303 



Q. 33: A) Which Federal agency — EPA or the Corps — has final authority to de- 

 termine whether dredging and disposal projects are "environmentally acceptable"? 



A. 33: A) The determination of environmental acceptability of dredging and dis- 

 posal projects is made by a number of Federal and State agencies, depending in part 

 on the nature of the activity, in what waters it occurs, and at what point one is in 

 the decisionmaking process. 



In most cases, dredging projects involve a discharge of dredged material into 

 waters of the United States or into ocean waters. When such a discharge is involved 

 (including the runoff or overflow from a contained land or water disposal site), the 

 Corps is the permitting authority,* and makes a determination with the input of 

 Federal agencies. State agencies, and the general public through the Public Notice 

 process. If EPA disagrees with the Corps, EPA retains the ultimate authority, pur- 

 suant to Section 404(c) of the Clean Water Act (CWA) for waters of the U.S., or pur- 

 suant to Section 103 of the Marine Protection Research, and Sanctuaries Act 

 (MPRSA) for ocean waters, to determine the acceptability of environmental impacts 

 of the discharge on certain aquatic resources. 



Dredging projects that do not subsequently involve a discharge of dredged materi- 

 al into waters of the United States are not subject to Section 404, but are subject to 

 Section 10 of the Rivers and Harbors Act. The Corps makes the fmal determination 

 of acceptability when an activity is governed only by Section 10, subject to the para- 

 graphs below. 



Pursuant to CWA Section 401, the States provide water quality certification for 

 federally permitted or licensed (or conducted) dredging activities under CWA Sec- 

 tion 404 and River and Harbors Act Section 10. Both authorities are subject to CWA 

 Section 401 review including State water quality standards adopted pursuant to 

 CWA Section 303(c), other CWA requirements, and appropriate requirements of 

 State law. 



EPA also reviews required environmental impact documentation prepared for 

 Corps regulatory decisions and Civil Works dredging and disposal projects, pursuant 

 to NEPA. At present, if EPA determines that a decision is "environmentally unac- 

 ceptable," the Agency may elevate the issue to the President's Council of Environ- 

 mental Quality. 



Q. 33: B) Are Federal agencies, such as the Corps, under an obligation to carry 

 out their actions in compliance with Federal water quality standards? Is the same 

 true for EPA-approved State water quality standards? If these two types of stand- 

 ards are treated differently, what is the legal authority or other justification? 



A. 33: B) Federal Eigencies, such as the Corps, are under an obligation to carry out 

 their actions in compliance with both types of these standards. A Federal water 

 quality standard is promulgated when a State fails to promulgate adequate water 

 quality standards of their own. 



In the case of the CWA, Section 301(bXlXC) requires Ck)rps compliance wdth feder- 

 ally promulgated water quality standards in the issuance of permits to the same 

 extent as for EPA-approved State water quality standards. ^ This requirement is con- 

 tained in the (Corps' regulations as well. In the case of the Marine Protection, Re- 

 search, and Sanctuaries Act (MPRSA), Section 102 prohibits dumping which would 

 violate applicable water quality standards and does not distinguish between federal- 

 ly promulgated or state water quedity standards. 



Pursuant to CWA Section 304(a), EPA issues Federal water quality criteria to be 

 used by the States. States use this guidance and other information to adopt criteria 

 into State law to support designated uses. The criteria and designated uses are 

 adopted as water quality standards subject to EPA review and approval. The <3orps 

 obtains State Section 401 certification (or waiver) for Ck)rps-permitted (or conduct^) 

 activities which may involve a discharge to a State's waters. In addition, as part of 

 demonstrating compliance with the CWA or the MPRSA, the activity regulated or 

 conducted by the Corps is required to meet applicable State water quality standards. 



Q. 33: C) Must any Corps determination of its "least costly and environmentally 

 acceptable" Federal standard embody from the outset the minimum of environ- 

 mental acceptability defined by compliance with Federal and EPA-approved State 

 water quality standards? Please explain. 



' Note that for Corps Civil Works navigation and maintenance projects (as opposed to regula- 

 tory review of other proposed discharges), the Corps of Engineers conducts the equivalent of the 

 CWA Section 404(bXl) Guidelines or MPRSA § 103 analysis to determine environmental impacts, 

 even though they do not issue themselves a permit. 



* The most recent Federal promulgation of water quality standards was for toxic poUutemts in 

 14 States (see 57 FR 60848, December 22, 1992). 



