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water, where the same shall be liable to be washed into such navigable water *** whereby navigation shall or may be impeded or obstructed: Provided, That nothing herein contained shall extend to, apply to, or prohibit the operations in connection with the improvement of navigable waters or construction of public works, considered necessary and proper by the U.S. officers supervising such improvement or public work: And provided further, That the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material above-mentioned in navigable waters, within limits to be defined and under conditions to be prescribed by him, provided application is made to him prior to depositing such material; and whenever any permit is so granted the conditions thereof shall be strictly complied with, and any violation thereof shall be unlawful."

(2) Executive Order No. 11574 (dated December 23, 1970) directs the implementation of a permit program under the authority of the Refuse Act and provides for the cooperation of affected Federal agencies in the administration of the program.

(c) Related legislation.-(1) Section 21(b) of the Federal Water Pollution Control Act, as amended (33 U.S.C. 1151 et seq.) (see particularly the Water Quality Improvement Act of 1970, Public Law 91-224, 84 Stat. 108), reflects the concern of the Congress with maintenance of applicable water quality standards and, subject to certain exceptions, requires any applicant for a Federal license or permit to conduct any activity including, but not limited to, the construction or operation of facilities which may result in a discharge into the navigable waters of the United States to provide an appropriate certification that there is reasonable assurance that such activity will be conducted in a manner which will not violate applicable water quality standards.

(2) The concern of the Congress with the need to encourage the productive and enjoyable harmony between man and his environment, and the need to promote efforts which will prevent or eliminate damage to the environment was manifested in the enactment of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347). Section 102 of that Act directs that

To the fullest extent possible: (1) The policies, regulations, and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this Act, and (2) all agencies of the Federal Government shall

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(B) Identify and develop methods and procedures, in consultation with the Council on Environmental Quality established by title II of this Act, which will insure that presently unquantified environmental amenities and values may be given appropriate consideration in decisionmaking along with economic and technical considerations***.

(3) The concern of Congress with the quality of the aquatic environment as it affects the conservation, improvement and enjoyment of fish and wildlife resources is indicated in the Fish and Wildlife Act of 1956 (16 U.S.C. 742a et seq.), the Migratory Marine Game-Fish Act (16 U.S.C. 760c-760g) and the Fish and Wildlife Coordination Act (16 U.S.C. 661-666c). The latter Act provides in part that: [W]henever the waters of any stream or other body of water are proposed or authorized to be impounded, diverted, the channel deepened, or the stream or other body of water otherwise controlled or modified for any purpose whatever, including navigation and drainage, by any department or agency of the United States, or by any public or private agency under Federal permit or license, such department or agency first shall consult with the U.S. Fish and Wildlife Service, Department of the Interior, and with the head of the agency exercising administration over the wildlife resources of the particular State wherein the impoundment, diversion, or other control facility is to be constructed, with a view to the conservation of wildlife resources * * *. (16 U.S.C. 662 ( a ) )

(See also Reorganization Plan No. 4 of 1970 which transferred certain funetions from the Secretary of the Interior to the Secretary of Commerce.) As provided in paragraph (d) (6) of this section, advice as to the impact which a proposed discharge or deposit may or is likely to have on fish and wildlife resources is to be solicited from the appropriate Regional Coordinator or Field Representative of the Department of the Interior and the appropriate Regional Director of the National Marine Fisheries Service of the National Oceanic and Atmospheric Administration (NOAA), Department of Commerce.

(4) As amended, the Act of June 29, 1888 (33 U.S.C. 441 et seq.) authorizes Corps of Engineers' officers supervising the harbors of New York, Hampton Roads, and Baltimore to enforce provisions making unlawful unauthorized discharges or deposits. Section 421 of Title 33 of the United States Code makes unlawful certain discharges or deposits into Lake Michigan.

(d) General policy.—(1) The Refuse Act is considered to apply to all direct and indirect discharges or deposits (except those flowing from streets and sewers and passing therefrom in a liquid state) by any person, firm or other entity, including discharges or deposits from municipal, State, or Federal facilities or installations, into a navigable waterway or tributary or into a waste treatment system from which the same will flow into a navigable waterway or tributary. Discharges or deposits of water at a temperature different from that of the navigable waterway or tributary into which the same will flow are considered to be discharges or deposits to which the Refuse Act is applicable.

