30990 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

DEPARTMENT OF DEFENSE

Corps of Engineers

Regulatory Guidance Letters Issued by

the Corps of Engineers

AGENCY: 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 However, unless superseded by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. We are

hereby publishing all current RGL’s,

beginning with RGL 91–1 and ending

with RGL 95–1. RGL 92–2 expired on 31

January 1995, and is removed from this

publication. We will continue to

publish each RGL in the Notice Section

of the Federal Register upon issuance

and in early 1997, we will again publish

the complete list of all current RGL’s.

Dated June 7, 1996.

Daniel R. Burns,

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,

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 decisionmaking 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

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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices 30991

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 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, projectrelated information on the impacts of

activities being evaluated by the Corps

and appropriate and practicable

measures to mitigate adverse impacts.

The comments will be submitted within

the time frames established in

interagency agreements and regulations.

Federal resource agencies will limit

their comments to their respective areas

of expertise and authority to avoid

duplication with the Corps and other

agencies and to provide the Corps with

a sound basis for making permit

decisions. The Federal resource

agencies should not submit comments

that attempt to interpret the Corps

regulations or for the purposes of

section 404(a) make determinations

concerning compliance with the Section

404(b)(1) Guidelines. Pursuant to its

authority under Section 404(b)(1) of the

CWA, the EPA may provide comments

to the Corps identifying its views

regarding compliance with the

Guidelines. While the Corps will fully

consider and utilize agency comments,

the final decision regarding the permit

application, including a determination

of compliance with the Guidelines, rests

solely with the Corps.

5. Pre-Application Consultation:

(a) To provide potential applicants

with the maximum degree of relevant

information at an early phase of project

planning, the Corps will increase its

efforts to encourage pre-application

consultations in accordance with

regulations at 33 CFR 325.1(b).

Furthermore, while encouraging preapplication 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
30992 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

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 projectspecific 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

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 (92–3)

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 coastaldependent 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 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices 30993

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 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 regional 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 low

priority for Federal enforcement, since

the Federal Government would not have

required those conditions but for the

State’s requirement. Furthermore, the

Corps will generally not enforce such

State-imposed conditions except in very

unusual cases, due to our limited

personnel and financial resources.

5. NWP Verification and PDN

Responses: In response to NWP

verification requests and PDN’s, district

engineers should utilize the sample

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.’’
30994 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

6. This guidance expires 21 January

1997 unless sooner revised or rescinded.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction 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.

Encl

John P. Elmore,

Chief, Operations, Construction and

Readiness Division, Directorate of Civil

Works.

EPA/Corps Joint Memorandum for the

Field

Subject: Alternatives Analysis under the

Section 404(b)(1) Guidelines for

Projects Subject to Modification

Under the Clean Air Act

1. The 1990 Clean Air Act (CAA)

amendments require most electric

generating plants to reduce emissions of

sulfur dioxide in phases beginning in

1995 and requiring full compliance by

2010. The congressional endorsement of

the industry’s ability to select the most

effective compliance method (e.g.,

sulfur dioxide scrubbers, low sulfur

coal, or other methods) recognizes the

expertise of the industry in these cases

and is a fundamental element in the

CAA market-based pollution control

program. Given the need for cooling

water, a substantial number of electric

power generating plants are located

adjacent, or in close proximity, to

waters of the United States, including

wetlands. Depending on the method

chosen by the plants to reduce

emissions, we expect that these facilities

will be applying for Clean Water Act

Section 404 permits for certain

proposed activities.

2. The analysis and regulation under

Section 404 of the Clean Water Act of

activities in waters of the United States

conducted by specific power plants to

comply with the 1990 Clean Air Act

amendments must ensure protection of

the aquatic environment consistent with

the requirements of the Clean Water

Act. The review of applications for such

projects will fully consider, consistent

with requirements under the Section

404(b)(1) Guidelines, all practicable

alternatives including non-aquatic

alternatives, for proposed discharges

associated with the method selected by

the utility to comply with the 1990

Clean Air Act amendments. For the

purposes of the Section 404(b)(1)

Guidelines analysis, the project purpose

will be that pollutant reduction method

selected by the permit applicant.

