The Secretary may issue permits, after notice and
opportunity for public hearings for the discharge of dredged or
fill material into the navigable waters at specified disposal
sites. Not later than the fifteenth day after the date an
applicant submits all the information required to complete an
application for a permit under this subsection, the Secretary shall
publish the notice required by this subsection.
Subject to subsection (c) of this section, each such
disposal site shall be specified for each such permit by the
Secretary
- through the application of guidelines developed by
the Administrator, in conjunction with the Secretary, which
guidelines shall be based upon criteria comparable to the criteria
applicable to the territorial seas, the contiguous zone, and the
ocean under section 403(c), and
- in any case where such
guidelines under clause (1) alone would prohibit the specification
of a site, through the application additionally of the economic
impact of the site on navigation and anchorage.
The Administrator is authorized to prohibit the
specification (including the withdrawal of specification) of any
defined area as a disposal site, and he is authorized to deny or
restrict the use of any defined area for specification (including
the withdrawal of specification) as a disposal site, whenever he
determines, after notice and opportunity for public hearings, that
the discharge of such materials into such area will have an
unacceptable adverse effect on municipal water supplies, shellfish
beds and fishery areas (including spawning and breeding areas),
wildlife, or recreational areas. Before making such determination,
the Administrator shall consult with the Secretary. The
Administrator shall set forth in writing and make public his
findings and his reasons for making any determination under this
subsection.
The term "Secretary" as used in this section means
the Secretary of the Army, acting through the Chief of Engineers.
- In carrying out his functions relating to the
discharge of dredged or fill material under this section, the
Secretary may, after notice of opportunity for public hearing,
issue general permits on a State, regional, or nationwide basis for
any category of activities involving discharges of dredged or fill
material if the Secretary determines that the activities in such
category are similar in nature, will cause only minimal adverse
environmental effects when performed separately, and will have only
minimal cumulative adverse effects on the environment. Any general
permit issued under this subsection shall
- be based on the
guidelines described in subsection (b)(l) of this section, and
-
set forth the requirements and standards which shall apply to any
activity authorized by such general permit.
- No general permit issued under this subsection shall
be for a period of more than five years after the date of its
issuance and such general permit may be revoked or modified by the
Secretary if, after opportunity for public hearing, the Secretary
determines that the activities authorized by such general permit
have an adverse impact on the environment or such activities are
more appropriately authorized by individual permits.
- Except as provided in paragraph (2) of this
subsection, the discharge of dredge or fill material -
- from normal farming, silviculture, and ranching
activities such as plowing, seeding, cultivating, minor drainage,
harvesting for the production of food, fiber, and forest products,
or upland soil and water conservation practices;
- for the purpose of maintenance, including
emergency reconstruction of recently damaged parts, of currently
serviceable structures such as dikes, dams, levees, groins, riprap,
breakwaters, causeways, and bridge abutments or approaches, and
transportation structures;
- for the purpose of construction or maintenance
of farm or stock ponds or irrigation ditches, or the maintenance of
drainage ditches;
- for the purpose of construction of temporary
sedimentation basins on a construction site which does not include
placement of fill material into the navigable waters;
- for the purpose of construction or maintenance
or farm roads or forest roads, or temporary roads for moving mining
equipment, where such roads are constructed and maintained, in
accordance with best management practices, to assure that flow and
circulation patterns and chemical and biological characteristics of
the navigable waters are not impaired, that the reach of the
navigable waters is not reduced, and that any adverse effect on the
aquatic environment will be otherwise minimized;
- resulting from any activity with respect to
which a State has an approved program, under section 208(b)(4)
which meets the requirements of subparagraphs (B) and (C) of such
section, is not prohibited by or otherwise subject to regulation
under this section or section 301(a) or 402 of this Act (except for
effluent standards or prohibitions under section 307).
- Any discharge of dredged or fill material into the
navigable waters incidental to any activity having as its purpose
bringing an area of the navigable waters into a use to which it was
not previously subject, where the flow or circulation of navigable
waters may be impaired or the reach of such waters be reduced,
shall be required to have a permit under this section.
