[Code of Federal Regulations]

[Title 40, Volume 24]

[Revised as of July 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 40CFR231.3]



[Page 278-279]

 

                   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



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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 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.



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