[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: 40CFR231.3]

[Page 275-276]
 
                   TITLE 40--PROTECTION OF ENVIRONMENT
 
         CHAPTER I--ENVIRONMENTAL PROTECTION AGENCY (CONTINUED)
 
PART 231--SECTION 404(c) PROCEDURES--Table of Contents
 
Sec. 231.3  Procedures for proposed determinations.

    (a) If the Regional Administrator has reason to believe after 
evaluating the information available to him, including any record 
developed under the section 404 referral process specified in 33 CFR 
323.5(b), that an ``unacceptable adverse effect'' could result from the 
specification or use for specification of a defined area for the 
disposal of dredged or fill material, he may initiate the following 
actions:
    (1) The Regional Administrator will notify the District Engineer or 
the state, if the site is covered by an approved state program, the 
owner of record of the site, and the applicant, if any, in writing that 
the Regional Administrator intends to issue a public notice of a 
proposed determination to prohibit or withdraw the specification, or to 
deny, restrict or withdraw the use for specification, whichever the case 
may be, of any defined area as a disposal site.
    (2) If within 15 days of receipt of the Regional Administrator's 
notice under paragraph (a)(1) of this section, it has not been 
demonstrated to the satisfaction of the Regional Administrator that no 
unacceptable adverse effect(s) will occur or the District Engineer or 
state does not notify the Regional Administrator of his intent to take 
corrective action to prevent an unacceptable adverse effect satisfactory 
to the Regional Administrator, the Regional Administrator shall publish 
notice of a proposed determination in accordance with the procedures of 
this section. Where the Regional Administrator has notified the District 
Engineer under paragraph (a)(1) of this section that he is considering 
exercising section 404(c) authority with respect to a particular 
disposal site for which a permit application is pending but for which no 
permit has been issued, the District Engineer, in accordance with 33 CFR 
325.8, shall not issue the permit until final action is taken under this 
part.

    Comment: In cases involving a proposed disposal site for which a 
permit application is pending, it is anticipated that the procedures of 
the section 404 referral process will normally be exhausted prior to any 
final decision of whether to initiate a 404(c) proceeding.

    (b) Public notice of every proposed determination and notice of all 
public hearings shall be given by the Regional Administrator. Every 
public notice shall contain, at a minimum:
    (1) An announcement that the Regional Administrator has proposed a 
determination to prohibit or withdraw specification, or to deny, 
restrict, or withdraw the use for specification, of an area as a 
disposal site, including a summary of the facts on which the proposed 
determination is based;
    (2) The location of the existing, proposed or potential disposal 
site, and a summary of its characteristics;
    (3) A summary of information concerning the nature of the proposed 
discharge, where applicable;
    (4) The identity of the permit applicant, if any;
    (5) A brief description of the right to, and procedures for 
requesting, a public hearing; and
    (6) The address and telephone number of the office where interested 
persons may obtain additional information, including copies of the 
proposed determination; and
    (7) Such additional statements, representations, or information as 
the Regional Administrator considers necessary or proper.
    (c) In addition to the information required under paragraph (b) of 
this section, public notice of a public hearing held under Sec. 231.4 
shall contain the following information:
    (1) Reference to the date of public notice of the proposed 
determination;
    (2) Date, time and place of the hearing; and
    (3) A brief description of the nature and purpose of the hearing 
including the applicable rules and procedures.
    (d) The following procedures for giving public notice of the 
proposed determination or of a public hearing shall be followed:
    (1) Publication at least once in a daily or weekly newspaper of 
general circulation in the area in which the defined area is located. In 
addition the

[[Page 276]]

Regional Administrator may (i) post a copy of the notice at the 
principal office of the municipality in which the defined area is 
located, or if the defined area is not located near a sizeable 
community, at the principal office of the political subdivision (State, 
county or local, whichever is appropriate) with general jurisdiction 
over the area in which the disposal site is located, and (ii) post a 
copy of the notice at the United States Post Office serving that area.
    (2) A copy of the notice shall be mailed to the owner of record of 
the site, to the permit applicant or permit holder, if any, to the U.S. 
Fish and Wildlife Service, National Marine Fisheries Service and any 
other interested Federal and State water pollution control and resource 
agencies, and to any person who has filed a written request with the 
Regional Administrator to receive copies of notices relating to section 
404(c) determinations;
    (3) A copy of the notice shall be mailed to the appropriate District 
and Division Engineer(s) and state;
    (4) The notice will also be published in the Federal Register.