- The Governor of any State desiring to administer
its own individual and general permit program for the discharge of
dredged or fill material into the navigable waters (other than
those waters which are presently used, or are susceptible to use in
their natural condition or by reasonable improvement as a means to
transport interstate or foreign commerce shoreward to their
ordinary high water mark, including all waters which are subject to
the ebb and flow of the tide shoreward to their mean high water
mark, or mean higher high water mark on the west coast, including
wetlands adjacent thereto), within its jurisdiction may submit to
the Administrator a full and complete description of the program it
proposes to establish and administer under State law or under an
interstate compact. In addition, such State shall submit a
statement from the attorney general (or the attorney for those
State agencies which have independent legal counsel), or from the
chief legal officer in the case of an interstate agency, that the
laws of such State, or the interstate compact, as the case may be,
provide adequate authority to carry out the described program.
- Not later than the tenth day after the date of the
receipt of the program and statement submitted by any State under
paragraph (1) of this subsection, the Administrator shall provide
copies of such program and statement to the Secretary and the
Secretary of the Interior, acting through the Director of the
United States Fish and Wildlife Service.
- No later than the ninetieth day after the date of the
receipt by the Administrator of the program and statement submitted
by any State, under paragraph (1) of this subsection, the Secretary
and the Secretary of the Interior, acting through the Director of
the United States Fish and Wildlife Service, shall submit any
comments with respect to such program and statement to the
Administrator in writing.
- Not later than the one-hundred-twentieth day after
the date of the receipt by the Administrator of a program and
statement submitted by any State under paragraph (1) of this
subsection, the Administrator shall determine, taking into account
any comments submitted by the Secretary and the Secretary of the
Interior, acting through the Director of the United States Fish and
Wildlife Service, pursuant to subsection (g) of this section,
whether such State has the following authority with respect to the
issuance of permits pursuant to such program:
- To issue permits which -
- apply, and assure compliance with, any
applicable requirements of this section, including, but not limited
to, the guidelines established under subsection (b)(l) of this
section, and sections 307 and 403 of this Act;
- are for fixed terms not exceeding five
years; and
- can be terminated or modified for cause
including, but not limited to, the following:
- violation of any condition of the
permit;
- obtaining a permit by
misrepresentation, or failure to disclose fully all relevant facts;
- change in any condition that requires
either a temporary or permanent reduction or elimination of the
permitted discharge.
- To issue permits which apply, and assure
compliance with, all applicable requirements of section 308 of this
Act, or to inspect, monitor, enter, and require reports to at least
the same extent as required in section 308 of this Act.
- To assure that the public, and any other State
the waters of which may be affected, receive notice of each
application for a permit and to provide an opportunity for public
hearing before a ruling on each such application.
- To assure that the Administrator receives notice
of each application (including a copy thereof) for a permit.
- To assure that any State (other than the
permitting State), whose waters may be affected by the issuance of
a permit may submit written recommendation to the permitting State
(and the Administrator) with respect to any permit application and,
if any part of such written recommendations are not accepted by the
permitting State, that the permitting State will notify such
affected State (and the Administrator) in writing of its failure to
so accept such recommendations together with its reasons for so
doing.
- To assure that no permit will be issued if, in
the judgement of the Secretary, after consultation with the
Secretary of the department in which the Coast Guard is operating,
anchorage and navigation of any of the navigable waters would be
substantially impaired thereby.
- To abate violations of the permit or the permit
program, including civil and criminal penalties and other ways and
means of enforcement.
- To assure continued coordination with Federal
and Federal-State water-related planning and review processes.
- If, with respect to a State program submitted under
subsection (g)(l) of this section, the Administrator determines
that such State -
- has the authority set forth in paragraph (1) of
this subsection, the Administrator shall approve the program and so
notify (i) such State, and (ii) the Secretary, who upon subsequent
notification from such State that it is administering such program,
shall suspend the issuance of permits under subsections (a) and (e)
of this section for activities with respect to which a permit may
be issued pursuant to such State program; or
- does not have the authority set forth in
paragraph (1) of this subsection, the Administrator shall so notify
such State, which notification shall also describe the revisions or
modifications necessary so that such State may resubmit such
program for a determination by the Administrator under this
subsection.
- If the Administrator fails to make a determination
with respect to any program submitted by a State under subsection
(g)(l) of this section within one-hundred-twenty days after the
date of the receipt of such program,
such program shall be deemed approved pursuant to paragraph (2)(A)
of this subsection and the Administrator shall so notify such State
and the Secretary who, upon subsequent notification from such State
that it is administering such program, shall suspend the issuance
of permits under subsection (a) and (e) of this section for
activities with respect to which a permit may be issued by such
State.
