(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 Representatives of EPA may make respecting the applicability of water quality standards (including compliance with those standards in particular circumstances) and related water quality considerations, and shall deny a permit application 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:

(i) 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 suh 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.

59-068 0-71—pt. 1– -2

(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 waters is limited to the construction of a minor outfall structure (one which will not involve any significant amount of work, either construction 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 authority 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 required from time to time as experience with the program is developed.

(h) State certification. (1) Section 21 (b)(1) of the Federal Water Pollution Control Act, as amended, provides that "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 any discharge into the navigable waters of the United States, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, or, if appropriate, from the interstate water pollution control agency having jurisdiction over the navigable waters at the point where the discharge originates or will originate, that there is reasonable assurance, as determined by the State or interstate agency that such activity will be conducted in a manner which will not violate applicable water quality standards ***. No license or permit shall be granted until the certification required by this section has been obtained or has been waived ***" i.e., "if the [certifying agency] *** fails or refuses to act on a request for certification, within a reasonable period of time (which shall not exceed 1 year) after receipt of such request ***." Six months shall generally be considered to be a reasonable period of time. If, however, special circumstances identified by either the District Engineer or the Regional Representative of EPA require that action on a permit application under the Refuse Act be taken within a more limited period of time, the District Engineer shall determine a reasonable lesser period of time, advise the Regional Representative and the certifying agency of the need for action by a particular date and that, if certification is not received by the date established, it will be considered that the requirement for certification has been waived. Similarly, if it appears that circumstances may reasonably require a period of time longer than 6 months, the District Engineer may afford the certifying agency up to 1 year to provide the required certification before determining that a waiver has occurred. District Engineers shall check with the certifying agency at the end of the allotted period of time before determining that a waiver has occurred. Sections 21 (b) (7) and (b) (8) of the Federal Water Pollution Control Act, as amended, identify circumstances in which permits of limited duration may issue without the certification required by section 21(b)(1). See paragraph (n) of this section.

(2) Except as provided in subparagraph (3) of this paragraph, discharges or deposits into navigable waters require certification pursuant to 21(b)(1). District Engineers will accept but will not fully process a permit application until the applicant has provided the required certification. If the application is not accompanied by the required certification the applicant shall (i) provide the appropriate certifying agency with a completed copy of the application form required to be filed by paragraph (g) (1) of this section, and (ii) file a copy of the certification application with the District Engineer. These steps will enable the District Engineer to determine if the certification required is being waived by inaction on the part of the certifying authority.

(3) In cases involving a discharge or deposit into a nonnavigable tributary, certification pursuant to 21(b) is not required. In cases involving a discharge or deposit into a navigable waterway from a facility which existed or was lawfully under construction prior to April 3, 1970, certification is not required until April 3, 1973. In either case, it will be the policy of the Corps of Engineers not to fully process a permit application until the applicant or the State has provided a written communication from the State describing the impact of the proposed discharge or deposit and indicating the views of the State on the desirability of granting a permit. If such a written communication is not provided within a reasonable period of time this requirement shall be waived. Six months shall generally be considered to be a reasonable period of time. If, however, special circumstances identified by either the District Engineer or the Regional Representative of EPA require that action on a permit application be taken within a more limited period of time, the District Engineer shall determine a lesser reasonable period of time, advise the Regional Representative and the appropriate State agency that the written communication should be received by a particular

date and that, if it is not received by the date established, action may be taken on the permit application without the written communication. Similarly, if it appears that circumstances may reasonably require a period of time longer than 6 months, the District Engineer may afford the State up to 1 year to provide the written communication before determining that a waiver has occured. District Engineers shall check with the State at the end of the allotted period of time before determining that a waiver has occurred.

(4) As provided in subsection 21(b) (6) of the Federal Water Pollution Control Act, as amended, agencies or instrumentalities of the Federal Government will not be required to apply to the State or other certifying agency for a certification relating to the proposed discharge or deposit. Similarly, agencies or instrumentalities of the Federal Government will not be required to apply for the written communication described in subparagraph (3) of this paragraph.

(i) Processing of permit applications. (1) When an application for a permit is received, care should be taken to assure that the applicant has provided all of the information required by the application form and by this section. Copies of applications received and all other information received relating thereto will be promptly forwarded by the District Engineer to the Regional Representative of EPA for subsequent transmittal to the appropriate certifying or commenting agency.

(2) When all of the required information has been provided, including the required certification or written communication discussed in paragraph (h) of this section, the applicant shall be advised that his application is in order and that it will be processed as expeditiously as possible.

(3) When the application is found to be in order the District Engineer shall promptly forward a complete copy of the application or such additional information as has not already been furnished to the Regional Representative of EPA. Copies of the completed application should also be furnished to the appropriate Regional Director of the National Marine Fisheries Service of NOAA and to the appropriate Regional Coordinator or Field Representative of the Department of the Interior and, in cases involving a facility which has or will require a license from the Federal Power Commission (FPC) or the Atomic Energy Commission (AEC), to the FPC or the AEC. The Regional Representative of EPA will be asked to review the application and to (i) advise the District Engineer within 30 days whether the proposed discharge or deposit may affect the quality of waters of another State (as required by section 21(b) (2) of the Federal Water Pollution Control Act, as amended), and (ii) provide the other information identified in paragraph (d) (7) of this section within 45 days. If, however, additional time beyond said 45 days (or any extension thereof) is required to respond, the Regional Representative shall notify the District Engineer and shall advise him as to the additional period of time which will be required to provide such information. In cases where a Regional Representative does not provide such information and advice to a District Engineer within the time period specified herein (including any extensions of time required by the Regional Representative) the written advice furnished by a State or other certifying authority shall be considered by the District Engineer to be the advice of the Regional Representative, provided, however, that if the State or other certifying authority has waived its opportunity to certify or to otherwise comment on the permit application, the District Eningeer may not take action on the permit application in the absence of an expression of views by the Regional Representative of EPA. In the event that the Regional Representative determines that the proposed discharge or deposit may affect the quality of the waters of another State and that other State determines that the proposed discharge will affect the quality of its waters so as to violate water quality standards, objects to the issuance of a permit, and requests a public hearing, the matter should be reported to the Chief of Engineers, Attention: ENGGC-K.