(2) The Refuse Act Permit Program is applicable to all discharges or deposits identified in subparagraph (1) of this paragraph except that the permit program is not applicable to:

(i) Discharges or deposits into a municipal or other public sewage treatment system;

(ii) Discharges or deposits from a municipal or other public sewage treatment system;

(iii) Discharges or deposits of storm water runoff flowing from public or private streets;

(iv) Discharges or deposits into a waste treatment system. (This exception does not apply to discharges or deposits from such a waste treatment system into a navigable waterway or tributary. Thus, for example, the operator (including, if applicable, agencies or instrumentalities of the Federal, State, or local governments) of a waste treatment system which receive industrial discharges and is not tied in with a municipal or other public sewage treatment system must apply for and receive a permit if the system discharges or deposits into a navigable waterway or tributary.)

(v) Discharges or deposits which are placed on the banks of a navigable waterway or tributary where the same shall be liable to be washed into such navigable water either by ordinary or high tides, or by storms or floods whereby navigation shall or may be impeded or obstructed. (This exception does not apply to discharges or deposits placed on banks which, because of gravity or the slope of the ground on which the discharge or deposit is placed, will flow into a navigable waterway or tributary. Such discharges or deposits will require a permit under the Refuse Act Permit Program.)

(vi) Discharges or deposits from ships or other watercraft into a navigable waterway or tributary.

The foregoing exceptions from the permit program shall not be deemed to affect the applicability of the Refuse Act itself to such discharges or deposits unless such discharges or deposits fall within the statutory exception for "that flowing from the streets and sewers and passing therefrom in a liquid state." In addition to these exceptions, the Refuse Act Permit Program is not applicable to public or private dredging or filling which shall continue to be subject to the permit program instituted pursuant to 33 U.S.C. 403.

(3) Except as provided for in subparagraph (2) of this paragraph, all persons, firms, or other entities wishing to discharge or deposit into waters covered by the Refuse Act must apply to the District Engineer in charge of the District where the proposed discharge or deposit is to occur for a permit under the Refuse Act Permit Program. Permits covering dischargse from facilities which are now in existence but which were not in existence or lawfully under construction prior to April 3, 1970, must be applied for as soon as possible following the publication of this section in the Federal Register, but in no event later than July 1, 1971. All other persons, firms, or other entities wishing to discharge or deposit into waters covered by the Refuse Act are obligated to apply for a permit prior to July 1, 1971, except that persons, firms, or other entities wishing to commence discharges or deposits into waters covered by the Refuse Act on or after November 1, 1971, must file a completed application for a permit no less than 120 days in advance of the date on which it is desired to commence discharges or deposits. (4) All discharges or deposits to which the Refuse Act is applicable (see subparagraph (1) of this paragraph) are unlawful unless authorized by an appropriate permit issued under the authority of the Secretary of the Army. The fact that official objection may not have been raised with respect to past or continuing

discharges or deposits does not constitute authority to discharge or deposit or to continue to discharge or deposit in the absence of an appropriate permit. Any such discharges or deposits not authorized by an appropriate permit may result in the institution of legal proceedings in appropriate cases for violation of the provisions of the Refuse Act. Similarly, the mere filing of an application requesting permission to discharge or deposit into navigable waters or tributaries thereo will not preclude legal action in appropriate cases for Refuse Act violations. The institution of either a civil or criminal action by the Department of Justice under the Refuse Act will not preclude the acceptance or continued processing of a permit application. Where a civil action to restrain a discharge or deposit which is the subject of the permit application that has been filed, and that action is disposed of other than by the dismissal of the case by the court, any permit which is issued shal linclude any requirements embodied in the resolution of the case.

(5) The decision as to whether or on what conditions a permit authorizing a deposit which is the subject of the permit issued under the Refuse Act will be based on an evaluation of the impact which the discharge or deposit may have on (i) anchorage and navigation, (ii) applicable water quality standards and related water quality considerations, including environmental values reflected in water quality standards, and (iii) fish and wildlife values not reflected in or adequately protected by applicable water quality standards, if any.

