[Federal Register Volume 60, Number 49 (Tuesday, March 14, 1995)]
[Notices]
[Pages 13703-13713]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-6253]



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DEPARTMENT OF DEFENSE
Corps of Engineers


Regulatory Guidance Letters Issued by the Corps of Engineers

agency: U.S. Army Corps of Engineers, DoD.

action: Notice.

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summary: The purpose of this notice is to provide current Regulatory 
Guidance Letters (RGL's) to all interested parties. RGL's are used by 
the Corps Headquarters as a means to transmit guidance on the permit 
program (33 CFR 320-330) to its division and district engineers (DE's). 
Each future RGL will be published in the Notice Section of the Federal 
Register as a means to insure the widest dissemination of this 
information while reducing costs to the Federal Government. The Corps 
no longer maintains a mailing list to furnish copies of the RGL's to 
the public.

for further information contact: Mr. Ralph Eppard, Regulatory Branch, 
Office of the Chief of Engineers at (202) 272-1783.

supplementary information: RGL's were developed by the Corps of 
Engineers as a system to organize and track written guidance issued to 
its field agencies. RGL's are normally issued as a result of evolving 
policy; judicial decisions and changes to the Corps regulations or 
another agency's regulations which affect the permit program. RGL's are 
used only to interpret or clarify existing regulatory program policy, 
but do provide mandatory guidance to Corps district offices. RGL's are 
sequentially numbered and expire on a specified date. However, unless 
superseded by specific provisions of subsequently issued regulations or 
RGL's, the guidance provided in RGL's generally remains valid after the 
expiration date. The Corps incorporates most of the guidance provided 
by RGL's whenever it revises its permit regulations. There were two 
RGL's issued by the Corps during 1994, and both were published in the 
Notice Section of the Federal Register upon issuance. We are hereby 
publishing all current RGL's, beginning with RGL 91-1 and ending with 
RGL 94-2. We will continue to publish each RGL in the Notice Section of 
the Federal Register upon issuance and in early 1996, we will again 
publish the complete list of all current RGL's.

    Dated: February 6, 1995.
James E. Crews,
Acting Chief, Operations, Construction and Readiness Division, 
Directorate of Civil Works.

Regulatory Guidance Letter (RGL 91-1)

RGL 91-1  DATE: Dec 31, 1991  EXPIRES: Dec 31, 1996
SUBJECT: Extensions of Time For Individual Permit Authorizations

    1. The purpose of this guidance is to provide clarification for 
district and division offices relating to extensions of time for 
Department of the Army permits (See 33 CFR 325.6).
    2. General: A permittee is informed of the time limit for 
completing an authorized activity by General Condition #1 of the 
standard permit form (ENG Form 1721). This condition states that a 
request for an extension of time should be submitted to the 
authorizing official at least one month prior to the expiration 
date. This request should be in writing and should explain the basis 
of the request. The DE may consider an oral request from the 
permittee provided it is followed up with a written request prior to 
the expiration date. A request for an extension of time will usually 
be granted unless the DE determines that the time extension would be 
contrary to the public interest. The one month submittal requirement 
is a workload management time limit designed to prevent permittees 
from filing last minute time extension requests. Obviously, the one 
month period is not sufficient to make a final decision on all time 
extension requests that are processed in accordance with 33 CFR 
325.2. It should be noted that a permittee may choose to request a 
time extension sooner than this (e.g., six months prior to the 
expiration date). While there is no formal time limit of this 
nature, a request for an extension of time should generally not be 
considered by the DE more than one year prior to the expiration 
date. A permit will automatically expire if an extension is not 
requested and granted prior to the applicable expiration date (See 
33 CFR 325.6(d)).
    3. Requests for Time Extensions Prior to Expiration: For 
requests of time extensions received prior to the expiration date, 
the DE should consider the following procedures if a decision on the 
request cannot be completed prior to the permit expiration date:
    (a) The DE may grant an interim time extension while a final 
decision is being made; or
    (b) The DE may, when appropriate, suspend the permit at the same 
time that an interim time extension is granted, while a final 
decision is being made.
    4. Requests for Time Extensions After Expiration: A time 
extension cannot be granted if a time extension request is received 
after the applicable time limit. In such cases, a new permit 
application must be processed, if the permittee wishes to pursue the 
work. However, the DE may consider expedited processing procedures 
when: (1) The request is received shortly (generally 30 days) after 
the expiration date, (2) the DE determines that there have been no 
substantial changes in the attendant circumstances since the 
original authorization was issued, and (3) the DE believes that the 
time extension would likely have been granted. Expedited processing 
procedures may include, but are not limited to, not requiring that a 
new application form be submitted or issuing a 15 day public notice.
    5. This guidance expires 31 December 1996 unless sooner revised 
or rescinded.

    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division Directorate of 
Civil Works.

Regulatory Guidance Letter (RGL 92-1)

RGL 92-1  Date: 13 May 1992, Expires: 31 December 1997
Subject: Federal Agencies Roles and Responsibilities.

