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

.85340 Federal Register I Vol. 45. No. 249 I Wednesday. December 24. 1980 I Rules and Regulations

alternative need nol be considered to
have "less adverse" impact.
Several commenters questioned the
legal basis for requiring the permitting
authority to select the least damaging
alternative. (The use of the term "select"
may have been misleading. Strictly
speaking. the permitting authority does
not select anything; he denies the permit
if the guidelines requirements have not
been complied with.) As mentioned
above, the statute leaves to EPA's
discretion the exact implementation of
the alternative requirement in section
403 of the Act. In large part. the
approach taken by these regulations is
very similar to that taken by the recent
section 403[c) regulations [45 FR 65942,
October 3. 1980). There is one difference;
the Guidelines always prohibit -
discharges where there is a practicable.
less damaging alternative. while the
section 403(c) regulations only apply this
prohibition in some cases. This
difference reflects the wide range of
water systems subject to 404 and the
extreme sensitivity of many of them to
physical destruction. These waters farm
a priceless mosaic. Thus. if destruction
of an area of waters of the United States
may reasonably be avoided. it should be
avoided. Of course. where a category of
404 discharges is so minimal in its
effects that it has been placed under a
general permit. there is no need to
perform a case.by-case alternatives
analysis. This fea ture corresponds. in a
sense. to the categer}' of discharges
under section 403 for which no
alternatives analysis is required,
Third, some commenters were
concerned that the alternative
consideration was unduly focused on
water quality, and that a better
alternative from a water quality
standpoint might be less desirable from,
say. an air quality point of view. This
concern overlooks the explicit provision
that the existence of an alternative
which is less damaging to the aquatic
ecosystem does not di~qualify a
discharge if that alterrative has other
significant adverse en'/ironrnental
consequences. This la:;t provision gives
the permitting authority an opportunity
to take into account evidence of damage
to other ecosystems in deciding whether
there is 8 "better" alternative.
Fourth. a number of cemmenters were
concerned that the Guidelines ensure
coordination with planning processes
under the Coastal Zone Management
Act, ~ Z08 of the CW A. and other
programs. We agree that where an
adequate alternatives analysis has
already been developed. it would be
wasteful not to incorporate it into the
404 process. New ~ 230.10(a](5) makes it

clear that where alternatives have been
reviewed under another process. the
permitting authority shall consider such
analysis. However, if the prior analysis
is not as complete as the alternatives
analysis required under the Guidelines.
he must supplement it as needed to
determine whether the proposed
discharge complies with the Guidelines.
Section 230.10(s)(4) recognizes that the
range of alternatives considered in
NEPA documents will be sufficient for
section 404 purposes. where the Corps is
the permitting authority. (However. a
greater level of detail may be needed in
particular cases to be adequate for the
404(b)[l) Guidelines analysis.) This
distinction between the Corps and State
permitting authorities is based on the
fact that it is the Corps' policy. in
carrying out its own NEPA
responsibilities, to supplement ( or
require a supplement to) a lead agency's
environmental assessment or impact
statement where such document docs
not contain sufficient information. State
permitting agencies. on the other hand.
are not subject to NEP A in this manner.
\'Ve have moved proposed
i 230.10(a)[1) (Hi). concerning "other
particular volumes and concentrations
of pollutants at other specific rates",
from the list of alternatives in ~ 230,10 to
Subpart H. Minimizing Adverse Effects.
because it more properly belongs there.

Definitions (! 230.3)

A number of the terms defined in
~ 230.3 are also defined in the Corps'
regulations at 33 CFR 323,2. applicable
to the Corps' regulatory program. The
Corps has recently proposed some
revisions to those regulations and
expects to receive comments on the
definitions. To ensure coordination of
these two sets ofregulations. we have
decided to reserve the definitions of
"discharge of dredged material,"
"discharge of fill material." "dredged
material." and "fill material." which
otherwise would have appeared at
i 230.3 (f). (g). (j). and (I).
Although the term "waters of the
United States" also appears in the
Corps' regulations. we have retained a
definition here. in view of the
importance of this key jurisdictional
term and the numerous oomments
received. The definition and the
comments are explained below,
Until new definitions are published.
directly or by reference to the Corps'
revised regulations. users of these
Guidelines should refer to the
definitions in 33 CFR 323.2 [except in the
case of s ta te 404 programs. to which the
definitions in 40 CFR i 122.3 apply.]
Waters of the United States: A
number of commenters objected to the

definition of "waters of the United
States" because it was allegedly outside
the scope of the Clean Water Act or of
the Constitution or because it was not
identical to the Corps' definition. We
have retained the proposed definition
with a few minor changes for clarity for
seversl reasons. First. a number of
courts have held that this basic
definilion of waters of the United States
reasonably implements section 502(7) of
the Cll~an Warer Act. and that it is
constitutional (e.g.. United States v.
Byrd. ,>09 F.2d 1204. 7th Cir. 1979; Leslie
'Salt Company v. Froehlke, 578 F.2d 742.
9th Ci:~. 1978). Second. we agree that it is
preferable to have a uniform definition
for wc:.ters of the United States, and for
all reg ula tions and programs under the
CWA. We have decided to use the
warding in the recent Consolidated
Permi t Regulations, 43 Fed. Reg, 33290.
May 19. 1980, as the standard:
Some commenters suggested that the
rererence in the definition to waters
from which fish are taken to be sold in
interstate commerce be expanded to
include areas where such fish spawn.
WhilE: we have not made this change
becaJ;,se we wish to maintain
consi:;tency with the wording of the
Consolidated Permit regulations. we do
not intend to suggest that a spawning
area may not have significance for
commerce. The portion of the definition
at issL1e lists major examples. not all the
~ays which commerce may be involved,
Some reviewers questioned the
statement in proposed ~ 230.72(c) (now
~ 230 l1[h)) that activities on fast land
creat"d by a discharge of dredged or fill
material are considered to be in waters
of thE: United States for purposes of
these Guidelines. The proposed
language was misleading and we bave
chanjJed it to more accurately reflect our
intent. When a portion of the Waters of
the United States has been legally
con vl~rted to fast land by a discharge of
dredued or fill material. it does not
remairn waters of the United States
subject to section 301(a). The discharge
may be legal because it was authorized
by a permit or because it was made
before there was a permit requirement.
In thl~ case of an illegal discharge. the
fast land may remain subject to the
jurisdiction of the Act until the
gave mIIlent determines not to seek
restoration. However. in authorizing a

,

. Tte Conlolidated Permit Regulationl exclude
cerlaill walle trealment systems from waten of the
United Stalel. The exact terms of this exclusion are
undernomg technical revi.ions and are expected to
change thortly, For thit feason. thele Cuidelines In
pl.lblished do not ct'ntain the exclusion as Originally
wordE d in the Consolidated Pennit Regulations.
When published. tbe corrected exdulion will apply
to the Cuidelinel at well .. tbe Consolidated Perrnil
Re~ul.ltlon..