(6) Recognizing that, at the Federal level, responsibility for the protection of fish and wildlife resources lies primarily with the Department of the Interior and with the National Oceanic and Atmospheric Administration (NOAA) of the Department of Commerce, the appropriate Regional Director of the National Marine Fisheries Service of NOAA and the appropriate Regional Coordinator or Field Representative of the Department of the Interior will advise the appropriate District Engineer and the appropriate Regional Representative of EPA of the impact, if any, which a proposed discharge or deposit may or is likely to have on fish and wildlife resources and will, in appropriate cases, recommend conditions considered necessary to afford reasonable protection to such resources. (7) Although the Refuse Act vests in the Secretary of the Army authority to determine whether or not a permit should or should not issue, it is recognized that responsibility for water quality improvement lies primarily with the States or, in particular instances, with appropriate interstate agencies or river basin commissions, and, at the Federal level, with the Environmental Protection Agency (EPA). Accordingly, EPA shall advise the Corps with respect to the meaning, content and application of water quality standards applicable to a proposed discharge or deposit and as to the impact which the proposed discharge or deposit may or is likely to have on applicable water quality standards and related water quality considerations, including environmental values reflected in water quality standards. Specifically, the Regional Representative of EPA will, as appropriate, identify and advise the District Engineer with respect to the following:

(i) The meaning and content of applicable water quality standards; (ii) The application of water quality standards to the proposed discharge or deposit, including the likely impact of the proposed discharge or deposit on such water quality standards and related water quality considerations: (iii) The permit conditions required to comply with applicable water quality standards;

(iv) The permit conditions required to carry out the purposes of the Federal Water Pollution Control Act where water quality standards are not applicable in whole or in part;

(v) The protection afforded fish and wildlife resources by water quality standards, if any;

(vi) The interstate water quality effect of the proposed discharge or deposit:

(vii) The recommended duration of a permit.

Regional Representatives will also provide District Engineers with a recommendation as to whether or not the permit applied for should or should not issue and the basis for that recommendation.

(8) Recognizing the expertise of EPA in matters related to water quality, District Engineers shall, except as provided in subparagraph (10) of this paragraph accept such findings, determinations and interpretations as the Regional Representative of EPA may make respecting the applicability of water cuality standards (including compliance with those standards in particular circumstances) and related water quality considerations, and shall deny a permit appli

cation in accordance with the recommendation of a Regional Representative if that recommendation is supported by a finding that the proposed discharge or deposit will not be consistent with applicable water quality standards or related water quality considerations.

(9) If the Regional Representative of EPA finds that the proposed discharge or deposit will meet applicable water quality standards or that a permit can be conditioned so as to ensure compliance with applicable water quality standards, District Engineers shall accept the finding and shall include in any permit issued such conditions as the Regional Representative may have recommended respecting water quality standards and related water quality considerations. In any case the District Engineer may deny the requested permit if it appears that anchorage and navigation will be injured or that the proposed discharge or deposit will have a significant and unreasonable adverse impact on fish and wildlife resources.

(10) In any case where the District Engineer and the Regional Representative of EPA differ with respect to applicable water quality standards or related water quality considerations and are unable to reconcile their views as to whether or not a permit should be issued, or the terms and conditions of a permit, the District Engineer shall promptly forward the matter through channels to the Secretary of the Army to provide the Secretary with the opportunity to consult with the Administrator of EPA. Such consultation shall take place within 30 days of the date on which the Secretary receives the file from the District Engineer or within such additional period of time as the Secretary and the Administrator may agree upon. Following such consultation, the Secretary shall accept the findings, determinations, and interpretations of the Administrator as to water quality standards and related water quality considerations, shall direct that the permit be denied if the Administrator found or determined that the proposed discharge or deposit would violate applicable water quality standards, and shall otherwise give careful consideration to the recommendations of the Administrator before forwarding the case to the District Engineer with instructions as to its disposition.

(11) No permit will be issued:

(1) In cases where the applicant, pursuant to section 21(b)(1) of the Federal Water Pollution Control Act, as amended, is required to obtain a State or other appropriate certification that the discharge or deposit will not violate applicable water quality standards and such certification was denied ;

(ii) For discharges or deposits of harmful quantities of oil, as defined pursuant to section 11 of the Federal Water Pollution Control Act; (iii) If its issuance would be inconsistent with any finding, or determination, or interpretation of the Administrator pertaining to applicable water quality standards and related water quality considerations;

(iv) For materials designated as hazardous substances under regulations to be promulgated by the Administrator of EPA under section 12 of the Federal Water Pollution Control Act, as amended, except with the approval of the Administrator;

