Refuse Act must apply to the District Engineer in charge of the District wh the proposed discharge or deposit is to occur for a permit under the Refuse A Permit Program. Permits covering discharges from facilities which are now existence but which were not in existence or lawfully under construction prior April 3, 1970, must be applied for as soon as possible following the publication this section in the FEDERAL REGISTER, but in no event later than July 1, 19 All other persons, firms, or other entities wishing to discharge or deposit in waters covered by the Refuse Act are obligated to apply for a permit prior July 1, 1971, except that persons, firms, or other entities wishing to comme discharges or deposits into waters covered by the Refuse Act on or after Novem 1, 1971, must file a completed application for a permit no less than 120 days 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 subpa graph (1) of this paragraph) are unlawful unless authorized by an appropri permit issued under the authority of the Secretary of the Army. The fact t official objection may not have been raised with respect to past or continuing charges or deposits does not constitute authority to discharge or deposit or continue to discharge or deposit in the absence of an appropriate permit. Any s discharges or deposits not authorized by an appropriate permit may result in institution of legal proceedings in appropriate cases for violation of the provisi of the Refuse Act. Similarly, the mere filing of an application requesting permiss to discharge or deposit into navigable waters or tributaries thereof will not precl legal action in appropriate cases for Refuse Act violations. The institution either a civil or criminal action by the Department of Justice under the Ret Act will not preclude the acceptance or continued processing of a permit appl tion. Where a civil action to restrain a discharge or deposit which is the sub of the permit application that has been filed, and that action is disposed of of than by the dismissal of the case by the court, any permit which is issued s include any requirements embodied in the resolution of the case.

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

(6) Recognizing that, at the Federal level, responsibility for the protectio fish and wildlife resources lies primarily with the Department of the Interior with the National Oceanic and Atmospheric Administration (NOAA) of Department of Commerce, the appropriate Regional Director of the Nati Marine Fisheries Service of NOAA and the appropriate Regional Coordinato Field Representative of the Department of the Interior will advise the approp District Engineer and the appropriate Regional Representative of EPA of impact, if any, which a proposed discharge or deposit may or is likely to hav fish and wildlife resources and will, in appropriate cases, recommend condi considered necessary to afford reasonable protection to such resources.

(7) Although the Refuse Act vests in the Secretary of the Army authori determine whether or not a permit should or should not issue, it is recognized responsibility for water quality improvement lies primarily with the States, particular instances, with appropriate interstate agencies or river basin con sions, and, at the Federal level, with the Environmental Protection Ag (EPA). Accordingly, EPA shall advise the Corps with respect to the mea content and application of water quality standards applicable to a prop discharge or deposit and as to the impact which the proposed discharge or de may or is likely to have on applicable water quality standards and related quality considerations, including environmental values reflected in water qu standards. Specifically, the Regional Representative of EPA will, as approp 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 dischar deposit, including the likely impact of the proposed discharge or deposit on water quality standards and related water quality considerations;

(iii) The permit conditions required to comply with applicable water q standards;

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

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

The interstate water quality effect of the proposed discharge or deposit; vi) The recommended duration of a permit.

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

Recognizing the expertise of EPA in matters related to water quality, Destrict Engineers shall, except as provided in subparagraph (10) of this paragraph, crept such findings, determinations and interpretations as the Regional Repreentatives of EPA may make respecting the applicability of water quality standads (including compliance with those standards in particular circumstances) ad related water quality considerations, and shall deny a permit application in accordance with the recommendation of a Regional Representative if that recomTendation is supported by a finding that the proposed discharge or deposit will be consistent with applicable water quality standards or related water quality rosiderations.

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

Sources.

