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. § 230.6

Adaptability

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(a) The manner in which these Guidelines are used depends on the physical, biological, and chemical nature of the proposed extraction site, the material to be discharged, and the candidate disposal site, including any other important components of the ecosystem being evaluated. Documentation to demonstrate knowledge about the extraction site, materials to be extracted, and the candidate disposal site is an essential component of guideline application. These Guidelines allow evaluation and documentation for a variety of activities, ranging from those with large, complex impacts on the aquatic environment to those for which the impact is likely to be innocuous. It is unlikely that the Guidelines will apply in their entirety to any one activity, no matter how complex. It is anticipated that substantial numbers of permit applications will be for minor, routine activities that have little, if any, potential for significant degradation of the aquatic environment. It generally is not intended or expected that extensive testing, evaluation or analysis will be needed to make findings of compliance in such routine cases. Where the conditions for General permits are met, and where numerous applications for similar activities are likely, the use of General permits will eliminate repetitive evaluation and documentation for individual discharges.

(b) The Guidelines user, including the agency or agencies responsible for implementing the Guidelines, must recognize the different levels of effort that should be associated with varying degrees of impact and require or prepare commensurate documentation. The level of documentation should reflect the significance and complexity of the discharge activity.

(c) An essential part of the evaluation process involves making determinations as to the relevance of any portion(s) of the Guidelines and conducting further evaluation only as needed. However, where portions of the Guidelines review procedure are “short form” evaluations, there still must be sufficient information (including consideration of both individual and cumulative impacts) to support the decision of whether to specify the site for disposal of dredged or fill material and to support the decision to curtail or abbreviate the evaluation process. The presumption against the discharge in § 230.1 applies to this decision-making.

(d) In the case of activities covered by General permits or section 208(b)(4)(B) and (C) Best Management Practices, the analysis and documentation required by the Guidelines will be performed at the time of General permit issuance or section 208(b)(4)(B) and (C) Best Management Practices promulgation and will not be repeated when activities are conducted under a General permit or section 208(b)(4)(B) and (C) Best Management Practices control. These Guidelines do not require reporting or formal written communication at the time individual activities are initiated under a General permit or section 208(b)(4)(B) and (C) Best Management Practices. However, a particular General permit may require appropriate reporting.

Notes of Decisions
Cited in 19 cases (1 in the last 5 years), 1991–2021 · leading case: Audubon Soc'y of Greater Denver v. U.S. Army Corps of Eng'rs, 908 F.3d 593 (10th Cir. 2018).
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Audubon Soc'y of Greater Denver v. U.S. Army Corps of Eng'rs, 908 F.3d 593 (10th Cir. 2018). · cites it 2× “3d at 1271 (quoting 40 C.F.R. § 230.6 (b) ). "The level of documentation should reflect the significance and complexity of the discharge activity.”
Greater Yellowstone Coalition v. Flowers, 359 F.3d 1257 (10th Cir. 2004). “” 40 C.F.R. § 230.6 (b). They further state that “[ajlthough all requirements in § 230.”
Hillsdale Env't Loss Prevention, Inc. v. United States Army Corps of Engineers, 702 F.3d 1156 (10th Cir. 2012). “” 40 C.F.R. § 230.6 (b). In addition, “[ajlthough all requirements in § 230.”
Stewart v. Potts, 996 F. Supp. 668 (S.D. Tex. 1998). · cites it 3× “40 C.F.R. § 230.6 (b). Using this discretion, the Corps determined that, given the minimal acreage and minimal risks found to be associated with the discharge, its analysis was sufficient.”
Town of Norfolk & Town of Walpole v. United States Army Corps of Engineers, 968 F.2d 1438 (1st Cir. 1992). “40 C.F.R. § 230.6 (a) & (b) (1991) (emphasis added).”
Great Rivers Habitat v. US Army Corps of Enginr., 437 F. Supp. 2d 1019 (E.D. Mo. 2006). · cites it 3× “"In evaluating whether a given alternative site is practicable, the Corps may legitimately consider such facts as cost to the applicant and logistics." Sylvester, 882 F.2d at 409.”
Utah Council, Trout Unlimited v. United States Army Corp. of Engineers, 187 F. Supp. 2d 1334 (D. Utah 2002). · cites it 3× “The ACE applies these guidelines at the time that it promulgates the NWPs, and no further evaluation pursuant to section 404(b)(1) is required when a project proponent requests to undertake activities pursuant to an established NWP.”
Florida Wildlife Fed'n v. United States Army Corps of Engineers, 401 F. Supp. 2d 1298 (S.D. Fla. 2005). · cites it 2× “40 CFR § 230.6 and .10(a). The Corps must balance “benefits which reasonably may be expected to accrue from the proposal” against the proposal’s “reasonably foreseeable detriments.”
Wy Outdoor Council Powder River Basin Resources Council v. Us Army Corps of Engineers, 351 F. Supp. 2d 1232 (D. Wyo. 2005). “, 40 C.F.R. §§ 230.6 (d), 230.10. According to the guidelines, the Corps can issue a general permit only where the activities being authorized by the permit are similar both in nature and in impact.”
Gouger v. US Army Corps of Engineers, 779 F. Supp. 2d 588 (S.D. Tex. 2011). · cites it 2× “" 40 C.F.R. § 230.6 (b). The regulations also provide, "[i]t is anticipated that substantial numbers of permit applications will be for minor, routine activities that have little, if any, potential for significant degradation of the aquatic environment.”
Sierra Club v. United States Army Corps of Engineers, 450 F. Supp. 2d 503 (D.N.J. 2006). “10 ; 40 C.F.R. § 230.6 (b); see also Greater Yellowstone Coal.”
Bragg v. Robertson, 72 F. Supp. 2d 642 (S.D.W. Va 1999). “See 40 C.F.R. § 230.6 (c). 32 . The terms " 'aquatic environment’ and 'aquatic ecosystem’ mean waters of the United States, including wetlands, that serve as habitat for interrelated and interacting communities and populations of plants and animals.”
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— 40 C.F.R. § 230.6(a) — 1 case
Town of Norfolk v. United States Army (1st Cir. 1992).
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