    1. Purpose: The purpose of this guidance is to clarify the Army 
Corps of Engineers leadership and decision-making role as ``project 
manager'' for the evaluation of permit applications pursuant to 
Section 404 of the Clean Water Act (CWA) and Section 10 of the 
Rivers and Harbors Act. This guidance is also intended to encourage 
effective and efficient coordination among prospective permittees, 
the Corps, and the Federal resource agencies (i.e., Environmental 
Protection Agency (EPA), Fish and Wildlife Service (FWS), and 
National Marine Fisheries Service (NMFS)). Implementation of this 
guidance will help to streamline the permit process by minimizing 
delays and ensuring more timely decisions, while providing a 
meaningful opportunity for substantive input from all Federal 
agencies.
    2. Background: (a) The Department of the Army Regulatory Program 
must operate in an [[Page 13704]] efficient manner in order to 
protect the aquatic environment and provide fair, equitable, and 
timely decisions to the regulated public. Clear leadership and a 
predictable decision-making framework will enhance the public 
acceptance of the program and allow the program to meet the 
important objective of effectively protecting the Nation's valuable 
aquatic resources.
    (b) On August 9, 1991, the President announced a comprehensive 
plan for improving the protection of the Nation's wetlands. The plan 
seeks to balance two important objectives--the protection, 
restoration, and creation of wetlands and the need for sustained 
economic growth and development. The plan, which is designed to slow 
and eventually stop the net loss of wetlands, includes measures that 
will improve and streamline the current wetlands regulatory system. 
This Regulatory Guidance Letter is issued in accordance with the 
President's plan for protecting wetlands.
    (c) The intent of this guidance is to express clearly that the 
Corps is the decision-maker and project manager for the Department 
of Army's Regulatory Program. The Corps will consider, to the 
maximum extent possible, all timely, project-related comments from 
other Federal agencies when making regulatory decisions. 
Furthermore, the Corps and relevant Federal agencies will maintain 
and improve as necessary their working relationships.
    (d) The Federal resource agencies have reviewed and concurred 
with this guidance and have agreed to act in accordance with these 
provisions. While this guidance does not restrict or impair the 
exercise of legal authorities vested in the Federal resource 
agencies or States under the CWA or other statutes and regulations 
(e.g., EPA's authority under section 404(c), section 404(f), and CWA 
geographic jurisdiction and FWS/NMFS authorities under the Fish and 
Wildlife Coordination Act and the Endangered Species Act (ESA)), 
agency comments on Department of the Army permit applications must 
be consistent with the provisions contained in this regulatory 
guidance letter.
    3. The Corps Project Management/Decision Making Role: (a) The 
Corps is solely responsible for making final permit decisions 
pursuant to section 10 and section 404(a), including final 
determinations of compliance with the Corps permit regulations, the 
Section 404(b)(1) Guidelines, and Section 7(a)(2) of the ESA. As 
such, the Corps will act as the project manager for the evaluation 
of all permit applications. The Corps will advise potential 
applicants of its role as the project manager and decision-maker. 
This guidance does not restrict EPA's authority to make 
determinations of compliance with the Guidelines in carrying out its 
responsibilities under Sections 309 and 404(c) of the Clean Water 
Act.
    (b) As the project manager, the Corps is responsible for 
requesting and evaluating information concerning all permit 
applications. The Corps will obtain and utilize this information in 
a manner that moves, as rapidly as practical, the regulatory process 
towards a final permit decision. The Corps will not evaluate 
applications as a project opponent or advocate--but instead will 
maintain an objective evaluation, fully considering all relevant 
factors.
    (c) The Corps will fully consider other Federal agencies' 
project-related comments when determining compliance with the 
National Environmental Policy Act (NEPA), the Section 404(b)(1) 
Guidelines, the ESA, the National Historic Preservation Act, and 
other relevant statutes, regulations, and policies. The Corps will 
also fully consider the agencies' views when determining whether to 
issue the permit, to issue the permit with conditions and/or 
mitigation, or to deny the permit.
    4. The Federal Resource Agencies' Role: (a) It is recognized 
that the Federal resource agencies have an important role in the 
Department of the Army Regulatory Program under the CWA, NEPA, ESA, 
Magnuson Fisheries Conservation and Management Act, and other 
relevant statutes.
    (b) When providing comments, Federal resource agencies will 
submit to the Corps only substantive, project-related information on 
the impacts of activities being evaluated by the Corps and 
appropriate and practicable measures to mitigate adverse impacts. 
The comments will be submitted within the time frames established in 
interagency agreements and regulations. Federal resource agencies 
will limit their comments to their respective areas of expertise and 
authority to avoid duplication with the Corps and other agencies and 
to provide the Corps with a sound basis for making permit decisions. 
The Federal resource agencies should not submit comments that 
attempt to interpret the Corps regulations or for the purposes of 
section 404(a) make determinations concerning compliance with the 
Section 404(b)(1) Guidelines. Pursuant to its authority under 
Section 404(b)(1) of the CWA, the EPA may provide comments to the 
Corps identifying its views regarding compliance with the 
Guidelines. While the Corps will fully consider and utilize agency 
comments, the final decision regarding the permit application, 
including a determination of compliance with the Guidelines, rests 
solely with the Corps.
    5. Pre-Application Consultation: (a) To provide potential 
applicants with the maximum degree of relevant information at an 
early phase of project planning, the Corps will increase its efforts 
to encourage pre-application consultations in accordance with 
regulations at 33 CFR 325.1(b). Furthermore, while encouraging pre-
application consultation, the Corps will emphasize the need for 
early consultation concerning mitigation requirements, if impacts to 
aquatic resources may occur. The Corps is responsible for 
initiating, coordinating, and conducting pre-application 
consultations and other discussions and meetings with applicants 
regarding Department of the Army permits. This may not apply in 
instances where the consultation is associated with the review of a 
separate permit or license required from another Federal agency 
(e.g., the Federal Energy Regulatory Commission or the Nuclear 
Regulatory Commission) or in situations where resource agencies 
perform work for others outside the context of a specific Department 
of the Army permit application (e.g., the Conservation Reserve 
Program and technical assistance to applicants of Federal grants).
    (b) For those pre-application consultations involving activities 
that may result in impacts to aquatic resources, the Corps will 
provide EPA, FWS, NMFS (as appropriate), and other appropriate 
Federal and State agencies, a reasonable opportunity to participate 
in the pre-application process. The invited agencies will 
participate to the maximum extent possible in the pre-application 
consultation, since this is generally the best time to consider 
alternatives for avoiding or reducing adverse impacts. To the extent 
practical, the Corps and the Federal resource agencies will develop 
local procedures (e.g., teleconferencing) to promote reasonable and 
effective pre-application consultations within the logistical 
constraints of all affected parties.
    6. Applications for Individual Permits: (a) The Corps is 
responsible for determining the need for, and the coordination of, 
interagency meetings, requests for information, and other 
interactions between permit applicants and the Federal Government. 
In this regard, Federal resource agencies will contact the Corps to 
discuss and coordinate any additional need for information from the 
applicant. The Corps will cooperate with the Federal resource 
agencies to ensure, to the extent practical, that information 
necessary for the agencies to carry out their responsibilities is 
obtained. If it is determined by the Corps that an applicant meeting 
is necessary for the exchange of information with a Federal resource 
agency and the Corps chooses not to participate in such a meeting, 
the Federal resource agency will apprise the Corps, generally in 
writing, of that agency's discussions with the applicant. 
Notwithstanding such meetings, the Corps is solely responsible for 
permit requirements, including mitigation and other conditions--the 
Federal resource agencies must not represent their views as 
regulatory requirements. In circumstances where the Corps meets with 
the applicant and develops information that will affect the permit 
decision, the Corps will apprise the Federal resource agencies of 
such information.
    (b) Consistent with 33 CFR 325, the Corps will ensure that 
public notices contain sufficient information to facilitate the 
timely submittal of project-specific comments from the Federal 
resource agencies. The resource agencies comments will provide 
specific information and/or data related to the proposed project 
site. The Corps will fully consider comments regarding the site from 
a watershed or landscape scale, including an evaluation of potential 
cumulative and secondary impacts.
    (c) The Corps must consider cumulative impacts in reaching 
permit decisions. In addition to the Corps own expertise and 
experience, the Corps will fully consider comments from the Federal 
resource agencies, which can provide valuable information on 
cumulative impacts. Interested Federal agencies are encouraged to 
provide periodically to the Corps generic comments and assessments 
of impacts (outside the context of a specific permit 
[[Page 13705]] application) on issues within the agencies' area of 
expertise.
    7. General Permits: 
    (a) The Corps is responsible for proposing potential general 
permits, assessing impacts of and comments on proposed general 
permits, and deciding whether to issue general permits. The Corps 
will consider proposals for general permits from other sources, 
including the Federal resource agencies, although the final decision 
regarding the need to propose a general permit rests with the Corps. 
Other interested Federal agencies should provide comments to the 
Corps on proposed general permits. These Federal agency comments 
will be submitted consistent with established agreements and 
regulations and will focus on the Federal agencies' area(s) of 
expertise. The Corps will fully consider such agencies' comments in 
deciding whether to issue general permits, including programmatic 
general permits.
    (b) The Corps is responsible for initiating and conducting 
meetings that may be necessary in developing and evaluating 
potential general permits. Any discussions with a State or local 
Government regarding proposed programmatic general permits will be 
coordinated through and conducted by the Corps. Prior to issuing a 
programmatic general permit, the Corps will ensure that the State or 
local program, by itself or with appropriate conditions, will 
protect the aquatic environment, including wetlands, to the level 
required by the section 404 program.
    8. This guidance expires 31 December 1997 unless sooner revised 
or rescinded.
    For the Commander:
Arthur E. Williams,
Major General, USA, Director of Civil Works.

Regulatory Guidance Letter (92-2)

RGL 92-2  Date: 26 June 92  Expires: 31 December 95 CECW-OR
Subject: Water Dependency and Cranberry Production

    1. Enclosed for implementation is a joint Army Corps of 
Engineers/Environmental Protection Agency Memorandum to the Field on 
water dependency and cranberry production. This guidance was 
developed jointly by the Army Corps of Engineers and the U.S. 
Environmental Protection Agency.
    2. This guidance will expire 31 December 1995 unless sooner 
revised or rescinded.
    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Memorandum to the Field

SUBJECT: Water Dependency and Cranberry Production

    1. The purpose of this memorandum is to clarify the 
applicability of the Section 404(b)(1) Guidelines water dependency 
provisions (40 CFR 230.10(a)) to the cultivation of cranberries, in 
light of Army Corps of Engineers (Corps) regulations at 33 CFR 
323.4(a)(1)(iii)(C)(1) (ii) and (iii), and Environmental Protection 
Agency (EPA) regulations at 40 CFR 232.3(d)(3)(i) (B) and (C). These 
sections of the Corps and EPA regulations state, among other things, 
that cranberries are a wetland crop, and that some discharges 
associated with cranberry production are considered exempt from 
regulation under the provisions of Section 404(f) of the Clean Water 
Act. The characterization of cranberries as a wetland crop has led 
to inconsistency in determining if cranberry production is a water 
dependent activity as defined in the Section 404(b)(1) Guidelines 
(Guidelines).
    2. The intent of Corps regulations at 33 CFR 320.4(b) and of the 
Guidelines is to avoid the unnecessary destruction or alteration of 
waters of the U.S., including wetlands, and to compensate for the 
unavoidable loss of such waters. The Guidelines specifically require 
that ``no discharge of dredged or fill material shall be permitted 
if there is a practicable alternative to the proposed discharge 
which would have less adverse impact on the aquatic ecosystem, so 
long as the alternative does not have other significant adverse 
environmental consequences'' (see 40 CFR 230.10(a)). Based on this 
provision, an evaluation is required in every case for use of non-
aquatic areas and other aquatic sites that would result in less 
adverse impact to the aquatic ecosystem, irrespective of whether the 
discharge site is a special aquatic site or whether the activity 
associated with the discharge is water dependent. A permit cannot be 
issued, therefore, in circumstances where an environmentally 
preferable practicable alternative for the proposed discharge exists 
(except as provided for under Section 404(b)(2)).
    3. For proposed discharges into wetlands and other ``special 
aquatic sites,'' the Guidelines alternatives analysis requirement 
further considers whether the activity associated with the proposed 
discharge is ``water dependent''. The Guidelines define water 
dependency in terms of an activity requiring access or proximity to 
or siting within a special aquatic site to fulfill its basic project 
purpose. Special aquatic sites (as defined in 40 CFR 230.40-230.45) 
are: (1) sanctuaries and refuges; (2) wetlands; (3) mud flats; (4) 
vegetated shallows; (5) coral reefs; and (6) riffle and pool 
complexes. If an activity is determined not to be water dependent, 
the Guidelines establish the following two presumptions (40 CFR 
230.10(a)(3)) that the applicant is required to rebut before 
satisfying the alternatives analysis requirements:
    a. that practicable alternatives that do not involve special 
aquatic sites are presumed to be available; and,
    b. that all practicable alternatives to the proposed discharge 
which do not involve a discharge into a special aquatic site are 
presumed to have less adverse impact on the aquatic ecosystem.
    It is the responsibility of the applicant to clearly rebut these 
presumptions in order to demonstrate compliance with the Guidelines 
alternatives test.
    4. If an activity is determined to be water dependent, the 
rebuttable presumptions stated in paragraph 3 of this memorandum do 
not apply. However, the proposed discharge, whether or not it is 
associated with a water dependent activity, must represent the least 
environmentally damaging practicable alternative in order to comply 
with the alternatives analysis requirement of the Guidelines as 
described in paragraph 2 of this memorandum.
    5. As previously indicated, Corps and EPA regulations consider 
cranberries as a wetland crop species. This characterization of 
cranberries as a wetland crop species is based primarily on the 
listing of cranberries as an obligate hydrophyte in the National 
List of Plant Species That Occur in Wetlands (U.S. Fish and Wildlife 
Service Biological Report 88 (26.1-26.13)) and the fact that 
cranberries must be grown in wetlands or areas altered to create a 
wetland environment. Therefore, the Corps and EPA consider the 
construction of cranberry beds, including associated dikes and water 
control structures associated with dikes (i.e., headgates, weirs, 
drop inlet structures), to be a water dependent activity. 
Consequently, discharges directly associated with cranberry bed 
construction are not subject to the presumptions applicable to non-
water dependent activities discussed in paragraph 3 of this 
memorandum. However, consistent with the requirements of Section 
230.10(a), the proposed discharge must represent the least 
environmentally damaging practicable alternative, after considering 
aquatic and non-aquatic alternatives as appropriate. To be 
considered practicable, an alternative must be available and capable 
of being done after taking into consideration cost, existing 
technology, and logistics in light of overall project purposes. For 
commercial cranberry cultivation, practicable alternatives may 
include upland sites with proper characteristics for creating the 
necessary conditions to grow cranberries. Factors that must be 
considered in making a determination of whether or not upland 
alternatives are practicable include soil pH, topography, soil 
permeability, depth to bedrock, depth to seasonal high water table, 
adjacent land uses, water supply, and, for expansion of existing 
cranberry operations, proximity to existing cranberry farms. EPA 
Regions and Corps Districts are encouraged to work together with 
local cranberry growers to refine these factors to reflect their 
regional conditions.
    6. In contrast, the following activities often associated with 
the cultivation and harvesting of cranberries are not considered 
water dependent: construction of roads, ditches, reservoirs, and 
pump houses that are used during the cultivation of cranberries, and 
construction of secondary support facilities for shipping, storage, 
packaging, parking, etc. Therefore, the rebuttable practicable 
alternatives presumptions discussed in paragraph 3 of this 
memorandum apply to the discharges associated with these non-water 
dependent activities. However, since determinations of 
practicability under the Guidelines includes consideration of cost, 
technical, and logistics factors, determining the availability of 
practicable alternatives to discharges associated with these non-
water dependent activities must involve consideration of the need of 
an alternative to be proximate to the cranberry bed in order to 
achieve the basic project purpose of cranberry cultivation. 
[[Page 13706]] Once it has been determined that the location of the 
cranberry bed, including associated dikes, and water control 
structures, represents the least environmentally damaging 
practicable alternative, practicable alternatives for maintenance 
roads, ditches, reservoirs and pump houses will generally be limited 
to the bed itself and the area in the vicinity of the actual bed. 
For example, the bed dikes may be the only practicable alternative 
for location of maintenance roads. When practicable alternatives 
cannot be identified within such geographic constraints, the 
applicant must minimize the impacts of the roads, reservoirs, etc., 
to the maximum extent practicable.
    7. During review of applications for discharges associated with 
cranberry cultivation, it is important to reiterate that proposed 
discharges must also comply with the other requirements of the 
Guidelines (i.e., 40 CFR 230.10 (b), (c) and (d)). In addition, 
evaluations of all discharges, whether or not the proposed discharge 
is associated with a water dependent activity, must comply with the 
provisions of the National Environmental Policy Act, including an 
investigation of alternatives to the proposed discharge. Further, 
applications for discharges associated with cranberry cultivation 
will continue to be evaluated in accordance with current Corps and 
EPA policy and practice concerning mitigation, cumulative impact 
analysis, and public interest review factors.
    8. This guidance expires 31 December 1995 unless sooner revised 
or rescinded.
    For the Director of Civil Works:
Robert H. Wayland III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S. 
Environmental Protection Agency.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter (92-3)

