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logical systems, or economic potentialities; as preventing any reasonable or custom- 
ary use of the marine environment from being made; or to adversely affect an area 
of ocean waters to the extent that it cannot naturally restore itself, after dumping is 
terminated, to the environmental, ecological, estethic (sic) and economic posture ex- 
isting before dumping in the area was authorized under this Act. 
The effect of these provisions would be to effectively prohibit all ocean dumping of 
dredged material for many ports. The AAPA urges that this approach of allowing 
“no deregulation” be abandoned. 
The present provisions of the MPRSA prohibit only “unreasonable degradation”’ 
(Sec. 102(a), 108(a), 4(d)). This standard should be retained. Whether or not, in a 
given case, adverse effects from ocean dumping of dredged material should be al- 
lowed is necessarily a “balancing” process, involving a consideration of all factors— 
pro and con—relating to the proposed dredging and disposal operation. In the case 
of the MPRSA, this “balancing” process should include consideration of the criteria 
to be established under Sec. 102 (which are to be applied to dredged material under 
Sec. 103), including a consideration of all factors affecting the “public interest.” 2 
The need for such a “balancing” has recently been affirmed by the United States 
District Court for the Southern District of New York in City of New York v. EPA, 15 
ERC 1965 (S.D.N.Y. 1981). Maintaining the focus upon “unreasonable degradation”’ 
would also be consistent with the approach taken in the Ocean Discharge Criteria 
established pursuant to Sec. 408(c) of the Clean Water Act (8 USC § 1343(c)). 40 CFR 
Part 125, 45 Fed. Reg. 65942 et seq., October 3, 1980. This “balancing” process is not 
satisfied by a prohibition of any degradation (whether unreasonable or not) when- 
ever there is any “feasibile and prudent alternative” (as defined in Sec. 102(a)(4), pp. 
8-9) to ocean dumping.? 
Three additional changes are also needed in the concept of “degradation” in the 
Discussion Draft. The first is that “degradation” should not include all adverse ef- 
fects, but should be limited to “significant” adverse effects. This would reflect real 
world concerns and would be consistent with the approach taken in the Ocean Dis- 
charge Criteria established under Sec. 403(c). 40 CFR § 125.121(e)(1), 45 Fed. Reg. 
65953. Secondly, degradation should not include all instances where the dump site 
cannot naturally restore itself after the dumping is terminated. By the very nature 
of things, many dumping activities will cause some permanent change and prevent 
full natural restoration of the dump site. While this is a fact that may be taken into 
account in site designation or in the balancing process to determine “unreasonable 
degradation,” it should not be used to prohibit issuance of an ocean dumping 
permit, per se. Third, “degradation” should not be broadly defined to include the 
prevention of any reasonable or customary use of the marine environment from 
being made.* Such a provision would entail recognition of (and deference to) rights 
of use of other persons, as opposed to effects upon the intrinsic marine environment 
itself. Such considerations should be taken into account, if at all, only in the deter- 
mination of “unreasonable degradation” —a balancing process involving considera- 
tion of the Sec. 102(a) criteria and including all factors affecting the “public inter- 
est’. 
The concept of “unreasonable degradation“ coud be incorporated into the Discus- 
sion Draft by substituting that term in place of “degradation” in Sec. 102(a)(2) and 
Sec. 103(a), and by deleting the proposed definition of “degrade” (Sec. 3(m), p. 3) and 
substituting in lieu thereof the following definition of ‘unreasonably degrade” °: 
(m) “Unreasonably degrade’, when used in the context of this Title, means that 
the dumping will have the following effects: (1) a significant and unacceptable ad- 
verse effect on human health, welfare, or amenities; or (2) a significant and unac- 
2 In part B(1) of this statement, the AAPA proposes appropriate amendment of section 102 (or 
alternatively amendment of sec. 103) to require a consideration of all “public interest’’ factors. 
3 Section 7 of the Discussion Draft (“Miscellaneous Amendments’), p. 16, would define “unrea- 
sonably degrade” in this manner. 
In the balancing process proposed by the AAPA, the existence of “feasible and prudent alter- 
natives” (as proposed to be defined by the AAPA in part B(2), infra) would be a factor to consid- 
er as part of the section 102 criteria in determining “unreasonable degradation” and the “public 
interest.” 
4 Any provision of this nature would necessarily require some limitation as to the “signifi- 
cance” of the past use. It should also include such historical uses as past utilization of the area 
as a disposal site for dredged material. 
5 The concept of “unreasonable degradation” might also be implemented through use of the 
definition of “unreasonably degrade” in Section 7 of the Discussion Draft (“miscellaneous 
amendments”), provided the “criteria” to be applied in determining whether a “feasible and 
prudent alternative” exists are changed as suggested by the AAPA in part B(2) of this state- 
ment. 