3. For example, a utility may have

decided to install sulfur dioxide

scrubbers on an existing power plant in

order to meet the new 1990 Clean Air

Act standards. The proposed

construction of the scrubbers, treatment

ponds and a barge unloading facility

could impact wetlands. In this case, the

Section 404 review would evaluate

practicable alternative locations and

configurations for the scrubbers, ponds

and of the docking facilities. The

analysis will also consider practicable

alternatives which satisfy the project

purpose (i.e., installing scrubbers) but

which have a less adverse impact on the

aquatic environment or do not involve

discharges into waters of the United

States. However, in order to best

effectuate Congressional intent reflected

in the CAA that electric utilities retain

flexibility to reduce sulfur dioxide

emissions in the most cost effective

manner, the Section 404 review should

not evaluate alternative methods of

complying with the Clean Air Act

standards not selected by the applicant

(e.g., in this example use of low sulfur

coal).

4. In evaluating the scope of

practicable alternatives which satisfy

the project purpose (e.g., constructing

additional scrubber capacity), the

alternatives analysis should not be

influenced by the possibility that, based

on a conclusion that practicable upland

alternatives are available to the

applicant, the project proponent may

decide to pursue other options for

meeting Clean Air Act requirements.

Continuing the above example, a Corps

determination that practicable upland

alternatives are available for scrubber

waste disposal should not be affected by

the possibility that an applicant may

subsequently decide to select a different

method for meeting the Clean Air Act

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,

Construction and Watersheds.

John P. Elmore,

Chief, Operations, 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
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices 30995

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 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.

3 Encls

John P. Elmore,

Chief, Operations, Construction and

Readiness Division, Directorate of Civil

Works.

Sample Provisional Permit Transmittal

Letter

Dearllll:

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.

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
30996 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

Special Conditions [if any] which will be

placed on your final Department of the Army

(DA) permit, if the State of llll 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 your

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.

2 Encls

John P. Elmore,

Chief, Operations, Construction, and

Readiness Division, Directorate of Civil

Works.

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

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 or

cumulatively, will not result in

unacceptable adverse effects on the

aquatic ecosystem. The Guidelines
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices 30997

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 offsite alternative could be

practicable. In such cases the alternatives analysis

may appropriately be limited to onsite options only.

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 FR 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 Section

230.10(a).
30998 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

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.

(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 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

projected 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

resource 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 August 23, 1993.

Robert H. Wayland, III,

Director, Office of Wetlands, Oceans, and

Watersheds, U.S. Environmental Protection

Agency.

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 of 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.
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices 30999

(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 costeffective compensatory mitigation

opportunities.

3. The Section 404(b)(1) Guidelines

(Guidelines), as clarified by the

‘‘Memorandum of Agreement

Concerning the Determination of

Mitigation under the Section 404(b)(1)

Guidelines’’ (Mitigation MOA) signed

February 6, 1990, by the Environmental

Protection Agency and the Department

of the Army, establish a mitigation

sequence that is used in the evaluation

of individual permit applications.

Under this sequence, all appropriate

and practicable steps must be

undertaken by the applicant to first

avoid and then minimize adverse

impacts to the aquatic ecosystem.

Remaining unavoidable impacts must

then be offset through compensatory

mitigation to the extent appropriate and

practicable. Requirements for

compensatory mitigation may be

satisfied through the use of wetland

mitigation banks, so long as their use is

consistent with standard practices for

evaluating compensatory mitigation

proposals outlined in the Mitigation

MOA. It is important to emphasize that,

given the mitigation sequence

requirements described above, permit

applicants should not anticipate that the

establishment of, or participation in, a

wetland mitigation bank will ultimately

lead to a determination of compliance

with the Section 404(b)(1) Guidelines

without adequate demonstration that

impacts associated with the proposed

discharge have been avoided and

minimized to the extent practicable.