RGL 92-3  DATE: 19 Aug 92  EXPIRES: 31 Dec 97
SUBJECT: Extension of Regulatory Guidance Letter (RGL) 86-10

    RGL 86-10, subject: ``Special Area Management Plans (SAMP's)'' 
is extended until 31 December 1997 unless sooner revised or 
rescinded.
    For the Director of Civil Works:
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

RGL 86-10
Special Area Management Plans (SAMP's)
Issued 10/2/86  Expired 12/31/88

    1. The 1980 Amendments to the Coastal Zone Management Act define 
the SAMP process as ``a comprehensive plan providing for natural 
resource protection and reasonable coastal-dependent economic growth 
containing a detailed and comprehensive statement of policies, 
standards and criteria to guide public and private uses of lands and 
waters; and mechanisms for timely implementation in specific 
geographic areas within the coastal zone.'' This process of 
collaborative interagency planning within a geographic area of 
special sensitivity is just as applicable in non-coastal areas.
    2. A good SAMP reduces the problems associated with the 
traditional case-by-case review. Developmental interests can plan 
with predictability and environmental interests are assured that 
individual and cumulative impacts are analyzed in the context of 
broad ecosystem needs.
    3. Because SAMP's are very labor intensive, the following 
ingredients should usually exist before a district engineer becomes 
involved in a SAMP:
    a. The area should be environmentally sensitive and under strong 
developmental pressure.
    b. There should be a sponsoring local agency to ensure that the 
plan fully reflects local needs and interests.
    c. Ideally there should be full public involvement in the 
planning and development process.
    d. All parties must express a willingness at the outset to 
conclude the SAMP process with a definitive regulatory product (see 
next paragraph).
    4. An ideal SAMP would conclude with two products: 1) 
appropriate local/State approvals and a Corps general permit (GP) or 
abbreviated processing procedure (APP) for activities in 
specifically defined situations; and 2) a local/State restriction 
and/or an Environmental Protection Agency (EPA) 404(c) restriction 
(preferably both) for undesirable activities. An individual permit 
review may be conducted for activities that do not fall into either 
category above. However, it should represent a small number of the 
total cases addressed by the SAMP. We recognize that an ideal SAMP 
is difficult to achieve, and, therefore, it is intended to represent 
an upper limit rather than an absolute requirement.
    5. Do not assume that an environmental impact statement is 
automatically required to develop a SAMP.
    6. EPA's program for advance identification of disposal areas 
found at 40 CFR 230.80 can be integrated into a SAMP process.
    7. In accordance with this guidance, district engineers are 
encouraged to participate in development of SAMP's. However, since 
development of a SAMP can require a considerable investment of time, 
resources, and money, the SAMP process should be entered only if it 
is likely to result in a definitive regulatory product as defined in 
paragraph 4. above.
    8. This guidance expires 31 December 1988 unless sooner revised 
or rescinded.
    For the Chief of Engineers:
Peter J. Offringa,
Brigadier General, USA, Deputy Director of Civil Works.

Regulatory Guidance Letter (RGL-92-4)

RGL 92-4  DATE: 14 Sep 1992  EXPIRES: 21 Jan 1997
SUBJECT: Section 401 Water Quality Certification and Coastal Zone 
Management Act Conditions for Nationwide Permits

