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<br />APPENDIX 2 <br />Section 404(b)(1) Gmaelines <br />Restrictions on ,Discharges <br /> <br />In order to be permitted under Section 404 of the Clean Water Act, an activity must be found to' be <br />in compliance with the Section 404(b)(1) Guidelines (40 CPR 230). There are several specific <br />restrictions on discharges listed in 40 CFR 230.10. - <br /> <br />40 CPR 230.10(a): <br /> <br />40 CFR 230.10(b): <br /> <br />40 CPR 230.10(c): <br /> <br />40 CPR 230,10(d): <br /> <br />Slates that 'DO disdwge of dredged or fill material sball be permitted if there is <br />a practicable alternati1le to tlIc proposed discIwge that would have less adverse <br />impaa on the aquatic ecosystem, so long as the alternati1le does not have other <br />sigDific:ant adverse environmental coasequences.' A practicable alternative is <br />defined as oue that 'Is available and capable of being done after taking intO <br />consideration cost, emtiDg tedlnology, and logistics in light of overall project <br />purposes.' An altername does not have to be owned by an appliCUlt to be <br />considered practicable. The burden of proof Is always on the applicant to <br />demonsuate that there are DO available practicable alternatives. Moreover, tbe <br />alternatives test includes two presumptions wben discharges are proposed for <br />special aquatic sites, including wetlands: <br /> <br />1. for activities wbich are DOt water dependent, 'practicable alternatives that do <br />not in\'Olve special aquatic sites are presumed to be available, unless clearly <br />demonsuated othelwise,' and <br /> <br />2. 'wbere a disc:barge Is proposed for a speciai aquatic site, all practicable <br />alternatives to the proposed discbarge which do not involve a discltarge intO a <br />special aquatic site are presumed to have lesa adverse impaa on the aquatic <br />ecosystem, unIesa dearly demonsuated Othetwise.' <br /> <br />This restriction Is based on compliance of tlIc proposed activity witb several <br />other environmental Laws. including: applicable water quality standards, toxic <br />emuent standards, Endangered Species Act, and marine sanauaries designated <br />under thC Marine Proteetion, Rescarcb, and Sanctuaries Act of 1972. <br /> <br />This restriction Slates that 'DO discIwge of dredged or fill material shall be <br />penniltCtl wbidl will cause or contribute to sipificant degradation of the waters <br />of tlIc United Slates.' This determination invoi1les a consideration of impactS on <br />human health; aquatic liCe anti wild1ife dependent on aquatic ecosystems: aquatic <br />ecosystem diversity, productivity and stability; and recreational, aestbetic, and <br />economic values of the aquatic ecosystem. ' <br /> <br />This restriction Slates that 'DO discharge of dredged or fill material shall be <br />permitted unlesa appropriate and practicable steps have been taken which will <br />miftimi71'! [mitigate) potential adverse impactS of tbe discharge on tbe aquatic <br />emsystem. ' <br /> <br />E?'\ omce or WelWlcb Pro.ecuoa <br /> <br />OC10oer l' <br /> <br />9 <br />