4. The agencies’ preference for on-site,

in-kind compensatory mitigation does

not preclude the use of wetland

mitigation banks where it has been

determined by the Corps, or other

appropriate permitting agency, in

coordination with the Federal resource

agencies through the standard permit

evaluation process, that the use of a

particular mitigation bank as

compensation for proposed wetland

impacts would be appropriate for

offsetting impacts to the aquatic

ecosystem. In making such a

determination, careful consideration

must be given to wetland functions,

landscape position, and affected species

populations at both the impact and

mitigation bank sites. In addition,

compensation for wetland impacts

should occur, where appropriate and

practicable, within the same watershed

as the impact site. Where a mitigation

bank is being developed in conjunction

with a wetland resource planning

initiative (e.g., Special Area

Management Plan, State Wetland

Conservation Plan) to satisfy particular

wetland restoration objectives, the

permitting agency will determine, in

coordination with the Federal resource

agencies, whether use of the bank

should be considered an appropriate

form of compensatory mitigation for

impacts occurring within the same

watershed.

5. Wetland mitigation banks should

generally be in place and functional

before credits may be used to offset

permitted wetland losses. However, it

may be appropriate to allow incremental

distribution of credits corresponding to

the appropriate stage of successful

establishment of wetland functions.

Moreover, variable mitigation ratios

(credit acreage to impacted wetland

acreage) may be used in such

circumstances to reflect the wetland

functions attained at a bank site at a

particular point in time. For example,

higher ratios would be required when a

bank is not yet fully functional at the

time credits are to be withdrawn.

6. Establishment of each mitigation

bank should be accompanied by the

development of a formal written

agreement (e.g., memorandum of

agreement) among the Corps, EPA, other

relevant resource agencies, and those

parties who will own, develop, operate

or otherwise participate in the bank.

The purpose of the agreement is to

establish clear guidelines for

establishment and use of the mitigation

bank. A wetlands mitigation bank may

also be established through issuance of

a Section 404 permit where establishing

the proposed bank involves a discharge

of dredged or fill material into waters of

the United States. The banking

agreement or, where applicable, special

conditions of the permit establishing the

bank should address the following

considerations, where appropriate:

(a) location of the mitigation bank;

(b) goals and objectives for the

mitigation bank project;

(c) identification of bank sponsors and

participants;

(d) development and maintenance

plan;

(e) evaluation methodology acceptable

to all signatories to establish bank

credits and assess bank success in

meeting the project goals and objectives;

(f) specific accounting procedures for

tracking crediting and debiting;

(g) geographic area of applicability;

(h) monitoring requirements and

responsibilities;

(i) remedial action responsibilities

including funding; and

(j) provisions for protecting the

mitigation bank in perpetuity.

Agency participation in a wetlands

mitigation banking agreement may not,

in any way, restrict or limit the

authorities and responsibilities of the

agencies.

7. An appropriate methodology,

acceptable to all signatories, should be

identified and used to evaluate the

success of wetland restoration and

creation efforts within the mitigation

bank and to identify the appropriate

stage of development for issuing

mitigation credits. A full range of

wetland functions should be assessed.

Functional evaluations of the mitigation

bank should generally be conducted by

a multi-disciplinary team representing

involved resource and regulatory

agencies and other appropriate parties.

The same methodology should be used

to determine the functions and values of

both credits and debits. As an

alternative, credits and debits can be

based on acres of various types of

wetlands (e.g., National Wetland

Inventory classes). Final determinations

regarding debits and credits will be

made by the Corps, or other appropriate

permitting agency, in consultation with

Federal resource agencies.

8. Permit applicants may draw upon

the available credits of a third party

mitigation bank (i.e., a bank developed

and operated by an entity other than the

permit applicant). The Section 404

permit, however, must state explicitly

that the permittee remains responsible

for ensuring that the mitigation

requirements are satisfied.