    1. The purpose of this Regulatory Guidance Letter (RGL) is to 
provide additional guidance and clarification for divisions and 
districts involved in developing acceptable conditions under the 
Section 401 Water Quality Certifications and Coastal Zone Management 
Act (CZM) concurrences for the Nationwide Permit (NWP) Program. This 
RGL represents a clarification of 330.4(c) (2) and (3) and 330.4(d) 
(2) and (3), concerning when NWP Section 401 and CZM conditions 
should not be accepted and thus treated as a denial without 
prejudice. The principles contained in this RGL also apply to 401 
certification and CZM concurrence conditions associated with 
individual permits and regional general permits.
    2. Corps divisions and districts should work closely and 
cooperatively with the States to develop reasonable 401 and CZM 
conditions. All involved parties should participate in achieving the 
purpose of the NWP program, which is to provide the public with an 
expeditious permitting process while, at the same time, safeguarding 
the environment by only authorizing activities which result in no 
more than minimal individual and cumulative adverse effects. When a 
State certifying agency or CZM agency proposes conditions, the 
division engineer is responsible for determining whether 401 Water 
Quality Certification or CZM concurrence conditions are acceptable 
and comply with the provisions of 33 CFR 325.4. In most cases it is 
expected that the conditions will be acceptable and the division 
engineer shall recognize these conditions as regional conditions of 
the NWP's.
    3. Unacceptable Conditions: There will be cases when certain 
conditions will clearly be unacceptable and those conditioned 401 
certifications or CZM concurrences shall be considered 
administratively denied. Consequently, authorization for an activity 
which meets the terms and conditions of such NWP(s) is denied 
without prejudice.
    a. Illegal conditions are clearly unacceptable. Illegal 
conditions would result in violation of a law or regulation, or 
would require an illegal action. For example, a condition which 
would require an applicant to obtain a 401 certification or CZM 
concurrence, where the State has previously denied certification or 
concurrence, prior to submitting a predischarge notification (PDN) 
to the Corps in accordance with PDN procedures, would violate the 
Corps regulation at 33 CFR 330.4(c)(6). Another example would be a 
case where an applicant would be required, through a condition, to 
apply for an individual Department of the Army permit. Another 
example is a requirement by the State agency to utilize the 1989 
Federal Wetland Delineation Manual to establish jurisdiction.
    b. As a general rule, a condition that would require the Corps 
or another Federal agency to take an action which we would not 
otherwise take and do not choose to take, would be clearly 
unacceptable. For example, where the certification or concurrence is 
conditioned to require a PDN, where the proposed activity did not 
previously require a PDN, the Corps should not accept that 
condition, since implicitly the Corps would [[Page 13707]] have to 
accept and utilize the PDN. Another example would be a situation 
where the U.S. Fish and Wildlife Service is required, through a 
condition, to provide any type of formal review or approval.
    c. Section 401 or CZM conditions which provide for limits 
(quantities, dimensions, etc.) different from those imposed by the 
NWP do not change the NWP limits.
    1. Higher limits are clearly not acceptable. For example, 
increasing NWP 18 for minor discharges from 10 to 50 cubic yards 
would not be acceptable. Such conditions would confuse the regulated 
public and could contribute to violations.
    2. Lower limits are acceptable but have the effect of denial 
without prejudice of those activities that are higher than the 
Section 401 or CZM condition limit but within the NWP limit. Thus, 
if an applicant obtains an individual 401 water quality 
certification and/or CZM concurrence for work within the limits of 
an NWP where the State had denied certification and/or CZM 
concurrence, then the activity could be authorized by the NWP.
    d. A condition which would delete, modify, or reduce NWP 
conditions would be clearly unacceptable.
    4. Discretionary Enforcement: The initiation of enforcement 
actions by the Corps, whether directed at unauthorized activities or 
to ensure compliance with permit conditions, is discretionary. The 
district engineer will consider the following situations when 
determining whether to enforce 401 and/or CZM conditions.
    a. Unenforceable Conditions--Some conditions that a State may 
propose will not be reasonably enforceable by the Corps (e.g., a 
condition requiring compliance with the specific terms of another 
State permit). Provided such conditions do not violate paragraph 3 
above, the conditions will be accepted by the Corps as regionally 
conditions. However, limited Corps resources should not be utilized 
in an attempt to enforce compliance with 401 or CZM conditions which 
the district engineer believes to be essentially unenforceable, or 
of low enforcement priority for limited Corps resources.
    b. Enforceable Conditions--Some other conditions proposed by a 
State may be considered enforceable, (e.g., a condition requiring 
the applicant to obtain another State permit), but of law priority 
for Federal enforcement, since the Federal Government would not have 
required those conditions but for the State's requirement. 
Furthermore, the Corps will generally not enforce such State-imposed 
conditions except in very unusual cases, due to our limited 
personnel and financial resources.
    5. NWP Verification and PDN Responses: In response to NWP 
verification requests and PDN's, district engineers should utilize 
the same paragraphs presented below. This language should be used 
where conditional 401 certification or CZM concurrence has been 
issued. This specifically addresses situations when the conditions 
included with the certification or concurrence are such that the 
district engineer determines they are unenforceable or the district 
engineer cannot clearly determine compliance with the 401/CZM 
conditions (see 4.a.).
    ``Based on our review of your proposal to [describe proposal], 
we have determined that the activity qualifies for the nationwide 
permit authorization [insert NWP No(s.)], subject to the terms and 
conditions of the permit.
    [Insert paragraph on any Corps required activity-specific 
conditions].
    Enclosed you will find a copy of the Section 401 Water Quality 
Certification and/or Coastal Zone Management special conditions, 
which are conditions of your authorization under Nationwide Permit 
[insert NWP No(s.)]. If you have questions concerning compliance 
with the conditions of the 401 certification or Coastal Zone 
Management concurrence, you should contact the [insert appropriate 
State agency].
    If you do not or cannot comply with these State Section 401 
certification conditions and/or CZM conditions, then in order to be 
authorized by this Nationwide Permit, you must furnish this office 
with an individual 401 certification or Coastal Zone Management 
concurrence from [insert appropriate State agency], or a copy of the 
application to the State for such certification or concurrence, 
[insert ``60 days'' for Section 401 water quality certification, 
unless another reasonable period of time has been determined 
pursuant to 33 CFR 330.4(c)(6), or insert ``six months'' for CZM 
concurrence] after you submit it to the State agency.''
    6. This guidance expires 21 January 1997 unless sooner revised 
or rescinded.
    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter (RGL 92-5)

RGL 92-5  Date: 29 October 1992, Expires: 31 December 1997
Subject: Alternatives Analysis Under the Section 404(b)(1) 
Guidelines for Projects Subject to Modification Under the Clean Air 
Act.

    1. Enclosed for implementation is a joint Army Corps of 
Engineers/Environmental Protection Agency Memorandum to the Field on 
alternatives analysis for existing power plants that must be 
modified to meet requirements of the 1990 Clean Air Act. This 
guidance was developed jointly by the Corps and EPA.
    2. This guidance expires 31 December 1997 unless sooner revised 
or rescinded.

    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.
Encl

EPA/Corps Joint Memorandum for the Field

Subject: Alternatives Analysis under the Section 404(b)(1) 
Guidelines for Projects Subject to Modification Under the Clean Air 
Act.

    1. The 1990 Clean Air Act (CAA) amendments require most electric 
generating plants to reduce emissions of sulfur dioxide in phases 
beginning in 1995 and requiring full compliance by 2010. The 
congressional endorsement of the industry's ability to select the 
most effective compliance method (e.g., sulfur dioxide scrubbers, 
low sulfur coal, or other methods) recognizes the expertise of the 
industry in these cases and is a fundamental element in the CAA 
market-based pollution control program. Given the need for cooling 
water, a substantial number of electric power generating plants are 
located adjacent, or in close proximity, to waters of the United 
States, including wetlands. Depending on the method chosen by the 
plants to reduce emissions, we expect that these facilities will be 
applying for Clean Water Act Section 404 permits for certain 
proposed activities.
    2. The analysis and regulation under Section 404 of the Clean 
Water Act of activities in waters of the United States conducted by 
specific power plants to comply with the 1990 Clean Air Act 
amendments must ensure protection of the aquatic environment 
consistent with the requirements of the Clean Water Act. The review 
of applications for such projects will fully consider, consistent 
with requirements under the Section 404(b)(1) Guidelines, all 
practicable alternatives including non-aquatic alternatives, for 
proposed discharges associated with the method selected by the 
utility to comply with the 1990 Clean Air Act amendments. For the 
purposes of the Section 404(b)(1) Guidelines analysis, the project 
purpose will be that pollutant reduction method selected by the 
permit applicant.
    3. For example, a utility may have decided to install sulfur 
dioxide scrubbers on an existing power plant in order to meet the 
new 1990 Clean Air Act standards. The proposed construction of the 
scrubbers, treatment ponds and a barge unloading facility could 
impact wetlands. In this case, the Section 404 review would evaluate 
practicable alternative locations and configurations for the 
scrubbers, ponds and of the docking facilities. The analysis will 
also consider practicable alternatives which satisfy the project 
purpose (i.e., installing scrubbers) but which have a less adverse 
impact on the aquatic environment or do not involve discharges into 
waters of the United States. However, in order to best effectuate 
Congressional intent reflected in the CAA that electric utilities 
retain flexibility to reduce sulfur dioxide emissions in the most 
cost effective manner, the Section 404 review should not evaluate 
alternative methods of complying with the Clean Air Act standards 
not selected by the applicant (e.g., in this example use of low 
sulfur coal).
    4. In evaluating the scope of practicable alternatives which 
satisfy the project purpose (e.g., constructing additional scrubber 
capacity), the alternatives analysis should not be influenced by the 
possibility that, based on a conclusion that practicable upland 
alternatives are available to the applicant, the project proponent 
may decide to pursue other options for meeting Clean Air Act 
requirements. Continuing the above example, a Corps determination 
that practicable upland alternatives are available for scrubber 
waste disposal should not be affected by the possibility that an 
applicant may subsequently decide to select a different method for 
meeting the Clean Air Act [[Page 13708]] standards (e.g., use of low 
sulfur coal that reduces waste generated by scrubbers).
    5. The Corps and EPA will also recognize the tight time-frames 
under which the industry must meet these new air quality standards.
Robert H. Wayland,
Director, Office of Wetlands, Oceans and Watersheds.
John P. Elmore,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter (RGL 93-1)

RGL 93-1  Issued: April 20, 1993, Expires: December 31, 1998
CECW-OR
Subject: Provisional Permits

