[Code of Federal Regulations]
[Title 40, Volume 22]
[Revised as of July 1, 2003]
From the U.S. Government Printing Office via GPO Access
[CITE: 40CFR230.10]

[Page 257-258]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 230--SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES 
FOR DREDGED OR FILL MATERIAL--Table of Contents
 
                Subpart B--Compliance With the Guidelines
 
Sec. 230.10  Restrictions on discharge.


    Note: Because other laws may apply to particular discharges and 
because the Corps of Engineers or State 404 agency may have additional 
procedural and substantive requirements, a discharge complying with the 
requirement of these Guidelines will not automatically receive a permit.
    Although all requirements in Sec. 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.
    (a) Except as provided under section 404(b)(2), 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.
    (1) For the purpose of this requirement, practicable alternatives 
include, but are not limited to:
    (i) Activities which do not involve a discharge of dredged or fill 
material into the waters of the United States or ocean waters;
    (ii) Discharges of dredged or fill material at other locations in 
waters of the United States or ocean waters;
    (2) An alternative is practicable if it is available and capable of 
being done after taking into consideration cost, existing technology, 
and logistics in light of overall project purposes. If it is otherwise a 
practicable alternative, an area not presently owned by the applicant 
which could reasonably be obtained, utilized, expanded or managed in 
order to fulfill the basic purpose of the proposed activity may be 
considered.
    (3) Where the activity associated with a discharge which is proposed 
for a special aquatic site (as defined in subpart E) does not require 
access or proximity to or siting within the special aquatic site in 
question to fulfill its basic purpose (i.e., is not ``water 
dependent''), practicable alternatives that do not involve special 
aquatic sites are presumed to be available, unless clearly demonstrated 
otherwise. In addition, where a discharge is proposed for a special 
aquatic site, all practicable alternatives to the proposed discharge 
which do not involve a discharge into a special aquatic site are 
presumed to have less adverse impact on the aquatic ecosystem, unless 
clearly demonstrated otherwise.
    (4) For actions subject to NEPA, where the Corps of Engineers is the 
permitting agency, the analysis of alternatives required for NEPA 
environmental documents, including supplemental Corps NEPA documents, 
will in most cases provide the information for the evaluation of 
alternatives under these Guidelines. On occasion, these NEPA documents 
may address a broader range of alternatives than required to be 
considered under this paragraph or may not have considered the 
alternatives in sufficient detail to respond to the requirements of 
these Guidelines. In the latter case, it may be necessary to supplement 
these NEPA documents with this additional information.
    (5) To the extent that practicable alternatives have been identified 
and evaluated under a Coastal Zone Management program, a section 208 
program, or other planning process, such evaluation shall be considered 
by the

[[Page 258]]

permitting authority as part of the consideration of alternatives under 
the Guidelines. Where such evaluation is less complete than that 
contemplated under this subsection, it must be supplemented accordingly.
    (b) No discharge of dredged or fill material shall be permitted if 
it:
    (1) Causes or contributes, after consideration of disposal site 
dilution and dispersion, to violations of any applicable State water 
quality standard;
    (2) Violates any applicable toxic effluent standard or prohibition 
under section 307 of the Act;
    (3) Jeopardizes the continued existence of species listed as 
endangered or threatened under the Endangered Species Act of 1973, as 
amended, or results in likelihood of the destruction or adverse 
modification of a habitat which is determined by the Secretary of 
Interior or Commerce, as appropriate, to be a critical habitat under the 
Endangered Species Act of 1973, as amended. If an exemption has been 
granted by the Endangered Species Committee, the terms of such exemption 
shall apply in lieu of this subparagraph;
    (4) Violates any requirement imposed by the Secretary of Commerce to 
protect any marine sanctuary designated under title III of the Marine 
Protection, Research, and Sanctuaries Act of 1972.
    (c) Except as provided under section 404(b)(2), no discharge of 
dredged or fill material shall be permitted which will cause or 
contribute to significant degradation of the waters of the United 
States. Findings of significant degradation related to the proposed 
discharge shall be based upon appropriate factual determinations, 
evaluations, and tests required by subparts B and G, after consideration 
of subparts C through F, with special emphasis on the persistence and 
permanence of the effects outlined in those subparts. Under these 
Guidelines, effects contributing to significant degradation considered 
individually or collectively, include:
    (1) Significantly adverse effects of the discharge of pollutants on 
human health or welfare, including but not limited to effects on 
municipal water supplies, plankton, fish, shellfish, wildlife, and 
special aquatic sites.
    (2) Significantly adverse effects of the discharge of pollutants on 
life stages of aquatic life and other wildlife dependent on aquatic 
ecosystems, including the transfer, concentration, and spread of 
pollutants or their byproducts outside of the disposal site through 
biological, physical, and chemical processes;
    (3) Significantly adverse effects of the discharge of pollutants on 
aquatic ecosystem diversity, productivity, and stability. Such effects 
may include, but are not limited to, loss of fish and wildlife habitat 
or loss of the capacity of a wetland to assimilate nutrients, purify 
water, or reduce wave energy; or
    (4) Significantly adverse effects of discharge of pollutants on 
recreational, aesthetic, and economic values.
    (d) Except as provided under section 404(b)(2), no discharge of 
dredged or fill material shall be permitted unless appropriate and 
practicable steps have been taken which will minimize potential adverse 
impacts of the discharge on the aquatic ecosystem. Subpart H identifies 
such possible steps.