10 In any case where the District Engineer and the Regional Representative ✅ EPA differ with respect to applicable water quality standards or related water ality considerations and are unable to reconcile their views as to whether or not permit should be issued, or the terms and conditions of a permit, the District Egineer shall promptly forward the matter through channels to the Secretary of 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 ch additional period of time as the Secretary and the Administrator may agree on. Following such consultation, the Secretary shall accept the findings, deterrations, 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 wild violate applicable water quality standards, and shall otherwise give careful onsideration to the recommendations of the Administrator before forwarding the case to the District Engineer with instructions as to its disposition. ill) 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;

(i) 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. istrict 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 Secre of the Army, whenever in the judgment of the Chief of Engineers anchorage navigation will not be injured thereby, may permit the deposit of any mat *** in navigable waters, within limits to be defined and under conditions prescribed by him ***." The Chief of Engineers, in the exercise of his ment under the Act, has made the general determination that anchorage navigation will not be injured when the discharge or deposit permitted will no significant displacement of water or reduction in the navigable capacity waterway. Except as otherwise provided in this section, the Secretary of the has authorized the Chief of Engineers and his authorized representatives sue permits allowing discharges or deposits into navigable waters or tribu thereof, if evaluation leads to the conclusion that (1) as determined by the of Engineers, anchorage and navigation will not be injured thereby, ar issuance of a permit will not be inconsistent with the policy guidance pres in paragraph (d) of this section. Accordingly, within these limitations, D Engineers are authorized, except in cases which are to be referred to high thority for decision (see paragraphs (d) (10) and (i)(7) of this section), to permits or to deny permit applications for discharges or deposits covered Refuse Act Permit Program.

(f) Relationship to other corps permits. (1) Operators of facilities constru navigable waters under a valid construction or other permit issued pursu section 10 or pursuant to sections 10 (33 U.S.C. 403) and 13 (33 U.S.C. 407 Rivers and Harbors Act approved March 3, 1899, must apply for and re new permit under the Refuse Act Permit Program in order to lawfully di into or place deposits in a navigable waterway or tributary.

(2) Any person wishing to undertake work in navigable waters whi also result in a discharge or deposit into such navigable waters or tril thereof must apply for a permit under section 403 for such work and for a under section 407 to cover any proposed discharge or deposit. However work proposed to be undertaken in navigable waters is limited to the cons of a minor outfall structure (one which will not involve any significant an work, either construction or dredging and filling, in the navigable wa from which the proposed discharge or deposit will flow, District Engine in their discretion issue a single permit under this regulation (ER 1145 If a single permit is issued authorizing both work in navigable waters a charge or deposit, the permit should cite both sections 403 and 407 as a for its issuance.

(g) Information required with an application. (1) An applicant for involving a discharge or deposit into a navigable waterway or tributary must file the required application form(s) with the District Engineer. facility, or other establishment which has multiple outlets from which d or deposits may flow may use a single application form to apply for covering all proposed discharge (s) or deposit(s): Provided, however, discharge or deposit from each outlet shall be separately described and specifically identified. The form will also require information which identify the character of the discharge(s) or deposit(s) and describe the m devices and procedures which will be used to gather information and records on discharges and deposits. Such information shall include, but be limited to, data pertaining to chemical content, water temperature dif toxins, sewage, amount and frequency of discharge or deposit and the quantity of solids involved, if any. If the discharge(s) or deposit(s) w solids of any type, applicants will be required to (i) identify the propos of instrumentation to determine the effect of the deposit of solids on the and (ii) either assume responsibility for the periodic removal of such dredging or agree to reimburse the United States for costs associated dredging.

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

A fee of one hundred dollars ($100) will be charged in connection with each aration 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 that one outlet from which a discharge or deposit will flow, an additional fifty lars ($50) will be charged for each additional outlet. Such fee shall be used to to defray the cost of administering the program. Agencies or instrumentalities Federal, State, or local governments will not be required to pay any fee in conon with the filing of an application for a permit required under the Refuse Art Permit Program. This fee structure will be required from time to time as perience with the program is developed.