    1. Purpose: The purpose of this guidance is to establish a 
process that clarifies for applicants when the U.S. Army Corps of 
Engineers has completed its evaluation and at what point the 
applicant should contact the State concerning the status of the 
Section 401 Water Quality Certification and/or Coastal Zone 
Management (CZM) consistency concurrence. This process also allows 
for more accurate measurement of the total length of time spent by 
the Corps in evaluating permit applications (i.e., from receipt of a 
complete application until the Corps reaches a permit decision). For 
verification of authorization of activities under regional general 
permits, the Corps will use the appropriate nationwide permit 
procedures at 33 CFR 330.6.
    2. Background: a. A Department of the Army permit involving a 
discharge of dredged or fill material cannot be issued until a State 
Section 401 Water Quality Certification has been issued or waived. 
Also, a Department of the Army permit cannot be issued for an 
activity within a State with a federally-approved Coastal Management 
Program when that activity that would occur within, or outside, a 
State's coastal zone will affect land or water uses or natural 
resources of the State's coastal zone, until the State concurs with 
the applicant's consistency determination, or concurrence is 
presumed. In many cases, the Corps completes its review before the 
State Section 401 Water Quality Certification or CZM concurrence 
requirements have been satisfied. In such cases, applicants and the 
public are often confused regarding who to deal with regarding 
resolution of any State issues.
    b. The ``provisional permit'' procedures described below will 
facilitate a formal communication between the Corps and the 
applicant to clearly indicate that the applicant should be in 
contact with the appropriate State agencies to satisfy the State 401 
Water Quality Certification or CZM concurrence requirements. In 
addition, the procedures will allow for a more accurate measurement 
of the Corps permit evaluation time.
    3. Provisional Permit Procedures: The provisional permit 
procedures are optional and may only be used in those cases where: 
(i) The District Engineer (DE) has made a provisional individual 
permit decision that an individual permit should be issued, and, 
(ii) the only action(s) preventing the issuance of that permit is 
that the State has not issued a required Section 401 Water Quality 
Certification (or waiver has not occurred) or the State has not 
concurred in the applicant's CZM consistency determination (or there 
is not a presumed concurrence). In such cases, the DE may, using 
these optional procedures, send a provisional permit to the 
applicant.
    a. First, the DE will prepare and sign the provisional permit 
decision document. Then the provisional permit will be sent to the 
applicant by transmittal letter. (The sample transmittal letter at 
enclosure 1 contains the minimum information that must be provided.)
    b. Next, the applicant would obtain the Section 401 Water 
Quality Certification (or waiver) and/or CZM consistency concurrence 
(or presumed concurrence). Then the applicant would sign the 
provisional permit and return it to the DE along with the 
appropriate fee and the Section 401 Water Quality Certification (or 
proof of waiver) and/or the CZM consistency concurrence (or proof of 
presumed concurrence).
    c. Finally, the Corps would attach any Section 401 Water Quality 
Certification and/or CZM consistency concurrence to the provisional 
permit, then sign the provisional permit (which then becomes the 
issued final permit), and forward the permit to the applicant.
    d. This is the same basic process as the normal standard permit 
transmittal process except that the applicant is sent an unsigned 
permit (i.e., a provisional permit) prior to obtaining the Section 
401 Water Quality Certification (or waiver) and/or CZM consistency 
concurrence (or presumed concurrence). (See enclosure 2.) A permit 
can not be issued (i.e., signed by the Corps) until the Section 401 
and CZM requirements are satisfied.
    4. Provisional Permit: A provisional permit is a standard permit 
document with a cover sheet. The cover sheet must clearly indicate 
the following: that a provisional permit is enclosed, that the 
applicant must obtain the Section 401 Water Quality Certification or 
CZM concurrence from the State, that these documents must be sent to 
the Corps along with the provisional permit signed by the applicant, 
and that the Corps will issue the permit upon receipt of these 
materials. The issued permit is the provisional permit signed by the 
applicant and the Corps. The provisional permit must contain a 
statement indicating that the applicant is required to comply with 
the Section 401 Water Quality Certification, including any 
conditions, and/or the CZM consistency concurrence, including any 
conditions. At enclosure 3 is a sample cover sheet for the 
provisional permit.
    5. Provisional Permit Decision: The DE may reach a final 
decision that a permit should be issued provided that the State 
issues a Section 401 Water Quality Certification and/or a CZM 
concurrence. In order to reach such a decision the DE must complete 
the normal standard permit evaluation process, prepare and sign a 
decision document, and prepare a standard permit, including any 
conditions or mitigation (i.e., a provisional permit). The decision 
document must include a statement that the DE has determined that 
the permit will be issued if the State issues a Section 401 Water 
Quality Certification or waiver and/or a CZM concurrence, or 
presumed concurrence. The standard permit will not contain a 
condition that requires or provides for the applicant to obtain a 
Section 401 Water Quality Certification and/or CZM concurrence. Once 
the decision document is signed, the applicant has the right to a DA 
permit if the State issues a Section 401 Water Quality Certification 
or waiver and/or a CZM concurrence, or if concurrence is presumed. 
Once the decision document is signed, the permittee's right to 
proceed can only be changed by using the modification, suspension 
and revocation procedures of 33 CFR 325.7, unless the State denies 
the Section 401 Water Quality Certification or nonconcurs with the 
applicant's CZM consistency determination.
    6. Enforcement: In some cases, applicants might proceed with the 
project upon receipt of the provisional permit. The provisional 
permit is not a valid permit. In such cases, the Corps has a 
discretionary enforcement action to consider and should proceed as 
the DE determines to be appropriate. This occurs on occasion during 
the standard permit transmittal process. Since the Corps is not 
changing the normal process of sending unsigned permits to the 
applicant for signature, there should not be an increase in the 
occurrence of such unauthorized activities.
    7. Modification: a. In most cases the Section 401 Water Quality 
Certification, including conditions, and/or CZM consistency 
concurrence, including conditions, will be consistent with the 
provisional permit. In such cases, the DE will simply sign the final 
permit and enclose the 401 water quality certification and/or CZM 
consistency concurrence with the final permit (i.e., the signed 
provisional permit).
    b. In a few cases such State approval may necessitate 
modifications to the Corps preliminary permit decision. Such 
modifications will be processed in accordance with 33 CFR 325.7.
    (1) When the modifications are minor and the DE agrees to such 
modifications, then a supplement to the provisional decision 
document may be prepared, as appropriate, and the permit issued with 
such modifications. (This should usually be done by enclosing the 
State 401 Water Quality Certification and/or CZM consistency 
concurrence to the permit, but in a few cases may require a revision 
to the permit document itself.)
    (2) When the modification results in substantial change or 
measurable increase in adverse impacts or the Corps does not 
initially agree with the change, then the modification will be 
processed and counted as a separate permit action for reporting 
purposes. This may require a new public notice or additional 
coordination with appropriate Federal and/or state agencies. The 
provisional decision document will be supplemented or may be 
completely rewritten, as necessary.
    8. Denial: If the State denies the Section 401 Water Quality 
Certification and/or the State nonconcurs with the applicant's CZM 
[[Page 13709]] consistency determination, then the Corps permit is 
denied without prejudice.
    9. This guidance expires 31 December 1998 unless sooner revised 
or rescinded.

    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.
3 Encls

Sample Provisional Permit Transmittal Letter

    Dear ____________________: We have completed our review of your 
permit application identified as [File No., appl. name, etc.] for 
the following proposed work:

----------------------------------------------------------------------

----------------------------------------------------------------------

----------------------------------------------------------------------

near/in/at ____________________.---------------------------------------

    Enclosed is a ``PROVISIONAL PERMIT.'' The provisional permit is 
NOT VALID and does not authorize you to do your work. The 
provisional permit describes the work that will be authorized, and 
the General and Special Conditions [if any] which will be placed on 
your final Department of the Army (DA) permit, if the State of 
____________________ Water Quality Certification and/or Coastal Zone 
Management (CZM) consistency requirements are satisfied as described 
below. No work is to be performed in the waterway or adjacent 
wetlands until you have received a validated copy of the DA permit.
    By Federal law no DA permit can be issued until a State Section 
401 Water Quality Certification has been issued or has been waived 
and/or the State has concurred with a permit applicant's CZM 
consistency determination or concurrence has been presumed. As of 
this date the [State 401 certification agency] has not issued a 
Section 401 Water Quality Certification for your proposed work. If 
the [State 401 certification agency] fails or refuses to act by 
[date 401 certification must be issued] the Section 401 Water 
Quality Certification requirement will be automatically waived. 
Also, as of this date the [State CZM agency] has not concurred with 
your CZM consistency determination. If the State does not act by 
[six months from receipt by the State of the applicant's CZM 
consistency determination] then concurrence with your CZM 
consistency determination will automatically be presumed.
    Conditions of the State Section 401 Water Quality Certification 
and/or the State CZM concurrence will become conditions to the final 
DA permit. Should the State's action on the required certification 
or concurrence preclude validation of the provisional permit in its 
current form, a modification to the provisional permit will be 
evaluated and you will be notified as appropriate. Substantial 
changes may require a new permit evaluation process, including 
issuing a new public notice.

Enclosure 1

Final Permit Actions

Normal Permit Process

1. Corps completes permit decision, and state 401/CZM issued/waived
2. Corps sends unsigned permit to applicant
3. Applicant signs permit and returns with fee
4. Corps signs permit

Draft Permit Process

1. Corps completes permit decision, but state 401/CZM not complete
2. Corps sends draft permit to applicant
3. State 401/CZM issued waived
4. Applicant signs permit and returns with fee and 401/CZM action
5. Corps reviews 401/CZM action and signs permit

    1. The signed draft permit with the attached 401/CZM action is 
to be treated as the applicant's request for a permit subject to any 
401/CZM certification/concurrence including any conditions.
    2. If the 401/CZM action results in a modification to the draft 
permit, then step 4. would be treated as a request for such 
modification and if we agree with the modification, then the permit 
would be issued with the modification and the decision document 
supplemented, as appropriate. If the Corps does not initially agree 
with the modification, or it involves a substantial change or 
measurable increase in adverse impacts, then the modification would 
be processed as a separate permit action for reporting purposes.

Enclosure 2

    Once the State has issued the required Section 401 Water Quality 
Certification and/or concurred with your CZM consistency 
determination or the dates above have passed without the State 
acting, and you agree to the terms and conditions of the provisional 
permit, you should sign and date both copies and return them to us 
[along with your $100.00/$10.00 permit fee]. Your DA permit will not 
be valid until we have returned a copy to you bearing both your 
signature and the signature of the appropriate Corps official.
    If the State denies the required Section 401 Water Quality 
Certification and/or nonconcurs with your CZM consistency 
determination, then the DA permit is denied without prejudice. If 
you should subsequently obtain a Section 401 Water Quality 
Certification and/or a CZM consistency determination concurrence, 
you should contact this office to determine how to proceed with your 
permit application.
    If you have any questions concerning your State Section 401 
Water Quality Certification, please contact (State 401 certification 
contact)
    If you have any questions concerning the CZM consistency 
determination, please contact (State CZM contact)
    If you have any other questions concerning your application for 
a DA permit, please contact [Corps contact] at [Corps contact 
telephone number].

