C.F.R. » Title 40 » CHAPTER I—ENVIRONMENTAL PROTECTION AGENCY › SUBCHAPTER H—OCEAN DUMPING › PART 230—SECTION 404(b)(1) GUIDELINES FOR SPECIFICATION OF DISPOSAL SITES FOR DREDGED OR FILL MATERIAL › Subpart B—Compliance With the Guidelines

40 C.F.R. § 230.12

Findings of compliance or non-compliance with the restrictions on discharge

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(a) On the basis of these Guidelines (subparts C through G) the proposed disposal sites for the discharge of dredged or fill material must be:

(1) Specified as complying with the requirements of these Guidelines; or

(2) Specified as complying with the requirements of these Guidelines with the inclusion of appropriate and practicable discharge conditions (see subparts H and J) to minimize pollution or adverse effects to the affected aquatic ecosystems; or

(3) Specified as failing to comply with the requirements of these Guidelines where:

(i) There is a practicable alternative to the proposed discharge that would have less adverse effect on the aquatic ecosystem, so long as such alternative does not have other significant adverse environmental consequences; or

(ii) The proposed discharge will result in significant degradation of the aquatic ecosystem under § 230.10(b) or (c); or

(iii) The proposed discharge does not include all appropriate and practicable measures to minimize potential harm to the aquatic ecosystem; or

(iv) There does not exist sufficient information to make a reasonable judgment as to whether the proposed discharge will comply with these Guidelines.

(b) Findings under this section shall be set forth in writing by the permitting authority for each proposed discharge and made available to the permit applicant. These findings shall include the factual determinations required by § 230.11, and a brief explanation of any adaptation of these Guidelines to the activity under consideration. In the case of a General permit, such findings shall be prepared at the time of issuance of that permit rather than for each subsequent discharge under the authority of that permit.

Notes of Decisions
Cited in 11 cases (1 in the last 5 years), 1992–2023 · leading case: Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002).
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Utahns for Better Transp. v. United States Dep't of Transp., 305 F.3d 1152 (10th Cir. 2002). · cites it 3× “40 C.F.R. § 230.12 (a)(3)(i-iv). For non-water dependent projects, it is presumed that a practicable alternative exists and the burden to clearly demonstrate otherwise is on the applicant.”
Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C. Cir. 2011). “They specify that “[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.”
Sierra Club v. Van Antwerp, 719 F. Supp. 2d 58 (D.D.C. 2010). “” 40 C.F.R. § 230.12 (a)(3)(i-iv); see also 33 C.”
Stewart v. Potts, 996 F. Supp. 668 (S.D. Tex. 1998). “Count 2(E) alleges that the factual findings necessary to make compliance determinations under 40 C.F.R. § 230.12 are flawed, and that therefore a finding of compliance under that section is not supported by the record.”
Ohio Valley Env't Coalition, Inc. v. United States Army Corps of Engineers, 883 F. Supp. 2d 627 (S.D.W. Va 2012). “See 40 C.F.R. § 230.12 (a)(2) (compliance with 404(b) Guidelines conditioned on inclusion of appropriate and practicable conditions, including compensatory mitigation), 33 C.”
All. to Save the Mattaponi v. United States Army Corps of Engineers, 606 F. Supp. 2d 121 (D.D.C. 2009). “See 40 C.F.R. § 230.12 . The hiatus, plaintiffs argue, will result in greater pumping during non-hiatus months, which correspond to the lowest flow months of the year and heightens the risk of saltwater encroachment into the tidal freshwater zone with a significant potential…”
Ohio Valley Env't Coalition v. United States Army Corps of Engineers, 674 F. Supp. 2d 783 (S.D.W. Va 2010). “See 40 C.F.R. § 230.12 . Such a permit may be issued without conditions and without further environmental review.”
Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515 (10th Cir. 1992). “Additionally, under 40 C.F.R. § 230.12 the proposed discharge of dredged or fill material must be specified as (1) complying with the Guidelines or (2) complying with the Guidelines with "appropriate and practicable discharge conditions” or (3) failing to comply with the…”
Am. Bird Conservancy v. Brouillette (D.D.C. 2023). · cites it 2× “11-1 at 50 (quoting 40 C.F.R. § 230.12 (a)(3)). And because the Corps’ regulations require it to “give full consideration to the views of [FWS] on fish and wildlife matters,” its departure from FWS’s views on this issue was unreasonable.”
Sierra Club v. Van Antwerp, 661 F.3d 1147 (D.C. Cir. 2012). “They specify that “[a]n alternative is practicable if it is available and capable of being done after taking into consideration cost, existing technology, and logistics in light of overall project purposes.” 40 C.F.R. § 230.10 (a)(2).”
Sierra Club v. Van Antwerp (D.D.C. 2010). “” 40 C.F.R. § 230.12 (a)(3)(i-iv); see also 33 C.”
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