9. To ensure legal enforceability of the

mitigation conditions, use of mitigation

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.
31000 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

Signed August 23, 1993.

Robert H. Wayland, III,

Director, Office of Wetlands, Oceans, and

Watersheds, U.S. Environmental Protection

Agency.

Michael L. Davis,

Office of the Assistant Secretary of the Army

(Civil Works), Department of the Army.

Regulatory Guidance Letter (RGL 93–3)

Issued: 13 September 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 323.2(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,

Chief, Operations, Construction and

Readiness Division, Directorate of Civil

Works.

Regulatory Guidance Letter (RGL 94–1)

Issued: 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.

For the Director of Civil Works.

John P. Elmore,

Chief, Operations, Construction and

Readiness Division, Directorate of Civil

Works.

Regulatory Guidance Letter (RGL 94–2)

Issued: 17 August 1994, Expires: 31 Dec

1999

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.

Encl

John P. Elmore,

Chief, Operations, Construction and

Readiness Division, Directorate of Civil

Works.

Regulatory Guidance Letter (RGL 85–7)

Issued: 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. The 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 CERCLA response

action. The Director of Civil Works will

be establishing a group from his staff to

work with the EPA staff to develop a
Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices 31001

framework for integrating the Corps

Section 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.

Regulatory Guidance Letter (RGL 95–1)

Issued: 31 March 1995, Expires: 31

December 2000

Subject: Guidance on Individual Permit

Flexibility for Small Landowners

1. Enclosed is a memorandum for the

field signed by the Acting Assistant

Secretary of the Army (Civil Works) and

the Environmental Protection Agency

dated 6 March 1995. This memorandum

provides guidance on flexibility that the

U.S. Army Corps of Engineers should

apply when making determinations of

compliance with the Section 404(b)(1)

Guidelines with regard to the

alternatives analysis.

2. This memorandum should be

implemented immediately. It constitutes

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 on 31

December 2000 unless sooner revised or

rescinded.

For the Director of Civil Works.

Encl

Daniel R. Burns,

Chief, Operations, Construction and

Readiness Division, Directorate of Civil

Works.

United States Environmental Protection

Agency

Office of Water, Washington, DC 20460

United States Department of the Army

Office of the Assistant Secretary,

Washington, DC 20310–0103

Memorandum for the Field: March 6,

1995

Subject: Individual Permit Flexibility

for Small Landowners

In order to clearly affirm the

flexibility afforded to small landowners

under Section 404 of the Clean Water

Act, this policy clarifies that for

discharges of dredged or fill material

affecting up to two acres of non-tidal

wetlands for the construction or

expansion of a home or farm building,

or expansion of a small business, it is

presumed that alternatives located on

property not currently owned by the

applicant are not practicable under the

Section 404(b)(1) Guidelines.

Specifically, for those activities

involving discharges of dredged or fill

material affecting up to two acres into

jurisdictional wetlands for:

(1) The construction or expansion of

a single family home and attendant

features, such as a driveway, garage,

storage shed, or septic field;

(2) The construction or expansion of

a barn or other farm building; or

(3) The expansion of a small business

facility; which are not otherwise

covered by a general permit, it is

presumed that alternatives located on

property not currently owned by the

applicant are not practicable under the

Section 404(b)(1) Guidelines. The

Guidelines’ requirements to

appropriately and practicably minimize

and compensate for any adverse

environmental impacts of such activities

remain.

Discussion

The Clean Water Act Section 404

regulatory program provides that the

Army Corps of Engineers evaluate

permit applications for the discharge of

dredged or fill material into waters of

the U.S., including wetlands, in

accordance with regulatory

requirements of the Section 404(b)(1)

Guidelines (Guidelines). The Guidelines

are substantive environmental criteria

used in evaluating discharges of

dredged or fill material.

The Section 404(b)(1) Guidelines

establish a mitigation sequence that

provides a sound framework to ensure

that the environmental impacts of

permitted actions are acceptable. Under

this framework, there is a three-step

sequence for mitigating potential

adverse impacts to the aquatic

environment associated with a proposed

discharge—first avoidance, then

minimization, and lastly compensation

for unavoidable impacts to aquatic

resources.