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 <eration of facilities, which may result in any discharge into the navigable wers of the United States, shall provide the licensing or permitting agency a cation from the State in which the discharge originates or will originate, or, fappropriate, from the interstate water pollution control agency having jurisdica 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 inter**ate agency that such activity will be conducted in a manner which will not violate Leable water quality standards ***. No license or permit shall be granted til the certification required by this section has been obtained or has been *ived * * *" i.e., "if the [certifying agency] *** fails or refuses to act on a quest for certification, within a reasonable period of time (which shall not eved 1 year) after receipt of such request ***." Six months shall generally be onsidered to be a reasonable period of time. If, however, special circumstances aufied by either the District Engineer or the Regional Representative of EPA re 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 sser period of time, advise the Regional Representative and the certifying agency the need for action by a particular date and that, if certification is not received the date established, it will be considered that the requirement for certification has been waived. Similarly, if it appears that circumstances may reasonably quare a period of time longer than 6 months, the District Engineer may afford be certifying agency up to 1 year to provide the required certification before termining that a waiver has occurred. District Engineers shall check with the tifying 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 Polluon 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 posts into navigable waters require certification pursuant to 21(b)(1). District Engineers will accept but will not fully process a permit application until the pacant has provided the required certification. If the application is not accomanied by the required certification the applicant shall (i) provide the appropriate rifying agency with a completed copy of the application form required to be Led 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, ertification 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 ander construction prior to April 3, 1970, certification is not required until April 1, 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 Ceterally be considered to be a reasonable period of time. If, however, special circumstances identified by either the District Engineer or the Regional Repretative of EPA require that action on a permit application be taken within a ore limited period of time, the District Engineer shall determine a lesser reasonAle 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 take the permit application without the written communication. Similarly, if it ap that circumstances may reasonably require a period of time longer than 6 mo the District Engineer may afford the State up to 1 year to provide the w communication before determining that a waiver has occured. District Engi shall check with the State at the end of the allotted period of time before dete ing that a waiver has occurred.

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

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

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

(3) When the application is found to be in order the District Engine promptly forward a complete copy of the application or such additional i tion as has not already been furnished to the Regional Representative Copies of the completed application should also be furnished to the a ate Regional Director of the National Marine Fisheries Service of NO to the appropriate Regional Coordinator or Field Representative of the ment of the Interior and, in cases involving a facility which has or will license from the Federal Power Commission (FPC) or the Atomic Ener mission (AEC), to the FPC or the AEC. The Regional Representative of be asked to review the application and to (i) advise the District Engine 30 days whether the proposed discharge or deposit may affect the q waters of another State (as required by section 21(b) (2) of the Feder Pollution Control Act, as amended), and (ii) provide the other informat tified in paragraph (d) (7) of this section within 45 days. If, however, a time beyond said 45 days (or any extension thereof) is required to resp Regional Representative shall notify the District Engineer and shall advi to the additional period of time which will be required to provide such tion. In cases where a Regional Representative does not provide such in and advice to a District Engineer within the time period specified herei ing any extensions of time required by the Regional Representative) th advice furnished by a State or other certifying authority shall be conside District Engineer to be the advice of the Regional Representative, however, that if the State or other certifying authority has waived its of to certify or to otherwise comment on the permit application, the Distric may not take action on the permit application in the absence of an ex views by the Regional Representative of EPA. In the event that the Representative determines that the proposed discharge or deposit may quality of the waters of another State and that other State determin proposed discharge will affect the quality of its waters so as to vid quality standards, objects to the issuance of a permit, and requests a p ing, the matter should be reported to the Chief of Engineers, ENGGC-K.

(4) When copies of the permit application are furnished to the repr of EPA, NOAA and Interior, a public notice, as described in parag this section, will be posted in post offices and other public places in of the site of the proposed discharge or deposit. A copy of the public also be sent to the applicant, to State, county, or municipal author heads of State agencies having responsibility for water quality impro wildlife resources, and to the Chief of Engineers, Attention: ENG addition, copies of the public notice shall be sent to all other parties interested in the application, including navigation interests, adjace owners and conservation organizations. However, if, in the judg District Engineer, sending individual notice to all other parties kno terested in the application is considered to be impracticable because of of individual mailings that would be required, the public notice shall b