40 C.F.R. § 231.1

Purpose and scope

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(a) The Regulations of this part include the procedures to be followed by the Environmental Protection agency in prohibiting or withdrawing the specification, or denying, restricting, or withdrawing the use for specification, of any defined area as a disposal site for dredged or fill material pursuant to section 404(c) of the Clean Water Act (“CWA”), 33 U.S.C. 1344(c). The U.S. Army Corps of Engineers or a state with a 404 program which has been approved under section 404(h) may grant permits specifying disposal sites for dredged or fill material by determining that the section 404(b)(1) Guidelines (40 CFR Part 230) allow specification of a particular site to receive dredged or fill material. The Corps may also grant permits by determining that the discharge of dredged or fill material is necessary under the economic impact provision of section 404(b)(2). Under section 404(c), the Administrator may exercise a veto over the specification by the U.S. Army Corps of Engineers or by a state of a site for the discharge of dredged or fill material. The Administrator may also prohibit the specification of a site under section 404(c) with regard to any existing or potential disposal site before a permit application has been submitted to or approved by the Corps or a state. The Administrator is authorized to prohibit or otherwise restrict a site whenever he determines that the discharge of dredged or fill material is having or will have an “unacceptable adverse effect” on municipal water supplies, shellfish beds and fishery areas (including spawning and breeding areas), wildlife, or recreational areas. In making this determination, the Administrator will take into account all information available to him, including any written determination of compliance with the section 404(b)(1) Guidelines made in 40 CFR part 230, and will consult with the Chief of Engineers or with the state.

(b) These regulations establish procedures for the following steps:

(1) The Regional Administrator's proposed determinations to prohibit or withdraw the specification of a defined area as a disposal site, or to deny, restrict or withdraw the use of any defined area for the discharge of any particular dredged or fill material;

(2) The Regional Administrator's recommendation to the Administrator for determination as to the specification of a defined area as a disposal site.

(3) The Administrator's final determination to affirm, modify or rescind the recommended determination after consultation with the Chief of Engineers or with the state.

(c) Applicability: The regulations set forth in this part are applicable whenever the Administrator is considering whether the specification of any defined area as a disposal site should be prohibited, denied, restricted, or withdrawn. These regulations apply to all existing, proposed or potential disposal sites for discharges of dredged or fill material into waters of the United States, as defined in 40 CFR 230.2.

Notes of Decisions

Cited in 14 cases, 1992–2015 · leading case: Mingo Logan Coal Co., Inc. v. United States Env't Prot. Agency, 850 F. Supp. 2d 133 (D.D.C. 2012).

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Mingo Logan Coal Co., Inc. v. United States Env't Prot. Agency, 850 F. Supp. 2d 133 (D.D.C. 2012). · cites it 2× “9, 1979) (codified in 40 C.F.R. § 231.1 (a)) ("[The statute] refers twice to the 'withdrawal of specification' which clearly refers to action by EPA after the Corps has specified a site [e.”

All. to Save the Mattaponi v. United States Army Corps of Engineers, 515 F. Supp. 2d 1 (D.D.C. 2007). “” See 40 C.F.R. § 231.1 (a) (1994); 40 C.F.R. § 231.”

City of Olmsted Falls v. United States Env't Prot. Agency, 266 F. Supp. 2d 718 (N.D. Ohio 2003). “See 40 C.F.R. § 231.1 (a) (“Under section 404(c), the Administrator may exercise a veto over the specification by the U.”

Mingo Logan Coal Co., Inc. v. United States Env't Prot. Agency, 70 F. Supp. 3d 151 (D.D.C. 2014). “” 40 C.F.R. § 231.1 (a)-(b). This veto authority may be exercised before or after the Corps issues a permit.”

Hoosier Env't Council, Inc. v. U.S. Army Corps of Engineers, 105 F. Supp. 2d 953 (S.D. Ind. 2000). “” 40 C.F.R. § 231.1 (a) (quotations omitted).”

All. to Save the Mattaponi v. United States Army Corps of Engineers, 606 F. Supp. 2d 121 (D.D.C. 2009). “The Regional Administrator (who, by regulation, must first recommend that the Administrator deny a permit, see 40 C.F.R. § 231.1 ) based his decision on his determination that engaging in the required notice and comment proceedings would divert resources; that given the…”

Pebble Ltd. P'ship v. United States Env't Prot. Agency, 604 F. App'x 623 (9th Cir. 2015). · cites it 2× “See 40 C.F.R. § 231.1 (a). The agency simply acted in accordance with that preexisting interpretation of the statute when it issued the February 28 letter; the letter was not a new, final decision on the scope of EPA’s statutory authority.”

N. Crawfish Frog v. Fed. High. Admin., 858 F. Supp. 1503 (D. Kan. 1994). “§ 1344 (c); 40 C.F.R. § 231.1 (a), 231.2(e). Id. at 1524-1525 (footnotes omitted).”

Holy Cross Wilderness Fund v. Madigan, 960 F.2d 1515 (10th Cir. 1992). “§ 1344 (c); 40 C.F.R. § 231.1 (a), 231.-2(e). That has not been done in this case.”

D'Olive Bay Restoration & Pres. Comm., Inc. v. United States Army Corps of Engineers, 513 F. Supp. 2d 1261 (S.D. Ala. 2007). “” 40 C.F.R. § 231.1 (a). In this case the EPA made no other determinations regarding this permit.”

James City Cnty. v. Env't Prot. Agency, 12 F.3d 1330 (4th Cir. 1993). “II The district court, in ruling that the EPA erred in not discussing the County’s need for water, cited 40 C.F.R. § 231.1 (a) which defines the “purpose and scope” of Part 231 relating to procedures and directs that the EPA consider “all information available to [it].”

Preserve Endangered Areas of Cobb's v. Us Army, 915 F. Supp. 378 (N.D. Ga. 1995). “Instead, plaintiffs contend that to adopt the aforementioned interpretation would render the citizen suit provision of § 1365(a)(2) impotent; the Corps cannot be sued as the Secretary is not named within the statute, and the EPA cannot be sued because the veto determination is a…”

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