to allow incremental
distribution of credits corresponding to the appropriate stage of
successful establishment of wetland functions. Moreover, variable
mitigation ratios (credit acreage to impacted wetland acreage) may be
used in such circumstances to reflect the wetland functions attained at
a bank site at a particular point in time. For example, higher ratios
would be required when a bank is not yet fully functional at the time
credits are to be withdrawn.
6. Establishment of each mitigation bank should be accompanied by
the development of a formal written agreement (e.g., memorandum of
agreement) among the Corps, EPA, other relevant resource agencies, and
those parties who will own, develop, operate or otherwise participate
in the bank. The purpose of the agreement is to establish clear
guidelines for establishment and use of the mitigation bank. A wetlands
mitigation bank may also be established through issuance of a Section
404 permit where establishing the proposed bank involves a discharge of
dredged or fill material into waters of the United States. The banking
agreement or, where applicable, special conditions of the permit
establishing the bank should address the following considerations,
where appropriate:
(a) Location of the mitigation bank;
(b) Goals and objectives for the mitigation bank project;
(c) Identification of bank sponsors and participants;
(d) Development and maintenance plan;
(e) Evaluation methodology acceptable to all signatories to
establish bank credits and assess bank success in meeting the project
goals and objectives;
(f) Specific accounting procedures for tracking crediting and
debiting;
(g) Geographic area of applicability;
(h) Monitoring requirements and responsibilities;
(i) Remedial action responsibilities including funding; and
(j) Provisions for protecting the mitigation bank in perpetuity.
Agency participation in a wetlands mitigation banking agreement may
not, in any way, restrict or limit the authorities and responsibilities
of the agencies.
7. An appropriate methodology, acceptable to all signatories,
should be identified and used to evaluate the success of wetland
restoration and creation efforts within the mitigation bank and to
identify the appropriate stage of development for issuing mitigation
credits. A full range of wetland functions should be assessed.
Functional evaluations of the mitigation bank should generally be
conducted by a multi-disciplinary team representing involved resource
and regulatory agencies and other appropriate parties. The same
methodology should be used to determine the functions and values of
both credits and debits. As an alternative, credits and debits can be
based on acres of various types of wetlands (e.g., National Wetland
Inventory classes). Final determinations regarding debits and credits
will be made by the Corps, or other appropriate permitting agency, in
consultation with Federal resource agencies.
8. Permit applicants may draw upon the available credits of a third
party mitigation bank (i.e., a bank developed and operated by an entity
other than the permit applicant). The section 404 permit, however, must
state explicitly that the permittee remains responsible for ensuring
that the mitigation requirements are satisfied.
9. To ensure legal enforceability of the mitigation conditions, use
of mitigation bank credits must be conditioned in the section 404
permit by referencing the banking agreement or section 404 permit
establishing the bank; however, such a provision should not limit the
responsibility of the section 404 permittee for satisfying all legal
requirements of the permit.
Signed: August 23, 1993.
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S.
Environmental Protection Agency.
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department
of the Army.
Regulatory Guidance Letter (RGL 93-3)
RGL 93-3
Issued: September 13, 1993, Expires: not applicable
Subject: Rescission of Regulatory Guidance Letters (RGL) 90-5, 90-7,
and 90-8
1. On 25 August 1993 the final ``Excavation Rule'' was published in
the Federal Register (58 FR 45008) and becomes effective on 24
September 1993. This regulation modifies the definition of ``Discharge
of Dredged Material'' to address landclearing activities (see 33 CFR
323.2(d)); modifies the definitions of ``Fill Material'' and
``Discharge of Fill Material'' to address the placement of pilings (see
33 CFR 323.2(e) and (f) and 323.3(c)); and modifies the definition of
``waters of the United States'' to address prior converted cropland
(see 33 CFR 328.(a)(8)).
2. Therefore, RGL 90-5, Subject: ``Landclearing Activities Subject
to Section 404 Jurisdiction''; RGL 90-7, Subject: ``Clarification of
the Phrase `Normal Circumstances' as it pertains to Cropped Wetlands'';
and RGL 90-8, Subject: ``Applicability of section 404 to Pilings''; are
hereby rescinded effective 24 September 1993. Furthermore, although RGL
90-5, Subject: ``Landclearing Activities Subject to section 404
Jurisdiction'' expired on 31 December 1992 it should continue to be
applied until 24 September 1993.
3. In addition, RGL's 90-5, 90-7, and 90-8 as of 24 September 1993
will no longer be used for guidance since the guidance contained in
those RGL's has been superseded by the regulation.
For the Director of Civil Works.
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of
Civil Works.
[FR Doc. 94-2429 Filed 2-2-94; 8:45 am]
BILLING CODE 3710-92-M
