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85342 Federal Register / Vol. 45. No. 249 / Wednesday. December 24. 1980 i Rules and Regulations Administrator's authority uncler section 309(b) or the right of a citizen tn bring suit against a violator under section 505 of the CW A. Permitting Authority: We have used the new term "permitting authority," instead of "District Engineer," throughout these regulations, in recognition of the fact that under the 1977 amendments approved States may also issue perq1its. Coastal Zone Management Plans Several commenters were concerned about the relationship between section 404 and approved Coastal Zone Management (CZM) plans. Some expressed concern that the Guidelines might authorize a discharge prohibited by a CZM plan; others objected to the fact that the Guidelines might prohibit a discharge which was consistent with a CZM plan. . Under section 307(b} of the CZM Act. no Federal permits may be issued until the applicant furnishes a certification that the discharge is consistent with an approved CZM plan, if there is one. and the State concurs in the certification or waives review. Section 325.2(b )(2) of the Corps' regulation. which applies to all Federal 404 permits, implements this requirement for section 404. Because the Corps' regulations adequately address the CZM consistency requirement. we have not duplicated! 325.2[b)[2) in the Guidelines. Where a State issues State 404 permits, it may of course require consistency with its eZM plan under State law. The second concern, that the 404 Guidelines might be stricter than a CZM plan. points out a possible problem with CZM plans. not with the Guidelines. Under 307[f) of CZMA. all CZM plans must provide for compliance with applicable requirements of the Clean Water Act. The Guidelines are one such requirement. Of course, to the extent that a eZM plan is general and area. wide, it may be impossible to include in its development the same project- specific consideration of impacts and alternatives required under the Guidelines. Nonetheless. it cannot authorize or mandate a discharge of dredged or fill ma terial which fails to comply with the requirements of these -Guidelines. Often CZM plans contain a requirement that all activities conducted under it meet the permit requirements of the Clean Water Act. In such a case. there could of course be no conflict between the CZM plan and the requirements of the Guidelines. We agree with commenters who urge that delay and duplication of effort be avoided by consolidating alternatives studies required under different statutes. including the Coastal Zone Management Act. However, since some planning processes do not deal with specific projects. their consideration of alternatives may not be sufficient for the Guidelines. Where another alternative analysis is less complete than that contemplated under section 404. it may not be used to weaken the requirements of the Guidelines. Advanced Identificatinn of Dredged or Fill Material Disposal Sites A large number of commenters objected to the way proposed I 230.70. new Subpart I. had been changed from the 1975 regulations. A few objected to the section itself. Most of the comments also revealed a misunderstanding about the significance of identifying an area. First. the fact that an area has been identified as unsuitable for a potential discharge site does not mean that someone cannot apply for and obtain a permit to discharge there as long as the Guidelines and other applicable requirements are satisified,. Conversely, the fact that an area has been identified as a potential site does not mean that a permit is unnecessary or that one will automatically be forthcoming. The intent of this section was to aid applicants by giving advance notice that they would have a relatively easy or difficult time qualifying for a permit to use particular areas. Such advance notice should facilitate applicant planning and shorten permit processing time. Most of the objectors focused on EPA's "abandonment" of its "authority" to identify sites. While that "authority" is perhaps less "authoritative" than the commenters suggested (see above). we agree that there is no reason to decrease EPA's_ role in the process. Therefore. we have changed new A 230.80(a) to read: "Consistent with these Guidelines, EPA and the pprmitting authority on their own imtiative or at the request of any other party. and after consultation with any affected State that is not the pennitting authority. may identify sites which will be considered as:" We have also deleted proposed ~ 230.70(a)(3). because it did not seem to accomplish much. Consideration of tile point at which cumulative and secondary impacts become' unacceptable and warrant emergency action will generally be more appropriate in a permit-by-permit context. Once that point has been so determined. of course. the area can be identified as "unsuitable" under the new ~ 230.80(a)(2). . EPA may foreclose the use of a site by E'ltercising its authority under section 404(cl. The advance Identification referred to in Ihis section is not a section 404(c} prohibition r Exe<:utive Order 12044 A number of commenters took the position that Executive Order 12044 requires EPA to prepare a "regulatory anal,ysis"-in connection with these regulations. EPA disagrees. These regulations are not. strictly speaking. new regulations. They do not impose new standards or requirements, but rathl!r substantially clarify and reorganize the existing interim final regu:iations . Under EPA's criteria implemenhng Executive Order 12044. EPA will prepare a Regulatory Analysis for any regulation whic:h imposes additional annual costs totalling $100 million or which will result in a total additional cost of production of any major product or service which exceeds 5% of its selling price. While man,! commenters, particularly 'mem.bers of the American Association of Port Authorities (AAPA). requested a regulatory analysis and claimed that the re"ulations were too burdensome, none otthem explained how that burden was an additional one attributable to this revhiion. A close comparison of the new regulation and the explicit and implicit requirements in the interim final Guidelines reveals that there has been very little real change in the criteria by which discharges are to be judged or in the tesf8 that must be conducted: therefore, we stand by our original determination that a regulatory analysis is n(lt required. Perhaps the Illost significant area in which the regulations are more explicit and arguably stricter is in the consideration of alternatives. However. even. the 1975 regulations required the permitting authority to consider "the availability of alternate sites and methods of disposal that are less damaging to the environment." and to avoid activities which would have significant adverse effects, We do not think that the revised Guidelines' more explicit direction to avoid adverse effects that could be prevented through selection of a clearly less damaging site or method is a change imposing a substantial new burden on the regulated public. BE:cause the revised regulations are more explicit than the interim final regulations in some respects. it is possible that permit reviewers will do a more thorough job evaluating proposed discharges, This may result in somewhat mOfl~ carefully drawn permit conditions. However. even if, for purposes of argument. ~he possible cost of complying with these conditions is considered an addJ'tional cost, there is no reason to belil~ve that it alone will be anywhere neal' $100 million annually.