(v) If the proposed discharge or deposit will contain a toxic or other substance (other than materials designated as hazardous under regulations to be promulgated by the Administrator of EPA under section 12 of the Federal Water Pollution Control Act, as amended) and if, on the advice of the Regional Representative of EPA, it appears that a permit cannot be conditioned to ensure that the proposed discharge or deposit will not pose any significant risk to health or safety. District Engineers are precluded from issuing permits in such cases. The listing is not intended to identify all of the cases or circumstances in which the denial of a permit may be appropriate. (e) Authority to issue permits.-The Refuse Act provides that, "the Secretary of the Army, whenever in the judgment of the Chief of Engineers anchorage and navigation will not be injured thereby, may permit the deposit of any material *** in navigable waters, within limits to be defined and under conditions to be prescribed by him ***." The Chief of Engineers, in the exercise of his judgment under the Act, has made the general determination that anchorage and navigation will not be injured when the discharge or deposit permitted will cause no significant displacement of water or reduction in the navigable capacity of a waterway. Except as otherwise provided in this section, the Secretary of the Army has authorized the Chief of Engineers and his authorized representatives to issue permits allowing discharges or deposits into navigable waters

or tributaries thereof, if evaluation leads to the conclusion that (1) as determined by the Chief of Engineers, anchorage and navigation will not be injured thereby, and (2) issuance of a permit will not be inconsistent with the policy guidance prescribed in paragraph (d) of this section. Accordingly, within these limitations. District Engineers are authorized, except in cases which are to be referred to higher authority for decision (see paragraphs (d) (10) and (i) (7) of this section), to issue permits or to deny permit applications for discharges or deposits covered by the Refuse Act Permit Program.

(f) Relationship to other corps permits.-(1) Operators of facilities constructed in navigable waters under a valid construction or other permit issued pursuant to section 10 or pursuant to sections 10 (33 U.S.C. 403) and 13 (33 U.S.C. 407) of the Rivers and Harbors Act approved March 3, 1899, must apply for and receive a new permit under the Refuse Act Permit Program in order to lawfully discharge into or place deposits in a navigable waterway or tributary. (2) Any person wishing to undertake work in navigable waters which may also result in a discharge or deposit into such navigable waters or tributaries thereof must apply for a permit under section 403 for such work and for a permit under section 407 to cover any proposed discharge or deposit. However, if the work proposed to be undertaken in navigable water is limited to the construction of a minor outfall structure (one which will not involve any significant amount of work, eitherconstruction or dredging and filling, in the navigable waterway) from which the proposed discharge or deposit will flow, District Engineers may in their discretion issue a single permit under this regulation (ER 1145-2-321). If a single permit is issued authorizing both work in navigable waters and a discharge or deposit, the permit should cite both sections 403 and 407 as au thority for its issuance.

(g) Information required with an application.—(1) An applicant for a permit involving a discharge or deposit into a navigable waterway or tributary thereof must file the required application form(s) with the District Engineer. A plant, facility, or other establishment which has multiple outlets from which discharges or deposits may flow may use a single application form to apply for a permit covering all proposed discharge (s) or deposit (s): Provided, however, That the discharge or deposit from each outlet shall be separately described and the outlet specifically identified. The form will also require information which will fully identify the character of the discharge (s) or deposit(s) and describe the monitoring devices and procedures which will be used to gather information and maintain records on discharges and deposits. Such information shall include, but need not be limited to, data pertaining to chemical content, water temperature differentials, toxins, sewage, amount and frequency of discharge or deposit and the type and quantity of solids involved, if any. If the discharge(s) or deposit (s) will include solids of any type, applicants will be required to (i) identify the proposed method of instrumentation to determine the effect of the deposit of solids on the waterway, and (ii) either assume responsibility for the periodic removal of such solids by dredging or agree to reimburse the United States for costs associated with such dredging.

(2) An application submitted by a corporation must be signed by the principal executive officer of that corporation or by an official of the rank of corporate vice president or above who reports directly to such principal executive officer and who has been designated by the principal executive officer to make such applications on behalf of the corporation. In the case of a partnership or a sole proprietorship. the application must be signed by a general partner or the proprietor. Each application must contain a certification by the person signing the application that he is familiar with the information provided and that to the best of his knowledge and belief such information is complete and accurate. Attention is directed to the provisions of 18 U.S.C. 1001 which provides for possible fines and imprisonment in the case of false statements.

(3) A fee of one hundred dollars ($100) will be charged in connection with each application for a permit under the Refuse Act Permit Program which involves no more than one outlet from which a discharge or deposit will flow. If there is more than one outlet from which a discharge or deposit will flow an additional fifty dollars ($50) will be charged for each additional outlet. Such fee shall be used to help defray the cost of administering the program. Agencies or instrumentalities of Federal, State, or local governments will not be required to pay any fee in connection with the filing of an application for a permit required under the Refuse Act Permit Program. This fee structure will be reviewed from time to time as experience with the program is developed.

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