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 A—General

40 C.F.R. § 230.5

General procedures to be followed

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In evaluating whether a particular discharge site may be specified, the permitting authority should use these Guidelines in the following sequence:

(a) In order to obtain an overview of the principal regulatory provisions of the Guidelines, review the restrictions on discharge in § 230.10(a) through (d), the measures to mimimize adverse impact of subpart H, and the required factual determinations of § 230.11.

(b) Determine if a General permit (§ 230.7) is applicable; if so, the applicant needs merely to comply with its terms, and no further action by the permitting authority is necessary. Special conditions for evaluation of proposed General permits are contained in § 230.7. If the discharge is not covered by a General permit:

(c) Examine practicable alternatives to the proposed discharge, that is, not discharging into the waters of the U.S. or discharging into an alternative aquatic site with potentially less damaging consequences (§ 230.10(a)).

(d) Delineate the candidate disposal site consistent with the criteria and evaluations of § 230.11(f).

(e) Evaluate the various physical and chemical components which characterize the non-living environment of the candidate site, the substrate and the water including its dynamic characteristics (subpart C).

(f) Identify and evaluate any special or critical characteristics of the candidate disposal site, and surrounding areas which might be affected by use of such site, related to their living communities or human uses (subparts D, E, and F).

(g) Review Factual Determinations in § 230.11 to determine whether the information in the project file is sufficient to provide the documentation required by § 230.11 or to perform the pre-testing evaluation described in § 230.60, or other information is necessary.

(h) Evaluate the material to be discharged to determine the possibility of chemical contamination or physical incompatibility of the material to be discharged (§ 230.60).

(i) If there is a reasonable probability of chemical contamination, conduct the appropriate tests according to the section on Evaluation and Testing (§ 230.61).

(j) Identify appropriate and practicable changes to the project plan to minimize the environmental impact of the discharge, based upon the specialized methods of minimization of impacts in subpart H.

(k) Make and document Factual Determinations in § 230.11.

(l) Make and document Findings of Compliance (§ 230.12) by comparing Factual Determinations with the requirements for discharge of § 230.10.

This outline of the steps to follow in using the Guidelines is simplified for purposes of illustration. The actual process followed may be iterative, with the results of one step leading to a reexamination of previous steps. The permitting authority must address all of the relevant provisions of the Guidelines in reaching a Finding of Compliance in an individual case.
Notes of Decisions
Cited in 15 cases (1 in the last 5 years), 1980–2025 · leading case: Ohio Valley Environmental Coalition v. Hurst
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Ohio Valley Environmental Coalition v. Hurst (2009) wvsd · cites it 2× “§ 1344 (a); 40 C.F.R. § 230.5 . Unlike individual permits that only authorize discharges from a specific site, general permits are issued on a state, regional, or nationwide basis.”
Hoosier Environmental Council, Inc. v. U.S. Army Corps of Engineers (2000) insd · cites it 2× “” 40 C.F.R. § 230.5 (c); see also 40 C.F.R.”
Environmental Defense Fund, Inc. v. Alexander (1980) msnd “” See 40 CFR § 230.5 (b)(8). We thus conclude that the Corps considered all relevant factors in selecting its disposal sites.”
Florida Wildlife Federation v. United States Army Corps of Engineers (2005) flsd “Pursuant to 40 C.F.R. § 230.5 , the Corps, as the permitting authority should “[e]xamine practicable alternatives to the proposed discharge, that is, not discharging into the waters of the U.”
Sierra Club v. United States Army Corps of Engineers (2006) njd “40 C.F.R. § 230.5 . In relevant part, the Army Corps first determines whether the project is water-dependent.”
WATER WORKS & SEWER BD. OF CITY OF BIRMINGHAM v. US Dept. of Army, Corps of Engineers (1997) alnd “40 C.F.R. § 230.5 states: In evaluating whether a particular discharge site may be specified, the permitting authority should use the Guidelines in the following sequence: (f) Identify and evaluate any special or critical characteristics of the candidate disposal site, and…”
Alaska Center for the Environment v. West (1998) akd · cites it 2× “Evaluation of an individual permit application requires completion of a multi-step iterative examination process, 40 C.F.R. § 230.5 . No individual permit will be issued “if there is a practicable alternative to the proposed discharge which would have less adverse impact____” 40…”
Monongahela Power Co. v. Marsh (1987) cadc “, 40 C.F.R. § 230.5 (b)(8) (1978) (“[discharge of dredged material in wetlands may be permitted only when it can be demonstrated that the site selected is the least environmentally damaging alternative").”
Utahns for Better Transportation v. United States Department of Transportation (2001) utd “40 C.F.R. § 230.5 (j). If the NEPA documentation does not give consideration to alternatives “in sufficient detail to respond to the requirements of’ the Clean Water Act guidelines, “it may be necessary” for the agency “to supplement these NEPA documents with this additional…”
James City County v. United States Environmental Protection Agency (1990) vaed “See 40 C.F.R. § 230.5 (c). According to section 230.”
Surf & Environment Conservation Coalition v. Department of the Army United States (2004) prd “Defendants’ entire theory ignores the fundamental precepts established in 40 CFR 230.5 that “in evaluating whether a particular discharge site may be specified, the permitting authority should use these Guidelines .”
Sawtooth Mountain Ranch LLC v. United States Forest Service (2020) idd · cites it 2× “See 40 C.F.R. § 230.5 . General permits, on the other hand, are issued on “a State, regional, or nationwide basis.”
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