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<br />7 <br /> <br />Federal Register I Vol. 45. No. 249 / Wednesday. December 24. 1980 / Rules and Regulations 85343 <br /> <br />We also believe that it is appropriate <br />to recognize the regulatory benefits from <br />these more carefully drafted final <br />regulations. Because they Sle much <br />clearer about what should be considered <br />and documented. we expect-there will <br />be fewer delays in reviewinJ;j! pC!rmils. <br />a.,d that initial decisions to issue <br />permits are less likely to be appealed to <br />higher authority. These benefits are <br />expected to offset any potential co~t <br />inCicase. <br />Some commenters suggested that <br />documentation requirements. would <br />generate an additional cost of <br />operations. The Corps' procedural <br />regulations at 33 CFR 325.8 and 325.11 <br />already require extensive <br />documentation for individual permits <br />being denied or being referred to higher <br />Huthority for resolution of a conflict <br />between agencies. <br /> <br />Economic Factors <br /> <br />A number of commenters asked EPA <br />to mclude consideration of economic <br />fi."!r.tors in the Guidelines. We believe <br />that the regulation already recognizes <br />economic factors to the extent <br />contemplated by the statute. First. the <br />Guidelines explicitly include the concept <br />of "practicability" in connection with <br />Loth alterna tives and steps to minimize <br />impacts. If an alleged alternative is <br />unreasonably expensive to the <br />Llpplicant. the alternative is 110t <br />"practicable." In addition. the <br />Guidelines also consider economics <br />indirectly in that they are struGtured to <br />evoid the expense of unnecessary <br />testing through the "reason-to-believe- <br />test." Second. the statute expressly <br />provides that the economics of <br />anchorage and navigation may be <br />considered. but only after application of <br />the section 404(b)(1) Guidelines. [See <br />section 404(b)(2).) <br /> <br />Borrow Sites <br /> <br />A number of highway departments <br />objected because they felt the <br />Guidelines would require them to <br />iJentify specific borrow sites at the time <br />of application. which would disrupt their <br />normal contracting process and increase <br />cost. These objections were based on a <br />mi~understanding of the Guideline'g <br />requirements. Under those Guidelines. <br />the actual borrow sites need not be <br />Ucntified. if the application and the <br />permit specify that the discharge <br />material must come from clean upland <br />site~ which are removed from sources of <br />contamination and otherwise satisfy the <br />reason-to-believe test. A condition that <br />the ma terial come from such a site <br />would enable the permitting allthority to <br />make his determinations and find <br />compliance with the conditions of <br /> <br />! 230.10. without requiring highway <br />departments to specify in advance the <br />specific borrow sites to be used. <br /> <br />Consultation With Fish and Wildlife <br />AKencies <br /> <br />One commenter wanted us to put in a <br />statement that the Fish and Wildlife <br />Coordination Act requires consultation <br />with fish and wildlif~, agencies. We have <br />not added new language because (1) the <br />Fish and Wildlife Act only applies to <br />Federal permitting agencies and not to <br />State permitting agencies. and (2) the <br />Corps' regulations already provide for <br />such consultation by the only Federal <br />4().1 permitting agency. However. we <br />agree with the commenter lhCl t Federal <br />and State fish and wildlife agencies may <br />often provide valuable assistance in <br />evaluating the impacts of discharges of <br />dredged or fill IDa teria!. <br /> <br />The Importance of Appropriate <br />Documentation <br /> <br />Specific documentation is important <br />to ensure an understanding of the basis <br />for each decision to allow. condition. or <br />prohibit a discharge through application <br />of the Guidelines. Documentation of <br />information is required for: (1) facts and <br />data gathered in the evaluation and <br />testing of the extraction site. the <br />materia! to be discharged. and the <br />disposal site; (2) factual determinations <br />regarding changes that can be expected <br />at the disposal site if the discharge is <br />made as proposed; and (3) findings <br />regarding compliance with i 230.10 <br />conditions. This documentation provides <br />a record of actions taken that can be <br />evaluated for adequacy and accuracy <br />and ensures consideration of all <br />important impacts in the evaluation of a <br />proposed discharge of dredged or fill <br />material. <br />The specific information documented <br />undcr (1) and (2) above in any given <br />case depends on the level of <br />investigation necessary to provide for a <br />reasonable understanding of the impact <br />on the aquatic ecosystems. We <br />anticipate that a number of individual <br />and most General permit applications <br />will be for routine, minor activities with <br />little potential for significant adverse <br />envircnmental impacts. In such cases. <br />the permitting authority will not have to <br />require extensive testing or analysis to <br />make his findings of compliance. The <br />level of documentation should reflect <br />the significance and complexity of the <br />proposed discharge activity. <br /> <br />Factual Determinations <br /> <br />Proposed section 230.20. "Factual <br />Determinations" (now! 230.11) has <br />been significantly reorganized in <br />response to comments. First. we have <br /> <br />changed (e) to reflect our elimination of <br />the artificial distinction between the <br />section 307(a)(1) toxies and other <br />contaminants. Second. we have <br />eliminated proposed (I] (Biological <br />Availability), since the necessary <br />information will be provided by (d) and <br />new (e). Proposed (I] was intended to <br />reflect the presumption that toxics were <br />present and biologically available. We <br />have modified proposed (g). now (I]. to <br />focus on the size of the disposal site and <br />the size and shape of the mixing zone. <br />The specific requirement to document <br />the site has been deleted: where such <br />information is relevant. it will <br />automatically be considered in making <br />the other determinations. We have also <br />deleted proposed (h) (Special <br />Determinations) since it did not provide <br />any useful information which would not <br />already be considered in making the <br />other factual determinations. <br />Finally. in response to many <br />comments. we have moved the <br />provisions on cumulative and secondary <br />impact to the Factual Determination <br />section to give them further emphasis. <br />We agree that such impacts are an <br />important consideration in evaluating <br />the acceptability of a discharge site. <br /> <br />Water Quality Standards <br /> <br />One commenter was concerned that <br />the reference! 230.10(b) to water <br />quality standards and criteria <br />"approved or promulgated under section <br />303" might encourage permit authorities <br />to ignore other water quality <br />requirements. Under section 303, all <br />State water quality standard. are to be <br />submitted 10 EPA for approvaL If the <br />submitted standards are incomplete or <br />insufficiently stringent. EPA may <br />promulgate standards to replace or <br />supplant the State standards. <br />Disapproved standards remain in effect <br />until replaced. Therefore, to refer to <br />"EPA approved or promulgated <br />standards" is to ignore those State <br />standards which have been neither <br />approved nor replaced. We have <br />therefore changed the wording' of this <br />requirement as follows: u. . "any <br />applicable State water quality <br />standard." We have also dropped the <br />reference to "criteria", to be consistent <br />with the Agency's general position that <br />water quality criteria are not regulatory. <br /> <br />Other Requirements for Discharge , <br /> <br />Section 230.10(c) provides that <br />discharges are nnt permitted if they will <br />have "significantly" adverse effects on <br />various aquatic resources. In this <br />context. .'significant" and "significantly" <br />mean more than "trivial". that is. <br />significant in a conceptual rather than a <br />statistical sense. Not all effects .which <br />