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, Federal Register I Vol. 45. No. 249 I Wednesday. December 24. 1980 I Rules and Regulations 85337 Gu:delines related to other section 404 regulations. The Cle.n W.ter Act prohibits the discharge of dredged or fill material except in compliance with section 404. SecJion 404 sets up a procedure for issuing permits specifying. discharge sites. Certain discharges (e.g. emergency repairs. certain farm and forest roads. and other discharges identified in sections 404(f) and (r)) are exempted from the permit requirements. The permitting authority (either the Corps of Engineers or an approved Slale program) approves discharges at particular sites through application of the section 404(b)(1) Guideline.. which are the substantive criteria for dredged and fill material discharges under the Clp-an Water Act. The Corps also conducts a Public Interest Review, which ensures that the discharge will comply with the applicable requirements of other statutes and be in [he public interest. The Corps or the State. as the case may be. must provide an opportunity for a public hearing before making its decision whether to approve or deny. If the Corps concludes ltlat thp discharge does not comply with the Guidelines. it may still issue the permit under 404{b){Z) if it concludes that the economics of navigation and anchorage warrant. Section 404(b}{2) gives the Secretary a limited authority to issue permits prohibited by the Guidelines; it does not. as some cummenters suggested. require the Guidelines to consider th~ economics of navigation and anchorage. Conversely. because of 404(b)(2). the fact that a discharge of dredged material does not comply with the Guidelines does not mean that it can never be permitted. The Act recugnizes the concerns of ports in secllon 404(b](2). not404(b)[l). Many readers apparently misunderstood this point. EPA's role under section 404 is several-fold. First. EPA has the responsibility for developing the 404{bJ(1) Guidelines in conjunction with the Corps. Second, EPA reviews permit applications and gives its comments (if Jny) to the permitting authority. The Corps may issue a permit even if EPA comments adversely. after consultation takes place. In the case of 3tate programs. the State director may not issue a permit aver EPA's unresolved objection. Third, EPA has the responsibility for approving and overseeing Sta te 404 programs. In addition. EPA has enforcement responsibilities under section 309. Finally, under either the Federal or State program, the Administrator may also prohibit the specification of a discharge site, or restrict its use, by following the procedurps set out in section 404{c), if he determines that discharge would have an unacceptable adverse effect on fish and shellfish areas (including spawning and breeding areas). municipal water supplies, wildlife or recreation areas. He may do so in advance of a planned discharge or while a permit application is heing evaluated or even, in unusual circumstances. after issuance of a permit. (See preamble to 40 CFR Part 231.44 FR 58076. October 9.1979.) If the Administrator uses 404(c). he may block the issuance of a permit by the Corps or a State 404 program. Where the Administrator has exercised his section 404(c) authority to prohibit. withhold. or restrict the specification of a site for disposal. his action may not be overridden under section 404(b)[2). The fact that EPA ha. 404(c) authority does not lessen EPA's responsibility for developing the 404(b){1) Guidelines for use by the permitting authority. Indeed. if the Guidelines are properly applied, EPA will rarely have to use its 404(c) veto. The Clean Water Act provides for several uses of the Guidelines in addition to the individual permit application review process described above. For example. the Corps or an approved state may issue General permits for a category of similar aclivities where it determines. on the basis of the 404(b)(1) Guidelines. that lne activities will cause only minimal adversp environmental effects both individually and cumulatively (Section 404(e) and (g)(l)).ln addition. .ome of the exemptions from the permit requirements involve application of the Guidelinei'l. Section 404(r) exempts discharges associated with Federal construction projects where. among other things, there is an Environmental Impact Statement which considers the 404(b)(1) Guidelines. Sectton 404(1)(1)[F) exempts discharges covered by best management practices (BMP's) approved under section 208(b)(4)(B) and (c). the approval of which is based in part on consistency with the 404(b)(1) Guidelines. Several commenters asked for a statement on the applicability of the Guidelines to enforcement procedures. Under sections 309. 404(h)(1)(G). and 404(s), EPA, approved States. and the Corps all playa role in enforcing the section 404 permit requirements. Enforcement actions are appropriate when someone is discharging dredged or fill material without a required permit, or violates the terms and conditions of a permit. The Guidelines as such are generally irrelevant to a determination of either kind of violation. although they may represent the basis for particular permit conditions which are violated. Under the Corps' procedural regulations. the Carps may accept an application for an after-the-fact permit. in lieu of immediately commencing an enforcement action. Such after-the-fact permits may be issued only if they comply with the 404(b)(1) Guidelines as well as other -requirements set out in the Corps' regulations. Criteria and procedures for exercising the various enforcement options are outside the scope of the section 404(b)(1) Guidelines. Some commenters suggested that we either,include specific permit processing procedures or that we cross-reference regulations containing them. Such procedures are described in 33 eFR Part 32~27 (Corps' procedures) and in 40 eFR Part 122-124 (minimum State procedures). When specific State 404 programs are approved. their regulations should also be consulted. How Future Changes in the Testing Provision Relate to Promulgation of This Final Rule The September 18. 1979. propo.al contained testing provisions which were essentially the same as those in the Interim Final regulations. The Preamble to that proposal explained that it was our intention to propose changes in the testing provisions. but that a proposal was not yet ready. Consequently. while we have been revising the rest of the Guidelines. we have also been working on B proposal for reorganizing and updating the testing provisions. Now that we bave fmalized the rest of the Guidelines. two options are available to us. First. we could delay ilsuing any final revisit)DS to our 1979 proposal until we could propose a revised testing package, consider comments on it. and finalize the testing provisions. We could then put together the Guidelines and the revised testing section in one final regulation. The 1975 interim final Guidelines would apply in their entirety until then. Second. we could publish the [inal Guidelines (wi th the 1975 testing provisions) and simultaneously propose chanses to the testing provision. It is our present belief that proposed changea to the testing provision would not affect the rest of the Guidelines. but the public would be allowed to comment on any inconsistencies it saw between the rest of the Guidelines and the testing proposal. Then, when the comments to the testing proposal had been considered, we would issue a new final regulation incorporating both the previously prpmulgated rmal Guidelines and the flOal revised testing provision.