- After the Secretary receives notification from the
Administrator under paragraph (2) or (3) of this subsection that a
State permit program has been approved, the Secretary shall
transfer any applications for permits pending before the Secretary
for activities with respect to which a permit may be issued
pursuant to such State program to such State for appropriate
action.
- Upon notification from a State with a permit program
approved under this subsection that such State intends to
administer and enforce the terms and conditions of a general permit
issued by the Secretary under subsection (e) of this section with
respect to activities in such State to which such general permit
applies, the Secretary shall suspend the administration and
enforcement of such general permit with respect to such activities.
Whenever the Administrator determines after public
hearing that a State is not administering a program approved under
section (h)(2)(A) of this section, in accordance with this section,
including, but not limited to, the guidelines established under
subsection (b)(l) of this section, the Administrator shall so
notify the State, and, if appropriate corrective action is not
taken within a reasonable time, not to exceed ninety days after the
date of the receipt of such notification, the Administrator shall:
- withdraw approval of such program until the Administrator
determines such corrective action has been taken, and
- notify
the Secretary that the Secretary shall resume the programs for
the issuance of permits under subsection (a) and (e) of this
section for activities with respect to which the State was issuing
permits and that such authority of the Secretary shall continue in
effect until such time as the Administrator makes the determination
described in clause (1) of this subsection and such State again has
an approved program.
Each State which is administering a permit program
pursuant to this section shall transmit to the Administrator
- a
copy of each permit application received by such State and provide
notice to the Administrator of every action related to the
consideration of such permit application, including each permit
proposed to be issued by such State, and
- a copy of each
proposed general permit which such State intends to issue. Not
later than the tenth day after the date of the receipt of such
permit application or such proposed general permit, the
Administrator shall provide copies of such permit application or
such proposed general permit to the Secretary and the Secretary of
the Interior, acting through the Director of the United States Fish
and Wildlife Service. If the Administrator intends to provide
written comments to such State with respect to such permit
application or such proposed general permit, he shall so notify
such State not later than the thirtieth day after the date of the
receipt of such application or such proposed general permit and
provide such written comments to such State, after consideration of
any comments made in writing with respect to such application or
such proposed general permit by the Secretary and the Secretary of
the Interior, acting through the Director of the United States Fish
and Wildlife Service, not later than the ninetieth day after the
date of such receipt. If such State is so notified by the
Administrator, it shall not issue the proposed permit until after
the receipt of such comments from the Administrator, or after such
ninetieth day, whichever first occurs. Such State shall not issue
such proposed permit after such ninetieth day if it has received
such written comments in which the Administrator objects (A) to the
issuance of such proposed permit and such proposed permit is one
that has been submitted to the Administrator pursuant to subsection
(h)(l)(E), or (B) to the issuance of such proposed permit as being
outside the requirements of this section, including, but not
limited to, the guidelines developed under subsection (b)(l) of
this section unless it modified such proposed permit in accordance
with such comments. Whenever the Administrator objects to the
issuance of a permit under the preceding sentence such written
objection shall contain a statement of the reasons for such
objection and the conditions which such permit would include if it
were issued by the Administrator. In any case where the
Administrator objects to the issuance of a permit, on request of
the State, a public hearing shall be held by the Administrator on
such objection. If the State does not resubmit such permit
revised to meet such objection within 30 days after completion of
the hearing or, if no hearing is requested within 90 days after the
date of such objection, the Secretary may issue the permit pursuant
to subsection (a) or (e) of this section, as the cause may be, for
such source in accordance with the guidelines and requirements of
this Act.
In accordance with guidelines promulgated pursuant to
subsection (i)(2) of section 304 of this Act, the Administrator is
authorized to waive the requirements of subsection (j) of this
section at the time of the approval of a program pursuant to
subsection (h)(2)(A) of this section or any category (including any
class, type, or size within such category) of discharge within the
State submitting such program.
The Administrator shall promulgate regulations
establishing categories of discharges which he determines shall not
be subject to the requirements of subsection (j) of this section in
any State with a program approved pursuant to subsection (h)(2)(A)
of this section. The Administrator may distinguish among classes,
types, and sizes within any category of discharges.
Not later than the ninetieth day after the date on
which the Secretary notifies the Secretary of the Interior, acting
through the Director of the United States Fish and Wildlife Service
that
- an application for a permit under subsection (a) of this
section has been received by the Secretary, or
- the Secretary
proposes to issue a general permit under subsection (e) of this
section, the Secretary of the Interior, acting through the Director
of the United States Fish and Wildlife Service, shall submit any
comments with respect to such application or such proposed general
permit in writing to the Secretary.