Provisional Permit--Not Valid--Do Not Begin Work

    This PROVISIONAL PERMIT is NOT VALID until:
    (1) You obtain: ______ a Section 401 Water Quality Certification 
from State Agency).
    ______ a Coastal Zone Consistency determination concurrence from 
(State Agency).
    (2) You sign and return the enclosed provisional permit with the 
State Section 401 Water Quality Certification and/or CZM concurrence 
and the appropriate permit fee as indicated below:
    ______ $10.00  ______ $100.00  ______ No fee required.
    (3) The Corps signs the permit and returns it to you. Your 
permit is denied without prejudice, if the State denies your Section 
401 Water Quality Certification and/or nonconcurs with your Coastal 
Zone Management consistency determination.

Do Not Begin Work

Regulatory Guidance Letter, (RGL 93-2)

RGL 93-2  Date: 23 August 1993, Expires: 31 December 1998
Subject: Guidance on Flexibility of the 404(b)(1) Guidelines and 
Mitigation Banking.

    1. Enclosed are two guidance documents signed by the Office of 
the Assistant Secretary of the Army (Civil Works) and the 
Environmental Protection Agency. The first document provides 
guidance on the flexibility that the U.S. Army Corps of Engineers 
should be utilizing when making determinations of compliance with 
the Section 404(b)(1) Guidelines, particularly with regard to the 
alternatives analysis. The second document provides guidance on the 
use of mitigation banks as a means of providing compensatory 
mitigation for Corps regulatory decisions.
    2. Both enclosed guidance documents should be implemented 
immediately. These guidance documents constitute an important aspect 
of the President's plan for protecting the Nation's wetlands, 
``Protecting America's Wetlands: A Fair, Flexible and Effective 
Approach'' (published on 24 August 1993).
    3. This guidance expires 31 December 1998 unless sooner revised 
or rescinded.

    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.
2 Encls

Memorandum to the Field

Subject: Appropriate Level of Analysis Required for Evaluating 
Compliance With the Section 404(b)(1) Guidelines Alternatives 
Requirements

    1. Purpose: The purpose of this memorandum is to clarify the 
appropriate level of analysis required for evaluating compliance 
with the Clean Water Act Section 404(b)(1) Guidelines' (Guidelines) 
requirements for consideration of alternatives. 40 CFR 230.10(a). 
Specifically, this memorandum describes the flexibility afforded by 
the Guidelines to make [[Page 13710]] regulatory decisions based on 
the relative severity of the environmental impact of proposed 
discharges of dredged or fill material into waters of the United 
States.
    2. Background: The Guidelines are the substantive environmental 
standards by which all Section 404 permit applications are 
evaluated. The Guidelines, which are binding regulations, were 
published by the Environmental Protection Agency at 40 CFR Part 230 
on December 24, 1980. The fundamental precept of the Guidelines is 
that discharges of dredged or fill material into waters of the 
United States, including wetlands, should not occur unless it can be 
demonstrated that such discharges, either individually of 
cumulatively, will not result in unacceptable adverse effects on the 
aquatic ecosystem. The Guidelines specifically require that ``no 
discharge of dredged or fill material shall be permitted if there is 
a practicable alternative to the proposed discharge which would have 
less adverse impact on the aquatic ecosystem, so long as the 
alternative does not have other significant adverse environmental 
consequences.'' 40 CFR 230.10(a). Based on this provision, the 
applicant is required in every case (irrespective of whether the 
discharge site is a special aquatic site or whether the activity 
associated with the discharge is water dependent) to evaluate 
opportunities for use of non-aquatic areas and other aquatic sites 
that would result in less adverse impact on the aquatic ecosystem. A 
permit cannot be issued, therefore, in circumstances where a less 
environmentally damaging practicable alternative for the proposed 
discharge exists (except as provided for under Section 404(b)(2)).
    3. Discussion: The Guidelines are, as noted above, binding 
regulations. It is important to recognize, however, that this 
regulatory status does not limit the inherent flexibility provided 
in the Guidelines for implementing these provisions. The preamble to 
the Guidelines is very clear in this regard:
    Of course, as the regulation itself makes clear, a certain 
amount of flexibility is still intended. For example, while the 
ultimate conditions of compliance are ``regulatory'', the Guidelines 
allow some room for judgment in determining what must be done to 
arrive at a conclusion that those conditions have or have not been 
met.
    Guidelines Preamble, ``Regulation versus Guidelines'', 45 
Federal Register 85336 (December 24, 1980).
    Notwithstanding this flexibility, the record must contain 
sufficient information to demonstrate that the proposed discharge 
complies with the requirements of Section 230.10(a) of the 
Guidelines. The amount of information needed to make such a 
determination and the level of scrutiny required by the Guidelines 
is commensurate with the severity of the environmental impact (as 
determined by the functions of the aquatic resource and the nature 
of the proposed activity) and the scope/cost of the project.

a. Analysis Associated With Minor Impacts

    The Guidelines do not contemplate that the same intensity of 
analysis will be required for all types of projects but instead 
envision a correlation between the scope of the evaluation and the 
potential extent of adverse impacts on the aquatic environment. The 
introduction to Section 230.10(a) recognizes that the level of 
analysis required may vary with the nature and complexity of each 
individual case:
    Although all requirements in Sec. 230.10 must be met, the 
compliance evaluation procedures will vary to reflect the 
seriousness of the potential for adverse impacts on the aquatic 
ecosystems posed by specific dredged or fill material discharge 
activities.

40 CFR 230.10
    Similarly, Section 230.6 (``Adaptability'') makes clear that the 
Guidelines: allow evaluation and documentation for a variety of 
activities, ranging from those with large, complex impacts on the 
aquatic environment to those for which the impact is likely to be 
innocuous. It is unlikely that the Guidelines will apply in their 
entirety to any one activity, no matter how complex. It is 
anticipated that substantial numbers of permit applications will be 
for minor, routine activities that have little, if any, potential 
for significant degradation of the aquatic environment. It generally 
is not intended or expected that extensive testing, evaluation or 
analysis will be needed to make findings of compliance in such 
routine cases.

40 CFR 230.6(9) (emphasis added)
    Section 230.6 also emphasizes that when making determinations of 
compliance with the Guidelines, users: must recognize the different 
levels of effort that should be associated with varying degrees of 
impact and require or prepare commensurate documentation. The level 
of documentation should reflect the significance and complexity of 
the discharge activity.

40 CFR 230.6(b) (emphasis added)
    Consequently, the Guidelines clearly afford flexibility to 
adjust the stringency of the alternatives review for projects that 
would have only minor impacts. Minor impacts are associated with 
activities that generally would have little potential to degrade the 
aquatic environment and include one, and frequently more, of the 
following characteristics: Are located in aquatic resources of 
limited natural function; are small in size and cause little direct 
impact; have little potential for secondary or cumulative impacts; 
or cause only temporary impacts. It is important to recognize, 
however, that in some circumstances even small or temporary fills 
result in substantial impacts, and that in such cases a more 
detailed evaluation is necessary. The Corps Districts and EPA 
Regions will, through the standard permit evaluation process, 
coordinate with the U.S. Fish and Wildlife Service, National Marine 
Fisheries Service and other appropriate state and Federal agencies 
in evaluating the likelihood that adverse impacts would result from 
a particular proposal. It is not appropriate to consider 
compensatory mitigation in determining whether a proposed discharge 
will cause only minor impacts for purposes of the alternatives 
analysis required by Section 230.10(a).
    In reviewing projects that have the potential for only minor 
impacts on the aquatic environment, Corps and EPA field offices are 
directed to consider, in coordination with state and Federal 
resource agencies, the following factors:
    (i) Such projects by their nature should not cause or contribute 
to significant degradation individually or cumulatively. Therefore, 
it generally should not be necessary to conduct or require detailed 
analyses to determine compliance with Section 230.10(c).
    (ii) Although sufficient information must be developed to 
determine whether the proposed activity is in fact the least 
damaging practicable alternative, the Guidelines do not require an 
elaborate search for practicable alternatives if it is reasonably 
anticipated that there are only minor differences between the 
environmental impacts of the proposed activity and potentially 
practicable alternatives. This decision will be made after 
consideration of resource agency comments on the proposed project. 
It often makes sense to examine first whether potential alternatives 
would result in no identifiable or discernible difference in impact 
on the aquatic ecosystem. Those alternatives that do not may be 
eliminated from the analysis since Section 230.10(a) of the 
Guidelines only prohibits discharges when a practicable alternative 
exists which would have less adverse impact on the aquatic 
ecosystem. Because evaluating practicability is generally the more 
difficult aspect of the alternatives analysis, this approach should 
save time and effort for both the applicant and the regulatory 
agencies.\1\ By initially focusing the alternatives analysis on the 
question of impacts on the aquatic ecosystem, it may be possible to 
limit (or in some instances eliminate altogether) the number of 
alternatives that have to be evaluated for practicability.

