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

1

Federal Register / Vol. 45. No. 249 / Wednesday, December 24. 1980 / Rules and Regulations 85341

discharge which will create fast lands.
the permitting authoritll should consider.
in addition to the direct effects of the fill
inself, the effects on the aquatic
environment of any reasonably
foreseeable activities to be conducled
on that fast land.
Section 230.51 [proposed 230.41) deals
with impacts on parks. national and
historical monuments. national sea
shores, wilderness areas, research sites.
and similar preserves. Some readers
were concerned that we intended the
Guidelines to apply to activities in such
preserves whether or not the activities
took place in waters orthe United
States. We intended. and we think the
context makes it clear, that the
Guidelines apply only to the
specifics Hon of discharge sites in the
waters of the United States. as defined
in ~ 230.3. We have included this section
because the fact that a water of the
United States may be located in one of
these preserves is significant in
evaluating the impacts of a discharge
into that water.
Wetlands: Many wetlands are waters
of the United States under the Clean
Water Act. Wetlands are also the
subject of Federal Executive Order No.
11990. and various Federal and State
laws and regulations. A number of these
other programs and laws have
developed slightly different wetlands
definitions. in part to accommodate or
emphasize specialized needs. Some of
these definitions include. not only
wetlands as these Guidelines define
them. but also mud flats and vegetated
and unvegetated shallows. Under the
Guidelines some of these other" areas are
grouped with wetlands as "Special
Aquatic Sites" (Subpart E) and as such
their values are given special
recognition. (See discussion of Water
Dependency above.) We agree with the
comment that the National Inventory of
Wetlands prepared by the U.S. Fish and
Wildlife ServIce. while not necessarily
exactly COinciding with the scope of
waters of the United States under the
Clean Water Act or wetlands under
these regulations. may help avoid
construction in wetlands. and be a
usefullong.tcrm planning tooL
Various commenters objected 10 the
definItion of wetlands in the Guidelines
ilS too bl'Oad or too vague. This
~roposE'J definition has been upheld -by
th~ courts as reasonable and consistent
\\'I:h Ihe Clean Water Act. and is being
retHined in the final regulation.
However. we do agree that, egeUitlve
gujd~s and other background material
may Uf helpful in applying the definitIOn
in the held. EPA and the Corps are
pledged to work on joint research to aid

in jurisdictional detenninations. As we
develop such materials, we will make
them available to the public.
Other commenters suggested that we
expand the list of examples in the
second sentence of the wetland
definition. While their suggested
sdditions could legally be added. we
have not done so. The list is one of
examples only, and does not serve as a
limitation on the basic definition. We
are reluctant to start expanding the list,
since there are many kinds of wetlands
which could be included. and the list
could become very unwieldy.
In addition. we wish to avoid the
confusion which could result from listing
as examples, not only areas which
generally fit the wetland definitions. but
also areas which mayor not meet the
definition depending on the particular
circumstances of a given site. In sum, if
an area meets the definition. it is a
wetland for purposes of the Clean Water
Act. whether or not it falls into one of
the listed examples. Of course, more
often than not. it will be one of the listed
examples. .
A few commenters cited alleged
inconsistencies between the definition
of wetlands in ~ 230.3 and ~ 230.42.
While we see no inconsistency. we have
shortened the latter section as part of
our effort to eliminate unnecessary
comments.
Unvegetated Shaliows: One of the
special aquatic areas listed in the
proposal was "unvegetated shallows"
(f 230.44). Since special aquatic areas
are subject to the presumptions in
~ 23O.10[a)(3). it is important that they
be clearly defined so that the permitting
authority may leadiIy know when to
apply the presumptions. We were
unable to develop. at-this time, a
definition for unvegetated shaeows
which was both essy to apply and not
too inclusive or exclusive. Therefore. we
have decided the wiser course is to
delete unvegetated shallows from the
special aquatic area classification. Of
course. as waters of the United States,
they are still subject to the rest of the
Guidelines.
"Fill Material": We are temporarily
reserving ~ 230.3(1). Both the proposed
Guidelines and the proposed
Consolidated Permit Regulations
defined fill material as material
discharged for the primary purpose of
rf~placing fl.n aquatic area with dryland
or of changing the bottom elevation of a
water body, reserving to l.1.e NPDES
program discharges with the same effect
which are primarily for the purpose of
disposing of waste. Both proposals
solicited comments on this distinction.
referred to as the primary purpose test.
On May 19. 1980. acting under a court-

imposed deadline. EP A issued final
Consolidated Permit Regulations while
the 404(bJ(l) Guidelines rulemalting was
still pending. These Consolidated Permit
Regulations contained a new definition
of fill material whicb eliminated the
primary purpose test and included as flIl
material all pollutants wbich have the
effect of fill. that is. which replace part
of the waters of the United States with
dryland or which chsnge the bottom
elevation of a water body for any
purpose. This new definition is similar
to the one used before 1977.
During the section 404(bJ[lJ
rulemaking, the Corps has raised certain
questions about the implementation of
such a definition. Because of the
importance of making the Final
Guidelines available without further
delay, and because of our desire to
cooperate with the Corps in resolving
their concerns about fill material, we
have decided to temporarily reserve
~ 230.3(lJ pending further discussion.
This action does not affect the
effectiveness of the Consolidated Permit
Regulations. Consequently, there is a
discrepency between those regulations
and the Corps' regulations, which still
contain the old definition.
Therefore, to avoid any uncertainty
from this situation, EPA wishes to make
clear its enforcement policy for
unpennitted discharges of solid waste.
EPA has authority under section 309 of
the CW A to issue administrative orders
against viola tiODS of section 301.
Unpermitted discbarges of solid waste
into waters of the United States violate
section 301.
Under the present circumstances, EPA
plans to issue solid waste administrative
orders with two basic elements. First.
the orders will require the violator to
apply to the Corps of Engineers for a
section 404 permit within a specified
period oftime. (The Corps has agreed to
accept these applications and to hold
them until it re!olves its position on the
definition of fill material.)
Second the order will constrain
further discharges by the violator. In
extreme cases. an order may require
that discharges cease immediately.
However. because we recognize that
there will be a laps. of lime before
decisions are made on lhis kind of
permit application. these orders may
expressly allow unpermitted discharges
to continue suuject to specific conditions
set forth by EPA in the Qrder. These
conditions will be designed to avoid
further environmental damage.
Of course. these orders will not
influence the ultimate issuance or non-
issuance of a permit or determine the
conditions that may be specified in such
a permit Nor will such orders limit the