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8533~ Federal Register / Vol. 45. No. 249 / Wednesday. December 24. 1980 / Rules and Regulations We have selected the second option because this approach ensures that needed improvements to the Guidelines are made effective at the earliest possible date. it gives the public ample opportunity to comment on the revised testing section. and it maintains the 1975 testing requirements in effect during the interim which VwDuld be the case in any event. G~ideline Organization M:ny readers objected to the length and complexity of the Guidelines. We have substantially reorganized the regulation to eliminate duplicative material and to provide a more logical sequence. These changes should make it easier for applicants to understand the criteria and for State and Corps permit evaluators and the Administrator to apply the criteria. Throughout the document, we have also made numerous minor language changes to improve the clarity of the regulations, often at the suggestion of commenters. Following general introductory material and the actual compliance requirements. the regulations are now organized to more closely follow the steps the permitting authority will take in arriving at his ultimate decision on compliance with the Guidelines. By reorganizing the Guidelines in this fashion, we were also able to identify and eliminate duplicative material. For example, the proposed Guidelines listed ways to minimize impacts in many separate sections. Since there was subRlanlial overlap in the specific methods suggested in those sections, we consolidated them into new Subpart H. Other individual sections have been made more concise. In addition, we have decreased the number of comments. moving them to the Jfreamble or making them part of the Regulation, as approprIate. General Permits \Vhen issued after proper consideration of the Guidelines. General permits are a useful tool in protecting the en\'irr;~mf':lt with a minimum of red tape and delay. We expect thai their use wilf expa:1d in the future. Some commen!ers \vere cunfused about how General permits work. A Genera] permIt will be issued only after )he permitting authority has applied the Guidelines 10 the class of discharges to be coH'r"d by the permit. Thereforp. Ihrre is no need to repeal the proces!'l at the time a particL:]ar discharge covered by the permit tukes place. Of course. under both the Corps' regulations and EPA's regulations for State programs. the permitting authority may suspend General permits or require individual permits where environmen.tal concerns make it appropriate, For example. cumulative impacts may twn out to be more serious than predicted. This regulation is not intended to establish the procedures for issuance of General permits. That is the responsibility of the permitting authority in accordance with the requirements of section 404. Burdeo of Proof A number of commenters objected to the presumption in the regulations in general. and in proposed! 230.1(c) in particular, that dredged or fill material should not be discharged unless it is demonstrated that the planned discharge meets the Guidelines. These commenters thought that it was unfair and inconsistE!nt with section 404(c} of the Act. We disagree with these objections, and have retained the presumption against discharge and the existing burden of proof. However, the section has been rewritten for clarity, The Clean Water Act itself declares a national goal to be the elimination of the discharge of pollutants into the navigable waters [seclion 101(a)(1)). This goal is implemented by section 301. which states that such discharges are unlawful except in compliance with, inter alia. section 404. Section 404 in turn authorizes the pennitting authority to allow discharges of dredged or fill material if they comply with the 404[b)(1) Guidelines. The statutory scheme makes it clear that discharges shall not take place until they have been found acceptable. Of course, this finding may be made through the General permit process and the statutory exemptions as well as through individual permits, The commenters who argued that section 404(c) shifts the usual burden to the EPA Administrator misunderstood the relationship between section 404(cJ and the permitting process. The Administrator's authority to prohibit or restrict a site under section 404(c) operates independently of the Secretary of the Army's permitting authority in 404(a). The Administrator may use 404(c) whether or not a permit application is pending. Conversely, the Secretary may deny a permit on the basis of the Guidelines. whether or not EPA initiates a 404{c) proceeding. If the Administrator uses his 404(c) "veto," then he docs ha \Ie the burden 10 justify his action. but that burden does not come into piny until he begins a 404{c) proceeding (See 40 eFR Part 231). Toxic Pollutant!" Many commenlers objected strenuously to the presumption6 in the , Guid,~lines that toxic pollutants on the sectllln 307(a}(1) list are present in thE' aqua tic environment unless demc'nstrated not to be, and that such polIn tants are biologically available unless demonstrated otherwise. These commenters 8rg11ed that rebutting these presumptions could involve individual testiI1g for dozens of subskmces every time Ii discharge is proposed, imposing an onerous task. Thl~ proposed regulation attempted to avoid unnecessary testing by providing that when the! 230.22(b) "reason to believe" process indicated that toxics were not present in the discharge material. no testing was required. On the oiher hand. contaminants other than toxiCll required testing if that same "reason to believe" process indicated they might be present in the discharge material. This is in fact a distinction without a difference. In practical application. toxic and non-toxic contaminants are treated the same; if either may be there, tests are performed to get the information for the determinations; if it is believed they are nol present, no testing is done. Because the additional presumption for toxics did not actually ~~rve a purpose. and becal.se it was a pocsible source of confusion, we have eliminated it. and now treat "toxies" and other contaminants alike. under the "reason to belie\'e test" (! 230.60). We have provided in ~ 230,3 a definition of "conLtminants" which encompasses the 307(a;(1) taxies: W atel~ Dependency One of the provisions in the proposed Guidelines which received the most objections was the so-called "water dependency test" in the proposed ~ 230,lO(c}. This provision imposed an additional requirement on fills in wetla:1.ds associated with non.water dependent activities, namely a showing that the activity was "necessary," Many envlrClnmentalists objected to what they saw as a substantial weakening of the 1975 \lersion of the water dependency test. Industry and development-oriented group:;, on the other hand. objected to the "necessary" requirement beCause it was too subjective. and to the provision as a whole to the extent that it seemed designed to block discharges in wetlands automatically. We have reviewed the water dependency test, its original purpose, and it:; relalionship to the rest of the Guidelines in light of these comments. The original purpose, which many commenters commended, was to recognize the special values of wetlands and to avoid their unnecessary destruction. particularly when