FLOOD08883

• County: Statewide
• Basin: Statewide
• Title: Federal Register EPA Guidelines for Specification of Disposal Sites for Dredged or Fill Material
• Date: 12/24/1980
• Prepared By: EPA
• Floodplain - Doc Type: Educational/Technical/Reference Information

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85336 Federal Register / Vol. 45. No. 249 I Wednesday. December 24. 1980 / Rules and Regulations

ENVIRONMENTAL PROTECTION
AGENCY

40 CFR Part 230

[WH-FRL 1647-7]

Guidelines for Specification of
Disposal Sites for Dredged or Fill
Material

AGENCY: Environmental Protection
Agency.
ACTION: Rule.

SUMMARY: The 404(b)[1) Guidelines are
the substantive criteria used in
evaluating discharges of dredged oT fill
material under section 404 of the Clean
\-Vater Act. These Guidelines revise and
clarify the September 5, 1975 Interim
final Guidelines regarding discharge of
dredged or fill material into waters of
the United States in order to:
(1) Reflect the 1977 Amendments of
Section 404 of the Clean Water Act
(CWA);
(2) Correct inadequacies in the interim
final Guidelines by filling gaps in
explanations of unacceptable adverse
impacts on aquatic ecosystems and by
r~quiring documentation of compliance
with the Guidelines: and
(3) Produce a final rulemaking
document.
EFFECTIVE DATE: These Guidelines will
apply to all 404 permit decisions made
after March 23, 1981. In the case of civil
works projects of the United States
Army Corps of Engineers involving the
discharge of dredged or fill material for
which there is no permit application or
permit as such, these Guidelines will
apply to all projects on which
construction or dredging contracts are
issued, or on which dredging is initiated
for Corps operations not performed
under contract. aftet October 1, 1981. In
the case of Federal construction projects
meeting the criteria in section 404{r),
these Guidelines will apply to aU
projects for which a final environmental
impact statement is filed with EPA after
April 1. 1981.
FOR FURTHER INFORMATION CONTACT:
Joseph Krivak. Director. Criteria and
Slandards Division (WH-585).
EnVironmental Protection Agency, 401 M
Slreel. S.W.. Washington. D.C. 20450.
telephone (20Z) i55-DI00.
SUPPLEMENTARY INFORMATION:

Background

The section 40-1 program for the
evaluation of permits for the discharge
of dredged or fill material was originally
enacted as part of the Federal Water
Pollution Control Amendments of 1972.
The section authorized the Secretary of

the Army acling through the Chief of
Engineers to issue permits specifying
disposal sites in accordance with the
section 404(bJ(1) Guidelines. Section
404[bJ(2) allowed the Secretary to issue
permits otherwise prohibited by the
Guidelines. based on consideration of
the economics of anchorage and
navigation. Section 404{c) authorized the
Administrator of the Environmental
Protection Agency to prohibit or
withdraw the specification of a site.
upon a determination that use of the site
would have an unacceptable adverse
effect on municipal water supplies.
shellfish beds and fishery areas
(including spawning and breeding
areas). wildlife. or recreational areas.
Under section 404(b)[1). the
Guidelines are to be based on criteria
comparable to those in section 403{c) of
the Act. for the territorial seas.
contiguous zone. and oceans. Unlike
403(c). 404 applies to all waters of the
United States. Characteristics of waters
of the United States vary greatly. both
from region to region and within a
region. There is a wide range of size,
flow, substrate. water quality. and use.
In addition. the materials to be
discharged. the methods of discharge,
and the activities associated with the
discharge also vary widely. These and
other variations make it unrealistic at
this time to arrive at numerical criteria
or standards for toxic or hazardous
substances to be appiied on a
nationwide basis. The susceptibility of
the aquatic ecosystem to degradation by
purely physical placement of dredged or
fill material further complicates the
problem of arriving at nationwide
standards, As a result. the Guidelines
concentrate on specifying the tools to b~
used in evaluating and testing the
impact of dredged or fill material
discharges on waters Df the United
States rather t~an on simply listing
numerical pass.fail points.
The firs I section 404[b)(1) Guidelines
were promulgated by the Administrator
in interim final form on September 5,
1975. after consultation with the Corps
of Engineers. Since promulgation of the
intenm final Guidelines. the Act has
been subslanhally amended. The Clean
\\'ater Act of 1977 established a
procedure for transferring certain
permitting authorities to the states.
exempted certain discharges from any
sectlOn 404 permit requirements. and
gave the Corps enforcement authority.
These amendements also increased tne
imparlance of the sechon 404(b)(1)
Guidelines. since some of the
exemptions are based on alternative
ways of applying the Guidelines. These
changes. plus the experience of EPA and

~

the Corps in \'1rorking with the interim
final Guidelines. have prompted a
revis. on of the Guidelines. The proposed
revis:.on attempted to reorganize the
Guidl~lines. tD make it clearer what had
to be considered in evaluating a
discharge and what weight should be
given to such considerations. The
proposed revision also tightened up the
requi rements for the permitting
ButhNity's documentation of the
applk.ation of the Guidelines.
A1ter extensive consultation with the
Corp!;. t~e proposed revisions were put
out fm public comment (44 FR 54222.
Seplember 18. 1979). EPA has re\'iewed.
and. after additional consultation with
the Corps. revised the proposal in lighl
of thE se comments. This preamble
addrE!sses the significant comments
received, explains the changes made in
the c€gulation, and attempts to clear up
some misunderstandings which were
revealed by the comments. Response to
Signincant Comments

Regu,'a/ion \J'ersus Guideline

A r:umber of commenters objected to
the proposed Guidelines on the grounds
that they were too "regulatory." These
commenterf. ~_~gued that the tenn
"guidelines" which appears in section
404(bl(1) requires a document with less
binding effect than a regulation, EPA
disag::ees. The Clean Water Act does
not U!le the word "guideline" to
distinguish adviSOry information from
regulatory requirements, Section
404[b)(2) clearly demonslrales that
Congress contemplated that discharges
could be "prohibited" by the Guidelines.
Sectic,n 403 (which is a model for the 404
(b)(l) Guidelines) also provides for
"guidelines" which are clearly
regula tory in nature. Consequently. we
have 110t changed the regulation to make
it simply advisory. Of course. as the
regula tion itself makes clear, a certain
amount of flexibility is still intended.
For example. while the ultimate
condi'jons 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 mel. See. for example. i 230.6 and
~ 230.IID, and introductory sentence in
i 230.10.

Statutory Scheme and HoW the
Guidelines Fit Into It

A number of commenters with
objections appeared confused about
EP A' s role in the section 404 program.
Some wondered why EPA was issuing
Guidelines since EPA could stop an
unacceptable discharge under section
404(c). Others were uncertain how the