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 D—Potential Impacts on Biological Characteristics of the Aquatic Ecosystem

40 C.F.R. § 230.30

Threatened and endangered species

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(a) An endangered species is a plant or animal in danger of extinction throughout all or a significant portion of its range. A threatened species is one in danger of becoming an endangered species in the foreseeable future throughout all or a significant portion of its range. Listings of threatened and endangered species as well as critical habitats are maintained by some individual States and by the U.S. Fish and Wildlife Service of the Department of the Interior (codified annually at 50 CFR 17.11). The Department of Commerce has authority over some threatened and endangered marine mammals, fish and reptiles.

(b) Possible loss of values: The major potential impacts on threatened or endangered species from the discharge of dredged or fill material include:

(1) Covering or otherwise directly killing species;

(2) The impairment or destruction of habitat to which these species are limited. Elements of the aquatic habitat which are particularly crucial to the continued survival of some threatened or endangered species include adequate good quality water, spawning and maturation areas, nesting areas, protective cover, adequate and reliable food supply, and resting areas for migratory species. Each of these elements can be adversely affected by changes in either the normal water conditions for clarity, chemical content, nutrient balance, dissolved oxygen, pH, temperature, salinity, current patterns, circulation and fluctuation, or the physical removal of habitat; and

(3) Facilitating incompatible activities.

(c) Where consultation with the Secretary of the Interior occurs under section 7 of the Endangered Species Act, the conclusions of the Secretary concerning the impact(s) of the discharge on threatened and endangered species and their habitat shall be considered final.

Notes of Decisions
Cited in 3 cases (1 in the last 5 years), 1997–2023 · 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). “Impacts that should be considered in making the factual determinations and in making the finding of compliance or non-compliance include: major potential impacts on threatened or endangered species, 40 C.F.R. § 230.30 (b); loss or change of breeding or nesting areas, escape…”
Forest Props., Inc. v. United States, 39 Fed. Cl. 56 (Fed. Cl. 1997). “See 40 C.F.R. §§ 230.30 -.40. This well-developed regulatory scheme was firmly in place and being enforced at the time FPI purchased the upland property and the option rights in 1988.”
O'Reilly v. US Army Corps of Eng (5th Cir. 2023). “For example, in evaluating the project’s potential impact on the biological characteristics of the aquatic ecosystem, per 40 C.F.R. § 230.30 , the Corps determined that the project would have no impact on threatened and endangered species, a short-term 9 Case: 22-30608 Document:…”
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