40 C.F.R. § 231.3

Procedures for proposed determinations

Read at: eCFRecfr.gov CornellLII GovInfogovinfo.gov CasesGoogle Scholar

(a) If the Regional Administrator has reason to believe after evaluating the information available to him, including any record developed under the section 404 referral process specified in 33 CFR 323.5(b), that an “unacceptable adverse effect” could result from the specification or use for specification of a defined area for the disposal of dredged or fill material, he may initiate the following actions:

(1) The Regional Administrator will notify the District Engineer or the state, if the site is covered by an approved state program, the owner of record of the site, and the applicant, if any, in writing that the Regional Administrator intends to issue a public notice of a proposed determination to prohibit or withdraw the specification, or to deny, restrict or withdraw the use for specification, whichever the case may be, of any defined area as a disposal site.

(2) If within 15 days of receipt of the Regional Administrator's notice under paragraph (a)(1) of this section, it has not been demonstrated to the satisfaction of the Regional Administrator that no unacceptable adverse effect(s) will occur or the District Engineer or state does not notify the Regional Administrator of his intent to take corrective action to prevent an unacceptable adverse effect satisfactory to the Regional Administrator, the Regional Administrator shall publish notice of a proposed determination in accordance with the procedures of this section. Where the Regional Administrator has notified the District Engineer under paragraph (a)(1) of this section that he is considering exercising section 404(c) authority with respect to a particular disposal site for which a permit application is pending but for which no permit has been issued, the District Engineer, in accordance with 33 CFR 325.8, shall not issue the permit until final action is taken under this part.

Comment: In cases involving a proposed disposal site for which a permit application is pending, it is anticipated that the procedures of the section 404 referral process will normally be exhausted prior to any final decision of whether to initiate a 404(c) proceeding.

(b) Public notice of every proposed determination and notice of all public hearings shall be given by the Regional Administrator. Every public notice shall contain, at a minimum:

(1) An announcement that the Regional Administrator has proposed a determination to prohibit or withdraw specification, or to deny, restrict, or withdraw the use for specification, of an area as a disposal site, including a summary of the facts on which the proposed determination is based;

(2) The location of the existing, proposed or potential disposal site, and a summary of its characteristics;

(3) A summary of information concerning the nature of the proposed discharge, where applicable;

(4) The identity of the permit applicant, if any;

(5) A brief description of the right to, and procedures for requesting, a public hearing; and

(6) The address and telephone number of the office where interested persons may obtain additional information, including copies of the proposed determination; and

(7) Such additional statements, representations, or information as the Regional Administrator considers necessary or proper.

(c) In addition to the information required under paragraph (b) of this section, public notice of a public hearing held under § 231.4 shall contain the following information:

(1) Reference to the date of public notice of the proposed determination;

(2) Date, time and place of the hearing; and

(3) A brief description of the nature and purpose of the hearing including the applicable rules and procedures.

(d) The following procedures for giving public notice of the proposed determination or of a public hearing shall be followed:

(1) Publication at least once in a daily or weekly newspaper of general circulation in the area in which the defined area is located. In addition the Regional Administrator may (i) post a copy of the notice at the principal office of the municipality in which the defined area is located, or if the defined area is not located near a sizeable community, at the principal office of the political subdivision (State, county or local, whichever is appropriate) with general jurisdiction over the area in which the disposal site is located, and (ii) post a copy of the notice at the United States Post Office serving that area.

(2) A copy of the notice shall be mailed to the owner of record of the site, to the permit applicant or permit holder, if any, to the U.S. Fish and Wildlife Service, National Marine Fisheries Service and any other interested Federal and State water pollution control and resource agencies, and to any person who has filed a written request with the Regional Administrator to receive copies of notices relating to section 404(c) determinations;

(3) A copy of the notice shall be mailed to the appropriate District and Division Engineer(s) and state;

(4) The notice will also be published in the Federal Register.

Notes of Decisions

Cited in 12 cases (1 in the last 5 years), 1985–2021 · leading case: Trout Unlimited v. Michelle Pirzadeh, 1 F.4th 738 (9th Cir. 2021).

Sort: Relevance Newest Treatment

Trout Unlimited v. Michelle Pirzadeh, 1 F.4th 738 (9th Cir. 2021). · cites it 12× “6 (b); 40 C.F.R. § 231.3 (a)(2). But “the Corps will continue to complete the administrative processing of [any permit] application while the section 404(c) procedures are underway.”

Preserve Endangered Areas of Cobb's History, Inc. v. United States Army Corps of Engineers, 87 F.3d 1242 (11th Cir. 1996). “40 C.F.R. § 231.3 (a). We agree with the EPA that this power is discretionary.”

All. to Save the Mattaponi v. United States Army Corps of Engineers, 515 F. Supp. 2d 1 (D.D.C. 2007). “1 (a) (1994); 40 C.F.R. § 231.3 (a) (1994). 915 F.Supp.”

Newport Galleria Grp. v. Deland, 618 F. Supp. 1179 (D.D.C. 1985). · cites it 3× “” 40 C.F.R. § 231.3 (a) (1984) (emphasis supplied).”

Mingo Logan Coal Co. v. United States Env't Prot. Agency, 714 F.3d 608 (D.C. Cir. 2013). “6 (b) (“The Corps will not issue a permit where the regional administrator of EPA has notified the district engineer and applicant in writing pursuant to 40 CFR 231.3(a)(1) that he intends to issue a public notice of a proposed determination to prohibit or withdraw the…”

Mingo Logan Coal Co., Inc. v. United States Env't Prot. Agency, 850 F. Supp. 2d 133 (D.D.C. 2012). “See 40 C.F.R. § 231.3 . It also ignores the fact that as it has previously recognized, specifications can exist independent of section 404(a) permits.”

City of Olmsted Falls v. United States Env't Prot. Agency, 266 F. Supp. 2d 718 (N.D. Ohio 2003). “See also 40 C.F.R. 231.3 (“If the Regional Administrator has reason to believe.”

Bristol Bay Econ. Dev. Corp. v. Pirzadeh (D. Alaska 2020). · cites it 8× “8 40 C.F.R. § 231.3 (a). EPA regulations define an “unacceptable adverse effect” as an “impact on an aquatic or wetland ecosystem which is likely to result in significant degradation of municipal water supplies .”

Pebble Ltd. P'ship v. United States Env't Prot. Agency, 155 F. Supp. 3d 1000 (D. Alaska 2014). · cites it 4× “” 40 C.F.R. § 231.3 (a). The owner of the site or applicant, if any, then has fifteen (15) days in which to demonstrate to the satisfaction of the RA “that no unacceptable adverse effect(s) will occur.”

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…”

Mingo Logan Coal Co. v. EPA (D.C. Cir. 2013). “6 (b) (“The Corps will not issue a permit where the regional administrator of EPA has notified the district engineer and applicant in writing pursuant to 40 CFR 231.3(a)(1) that he intends to issue a public notice of a proposed determination to prohibit or withdraw the…”

Bd. of Mississippi Levee Commissioners v. United States Env't Prot. Agency, 785 F. Supp. 2d 592 (N.D. Miss. 2011). “In accordance with 40 C.F.R. Section 231.3(a)(2), EPA Region IV published notice of the Proposed Determination in the Federal Register on March 19, 2008.”

— 40 C.F.R. § 231.3(a)(1) — 2 cases

— 40 C.F.R. § 231.3(a)(2) — 1 case

Annotations are extracted automatically from the opinions in the Syfert caselaw corpus and ranked by authority, recency, and treatment. Dots show Syfertize treatment of the citing case itself.