    \1\In certain instances, however, it may be easier to examine 
practicability first. Some projects may be so site-specific (e.g., 
erosion control, bridge replacement) that no off site alternative 
could be practicable. In such cases the alternatives analysis may 
appropriately be limited to onsite options only.
---------------------------------------------------------------------------

    (iii) When it is determined that there is no identifiable or 
discernible difference in adverse impact on the environment between 
the applicant's proposed alternative and all other practicable 
alternatives, then the applicant's alternative is considered as 
satisfying the requirements of
40 CFR 230.(a).
    (iv) Even where a practicable alternative exists that would have 
less adverse impact on the aquatic ecosystem, the Guidelines allow 
it to be rejected if it would have ``other significant adverse 
environmental consequences.'' 40 CFR 230.10(a). As explained in the 
preamble, this allows for consideration of ``evidence of damages to 
other ecosystems in deciding whether there is a `better' 
alternative.'' Hence, in applying the alternatives analysis required 
by the Guidelines, it is not appropriate to select an alternative 
where minor impacts on the aquatic environment are avoided at the 
cost of substantial impacts to other natural environmental values.
    (v) In cases of negligible or trivial impacts (e.g., small 
discharges to construct individual driveways), it may be possible to 
conclude that no alternative location could result in 
[[Page 13711]] less adverse impact on the aquatic environment within 
the meaning of the Guidelines. In such cases, it may not be 
necessary to conduct an offsite alternatives analysis but instead 
require only any practicable onsite minimization.
    This guidance concerns application of the Section 404(b)(1) 
Guidelines to projects with minor impacts. Projects which may cause 
more than minor impacts on the aquatic environment, either 
individually or cumulatively, should be subjected to a 
proportionately more detailed level of analysis to determine 
compliance or noncompliance with the Guidelines. Projects which 
cause substantial impacts, in particular, must be thoroughly 
evaluated through the standard permit evaluation process to 
determine compliance with all provisions of the Guidelines.

b. Relationship Between the Scope of Analysis and the Scope/Cost of 
the Proposed Project

    The Guidelines provide the Corps and EPA with discretion for 
determining the necessary level of analysis to support a conclusion 
as to whether or not an alternative is practicable. Practicable 
alternatives are those alternatives that are ``available and capable 
of being done after taking into consideration cost, existing 
technology, and logistics in light of overall project purposes.'' 40 
CFR 230.10(a)(2). The preamble to the Guidelines provides 
clarification on how cost is to be considered in the determination 
of practicability:
    Our intent is to consider those alternatives which are 
reasonable in terms of the overall scope/cost of the proposed 
project. The term economic [for which the term ``cost'' was 
substituted in the final rule] might be construed to include 
consideration of the applicant's financial standing, or investment, 
or market share, a cumbersome inquiry which is not necessarily 
material to the objectives of the Guidelines.
    Guidelines Preamble, ``Alternatives'', 45 FR 85339 (December 24, 
1980) (emphasis added).
    Therefore, the level of analysis required for determining which 
alternatives are practicable will vary depending on the type of 
project proposed. The determination of what constitutes an 
unreasonable expense should generally consider whether the project 
cost is substantially greater than the costs normally associated 
with the particular type of project. Generally, as the scope/cost of 
the project increases, the level of analysis should also increase. 
To the extent the Corps obtains information on the costs associated 
with the project, such information may be considered when making a 
determination of what constitutes an unreasonable expense.
    The preamble to the Guidelines also states that ``[i]f an 
alleged alternative is unreasonably expensive to the applicant, the 
alternative is not `practicable.''' Guidelines Preamble, ``Economic 
Factors'', 45 FR 85343 (December 24, 1980). Therefore, to the extent 
that individual homeowners and small businesses may typically be 
associated with small projects with minor impacts, the nature of the 
applicant may also be a relevant consideration in determining what 
constitutes a practicable alternative. It is important to emphasize, 
however, that it is not a particular applicant's financial standing 
that is the primary consideration for determining practicability, 
but rather characteristics of the project and what constitutes a 
reasonable expense for these projects that are most relevant to 
practicability determinations.
    4. The burden of proof to demonstrate compliance with the 
Guidelines rests with the applicant; where insufficient information 
is provided to determine compliance, the Guidelines require that no 
permit be issued. 40 CFR 230.12(a)(3)(iv).
    5. A reasonable, common sense approach in applying the 
requirements of the Guidelines' alternatives analysis is fully 
consistent with sound environmental protection. The Guidelines 
clearly contemplate that reasonable discretion should be applied 
based on the nature of the aquatic resources and potential impacts 
of a proposed activity in determining compliance with the 
alternatives test. Such an approach encourages effective 
decisionmaking and fosters a better understanding and enhanced 
confidence in the Section 404 program.
    6. This guidance is consistent with the February 6, 1990 
``Memorandum of Agreement Between the Environmental Protection 
Agency and the Department of the Army Concerning the Determination 
of Mitigation under the Clean Water Act Section 404(b)(1) 
Guidelines.''

Signed 8-23-93
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S. 
Environmental Protection Agency.

Signed 8-23-93
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department 
of the Army.

Memorandum to the Field

Subject: Establishment and Use of Wetland Mitigation Banks in the Clean 
Water Act Section 404 Regulatory Program

    1. This memorandum provides general guidelines for the 
establishment and use of wetland mitigation banks in the Clean Water 
Act Section 404 regulatory program. This memorandum serves as 
interim guidance pending completion of Phase I by the Corps of 
Engineers' Institute for Water Resources study on wetland mitigation 
banking,\2\ at which time this guidance will be reviewed and any 
appropriate revisions will be incorporated into final guidelines.

    \2\The Corps of Engineers Institute for Water Resources, under 
the authority of Section 307(d) of the Water Resources Development 
Act of 1990, is undertaking a comprehensive two-year review and 
evaluation of wetland mitigation banking to assist in the 
development of a national policy on this issue. The interim summary 
report documenting the results of the first phase of the study is 
scheduled for completion in the fall of 1993.
---------------------------------------------------------------------------

    2. For purposes of this guidance, wetland mitigation banking 
refers to the restoration, creation, enhancement, and, in 
exceptional circumstances, preservation of wetlands or other aquatic 
habitats expressly for the purpose of providing compensatory 
mitigation in advance of discharges into wetlands permitted under 
the Section 404 regulatory program. Wetland mitigation banks can 
have several advantages over individual mitigation projects, some of 
which are listed below:
    (a) Compensatory mitigation can be implemented and functioning 
in advance of project impacts, thereby reducing temporal losses of 
wetland functions and uncertainty over whether the mitigation will 
be successful in offsetting wetland losses.
    (b) It may be more ecologically advantageous for maintaining the 
integrity of the aquatic ecosystem to consolidate compensatory 
mitigation for impacts to many smaller, isolated or fragmented 
habitats into a single large parcel or contiguous parcels.
    (c) Development of a wetland mitigation bank can bring together 
financial resources and planning and scientific expertise not 
practicable to many individual mitigation proposals. This 
consolidation of resources can increase the potential for the 
establishment and long-term management of successful mitigation.
    (d) Wetland mitigation banking proposals may reduce regulatory 
uncertainty and provide more cost-effective compensatory mitigation 
opportunities.
    3. The Section 404(b)(1) Guidelines (Guidelines), as clarified 
by the ``Memorandum of Agreement Concerning the Determination of 
Mitigation under the Section 404(b)(1) Guidelines'' (Mitigation MOA) 
signed February 6, 1990, by the Environmental Protection Agency and 
the Department of the Army, establish a mitigation sequence that is 
used in the evaluation of individual permit applications. Under this 
sequence, all appropriate and practicable steps must be undertaken 
by the applicant to first avoid and then minimize adverse impacts to 
the aquatic ecosystem. Remaining unavoidable impacts must then be 
offset through compensatory mitigation to the extent appropriate and 
practicable. Requirements for compensatory mitigation may be 
satisfied through the use of wetland mitigation banks, so long as 
their use is consistent with standard practices for evaluating 
compensatory mitigation proposals outlined in the Mitigation MOA. It 
is important to emphasize that, given the mitigation sequence 
requirements described above, permit applicants should not 
anticipate that the establishment of, or participation in, a wetland 
mitigation bank will ultimately lead to a determination of 
compliance with the Section 404(b)(1) Guidelines without adequate 
demonstration that impacts associated with the proposed discharge 
have been avoided and minimized to the extent practicable.
    4. The agencies' preference for on-site, in-kind compensatory 
mitigation does not preclude the use of wetland mitigation banks 
where it has been determined by the Corps, or other appropriate 
permitting agency, in coordination with the Federal resource 
agencies through the standard permit evaluation process, that the 
use of a particular mitigation bank as compensation for proposed 
wetland impacts would be appropriate for offsetting impacts to the 
[[Page 13712]] aquatic ecosystem. In making such a determination, 
careful consideration must be given to wetland functions, landscape 
position, and affected species populations at both the impact and 
mitigation bank sites. In addition, compensation for wetland impacts 
should occur, where appropriate and practicable, within the same 
watershed as the impact site. Where a mitigation bank is being 
developed in conjunction with a wetland resource planning initiative 
(e.g., Special Area Management Plan, State Wetland Conservation 
Plan) to satisfy particular wetland restoration objectives, the 
permitting agency will determine, in coordination with the Federal 
resource agencies, whether use of the bank should be considered an 
appropriate form of compensatory mitigation for impacts occurring 
within the same watershed.
    5. Wetland mitigation banks should generally be in place and 
functional before credits may be used to offset permitted wetland 
losses. However, it may be appropriate to allow incremental 
distribution of credits corresponding to the appropriate stage of 
successful establishment of wetland functions. Moreover, variable 
mitigation ratios (credit acreage to impacted wetland acreage) may 
be used in such circumstances to reflect the wetland functions 
attained at a bank site at a particular point in time. For example, 
higher ratios would be required when a bank is not yet fully 
functional at the time credits are to be withdrawn.
    6. Establishment of each mitigation bank should be accompanied 
by the development of a formal written agreement (e.g., memorandum 
of agreement) among the Corps, EPA, other relevant resource 
agencies, and those parties who will own, develop, operate or 
otherwise participate in the bank. The purpose of the agreement is 
to establish clear guidelines for establishment and use of the 
mitigation bank. A wetlands mitigation bank may also be established 
through issuance of a Section 404 permit where establishing the 
proposed bank involves a discharge of dredged or fill material into 
waters of the United States. The banking agreement or, where 
applicable, special conditions of the permit establishing the bank 
should address the following considerations, where appropriate:
    (a) location of the mitigation bank;
    (b) goals and objectives for the mitigation bank project;
    (c) identification of bank sponsors and participants;
    (d) development and maintenance plan;
    (e) evaluation methodology acceptable to all signatories to 
establish bank credits and assess bank success in meeting the 
project goals and objectives;
    (f) specific accounting procedures for tracking crediting and 
debiting;
    (g) geographic area of applicability;
    (h) monitoring requirements and responsibilities;
    (i) remedial action responsibilities including funding; and
    (j) provisions for protecting the mitigation bank in perpetuity.

