Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices 13703

In accordance with section 10(a)(2) of

the Federal Advisory Committee Act

(Pub. L. 92–463) announcement is made

of the following committee meeting.

Name: U.S. Army Command and General

Staff College (CGSC) Advisory Committee.

Date: 5–7 April 1995.

Place: Bell Hall, Room 113, Fort

Leavenworth, Kansas 66027–6900.

Time: 1700–2200—5 April 1995, 0730–

2100—6 April 1995, 0730–1400—7 April

1995.

Proposed Agenda: 1700–2200, 5 April:

Review of CGSC educational program. 0730–

2100, 6 April: Continuation of review. 0730–

1030, 7 April: Continuation of review. 1030–

1130, 7 April: Executive Session. 1300–1400,

7 April: Report to Commandant

The purpose of the meeting is for the

Advisory Committee to examine the entire

range of college operations and, where

appropriate, to provide advice and

recommendations to the College

Commandant and faculty.

The meeting will be open to the public to

the extent that space limitations of the

meeting location permit. Because of these

limitations, interested parties are requested

to reserve space by contacting the

Committee’s Executive Secretary: Philip J.

Brooks, USACGSC Advisory Committee, Bell

Hall, Room 123, Fort Leavenworth, Kansas

66027–6900; Phone: (913) 684-2741.

Kenneth L. Denton,

Army Federal Register Liaison Officer.

[FR Doc. 95–6180 Filed 3–13–95; 8:45 am]

BILLING CODE 3710–08–M

Corps of Engineers

Regulatory Guidance Letters Issued by

the Corps of Engineers

AGENCY: U.S. Army Corps of Engineers,

DoD.

ACTION: Notice.

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
13704 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices

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 preapplication 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 preapplication 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
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices 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.
13706 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices

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
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices 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 Stateimposed 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 marketbased 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 nonaquatic 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
13708 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices

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
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices 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 llllllllll: We have

completed our review of your permit

application identified as [File No., appl.

name, etc.] for the following proposed work:

lllllllllllllllllllll

lllllllllllllllllllll

lllllllllllllllllllll

near/in/at llllllllll. lllll

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

llllllllll 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: lll a Section 401 Water

Quality Certification from State Agency).

lll 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:

lll $10.00 lll $100.00 lll 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
13710 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices

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.

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 § 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.

(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
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices 13711

2The 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.

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. 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, inkind 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
13712 Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices

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 multidisciplinary 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.
Federal Register / Vol. 60, No. 49 / Tuesday, March 14, 1995 / Notices 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

DEPARTMENT OF EDUCATION

Indian Education National Advisory

Council; Meeting

AGENCY: National Advisory Council on

Indian Education, Education.

ACTION: Notice of hearing.

SUMMARY: The National Advisory

Council on Indian Education invites the

public to attend a one-day hearing

conducted by the Council. This notice

also describes the functions of the

Council. Notice of this meeting is

required under section 10(a)(2) of the

Federal Advisory Committee Act.

DATES AND TIMES: Sunday, March 19,

1995 from 9:00 p.m. to 3:00 p.m.

ADDRESSES: The hearing will be held at

the Quality Hotel Capitol Hill in the Sky

Suite, 415 New Jersey Avenue N.W.,

Washington, DC 20001, (202) 638–1616,

Fax (202) 638–0707.

FOR FURTHER INFORMATION CONTACT: John

W. Cheek, Acting Director, National

Advisory Council on Indian Education,

330 C Street, S.W., Room 4072, Switzer

Building, Washington, DC 20202–7556.

Telephone: 202/205–8353.

SUPPLEMENTARY INFORMATION: The

National Advisory Council on Indian

Education is established under section

5342 of the Indian Education Act of

1988 (25 U.S.C. 2642). The Council is

established to, among other things,

assist the Secretary of Education in

carrying out responsibilities under the

Indian Education Act of 1988 (Part C,

Title V, Pub. L. 100–297) and to advise

Congress and the Secretary of Education

with regard to federal education

programs in which Indian children or

adults participate or from which they

can benefit.

The National Advisory Council on

Indian Education is scheduling a oneday hearing on Sunday, March 19, 1995,

prior to the National American Indian

and Alaska Native Education Summit

being planned for March 20–22, 1995.

The hearing will allow participants the

opportunity to present written and/or

oral testimony on any of the topic areas

being addressed by the national summit

or any other area of concern related to

Indian education. The five key issues

areas to be addressed during the summit

include: Tribal Sovereignty/Trust

Responsibility; Education Policy

Development; the Impact of Goals 2000,

A Tribal Perspective; Native Language

and Culture; and the Federal Budget.

Any submitted testimony and address

one of the previously mentioned topic

areas and follow this format: Statement

of the problem; statement of desired

remedy or solution; argument on behalf

of desired remedy; and identification of

who needs to do what and who oversees

its follow through. Other testimony from

topic areas not specifically addressed by

the summit are also welcome. Findings

from the hearing will be incorporated

into the overall summit agenda.

Participants wishing to present written

and/or oral testimony are requested to

submit any documentation to the staff of

the National Advisory Council on

Indian Education prior to the hearing if

possible and no later than 5:00 p.m. on

the day of the hearing. Testimony may

also be faxed to the NACIE office at

(202) 205–9446 any time prior to the

hearing date. Oral testimony will be

scheduled according to topic areas and

announced the morning of the hearing

or from the NACIE office the week prior

to the summit.

Records are kept of all Council

proceedings, and are available for public

inspection at the office of the National

Advisory Council on Indian Education

located at 330 C Street S.W., Room

4072, Washington, DC 20202–7556 from

the hours of 9:00 a.m. to 4:30 p.m.

Monday through Friday.

Dated: March 8, 1995.

John W. Cheek,

Acting Director, National Advisory Council

on Indian Education.

[FR Doc. 95–6278 Filed 3–13–95; 8:45 am]

BILLING CODE 4000–01–M

National Educational Research Policy

and Priorities Board; Meeting

AGENCY: National Educational Research

Policy and Priorities Board, Education.

ACTION: Notice of meeting.

SUMMARY: This notice sets forth the

schedule and proposed agenda of the

inaugural meeting of the National

Educational Research Policy and

Priorities Board. This notice also

describes the functions of the Board.

Notice of this meeting is required under

Section 10(a)(2) of the Federal Advisory

Committee Act and is intended to notify

the public of their opportunity to attend.