(4) When copies of the permit application are furnished to the representatives of EPA, NOAA and Interior, a public notice, as described in paragraph (j) of this section, will be posted in post offices and other public places in the vicinity of the site of the proposed discharge or deposit. A copy of the public notice shall also be sent to the applicant, to State, county, or municipal authorities, to the heads of State agencies having responsibility for water quality improvement and wildlife resources, and to the Chief of Engineers, Attention: ENGCWON. In addition, copies of the public notice shall be sent to all other parties known to be interested in the application, including navigation interests, adjacent property owners and conservation organizations. However, if, in the judgment of the District Engineer, sending individual notice to all other parties known to be interested in the application is considered to be impracticable because of the number of individual mailings that would be required, the public notice shall be published

for 5 consecutive days in the local newspaper. If the local newspaper is not a daily, the public notice should be published in the local newspaper and for 5 consecutive days in a newspaper of general circulation in the area where the proposed discharge or deposit is to occur. If the notice is published in the newspaper(s), the applicant shall reimburse the District Engineer for the costs of publication.

(5) Water quality certifications pursuant to section 21(b) of the Federal Water Pollution Control Act, the comments of all governmental agencies on a permit application, and all information and data provided by an applicant or a permittee identifying the nature and frequency of a discharge or deposit shall be available for examination by the public in the Office of the District Engineer. All other information or data which may be submitted by an applicant in connection with a permit application or which may be furnished by a permittee in connection with required periodic reports shall also be available to the public unless the applicant or permittee specifically identifies and is able to demonstrate to the satisfaction of the Secretary of the Army or his authorized representative that the disclosure of such information or data to the general public would divulge methods or processes entitled to protection as trade secrets.

(6) If notice of the permit application evokes substantial public interest a public hearing may be held. Policy with respect to the holding and conduct of public hearings is discussed in paragraph (k) of this section.

(7) District Engineers may, consistent with the policy guidance contained in paragraph (d) of this section, and, after considering all of the information developed with respect to the permit application, including written or oral information presented in response to a public notice or at a public hearing, issue a permit with or without conditions, or deny it, provided, however, that if a District Engineer determines that issuance of a permit with or without conditions is appropriate but there is objection to the issuance of the proposed permit by the Regional Representative of EPA on grounds related to water quality, the matter must be forwarded to higher authority for resolution by the Secretary and the Administrator as provided for in paragraph (d) (10) of this section. If the Regional Representative of EPA does not object to the issuance of a permit and the District Engineer determines that issuance of a permit with or without conditions is appropriate but there is continuing objection to the issuance of a permit by either the Regional Coordinator or Field Representative of the Department of the Interior or the Regional Director of the National Marine Fisheries Service of NOAA on the grounds that the discharge or deposit will have a significant and unreasonable adverse impact on fish and wildlife resources, the District Engineer shall not proceed with the issuance of a permit if, immediately upon receipt of notice from the District Engineer that he intends to issue a permit, such Regional Coordinator, Field Representative or Regional Director indicates to the District Engineer in writing that he wishes to bring his concerns to the attention of higher officials in Washington. In such cases, the proposed permit may be issued at the expiration of 30 days from the date of receipt of the letter from the Regional Coordinator, Field Representative or Regional Director unless, prior to that time, as a result of consultations in Washington, it is directed that the matter be forwarded to higher authority for resolution by the Secretary of the Army, the Administrator of EPA and, as appropriate, the Secretary of Commerce or the Secretary of Interior. Thereafter, a permit will be issued only pursuant to and in accordance with instructions from such higher authority. Every effort should be made to resolve differences at the District Engineer level before referring the matter to higher authority.

(j) Public notice. (1) As required by paragraph (i)(4) of this section, a public notice will be issued after a permit application is determined to be in proper order. In cases where the permit applied for pertains to a discharge or deposit and does not involve construction or other work in navigable waters, the notice shall 1) state the name and address of the applicant, (ii) identify the waterway involved and provide a sketch showing the location of the proposed discharge or deposit, (i) fully identify the character and frequency of the discharge or deposit, (iv) include ano other information (such as the views of the State on the permit application) which may assist interested parties in evaluating the likely impact of the proposed discharge or deposit, if any, (v) provide 30 days within which interested parties may express their views concerning the permit application. All public notices involving a proposed discharge or deposit shall contain the following

statement:

"The decision as to whether or on what conditions a permit authorizing a discharge or deposit will or will not be issued under the Refuse Act will be based on an evaluation of the impact which the proposed discharge or deposit may have on (1) anchorage and navigation, (ii) applicable water quality standards and related water quality considerations, including environmental values reflected in water