Agency participation in a wetlands mitigation banking agreement may 
not, in any way, restrict or limit the authorities and 
responsibilities of the agencies.
    7. An appropriate methodology, acceptable to all signatories, 
should be identified and used to evaluate the success of wetland 
restoration and creation efforts within the mitigation bank and to 
identify the appropriate stage of development for issuing mitigation 
credits. A full range of wetland functions should be assessed. 
Functional evaluations of the mitigation bank should generally be 
conducted by a multi-disciplinary team representing involved 
resource and regulatory agencies and other appropriate parties. The 
same methodology should be used to determine the functions and 
values of both credits and debits. As an alternative, credits and 
debits can be based on acres of various types of wetlands (e.g., 
National Wetland Inventory classes). Final determinations regarding 
debits and credits will be made by the Corps, or other appropriate 
permitting agency, in consultation with Federal resource agencies.
    8. Permit applicants may draw upon the available credits of a 
third party mitigation bank (i.e., a bank developed and operated by 
an entity other than the permit applicant). The Section 404 permit, 
however, must state explicitly that the permittee remains 
responsible for ensuring that the mitigation requirements are 
satisfied.
    9. To ensure legal enforceability of the mitigation conditions, 
use of mitigation conditions, use of mitigation bank credits must be 
conditioned in the Section 404 permit by referencing the banking 
agreement or Section 404 permit establishing the bank; however, such 
a provision should not limit the responsibility of the Section 404 
permittee for satisfying all legal requirements of the permit.

signed 8-23-93
Robert H. Wayland, III,
Director, Office of Wetlands, Oceans, and Watersheds, U.S. 
Environmental Protection Agency.
signed 8-23-93
Michael L. Davis,
Office of the Assistant Secretary of the Army (Civil Works), Department 
of the Army.

Regulatory Guidance Letter (RGL 93-3)

RGL 93-3  Issued: September 13, 1993  Expires: not applicable.
Subject: Rescission of Regulatory Guidance Letters (RGL) 90-5, 90-7, 
and 90-8

    1. On 25 August 1993 the final ``Excavation Rule'' was published 
in the Federal Register (58 FR 45008) and becomes effective on 24 
September 1993. This regulation modifies the definition of 
``Discharge of Dredged Material'' to address landclearing activities 
(see 33 CFR 232.2(d)); modifies the definitions of ``Fill Material'' 
and ``Discharge of Fill Material'' to address the placement of 
pilings (see 33 CFR 323.2 (e) and (f) and 323.3(c)); and modifies 
the definition of ``waters of the United States'' to address prior 
converted cropland (see 33 CFR 328.(a)(8)).
    2. Therefore, RGL 90-5, Subject: ``Landclearing Activities 
Subject to Section 404 Jurisdiction''; RGL 90-7, Subject: 
``Clarification of the Phrase `Normal Circumstances' as it pertains 
to Cropped Wetlands''; and RGL 90-8, Subject: ``Applicability of 
Section 404 to Pilings''; are hereby rescinded effective 24 
September 1993. Furthermore, although RGL 90-5, Subject: 
``Landclearing Activities Subject to Section 404 Jurisdiction'' 
expired on 31 December 1992 it should continue to be applied until 
24 September 1993.
    3. In addition, RGL's 90-5, 90-7, and 90-8 as of 24 September 
1993 will no longer be used for guidance since the guidance 
contained in those RGL's has been superseded by the regulation.

    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter, RGL 94-1

Date: 23 May 1994, Expires: 31 December 1999
Subject: Expiration of Geographic Jurisdictional Determinations.

    1. Regulatory Guidance Letter (RGL) 90-6, Subject: ``Expiration 
Dates for Wetlands Jurisdictional Delineations'' is extended until 
31 December 1999, subject to the following revisions.
    2. This guidance should be applied to all jurisdictional 
determinations for all waters of the United States made pursuant to 
Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the 
Clean Water Act, and Section 103 of the Marine Protection Research 
and Sanctuaries Act of 1972.
    3. To be consistent with paragraph IV.A. of the 6 January 1994, 
interagency Memorandum of Agreement Concerning the Delineation of 
Wetlands for Purposes of Section 404 of the Clean Water Act and 
Subtitle B of the Food Security Act, all U.S. Army Corps of 
Engineers geographic jurisdictional determinations shall be in 
writing and normally remain valid for a period of five years. The 
Corps letter (see paragraph 4.(d) of RGL 90-6) should include a 
statement that the jurisdictional determination is valid for a 
period of five years from the date of the letter unless new 
information warrants revision of the determination before the 
expiration date.
    4. For wetland jurisdictional delineations the ``effective date 
of this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 was and 
remains 14 August 1990. For jurisdictional determinations, other 
than wetlands jurisdictional delineations, the ``effective date of 
this RGL'' referred to in paragraphs 4 and 5 of RGL 90-6 will be the 
date of this RGL.
    5. Previous Corps written jurisdictional determinations, 
including wetland jurisdictional delineations, with a validity 
period of three years remain valid for the stated period of three 
years. The district engineer is not required to issue new letters to 
extend such period from three years to a total of five years. 
However, if requested to do so, the district engineer will normally 
extend the three year period to a total of five years unless new 
information warrants a new jurisdictional determination.
    6. Districts are not required to issue a public notice on this 
guidance but may do so at their discretion.
    7. This guidance expires on 31 December 1999 unless sooner 
revised or rescinded.

    [[Page 13713]] For the Director of Civil Works:
John P. Elmore, P.E.
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.

Regulatory Guidance Letter, RGL 94-2

Date: 17 August 1994, Expires: 31 Dec 1999
CECW-OR
Subject: Superfund Projects

    1. Regulatory Guidance Letter (RGL) 85-07, subject: ``Superfund 
Projects'' is hereby reissued (copy enclosed).
    2. This RGL was previously extended by RGL 89-2. Although the 
extension expired, RGL 85-07 has continued to be U.S. Army Corps of 
Engineers policy.
    3. This guidance expires 31 December 1999 unless sooner revised 
or rescinded.

    For the Director of Civil Works:
John P. Elmore, P.E.,
Chief, Operations, Construction and Readiness Division, Directorate of 
Civil Works.
Encl

RGL 85-7, Dated 5 July 1985, Expires 31 Dec 1987
Subject: Superfund Projects

    1. Recently, the Chief Counsel, Mr. Lester Edelman, responded to 
a letter from Mr. William N. Hedeman, Jr., Director, Office of 
Emergency and Remedial Response, Environmental Protection Agency 
(EPA) which dealt with the need for Department of Army 
authorizations for the Comprehensive Environmental Response, 
Compensation and Liability Act (CERCLA) actions. This letter 
summarizes Mr. Edelman's opinion and provides operating guidance for 
field interaction with the EPA.
    2. EPA's basic position is that Congress did not intend for 
CERCLA response actions to be subject to other environmental laws. 
Rather, as a matter of sound practice, CERCLA response actions 
generally should meet the standards established by those laws. 
Consequently, it is the EPA's position that neither it nor the 
states, in pursuing response actions at the location of the release 
or threatened release under the authority of CERCLA, are required to 
obtain permits under Section 404 of the Clean Water Act or Section 
10 of the Rivers and Harbors Act for those actions.
    3. Mr. Edelman stated in part that he has some reservations 
about the position that the EPA has taken. Nevertheless, he 
recognizes that the EPA has the primary authority for the 
interpretation and application of CERCLA, and therefore would defer 
to the EPA's reading of its own statutory authorities, at least for 
the time being.
    4. In light of this legal opinion, FOAs should not require 
applications for the EPA or state response actions at the location 
of the release or threatened release pursued under the authority of 
CERCLA. Any permit applications in process should be terminated.
    5. Both the EPA and OCE believe that the FOAs' expertise in 
assessing the public interest factors for dredging and filling 
operations can contribute to the overall quality of the CEROLA 
response action. The Director of Civil Works will be establishing a 
group from his staff to work with the EPA staff to develop a 
framework for integrating the Corps Sections 10, Section 404 and, if 
appropriate, Section 103 concerns into the EPA's substantive 
Superfund reviews.
    6. Until specific guidance is provided from OCE, FOAs should 
provide technical support to the EPA regions and/or the states on 
matters within their field of expertise.

    For the Chief of Engineers:
C.E. Edgar III

[FR Doc. 95-6253 Filed 3-13-95; 8:45 am]
BILLING CODE 3710-92-M