The Guidelines’ mitigation sequence

is designed to establish a consistent

approach to be used in ensuring that all

practicable measures have been taken to

reduce potential adverse impacts

associated with proposed projects in

wetlands and other aquatic systems. The

Guidelines define the term

‘‘practicable’’ as ‘‘available and capable

of being done [by the applicant] after

taking into consideration cost, existing

technology, and logistics in light of

overall project purposes’’ (40 CFR

230.3(q)). The first step in the sequence

requires the evaluation of potential

alternative sites under § 230.10(a) of the

Guidelines, to locate the proposed

project so that aquatic impacts are

avoided to the extent practicable.

This policy statement clarifies that,

for the purposes of the alternatives

analysis, it is presumed that practicable

alternatives are limited to property

owned by the permit applicant in

circumstances involving certain small

projects affecting less than two acres of

non-tidal wetlands. This presumption is

consistent with the practicability

considerations required under the

Guidelines and reflects the nature of the

projects to which the presumption

applies—specifically, the construction

or expansion of a single family home

and attendant features, the construction

or expansion of a barn or other farm

building, or the expansion of a business.

For such small projects that would

solely expand an existing structure, the

basic project purpose is so tied to the

existing structures owned by the

applicant, that it would be highly

unusual that the project could be

practicably located on other sites not

owned by the applicant. In these cases,

such as construction of driveways,

garages, or storage sheds, or with home

and barn additions, proximity to the

existing structure is typically a

fundamental aspect of the project

purpose.

In the evaluation of potential

practicable alternatives, the Guidelines

do not exclude the consideration of sites

that, while not currently owned by the

permit applicant, could reasonably be

obtained to satisfy the project purpose.

However, it is the experience of the

Army Corps of Engineers and EPA that

areas not currently owned by the

applicant have, in the great majority of

circumstances, not been determined to

be practicable alternatives in cases

involving the small landowner activities

described above. Cost, availability, and

logistical and capability considerations

inherent in the determination of

practicability under the Guidelines have

been the basis for this conclusion by the

agencies.

The agencies recognize that the

presumption characterized in this

policy statement may be rebutted in

certain circumstances. For example, a

more thorough review of practicable

alternatives would be warranted for

individual sites comprising a

subdivision of homes, if following

issuance of this policy statement, a real

estate developer subdivided a large,

contiguous wetlands parcel into

numerous parcels. In addition, the

presumption is applicable to the

expansion of existing small business

facilities. Small businesses are typically

confined to only one location and with
31002 Federal Register / Vol. 61, No. 118 / Tuesday, June 18, 1996 / Notices

economic and logistical limitations that

generally preclude the availability of

practicable alternative locations to meet

their expansion needs. Conversely,

larger businesses with multiple

locations and greater resources are

expected to consider opportunities to

practicably avoid adverse aquatic

impacts by evaluating off-site

alternatives. Finally, it is important to

note that this presumption of

practicable alternatives is intended to

apply to the individual permit process.

Alternatives are not evaluated for

activities covered by general permits.

Many activities related to the

construction or expansion of a home,

farm, or business, are already covered

by a general permit. In addition, in

conjunction with the issuance of this

policy statement, a nationwide general

permit authorizing discharges related to

single family residential development is

being proposed and will be available for

public comment. If you have any

questions regarding this memorandum,

please contact Gregory Peck of EPA’s

Wetlands Division at (202) 260–8794 or

Michael Davis of the Corps of Engineers

Regulatory Branch at (202) 272–0199.

Robert Perciasepe,

Assistant Administrator for Water, U.S.

Environmental Protection Agency.

John Zirschky,

Acting Assistant Secretary of the Army (Civil

Works).

[FR Doc. 96–15224 Filed 6–17–96; 8:45 am]

BILLING CODE 3710–92–P