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THE REGULATORY PROCESS 



The two primary authorities under which the disposal of 

 dredged material is regulated for both programs are section 404 

 of the CWA and section 103 of the Ocean Dumping Act. Section 404 

 of the CWA permits apply to the discharge of dredged or fill 

 material into "waters of the United States." Such waters are 

 generally defined to include all inland waters, coastal waters, 

 including the territorial seas, and most wetlands. The limit of 

 jurisdiction under section 404 of the CWA in the territorial seas 

 is three nautical miles seaward of the baseline. The baseline is 

 generally defined as the line on the shore reached by the 

 ordinary low tide. Permits under section 103 of the Ocean 

 Dumping Act apply to the transportation of dredged material for 

 the purpose of ocean disposal, seaward of the baseline of the 

 territorial sea. Thus, there is geographic jurisdictional 

 overlap between section 404 of the CWA and section 103 of the 

 Ocean Dumping Act in the territorial seas. EPA's 404(b)(1) 

 Guidelines contain a provision, which the Army agreed to, that 

 establishes the rule that the disposal of dredged material in the 

 territorial seas will be regulated under the Ocean Dumping Act. 

 In other words, disposal of dredged material landward of the 

 baseline is regulated under section 404 and disposal seaward of 

 the baseline under section 103. Additionally, proposed 

 discharges of dredged material regulated by the Corps under the 

 CWA or the Ocean Dumping Act must be certified by the state as 

 complying with the applicable provisions of section 401 of the 

 CWA for all inland and coastal waters. Most coastal states also 

 administer coastal zone management programs under the federal 

 Coastal Zone Management Act. Discharges of dredged material that 

 may affect a coastal zone must also be determined to be 

 consistent, to the maximum extent practicable, with enforceable 

 policies of the state's coastal zone management program prior to 

 authorization of the federal project or regulated activity. 



The Corps' evaluation of a proposed dredged material 

 disposal activity involves determining whether the project 

 complies with Corps' regulations, the section 404(b)(1) 

 Guidelines for disposal in inland and near coastal waters, and 

 ocean dumping criteria for disposal in oceans. The process 

 generally begins with a pre-application consultation to ensure 

 regulatory requirements are understood, including any necessary 

 testing. The application phase includes the evaluation of all 

 necessary documentation, including test results, to determine 

 whether the dredged material may be contaminated and requires 

 special handling. The testing procedures required under the 

 Ocean Dumping Act utilize a manual developed by the Corps and 

 EPA, entitled, "Evaluation of Dredged Material Proposed for Ocean 

 Disposal - Testing Manual," commonly called the "Green Book". 

 The Green Book provides for a progressive effects-based testing 

 procedure. 