Nothing in this section shall be construed to limit
the authority of the Administrator to take action pursuant to
section 309 of this Act.
A copy of each permit application and each permit
issued under this section shall be available to the public. Such
permit application or portion thereof, shall further be available
on request for the purpose of reproduction.
Compliance with a permit issued pursuant to this
section, including any activity carried out pursuant to a general
permit issued under this section, shall be deemed compliance, for
purposes of sections 309 and 505, with sections 301, 307, and 403.
Not later than the one-hundred-eightieth day after
the date of enactment of this subsection, the Secretary shall enter
into agreements with the Administrator, the Secretaries of the
Departments of Agriculture, Commerce, Interior, and Transportation,
and the heads of other appropriate Federal agencies to minimize, to
the maximum extent practicable, duplication,
needless paperwork, and delays in the issuance of permits under
this section. Such agreements shall be developed to assure that,
to the maximum extent practicable, a decision with respect to an
application for a permit under subsection (a) of this section will
be made not later than the ninetieth day after the date the notice
of such application is published under subsection (a) of this
section.
The discharge of dredged or fill material as part of
the construction of a Federal project specifically authorized by
Congress, whether prior to or on or after the date of enactment of
his subsection, is not prohibited by or otherwise subject to
regulation under this section, or a State program approved under
this section, or section 301(a) or 402 of the Act (except for
effluent standards or prohibitions under section 307), if
information on the effects of such discharge, including
consideration of the guidelines developed under subsection (b)(l)
of this section, is included in an environmental impact statement
for such project pursuant to the National Environmental Policy Act
of 1969 and such environmental impact statement has been submitted
to Congress before the actual discharge of dredged or fill material
in connection with the construction of such project and prior to
either authorization of such project or an appropriation of funds
for each construction.
- Whenever on the basis of any information available
to him the Secretary finds that any person is in violation of any
condition or limitation set forth in a permit issued by the
Secretary under this section, the Secretary shall issue an order
requiring such persons to comply with such condition or limitation,
or the Secretary shall bring a civil action in accordance with
paragraph (3) of this subsection.
- A copy of any order issued under this subsection
shall be sent immediately by the Secretary to the State in which
the violation occurs and other affected States. Any order issued
under this subsection shall be by personal service and shall state
with reasonable specificity the nature of the violation, specify a
time for compliance, not to exceed thirty days, which the Secretary
determines is reasonable, taking into account the seriousness of
the violation and any good faith efforts to comply with applicable
requirements. In any case in which an order under this subsection
is issued to a corporation, a copy of such order shall be served on
any appropriate corporate officers.
- The Secretary is authorized to commence a civil
action for appropriate relief, including a permanent or temporary
injunction for any violation for which he is authorized to issue a
compliance order under paragraph (1) of this subsection. Any
action under this paragraph may be brought in the district court of
the United States for the district in which the defendant is
located or resides or is doing business, and such court shall have
jurisdiction to restrain such violation and to require compliance.
Notice of the commencement of such action shall be given immediately
to the appropriate State.
-
- Any person who willfully or negligently violates
any condition or limitation in a permit issued by the Secretary
under this section shall be punished by a fine of not less than
$2,500 nor more than $25,000 per day of violation, or by
imprisonment for not more than one year, or by both. If the
conviction is for a violation committed after a first conviction of
such person under this paragraph, punishment shall be by fine of
not more than $50,000 per day of violation, or by imprisonment for
not more than two years, or by both.
- For the purposes of this paragraph, the term "person"
shall mean, in addition to the definition contained in section
502(5) of this Act, any responsible corporate officer.
- Any person who violates any condition or limitation
in a permit issued by the Secretary under this section, and any
person who violates any order issued by the Secretary under
paragraph (1) of this subsection, shall he subject to a civil
penalty not to exceed $10,000 per day of such violation.
Nothing in this section shall preclude or deny the
right of any State or interstate agency to control the discharge of
dredged or fill material in any portion of the navigable waters
within the jurisdiction of such State, including any activity of
any Federal agency, and each such agency shall comply with such
State or interstate requirements both substantive and procedural to
control the discharge of dredged or fill material to the same
extent that any person is subject to such requirements. This
section shall not be construed as affecting or impairing the
authority of the Secretary to maintain navigation.